For journalists, getting the records they need to keep the community informed can turn into a battle between free press and an organization’s desire for privacy.
Ed.: Stories on transparency in journalism are showing at the Pickford Film Center in Bellingham in its “Truth-tellers and Whistleblowers” miniseries presented by Salish Current, starting July 5 with “Words of War” (2025) and running through Aug. 30 with classics including “All the President’s Men” (1976) and “Silkwood” (1983).
Legal issues over public records are often covered in journalism courses, such as Western Washington University’s mass media law.
For most students, the concept remains hypothetical. But for Julia Furukawa, a Western graduate who found herself as part of a student-led lawsuit against the university, it became a reality that has helped define her education and career as a reporter.
“A lawsuit is a big and costly and lengthy endeavor, and I don’t think something that we thought we would ever have to pursue,” she said. “But it became increasingly clear that we weren’t going to get the information or answers we wanted from the university and, at a certain point, (a lawsuit) seemed like the only way to go about it.”
That lawsuit, filed in 2019 by then-student journalists Erasmus Baxter and Furukawa and graduate Asia Fields, resulted in an $111,780 fine for Western last year. The university was found to have violated the state’s public records act by withholding perpetrators’ names in school investigation records.
“We weren’t asking for deeply personal information on people, but rather, information that was going to illuminate cases of sexual misconduct on campus,” Furukawa said; “which is certainly a public safety issue, and … information that is beneficial to the public.”
After attorney fees, taxes and emergency expenses, the three now-graduates donated the remaining $42,000 to form a student investigative journalism fund. The fund will provide $1,600 annually for Western students doing investigative journalism training or projects.
Meanwhile, exemptions to the state’s open records law — such as in the case of collective bargaining agreements — build increasing barriers to journalists seeking transparency.
Taking a stand
Furukawa said the three Western journalists were inspired by a similar lawsuit against the University of North Carolina. The 2016 suit, undertaken by the campus’ Thee Daily Tar Heel newspaper, was filed after the college failed to meet the paper’s deadline for granting access to public records about sexual assault cases.
Such lawsuits tend to be rare, said Peggy Watt, an associate professor of journalism at Western. Watt, along with department chair Brian J. Bowe, Student Press Law Center’s Mike Hiestand and their attorney, Bill Crittenden, provided support that reinforced that they were doing the right thing, Furukawa said.
Resistance from her university isn’t the only place Furukawa has faced public records obstruction in her young career. While a reporter for the Paris News in Paris, Texas, Furukawa said she encountered resistance from a local police department when seeking records. The experience of the lawsuit gave her the ability to push back.
“Learning to be fearless, and learning what it takes to hold institutions accountable, I felt comfortable going back to them and saying, ‘No, you actually do owe me this information, and yes, you owe it to me in a timely manner,’” Furukawa said. “I think my education that I got at Western and my participation in this lawsuit put me into a position where I felt confident and comfortable (to demand) … what I was entitled to.”
Battling exemptions
Colette Weeks, executive director for the Washington Coalition for Open Government, or WashCOG, is a vociferous advocate for reporters being given the “sunshine” they’re entitled to under the state’s open records act. There were few exemptions to that act when passed in 1972, but now, Weeks says there are hundreds of exemptions to the state’s originally robust rules.
“It’s got to be creating more work,” Weeks said. “If I’m an agency and someone is asking for a bunch of documents, and I have to try to figure out which exemptions apply and which don’t — of course it adds time and effort to their workload. There just has to be a better way.”
When it comes to the Western lawsuit, Watt said the university initially invoked exemptions that weren’t valid. While she suspects the university received bad legal advice, she is otherwise in the dark about why they chose to go to court over public records. Most of the public records officers that Watt has dealt with at Western, she added, have known the law and taken their jobs seriously.
“I don’t have an answer as to why Western handled this the way it did,” she said.
Loopholes and technology
This past legislative session, WashCOG tracked roughly a half-dozen legislative priorities focused on accountability, transparency and access. Among those was continuing to pressure the Legislature to end what’s known as a “legislative privilege” loophole.
In 2018, a state bill to exempt legislators from state transparency laws resulted in multiple lawsuits from Washington media outlets. The following year, the Washington State Supreme Court ruled that individual legislators were deemed “agencies” under the public records act, leaving them subject to disclosure laws.
However, some members of the Washington State House of Representatives, according to the WashCOG website, are claiming that legislators have personal privilege to withhold documents they use in their work from public discourse. These would include emails, texts, WhatsApp chats and other forms of “intergovernmental and external communications.”
The argument, WashCOG continued, is that their personal privilege is granted by a specific provision in the state’s constitution, which provides “freedom of debate.”
The advent of the internet age has led to an overall surge in the number of possible public records, Weeks noted, from documents to emails and texts. That has complicated the picture for both public agencies and those who seek their records, she added. But it hasn’t changed the foundation of what’s right.
“Understandably, it’s been more difficult for the agencies to keep up with all of the written matter that’s come about,” Weeks said, “but it really doesn’t change the basic premise that the public has a right to those things.”
Public meetings are also an important — and sometimes disregarded — part of public records transparency. Officials can also have phone or in-person conversations out of the public eye, evading public record if they’re not written down.
Watt experienced this as a reporter in the SeaTac area, when an agency she was covering had its members meeting outside of publicly announced hours at a local restaurant. The members of that agency, Watt said, weren’t trying to hide what they were doing. They felt it wasn’t a problem.
“They said, ‘we’re doing something good for our constituents, we’re working hard for them,’” she said. “Well, they might have been. But they’re supposed to do it in sunshine.”
Opaquely transparent
While the public records exemptions WCOG spent time testifying against during this session were ultimately shot down, Weeks said they are likely to be brought up again in the future.
And there are plenty of additional concerns about transparency: the Washington State Supreme Court recently ruled that state collective bargaining agreements are exempt from the public records act. This means the agreements cannot be examined publicly until they’re approved by both the governor and state legislature.
“We are disappointed,” Weeks responded. “It’s almost like (the Office of Financial Management is) looking for a reason to not hand over information. Why? Why is it so difficult to operate in public? What is everyone afraid of?”
Both Watt and Weeks are cautiously optimistic, however, that young journalists like Furukawa, Fields and Baxter will continue to uphold the ethical and transparent standards of journalism.
The fact the trio chose to donate their share of funds — about $14,000 each, according to Furukawa — helping future generations of students pursue investigative work at Western, makes the success of their lawsuit even more admirable, Weeks said.
For Furukawa, who now works as an “All Things Considered” host for an NPR affiliate in New Hampshire, taking a public records request to the ultimate conclusion has yielded lessons and inspiration that will stay with her the rest of her career.
“This experience has built my confidence, as a journalist, to understand that things don’t always go your way,” she said. “But when you do dedicate yourself and your time and your resources — and what you know is right — toward a cause, truth will prevail.”
— By Matt Benoit
Also read in Salish Current:
• “Open government vs. ‘legislative privilege’ in long legal fight, Dec. 8, 2023
• “‘Lyra’ sheds light on power, dangers of journalism,” July 14, 2023
• “The art and science of bullshit detection — skepticism in a data-driven world,” March 31, 2023
• “Trust in truth of news is a casualty of the information wars,” Nov. 2022
• “Local journalism is key for healthy communities,” March 18, 2022