Although he has collected approximately $1 million in Public Records Act lawsuits and has been criticized for his tactics, South Whidbey resident Eric Hood and his attorney argued that the real problem is that cities are too indifferent, defensive and litigious when responding to requests.
In a 79-page letter sent to Langley council members and the mayor last week, attorney William Crittenden argues that lawyers from the city’s risk pool have mishandled Public Records Act, or PRA, lawsuits for Langley and other cities by fighting the cases in court and employing faulty legal tactics when they should be advising agencies to admit mistakes and comply with the law.
The letter asks the city to fire two attorneys provided by the risk pool, hand over the records and settle the cases.
“They were sued for a small violation of the PRA and they chose to make it a huge case because they are buffoons,” Crittenden said, referring to the attorneys.
In fact, Crittenden claims that the attorneys and the Risk Management Service Agency, the risk pool that employs them, are violating the law and committing “insurance bad faith” by providing legal representation to cities to fight PRA lawsuits while the risk pool cannot legally provide coverage for the resulting fines or settlements.
Crittenden is a longtime public records law expert who has brought a dozen such cases to the state Supreme Court. He is also a board member of the Washington Coalition for Open Government and has represented the group in appeals court.
The state’s Public Records Act requires that state and local agencies disclose all records to the public unless the law specifically exempts them. Agencies have to reply to requests within five business days to give an estimate of when records will be available and later provide a log to explain any redactions or exemptions. Agencies are allowed to charge for the actual cost of providing records.
Hood, who describes himself as a government transparency advocate, has three unresolved lawsuits against Langley.
He explained that his public records mission started out being personal. Court records show that the former teacher’s first public records case was against South Whidbey School District in 2012, although Hood said he can’t discuss it under terms of a settlement. He followed up in 2014 with a request to the city of Langley after former schools superintendent Fred McCarthy became the mayor.
He ended up filing a lawsuit on his own. The case was settled after the city agreed to pay $1,000, conduct a proper search and provide a redaction log, according to Crittenden’s letter.
Hood said he didn’t even know there was a Public Records Act when he first started asking for documents, but his early experiences on Whidbey Island left him upset that “duplicitous people” in government think they can get away with lying and not obeying a law that’s basic to democracy.
“I think that our democracy works when government is transparent,” he said. “If there were a couple of dedicated public records requesters in every county in the U.S., we would have a functioning government.”
Hood has continued requesting documents from Langley, but also branched out across the state. He’s made hundreds of PRA requests to agencies that had audit findings and he filed lawsuits if he felt the responses weren’t adequate.
Hood has filed approximately 120 PRA lawsuits against cities, counties, school districts, colleges, hospital districts and small taxing districts. He admits to collecting a small fortune in fines and settlements in the lawsuits. He usually files the lawsuits himself, although he has paid lawyers nearly $150,000.
It’s not all about money, Hood said, but the only way to get agencies to change is by literally making them pay, which is why the law is set up the way it is.
Since requesting public records has basically been his occupation over the last decade, Hood said he’s acquired a great deal of skill in tracking down and obtaining government records, as well as figuring out when documents are missing. He said he’s offered to help about 50 advocacy groups and charitable organizations with finding documents but very few of them responded.
He did help a climate justice group get documents from Seattle related to Amazon’s impact on transportation and the environment.
On the other hand, Hood has been criticized by attorneys and government officials in Langley City Hall and across the state for bringing lawsuits that many view as predatory and exploitative.
Attorney Jeffrey Myers, who defended Langley through the risk pool, described in a court memorandum the difficulties he had in dealing with Hood, who filed 13 public records requests in a four-day period while they were arguing about discovery requests.
“Based upon my conversations and correspondence with Hood, it is clear that he intends to use the discovery process and the Public Records Act as an offensive weapon in his vendetta against the city,” he wrote. “His numerous, duplicative, harassing, and abusive uses of both processes have required a significant amount of time and resources for the city and myself to respond to.”
The San Juan County Public Hospital District, likewise, issued a press release early this year detailing how officials thought they had complied with a request from Hood only to be surprised when he filed a lawsuit just before the statute of limitation cutoff.
District officials said they wanted to fight the lawsuit but settled for $15,000 because litigation would be more expensive. The press release pointed out that Hood had filed more than 100 such lawsuits against other agencies.
While Hood has been successful in the vast majority of his lawsuits, his arguments don’t always prevail. He claimed, for example, that Langley should have let him look through the mayor’s laptop. Both the trial court and the appeals court agreed that it’s contrary to the PRA.
Langley Mayor Scott Chaplin was appointed to the position in June, so he’s new to the issue. He said he can’t discuss pending litigation except to say that he’s keeping an open mind but understands that Crittenden’s letter may contain inaccuracies.
Crittenden defends Hood as someone who is performing a public service.
“Although some agencies and their attorneys have mischaracterized Hood’s PRA cases as opportunistic or frivolous, Hood is simply a transparency activist doing what he has every right to do,” he wrote.
Hood said his records requests have uncovered instances of agencies ignoring auditor recommendations and school districts that inflate enrollment, as well as a large number of agencies that violate the PRA because officials either don’t think it’s important or don’t understand it.
Most shocking, Crittenden said, is the realization that Risk Management Service Agency is perpetrating a “fraud.” It provides Langley and all the other city members with legal representation to fight a PRA lawsuit but doesn’t provide coverage for any resulting fines and settlements. A risk pool, which is akin to insurance, cannot provide coverage for intentional conduct, civil fines or regulatory compliance, the attorney explained.
None of the other risk pools in the state — including a competing city risk pool and those representing counties and hospitals — provide legal representation to fight PRA lawsuits, he said.
Crittenden’s letter mainly targets Myers, who has been Hood’s nemesis in seven lawsuits. Crittenden said Myers should be advising his clients to comply with the law and settle — and he should educate them on open government requirements — but instead he advises them to fight the cases. This can be especially expensive since fines may be levied for every day that a record is withheld.
“In each case attorney Myers grossly mishandled the case by trying, unsuccessfully, to attack Hood and/or the PRA itself,” the letter states. “In each case the city had to pay Hood large amounts of money to settle the case, not because of the cities’ initial PRA violation, but because of the way attorney Myers over-litigated each case.”
Hood said he’s never lost to Myers, whom he describes as the face of public records dysfunction in the state.
Crittenden said PRA lawsuits can be minimal if an agency quickly admits the mistake and complies. He pointed to a case in which an agency that did exactly that was only fined $14, “less than a fraction of one percent of the amounts paid to Hood in various settlements.”
“Agencies and their attorneys just love to complain about the PRA, constantly spreading the lie that the PRA is too strict and that it’s just too easy for requestors to get large penalties for minor PRA violations,” Crittenden wrote.
In addition, Crittenden opined that Myers and other attorneys are simply wrong in their legal theory and tactics, which is why someone like Hood with no legal training has consistently prevailed when going up against big law firms. Risk Management Service Agency’s “attacks” on Hood have been financial disasters for the cities involves, he said.
Crittenden opined that Myers’ motivation in fighting PRA cases may be that he’s “a partner in a law firm that needs billable hours.”
“Attorney Jeff Myers and Law, Lyman, Daniel, Kamerrer & Bogdanovich, P.S. have made huge amounts of money by committing insurance bad faith on behalf of RMSA and then falsely blaming the PRA for their blatant malpractice,” he wrote in his letter.
In addition, Crittenden said that the Association for Washington Cities, the umbrella organization for Risk Management Service Agency, consistently lobbies Olympia against PRA requirements. The expensive losses against Hood, borne by cities’ taxpayers, may help bolster the argument, he said.
Myers and officials at Risk Management Service Agency did not respond to requests for comment.