Election official: Citizen legislating is public business

Election official: Citizen legislating is public business

petitions1Initiative activist Tim Eyman has been rebuffed in his attempt to overturn the Office of Secretary of State’s policy of treating initiative and referendum petitions as releasable public records.

That question is, of course, being litigated in federal court as we speak (or blog).  Social conservatives who oppose the state’s new domestic partnership law have secured a federal court order blocking release of Referendum 71 petitions. Secretary Sam Reed, backed by the counsel of Attorney General Rob McKenna, has headed to the 9th Circuit Court of Appeals.

Eyman, the state’s most prolific initiative sponsor, widely circulated a letter he sent Reed late last week asking him to reverse his policy of allowing petitions to be released as public records.  Shane Hamlin, assistant director of elections and head of the initiative and referendum program, replied Monday that Eyman’s demand presumes Reed would “ignore state law and disregard the position of the attorney general on these matters.”

Regardless of what previous secretaries have done with petitions, Reed and McKenna believe the state’s voter-approved Public Records Act includes no exemption for shielding legitimate public records from release, Hamlin wrote Eyman.  When people take part in the referendum and initiative process, they are acting as citizen legislators, an inherently public act, he wrote. The use of “direct democracy” is quite different from the secrecy of the ballot box.

“The elected Legislature does not act in secret. Citizens engaging in legislative action should not be permitted to act in secrecy either,” Hamlin wrote.

Postscript: A new Elway Poll shows that this isn’t the popular position to take. The respondents said by a 52 percent to 39 percent margin that petitions should be kept private. Both sides of the R-71 battle concurred on this point. But regarding Eyman’s own Initiative 1033, 62 percent of those who plan to vote with him said I-1033 petitions should be kept private and 54 percent of his opponents say they want to see who signed his petitions.  (The horse is out of the barn on this one: The I-1033 petitions were already previously released to one requester, the National Education Association…)

7 thoughts on “Election official: Citizen legislating is public business”

  1. Here is the letter that was sent to Secretary Reed on Friday:

    Sam Reed
    Secretary of State
    Olympia, Washington

    September 25, 2009

    RE: Release of names, signatures, and home addresses on referendum and initiative petitions

    Dear Secretary Reed:

    We have recently become aware of a request to your office seeking copies of un-redacted petitions for several previously submitted ballot measures with the names, signatures, and home addresses of millions of citizens. This request was submitted on September 18, 2009 and specifically requested the petitions from the following initiatives: 1033 – Tax limits, 2009; 985 – Transportation, 2008; 960 – Tax limits, 2007; 920 – Estate taxes, 2006; 917 – Car tabs, 2006; 912 – Gas tax, 2005; 900 – Performance audits, 2005; 776 – Car tabs, 2002; 747 – Property tax limits, 2001; 745 – Transportation funding, 2000; 722 – Property tax limits, 2000.

    That’s a total 3,404,536 names, signatures, and home addresses.

    While the request is for the costs of obtaining these documents, it is not unreasonable to assume a request for all or some of the documents will soon follow.

    As citizens of the state of Washington and as voters, we demand that you deny this request and any subsequent requests and follow the lead and the example of the other individuals who have held the position you are now in. It has been the long-time policy and well-established position of the Secretary of State’s office that the information contained on these petitions is private information about individuals that could potentially be used for commercial purposes, identity theft, discrimination, and/or harassment.

    You were assistant Secretary of State to Lud Kramer at the time, so you must remember that, following the passage of the Public Records Act I-276 in 1972, the Secretary of State’s office in 1973 refused to turn over the names, signatures, and home addresses of the 699,000 citizens who signed Initiative 282, sponsored by Lynnwood furniture salesman Bruce Helm, which capped legislators’ salaries. The initiative was prompted by the Legislature’s midnight vote on the last day of the legislative session for a massive pay raise for themselves in the midst of national wage-and-price controls.

    A lawsuit was filed in Thurston County Superior Court (Chaney v. Kramer, Cause No. 48733) where the plaintiff sought to obtain the names, signatures, and home addresses of the citizens who signed petitions for I-282. The Secretary of State’s position was upheld and the petitions were not allowed to be copied.

    In a public release in 1973, Lud Kramer explained: “It has been my policy not to release the names of citizens signing initiative and referendum petitions. As far as I’m concerned petitions … are being held in trust by this office. Furthermore, the release of these signatures have no legal value, but could have deep political ramifications to those signing. I will not violate public trust.”

    The Secretary of State’s practice of not turning over personal information on petitions has been maintained for 95 years, including during the tenure of Lud Kramer, Bruce Chapman, the 20 years of Ralph Munro, and your first six years as Secretary of State. There is a 1938 Attorney General’s opinion (“It is the public policy of this state that we uphold the secret ballot in every particular and these petitions are, more or less, in effect a vote of those who sign the petitions … your office should refuse to permit them to be inspected and copied.”) backed up by a 1956 AG opinion (“With the exception of representatives of the public entitled to be present during the canvass of the signatures, we reaffirm our previous opinion.”), but, contrary to statements by you and your office, there has not been a subsequent attorney general’s opinion on this subject.

    Secretary Reed, a policy of releasing the names, signatures, and home addresses on petitions would create a “prior restraint” on future measures for those citizens who would have otherwise participated in their right to referendum and initiative. The wisdom of your predecessors should guide you and provide clarity on this issue.

    The people’s right to the initiative and referendum process is guaranteed by our state Constitution. No law, rule, policy, or practice may interfere with that right. Only laws, rules, policies, and practices that facilitate the process are allowed under our state Constitution. Your reversal of 95 years of Secretary of State practice frustrates, and does not facilitate, the process.

    You have sworn to uphold the state Constitution. You have a fiduciary responsibility to the people of this state to not expose them to harm. It is standard procedure for public agencies to inform all individuals, prior to the release of documents, that their information may be released and afford them the opportunity to object. Do you intend to do this for all referendum or initiative petition requests prior to releasing them? As individuals we have signed many of the enumerated ballot measures. We demand that you inform each of us individually prior to making such a release of public documents containing our private information.

    If the office of the Secretary of State has adopted a policy inconsistent with the traditional policy of protecting the rights afforded citizens under the state Constitution and in violation of your public trust, please respond to this letter as soon as possible. If, under your direction, you have altered or reversed the aforementioned policy, please respond as soon as possible so that we may begin action in an alternative forum to stop such a misguided and harmful new policy.

    This is not about your personal interpretation of the Revised Code of Washington. This is not about the statutory nuances of public records requests. This is not about your concept of “open government.” This is about the state Constitution and your willingness to undermine the rights of the people afforded by that Constitution. This is about the harm you are glibly willing to visit upon millions of registered voters in this state. This is about the callous arrogance of an elected official willing to violate his oath of office. This is about your decision to leave the people of the state of Washington vulnerable in their personal security.

    We ask that you publicly reaffirm that your office will not release any names, signatures and home addresses appearing on referendum or initiative petitions. We ask that you publicly reaffirm that you will uphold the state Constitution and protect the citizens of this state.

    If you are unwilling to do this, you will leave us with no alternative but to seek an order from an authority with the power to order you to uphold the state Constitution and protect the citizens of Washington state.

    If you fail to respond in five days, by Friday, October 2, 2009, we will be forced to seek injunctive relief to prevent this harm.

    Respectfully Submitted:

    Christopher P. Clifford Tim Eyman

  2. The public records act itself mandates that our signatures are to be redacted. Why has the Secretary given out our personal indentifiers? For what public purpose?

    RCW 29A.08.710(2) states:
    “(2) The following information contained in voter registration records or files regarding a voter or a group of voters is available for public inspection and copying, except as provided in RCW 40.24.060: The voter’s name, address, political jurisdiction, gender, date of birth, voting record, date of registration, and registration number. No other information from voter registration records or files is available for public inspection or copying.”
    The statute speaks to the “INFORMATION” contained in voter registration records or files … not to the voter records themselves, or to the files themselves, but clearly and concisely to the “INFORMATION” contained in the records OR files.
    My personal identifier, my personally unique signature, is some of the “INFORMATION CONTAINED” in the voter registration records maintained by the Elections office. My signature as maintained in this record is, by policy of the Secretary pursuant to the above statute, redacted when the public requests a copy of the voter registration record.
    Presuming I sign a petition which is filed with the Secretary, the Elections office then verifies that my personally unique signature on the petition is valid. Matching my signature on the petition to the signature maintained in the voter registration records. After close examination the Elections office verifies that the signature on the petition sheet matches. The Elections office now, after confirming my personal identifier is the SAME exact information as contained in the voter registration record, has the SAME information in two places.
    The verified information, including the personal identifiers, is then captured into an electronic FILE and grouped with other voters who signed the petition. Now the Elections office has a FILE and a registration record containing some the same information.
    Notice the statute treats this information the same, whether it is contained in the registration record, OR, whether it is contained in a file. It is the same information, and thus, it is treated the same.
    1. …. “No other information from voter registration RECORDS OR FILES is available for public inspection or copying.”
    The statute begins, by identifying that information may be contained in records, or, it may be contained in files. The statute closes, by treating the information the SAME whether it is maintained in the record or maintained in a FILE regarding the voter or group of voters.
    The statute treats my personal identifier the same, but, the Secretary’s policy treats it much differently depending where this information is maintained. My personal identifier is purposely redacted from public record requests from the registration record, but it is purposely NOT REDACTED when the same type public records request is made for the same information, from the FILE.
    Not only is the Secretary’s policy in contradiction to the plain and precise language of the statute, but it is in complete violation of the spirit and intent of the law. The law is there to protect our personally unique signatures from privacy invasions.
    There can be no other conclusion, the Secretary is both in compliance of the statute with regard to the information contained within the record, and, in violation of the statute with regard to the same information contained within the file.
    RCW 42.56.050 states:
    “A person’s “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.”
    So …. before we even discuss how many reasonable people may be highly offended by their own , as well as millions of others’, personal signatures having been given out to the public ….. What legitimate concern is my identifier to the public? What possible legitimate use, has the Secretary determined my signature is to be used for, once it is released to the public? What?

  3. Eddie– This site has previously answered your similar post, but this is a fresh reaction from the solicitor general’s office —

    “The short answer is that RCW 29A.08.710 is about voter registration records and files. It does not purport to be a broader exemption for all voter information contained in various other sorts of public records. The “files” it discusses are voter registration files, not all files.”

  5. SOS officials:
    I was hoping that (like was done with the core R71 lawsuit) you would consolidate the various briefs before the 9th Circuit into one repository. I found the AG’s brief at http://bit.ly/5RyO4 and the WA COG’s brief at http://bit.ly/ecJve , but I have not found the Plaintiff-Appellee’s answering brief or the State’s reply brief, both of which must’ve been submitted to the Court already. Could you make those available here?

    Thank you.

  7. The public is best served by open records of petitions. Petitioning the government or state for a new law or over turning a law is no different than state legislators having their names listed as sponsors on a bill. Would people accept bills being introduced in the Legislature without sponsors names. It wasn’t that many years ago that many of the Legislature’s decisions were made behind closed doors.

    Voters have secrecy when it comes to the actual vote on initiatives and referendums but as far as the actual petition itself there is no reason for it to be secret.

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