Ep. 8 Backroom Deals in our Backyards: An interview

with Miranda Spivack

[AI VO] (0:00 - 0:45)

Before we start, a quick heads up. Some of the voices you'll hear reading documents in this podcast are AI generated, but the words are real. They come straight from public records, produced by real people inside government.

Further, if you're a public employee who's been asked to bend the rules, or if you've seen something that just doesn't sit right, we want to hear from you, confidentially, off the record. Your identity stays with us. You can reach out to us at contact at the public records officer.com.

You're listening to the public records officer podcast, where we fight for your right to know. Now, here's your host, Jamie Nixon.

[Nixon] (0:53 - 2:44)

Hello and welcome. This is the public records officer podcast. I am your host, Jamie Nixon.

Today, we're pulling the curtain back on something bigger than one state, one lawsuit, or even one records request. We're talking about secrecy as power, and what happens when government gets comfortable making decisions in the shadows. In this episode, I'm joined by Seattle Times state politics reporter, Shauna Sowersby, who's been breaking story after story about government records in Washington.

We were lucky enough to interview journalist, Miranda Spivack, whose recent book, Backroom Deals in Our Backyards, How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back, exposes how secrecy corrodes communities at the local level. Together, we dig into the obstruction playbook, delay, deny, over-redact, and the latest excuse, calling records transitory just so they can delete them. But we also talk a little bit about survival, how requesters, journalists, and everyday people can fight back without burning out.

But we also talk about survival, how requesters, journalists, and everyday people can fight back without burning out. Secrecy isn't just about hiding documents. It's about shifting power away from the public.

And the only way to push back is to understand the playbook and call it what it is. The only thing that sucked about this conversation was that it couldn't have been about three or four hours longer, because I really think that the three of us probably could have pulled that off. Anyway, I hope you enjoy listening to the discussion as much as we did taking part in it.

(The Interview) 

First off, joining me is Shauna Sowersby. Shauna is the state politics reporter for The Seattle Times. She covers the state legislature, government agencies, and state government from Olympia.

Hello, Shauna. Thanks for taking part today.

[Sowersby] (2:45 - 2:45) Hello.

[Nixon] (2:45 - 16:37)

Shauna and I are excited to talk today with Miranda Spivack. Miranda spent 20 years as an editor and reporter for The Washington Post. She specializes in stories about government accountability and secrecy, urban development, and immigration.

She's here today to discuss her recently published book, Backroom Deals in Our Backyards, how government secrecy harms our communities and the local heroes fighting back. The book tells the stories of ordinary people who became what she's labeled as accidental activists after they've discovered corruption, hidden decisions, or withheld records in their communities. The book shows how secrecy isn't just a bureaucratic nuisance, but a threat to democracy itself, which is a refrain listeners to this show are probably familiar with at this point.

The book acts as both a warning and a playbook for how citizens can push back. Miranda, thank you so much for making the time to join us to discuss your work today.

[Miranda]

Well, thanks a lot for having me.

And that was a great summary of my book. I want to capture that again.

[Nixon]

Shauna and I have discussed reading your book.

We both read it. And I mean, just the foreword of the book felt downright spooky for me at times. It felt as though you had been secretly watching what we had been going through in our struggle to get to the bottom of some of the issues we've been dealing with out here.

I mean, seriously, like reading it, I was like, yes, that, or yes, that. It was this weird feeling of despair meets hope, in a sense that, well, it sucks that people are going through this, but man, I don't feel so alone all of a sudden with it. In the foreword, you describe what you call the obstruction playbook, which is delay, deny, and over-redact.

The second episode of my podcast is literally called The Obstruction Playbook, which is a title I had in mind when I was first planning out the first couple episodes, because in our work, we discovered in 2023, we discovered that Washington state was destroying Teams chats every seven days, and they were justifying it by saying, well, we're just going to tell everybody to only put transitory messages in there. Transitory messages is not a word that appears in the Public Records Act in Washington.

Or anywhere else that I've seen, by the way. It seems to be a rather creative piece of legal fiction that's been created to justify early destruction of records. There's some logic to it in that, if you and I are working at an agency together, and it's your birthday, I say, happy birthday, Miranda.

Yeah, it's probably not a high-value record. It maybe doesn't need to be released on anything, but in one of the episodes, I talked about how one person's transitory record is another person's exhibit A. You never know exactly how valuable that is.

Again, when I read your foreword, seeing that obstruction playbook it just felt like we've been walking the same road to some degree. For those who haven't lived this in any way, why do you think that playbook is so universal in government, and what does it reveal about how power works in government? Yeah, it's a good question.

Pretty much what you're describing and what you all are experiencing in Washington state, people around the country are experiencing this kind of obstruction of behavior by state and local governments. Even though everybody's open government laws may be written slightly differently, they really kind of encourage or have been allowed to fester, I should say, this sort of culture of obstruction and secrecy. Why is that?

[Spivack] 

Well, there are a lot of reasons. Not all nefarious, but people in government, I think Shauna can probably attest to this, they think it's a big pain in the neck when they get a records request from a member of the public, a reporter. Businesses, actually, are big users of open records.

They don't like it. It's a lot of work. Their systems are often not set up to do really smart searching of the documents you might want to look for.

Depending on how big the community is, a lot of public records are not digitized yet. They're also sorting through paper that may not be well organized. Some of it is just a challenge.

Governments aren't really set up for this. It costs them money to do this. Legislatures almost all over the country have exempted themselves and executives from a lot of open records requests, but really, it would be up to the legislature to try to help state and local governments be a little bit more transparent.

It would take a little bit of money and a devoted staff member, and then that staff member has to be able to go around to his or her colleagues and ask for stuff. I had a bookstore owner in Massachusetts where I was talking about my book. Everybody's for transparency when I'm out talking about my book.

He said, why do you still work for Massachusetts Fish and Game? We hated it when we got records requests. I'm like, dude, why don't you just put all the information online?

Make it easy on us. Anyway, I think some of it is cultural. I think there's fear too.

In some states, you can be sued if you give out the wrong information as a government employee. I think the mantra generally is when in doubt, don't give it out.

[Sowersby]

Yeah, that definitely seems to be what we're encountering a little bit.

I kind of want to talk about Jamie's point too about the transitory, piggybacking off of the transitory thing. Jamie and I have had this discussion a few times where I feel like I didn't used to see this word or hear this word as much a few years back. Now all of a sudden in the last, I don't know, what would you say, Jamie, two or three years or so, we've started seeing this idea of transitory come up more often.

I mean, is that kind of what you're experiencing too, or have you always kind of heard that term and heard people kind of throw that around?

[Spivack]

I haven't heard it put that way, but I've certainly seen that idea employed. I think part of the problem is that governments have not caught up with technology.

You have some, many states actually where city council members may be texting each other. Are those records that should be retained? I would say yes, but the laws haven't necessarily been written in a way that does that.

It doesn't prevent WhatsApp from being used or Signal or anything where they're disappearing messages. In fact, the mayor of Washington DC and her staff got in trouble for using WhatsApp. However they're communicating.

Of course, phone calls are hard to track, although they could have a memo about a phone call. They should write a memo about a phone call, but certainly all this technology, it ought to just be assumed that it's part of the law requiring records retention, et cetera, but it's not. I know there's been some local court cases in California.

I think there was one in San Jose where they said, yeah, you have to retain these records. We're way behind on writing laws that reflect the state of technology. The fact of the matter is all this stuff could and should be retained and it actually should be easier because it's electronic now.

[Nixon]

A hunter's Rights Group called the Sportsman's Alliance out of Ohio, who recently sued the Washington State Department of Fish and Wildlife. They were upset about a particular vote that the commission had taken to end bear hunting season early or end it permanently in some way. I don't know exactly what the details are on that.

However, they did a public records request to look into the machinations behind the vote, how they got to it, blah, blah, blah, blah, blah. That's how it's supposed to work. Your government takes this action.

You want to find out a little bit about why and how and who and when. You do a request. Well, they get a request and in Washington, the law is very clear.

In fact, the attorney that I work with, Joan Mell, is one who fought this case to the Supreme Court. It doesn't matter where the record lies. If it's on your personal phone, if it's about your work, it belongs to the public, not to you, and you have to turn it over.

Sportsman's Alliance published and put out, and Shauna published this as well in the Times, that they were telling each other to delete this message. Please delete that message. I mean, openly telling each other to delete the messages.

And in Washington, while it's never been enforced, unfortunately, I think it's unfortunate it hasn't been, it is a felony in the state of Washington to knowingly destroy a record before it has met its retention. The problem is that when it's on a personal device, we are dealing with people's personal honor to turn it over. Washington often prides itself on having one of the better laws in the country.

But recently, there was a study that recently came out of the University of Florida, the Beckner group, I think, where it showed Washington is now 41st overall in transparency. And out of 44 states that they surveyed, 44th in timeliness. I remember just feeling like, oh, that can't be the case.

[Spivack] 

Well, and you know, the thing about it, I mean, you may have a good law, a lot of states have good laws, but it's really all in the enforcement. And it's also an honor system too, because it's not just what's on your personal device. It's also, okay, a government employee says, I've searched my emails to the person who's managing the request, and I don't have anything about this, or maybe I deleted it, but when I shouldn't have, you know, without getting really an IT expert in who, you know, could really examine all this, I think it's hard to know.

In fact, a case that I wrote about, I did a series, before I did the book, I did a series for reveal from the Center for Investigative Reporting, and it was called State Secrets, a play on words, thanks to my editor. I love that title, actually. And, you know, there was one community, in fact, the community that I live in, Montgomery County, Maryland, where it's the community people asked for records.

And, you know, the county said they didn't have them. And they went, they knew the county had them, because they'd seen pieces of it. And they had to go to court and sue to get, you know, the county to do yet another search, which was actually a very costly solution for the community.

But, so, you know, the whole thing is an honor system. That's really the sad part. Oh, yeah, I am curious.

[Sowersby]

So, I mean, not that the stories in your book weren't horrific enough. I mean, particularly the water story, to me, hits really close to home, because, you know, in my hometown, we have kind of a similar thing going on with just water that polluted the community for many years. It may still be, we don't really know.

But I'm curious, what are some of the stories, if any, that were left out of the book that you wish you could have included? Yeah. Well, one of them is briefly described in the conclusion.

I was expecting to have a whole chapter on this historic Black community that's just outside of Mount Vernon, and where, and is where people live, who were our descendants of enslaved people at Mount Vernon. And they are getting eaten alive by, you know, developers, because this is like eight miles from Washington, D.C. Of course, we're probably going to have a regional recession here right now, because of all the layoffs of federal employees. But until that happens, you know, land in this area is very, very sought after and valuable.

And so they're sitting on some pretty, that little community is sitting on some very valuable land, which will, if not now, it will eventually come back, I'm sure. And they were, they have been sort of batted about, not just by the developers, but by the county government for, you know, not being transparent. The government knows, you know, who wants to do what, and the community is the last one to hear, and they can't gear up.

And that's not an uncommon story. I think what made, what I cared about greatly about this story was, you know, this was a very historic community. It is a minority community.

It's, you know, already struggling as, and in Virginia, you know, they were struggling until the 1960s, frankly, to get sewers in this community. So that one is, yeah, this was one of these editor-writer discussions. And my editor and I didn't see eye to eye on this, but I said, God, you know, I've been talking to these people for five years, which was about what I was doing with everybody else in the book.

She said, put in the conclusion. So there's a page and a half about Gum Springs, Virginia. And, you know, there were, I probably talked to 10 different communities before narrowing it to five, but, you know, so there was, there's fracking is another big issue.

It's in my introduction, but it's not, I don't have a real community story about fracking, but you could anywhere because the chemicals that are used in fracking are considered proprietary trade secrets by the companies that, you know, produce them and the companies that use them. And so people are getting sick all over the country from the results of fracking, usually probably because of exposure to these chemicals that they can't even find out what they are. So, you know, that story could be told anywhere.

I did not, I, again, I talked a little bit about Flint, Michigan in the introduction, but I think that story has been pretty well told. Again, they're still fighting there for greater transparency about their poison water. I think, you know, when you said, Shauna, about your community and poison drinking water, I think that's the big, next big frontier, that data centers for the next big frontiers.

[Sowersby] (16:39 - 16:39)

Yeah.

[Spivack] (16:40 - 23:38)

Yeah. Yeah. In fact, there is another community.

Northern Virginia is really the epicenter right now. They call it data center alley. And they, you know, they've these data centers, it's Microsoft, Amazon, you name it.

They have really been able to build these, you know, behemoths without a lot of oversight and without a lot of community input. And that's happening elsewhere in the country too. And the problem there is, yeah.

And the big deal there is they are big users of water and they are big users of electricity. And, you know, a lot of people are going to be affected by that. So, you know, anyway, once the book was published, I was like besieged with people saying, could you please write about our community?

Yeah, I bet. I mean, there's a lot. And, you know, again, is it all nefarious?

No. But I think there's a huge culture change that needs to occur in state and local governments. And frankly, now's the time because the feds are cutting all their money.

You know, they're going to be making big decisions with less money. We should, the world, the public should have a lot of oversight and input. And, you know, the public is going to have to make that happen.

And the few remaining local journalists in the country like you guys.

[Nixon]

So this was a question I was going to have. And I actually asked George if he had any questions and his was the same as this.

You mentioned the culture thing, because your book has a lot of advice for individuals on how to, you know, find allies, you know, recruit an attorney, perhaps to help with their pursuit of, you know, information that they're looking for. I know from my perspective, I worked in state government for about 10 years. I was a legislative communications staffer for five years.

I was a public information officer at the Department of Health when COVID started. I was the communications director for the ill-fated redistricting commission in Washington in 2021. And strangely, all of those were beset by weird issues regarding transparency.

I always felt like the Public Records Act professionalized me in a way that if it hadn't been there, it would have been much easier to say awful things or embarrassing things or perhaps, you know, engage in conversations that could be questionably ethical. Cultural problem in Washington is such that right now the attorney general is actually arguing because of this weird loophole in our law where if you destroy a record before it was asked for, it doesn't matter if it should have been retained. There's no, nothing that's going to happen.

And they're actually arguing this in court. In my Team's case, I'm suing them over the Team's matter and looking for an injunction from the court to halt it. And they've made this argument that, well, there's nothing he can do because it was destroyed before he asked for it.

And therefore, you know, the only recourse I would have would be to call a prosecutor and have a prosecutor prosecute every state staffer apparently who's ever put something that should have been retained into this space. It makes it hard when the AG, who's supposed to be the people's lawyer, you know, it's all risk aversion as opposed to pro-disclosure.

[Spivack]

Right, right.

[Nixon]

And I understand they're supposed to be the attorney for the agencies and their staff.

[Spivack]

Right, so there's a built-in conflict of interest with AGs generally.

[Nixon]

How do we engage in that cultural fight as well as, you know?

[Spivack]

Well, you know, one thing about retention requirements is you ought to look at those and, you know, triple them, start with that, and then see if, you know, there, I mean, there may be a few sympathetic legislators. I found a few in Maryland when I was covering stuff who really are interested in this stuff, partly because they have trouble getting information from the government sometimes. But, you know, is, does, I don't know this off the top of my head, but are there any states that, you know, will, how will they, how do they penalize people for failure to retain under law?  And then training for these people. I mean, they need way more training, I think, in government agencies than is, you know, we get a lot of, you get a lot of sexual harassment training and other important stuff like that. But, you know, your obligation to retain records and be transparent, who's teaching that?

[Nixon]

Yeah, we have, we do have, there is mandatory training in Washington for staffers. It's pretty perfunctory, I would say. One place where I think they can improve is by telling people the opportunity that is presented by being transparent.

You get to brag about your work. That's how I always kind of looked at it. Like, if you don't look at it as like, oh, people are coming to get me, like, no, I've been a pro.

I've done everything I was supposed to do. Are, do we make hard decisions sometimes? Yes.

Do I feel good being able to justify them? I feel like if you're able to do that, I think they should sell that more in the training. Yeah.

No, I think that's a good idea. And I think one of the things that has been tough here in Washington is that, so the agencies cover, carry all the risk. Individuals only carry risk with the destruction of a record that they shouldn't have.

I, with some of the stuff that Shauna and I have seen, we had one staffer, one agency, DFW, when Shauna had done a request for seven days of these Teams chats, because originally when we first heard about it, we did a request for seven days. We wanted to show first that there was work-related, retainable material in these chats that was being destroyed. Yeah.

So we did that. And after being given the suggestion by a staffer at a different agency, they charged her over $700 upfront, did not give her what is supposed to be a 10% option to begin production of records. I did a request piggybacking on that.

I said, I want to look into the request. I found, I got a Teams chat, shockingly, that showed the public records officer at DFW and a staffer purposefully made the decision to charge her all of it upfront. And then they went and modified the regular invoices they send requesters so that she wouldn't know she could pay the 10%.

And what shocked me was that if they're willing to do this to a state government reporter, what are they doing to the average person? And so you have this problem. And when I said the obstruction playbook, that's where that obstruction playbook came from.

It was like all the agencies we could find doing stuff like this. And it was just shocking and demoralizing in a way, but it also, I think, inspired us like, oh, no, we're going to get to the bottom of this. This is ridiculous.

[Spivack]

And what was in those Teams chats that you were looking for? What were they about?

[Sowersby]

Essentially, we were just trying to show, because they were automatically deleting Teams chats after seven days.

And we knew that work was happening in these Teams chats. And they were trying to tell us that nothing was happening in there. They were strictly used for transitory messages, which we knew was not the case.

And so that's exactly what we were trying to get at. And they were treating me, I think at one point, Jamie found a record where they were treating me as if I was just, I can't even remember how they described me.

[Nixon] Frequent flyer.

[Sowersby]

Yeah, flyer, because I had sent a request out to multiple agencies for seven days of Teams chats. And that was all we were trying to do was just say, no, we know that this work is happening.

[Spivack] (23:38 - 23:38)

Yeah.

There's a lawyer I know in DC who the Metropolitan Police Department, I mean, she eventually got the records that showed that they singled her out for obstruction. So, I mean, they're kind of sometimes stupid enough to put this stuff in writing. But yeah, that's the hostility to, I mean, my response is put everything up online.

Start with that, as much as possible. Contracts, decision memos, et cetera. Data tables that they generate?

Right. And make your life in the government better, but no. You talked a little bit in your book about secrecy is power.

And you argue that secrecy isn't just about hiding documents, it's about shifting power away from the public. I was wondering if you could unpack that idea a little bit for us.

[Spivack]

Yeah.

Well, a lot of the communities that I wrote about and also some that I didn't write about, but that I've covered over time when I was in the Post and elsewhere, often there are big employers, big corporations, especially in middle to small communities who really have a lot of influence over what goes on. And they're corporate good citizens. They will give to the Boys and Girls Club, they'll sponsor the baseball team, whatever.

And they're employing people in those communities. So people are very, I think it's scary to challenge something that may involve them. And the poison drinking water guy in Hoosick Falls, New York, Michael Hickey, actually, I'm going to Hoosick Falls on Friday to speak with him there to members of the community.

But he was employed actually for an insurance company in Albany. But most of the people, including his parents in this community, were working for these companies that were making some version of Teflon, whether it was tents or some kind of piece of equipment or whatever that was going to have Teflon or Teflon-like coating on it. So he figured out early on that this was probably why this community was becoming a cancer cluster, which Andrew Cuomo's health department did not seem to recognize.

And he started to realize that he was going to point the figure at these big corporations. And that is very scary because people in the community, he got two kinds of responses. One was the mayor said, don't tell anybody we have poison drinking water.

Not a good move. And there were people who said, you're going to drive these companies out of town, which is a threat that companies will make all the time. And it doesn't even have to be about poison drinking water.

It could be you're going to raise our property taxes or something, or you're not going to defer our tax deals or whatever. And so that's a big problem everywhere. And so Michael got, you're going to drive these companies out of town and we're all going to be unemployed.

And then there were other people who said, why didn't you tell us sooner? And he's just one person who's figuring something out and learning to go up against the government, the corporations, whatever. And the corporations and the government, I mean, it's sort of the Stockholm syndrome.

I think the government sees themselves as part of the power structure and they don't want to drive away jobs. No, no elected official wants to drive away jobs that that would be not a good thing. So, you know, they, they sort of lose sight of who they're working for.

Let me put it that way, that we, the taxpayers, we, the residents, you know, even if we're not taxpayers, but you know, they, they align themselves and then there are people in, you know, especially elected officials who somehow, you know, they'd like being aligned with what they think are powerful people. I mean, look at our president, you know, he likes Putin, God knows why he's a big guy, you know, he's another big guy, but there are people like that in local government too, who just think it's cool to be next to the CEO of DuPont or whatever. So that's the power.

And, and then, you know, what happens is unlike people like us who sort of understand how to work the system, even if we're not always successful at it, most of these people have no clue until something happens in their community. And then they realize they got to go to the government for help. And of course there's this cliche, we're from the government, we're here to help you, but no, no, it's like, oh God, you know, here's an inquisitive resident.

We need to put them at bay, keep them at bay.

[Shauna]

Oh, I was just kind of thinking, well, cause I know that here in the state, you know, I think there's been maybe some discussion. You know, we have an people's initiative process for our ballot where people can submit initiatives to get things on the ballot, get them passed.

I know not every place has that. There's been discussion here. You know, I think it's been tossed around for a couple of years now where, well, maybe we should do something about some of these public records issues and maybe we should put this to the people again on the ballot to let them kind of decide how we should do this, how we can navigate all these new rules that the government and whoever else have kind of made for themselves around public records.

But what do you think can be done in places that don't have that initiative process? How can they sort of fight back against the government?

[Spivack]

Well, you know, I, in the course of actually researching the book, and I didn't really do anything with this, but California and Nevada, interestingly enough, have a system of civil grand juries, which are convened, you know, by a, there's a, supervised by a judge, as I understand it, and they can investigate stuff.

And when I, and it's been, you know, in California, there's been a lot of interesting, successful initiatives that have come out of these civil grand juries. They're not, you know, they're not perfect. A friend of mine who's a former journalist got picked for one in Marin County, and he said it was, you know, really interesting, and they were able to push along some local issues that needed attention.

So, you know, that would be a really interesting idea. I, as, you know, when I started looking at it, I was like, God, nobody else has this. Nevada has it, but they hardly ever use it.

California uses it a lot, actually. You know, which I thought was just sort of another way to get stuff into the public eye. And, you know, I think that there are sometimes, it would be sort of a format that a nonprofit could use, too, which is, we're going to convene a bunch of people who have an interest in transparency, for example, and we're going to do our own little commission and our own little study, and here's what we're going to come to the legislature with.

And I think you also have to get local elected officials bugging their legislators, you know, that everybody's got to see some kind of self-interest in why transparency. First of all, it's more effective, frankly. I think you can say financially it will cost less in the long run to be more transparent than to fight all these things in court or, you know, digitize your documents.

Start with that. We want to help you.

[Nixon]

A message I try to get across is that one thing that's way more expensive probably than government transparency is government corruption.

And the more government transparency you have, the less government corruption you're going to have. So that's one of the things I try to say. I wanted to ask a question about, you talk about, you know, some practical advice and survival in doing this work in the book as well.

You recommend staying calm, building networks, finding allies, even among, like, unlikely groups. Calmness has been hard for me, I will be very honest about that, especially with the situation we had with the state auditor's office here. So we have local auditors and they handle like, they're kind of like the clerk's office in a lot of other states, the local, the county auditors are.

The state auditor actually does performance and financial audits and is supposed to do it on government entities from local level to state level, supposed to do them all. We, I got a recording of a meeting that took place four days after Shawna first tweeted that she was aware that these Teams chats were being deleted every seven days. And in that meeting, there was one, there was a lot of consternation, a lot of anger from the record staff because they felt like they had been pushed into this position by Watek, the Watek agency.

A month later, the top legal advisor for the auditor's office in a meeting with him accused Watek of a years-long cover-up of not being forward with the AG about stuff they knew that was missing, about not being forward with their own lawyers about stuff that was missing. And while at first I was like, man, he's really giving it to them, this is fabulous, this is great. It took me a little while to realize, wait a minute, why hasn't the auditor said anything about it?

Why haven't they investigated or audited it? If the top legal advisor for the auditor knows that there's a cover-up regarding records retention and records handling issues, why isn't it going on? So I agree with you completely.

Persistence is the key because if you get too worked up, it'll come across in the communications you give with governments. It'll allow them to disregard you in some way. But yeah, a little righteous indignation can power the soul, though.

I will say that. Why do you believe persistence is not always the key?

[Spivack]

Yeah, and I think keep the righteous indignation in your community meetings or whatever.

But there are people, and I'm sure Shauna knows this, there are people in government who do want to help you. And you need to find those people, cultivate them, make sure they're safe, and you're not going to expose them, and really try hard. I mean, I tell, it's interesting, I've edited young reporters in this very digital age, right?

And they will come to you and say, oh, you know, I texted so-and-so, or I sent an email to

so-and-so, and I didn't get a response. So I'm going to say they didn't comment. And I'm like, come on, that guy's office is four blocks from here.

Go in person and just try to talk to them. And you know, sometimes that works, sometimes it doesn't. But you cannot be sure that they're getting your messages.

And it's just, you know, the phone, in person, whatever. And I tell that to people in community groups, you know, go find out who runs the clerk's office before you need them. And ask them how they keep records, just in general.

Have them show you around if they will. I mean, they should. And then, you're right.

I mean, you really got to swallow your anger, because it's very frustrating. I get that. But it absolutely is a turnoff to beleaguered public employees who already feel under the gun.

[Sowersby]

I did want to kind of circle back to this idea, just because I'm really curious, you know, the whole legislative privilege idea. I want to know how much you have heard about this concept before. Because for us, in Washington, this wasn't really a thing.

And our legislature has spent years and years and years trying to find different ways to exempt themselves from our state's public records act. So, I'm just curious, if you've heard this concept before, how you've used it, when you started noticing it, that type of thing.

[Spivack]

You know, who may have data on that might be the Brechner Center at the University of Florida.

I would ask them if they have a list. But in my experience as a journalist, most legislators have exempted themselves from public records and public scrutiny. It's very hard.

The city councils often manage to find ways to exempt themselves. It's a little harder for them. But legislators, they'll pass laws telling everybody else to be transparent.

But they are not. And I think it's pretty widespread. I'm actually interested that Washington State hasn't succeeded in doing this yet.

That's, to me, very interesting. Because I think it's pretty common. I don't have the data off the top of my head.

You know who else might know, also, is MuckRock, if you've dealt with them. They may well have a sense of that. But I think it's pretty widespread.

[Nixon]

Yeah, I think it's, I'm the lead plaintiff in the lawsuit against the legislature on this matter. And one of the things that I, they refuse to talk about it. Like, normally, if a political organization, agency, governor, wins a court fight, they usually crow about it, right?

They throw out a press release. Maybe they do a press conference to tell everybody how great their work is, and blah, blah, blah. Legislature won at the lower level on this one.

Didn't say it worked. Because they know how unpopular it is. In 2018, the state legislature tried to write a law to exempt itself, passed it with veto-proof majorities, sent it to Inslee.

Every single newspaper in the state ran a front-page editorial for the first time since World War II, since Pearl Harbor, the first time that's ever happened. Within a week, Inslee went ahead and vetoed the bill, and they didn't even take it up for a veto vote after that. So here we go a couple years later, Shauna and Joseph O'Sullivan did some great background history work on this after she broke the story that they were using it.

And the one question I still, they will not answer is, because they justify it by saying, well, the executive branch and the judicial branch have to have room to discuss things privately so they can make good decisions. I'll give you, okay, that's great. You guys think you need that same thing.

Why don't you think, when I was on the city council in Fircrest, Washington, why shouldn't I have the same thing? We got our work done under the Public Records Act. We legislate, we budget, we handle law enforcement issues, water.

We handle all the same stuff, just on a smaller scale. You're not trying to write a law to carve out an exemption for us. Why do you need that kind of secrecy to operate?

[Spivack]

Yeah, what was the answer?

[Nixon]

They've never answered it.

[Spivack]

Yeah.

Yeah. Did you have in your law the pre-decisional exemption where they can say, you know, this was a work in progress? We'll tell you what our final report says, but we're not going to show you drafts.

[Sowersby] They do. Yeah. [Spivack]

They have, what is that called?

[Nixon]

The deliberative process.

[Sowersby]

Deliberative. Yeah.

Right. Yeah. Which, yeah.

[Spivack]

So they already have this. Why do they need more?

[Nixon]

Well, as far as the legislature goes, so when the court made the decision in 2018 that they had to work under the Public Records Act, because that was the original decision, it was decided that all 147 members, which is the totality of members in both the Senate and the House, are individual agencies.

So once a member calls another member and says, hey, I would like to talk to you about this bill, a decision has been made, the deliberative process is gone. So one of the things I've been trying to say is that I would be open to a discussion, a public process, a bill that might give the state legislature an enhanced level of deliberative process for the session, which is what Oregon has. So in Oregon, it's very tough to get records during session.

But after session, you have to unload those, which makes sense because some of the states like Oregon, like this next year, Washington session is only 60 days long. And what the fear is, is that political operatives from both parties would just gum the system with massive amounts of records requests, forcing stuff out and then, you know, blasting each other during the session. I think there's place for exceptions in that, perhaps for, you know, established press and stuff like that to get records during session.

And I think Oregon has some of that as well. But I know there are some states that do have that kind of exception. But here, they're not asking for that.

And what the court has given them, they've given them even more than what the federal Congress has. It's almost limitless. And there's no review on it right now.

Now we're appealing it where the Court of Appeals, I think we're probably going to have oral arguments in December or January on our case. There's one other case in the process, Arthur West's case, he has his court date of December 4th. But yeah, that's been the thing there.

I agree that maybe some enhanced deliberative process, allowing them to talk to one another and still call it a deliberative process without that exception being nullified. I'd be open to that discussion. And I'd be open to like, let's have a committee hearing, let's have stakeholders come in.

[Spivack]

But it sounds like they already have this in the law. So why do they need to do more?

[Nixon]

Yeah, it's just because that trick where if one member calls another member during session, it goes away.

And the idea is that members would like to be able to talk to one another and have that be part of the deliberative process without it being a decision being made. Therefore, the process exception goes away.

[Spivack]

And is that written in the law?

Or was that the result of a court ruling that one member talking to another? Maybe you said this already.

[Nixon]

No, that would be written in law.

So like if DOL, the Department of Licensing, wants to talk to the Department of Health about something, they've made that decision to make that call. All the decisions, all the records that DOL had made previous to making the decision to make that call now have to become available at that moment. That applies to the agencies in the legislature and each member is an agency, each member office is an agency.

Yeah, I see. It is a tough thing. I like also your, the one thing I really enjoyed about your book is that as much despair as I felt was in there, there was a massive amount of hope in there as well.

Because there are people like us who like, they get a hold of the car like the dog and they don't want to let go of it. And so there's a hope in that. Despite the frustrations, you end the book with this in a way, the open government can mitigate risks, improve health, strengthen democracy.

Where do you find that hope that we can improve on this?

[Spivack]

Yeah. Now, first of all, the people that I wrote about who are laboring in this field with really no experience, I mean, again, as I said, you know, okay, journalists, we sort of get it.

People who've been in government, you sort of get it. But these were people who absolutely had no experience trying to become investigators, basically, in their communities. And what I found about them was, you know, what happens is people get very angry, they get rebuffed.

They're like, what? Wait a minute, you know, I should be getting help from you. I'm paying for this information.

You know, why are you blocking me? They do get angry, they manage to channel their anger, and they are very tenacious, very tenacious. I mean, I was just blown away by them.

You know, most of these people I talked to for three or four or five years. And the situation in Alabama, where there is this failed sewer system that has been failing for 40 years in a historic Black community, and the government had mostly federal money, $30 million has been spent on a community of 2,000 people, and they still haven't fixed it. Where did that money go?

The community is still wondering and trying to find out. So that one hasn't been resolved. But some of the others have been resolved, or they were able, in the case of dangerous toxins in firefighter protective gear, that woman, a high school graduate hairdresser, no experience doing this, she has sparked a national movement where fire departments are now trying to get this Teflon-free, PFOA-free gear being made.

And that's, you know, the gear manufacturers are changing all their protocols. So, you know, some of these people have had good results. And what I just found, you know, that does give me hope.

And then I think also, partly because of, I think, where we are in national politics, people are turning to their state and local governments more. They're beginning to realize that that is where they can make a difference. And so there are these networks growing up all around the country on different issues, where they're really trying to push on localities and state government.

And, you know, depending on what the issue is, if it's a health issue, for example, if it's the availability of COVID vaccines, for example, we've seen states and governments trying to, you know, with pressure from the people, trying to make a difference. And so I think we're going to have this turn to, you know, it's going to depend on what state you live in, as to whether you can really get the protections you need, which is very unfortunate. But I think empowering people at the local level is very, very important, and it will have a lasting effect.

So that's why I'm hopeful.

[Nixon]

Thank you so much, though, for sitting down and talking to us. We've been very excited about this conversation.

We've been talking about your book quite a bit.

[Spivack]

Yeah, that's great. Well, I may be coming to Washington, so we're still trying to work that out.

[Nixon]

I hope that works out. Thank you so much for lending your voice and wisdom to this. This has been a really great conversation.

I work regularly with WashCOG. I'll do everything I can to try to get you out here. I think it would be a great spot for you to come out and speak with us.

Seattle would be really receptive to it.

[Spivack]

I'd love to do it. So thank you both very much for your time and your interest.

And I appreciate your comments about my book. I really want to get it into the hands of people who might ordinarily not even think that they have a role to play.

[Nixon]

Wonderful.

Thank you so much, Miranda. We'll keep track of your work and hopefully we'll be in touch and we'll get back to you again soon. Great.

Sounds good. Thanks a lot. Bye.

Big thanks to Miranda Spivack and Shauna Sowersby for joining me on the podcast today. If you haven't read Miranda's book, Backroom Deals in Our Backyards, How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back, grab a copy. It's essential reading for anyone who cares about accountability and open government.

The stories in that book will surprise you, perhaps disillusion you a little bit, but I think, and I believe deeply that it will also leave you with some hope that things can get better. And if you want to follow Shauna's reporting, her byline in the Seattle Times is where you'll find some of the most important transparency stories coming out of the state of Washington. You can find links to both in today's show notes.

If this conversation hit home, share the episode, rate it, review it. All of that helps keep the spotlight on secrecy and why it matters. Until next time, I'm Jamie Nixon.

Thank you for listening. And remember, transparency isn't a gift from the government. It is your right.

Talk to you soon.

[AI VO] (46:52 - 48:34)

That's it for this episode of the Public Records Officer Podcast. A quick note before you go. Some of the voices you heard on the show weren't from real people.

Some were totally synthetic, AI generated to read from public records and legal depositions that are yep, public. You'll also hear real human voices like live audio from state meetings and the occasional passionate rant from the show's gorgeous host. Every episode has a full transcript at thepublicrecordsofficer.com.