Legislative proposal would allow agencies to withhold the occupations of whistleblowers in investigations
Spokane Valley Councilmember Al Merkel is a big guy — 6 feet, 350 pounds, bushy black beard — with a loud voice. He is also, according to an independent investigation initiated last year by the city of Spokane Valley, a bully.
The April 24, 2024, investigation into Merkel, triggered after multiple city employees alleged that he represented a safety threat, concluded that he was so “unreasonably loud, pushy, rude and disrespectful” to city employees that, while his behavior didn’t constitute legal harassment, it clearly violated the city’s standards for decorum.
“Multiple staff reported that Councilmember Merkel has made them feel fearful and intimidated working at City Hall,” the city said in a press release.
In February, Merkel hit back at the investigation with an unorthodox tactic: publishing the entire thing online. It took eight months for the city’s public records department to hand over the interview transcripts from the investigation, he said, but once he had them, he uploaded the documents to his campaign website and posted rebuttals.
In the eyes of Merkel and his allies, the investigation was retaliation for his outspoken views on budget waste and city incompetence, a “smear campaign put on by the city with city funds.”
But in the eyes of city staffers, Merkel’s online rebuttals represented their own kind of retribution — against the staffers who’d testified against him.
Merkel was never officially told who his accusers were. If he had been criminally accused, no matter how minor or heinous the accusation, he would have had a right to confront his accuser. But those same rights don’t apply to internal employee investigations.
The names of accusers and witnesses were redacted in the public records. But their job titles were included, leaving several witnesses afraid of retaliation from Merkel or his impassioned allies.
"Maybe it's not even retaliation from a council member,” said Kelly Konkright, Spokane Valley city attorney. “But what is somebody out in the community going to do with the information?”
Now the fight has shifted to the state Capitol in Olympia. City staffers asked their local state representative, Republican Rob Chase, to push legislation to further shroud the identities of accusers and witnesses. Along with witness’s names, the bill would require agencies to black out email addresses, phone numbers, and even require using software to digitally disguise their voices in recordings. It would also cut out job titles that are often crucial to distinguish between, say, an accusation from a mayor and from an accusation from a receptionist.
But the tensions between a victim’s right to be heard, the accused’s right to know who’s accusing them and the public’s right to know are ever at odds: This exemption is one of nearly 700 that have been passed over the years, resulting not only in limited public access to government information, but also slowed records responses as overburdened records clerks try to adhere to the law.
The bill to redact job titles swiftly passed the House, 92-4. It received little resistance from even the state open government groups that typically lobby hard against these restrictions, who saw the bill as a relatively small extension of existing records exemptions.
Yet David Cuillier, director of the Brechner Freedom of Information Project, which advocates for public record access at the national level, says that even small erosions of governmental transparency are worth fighting.
“That’s why we have so much secrecy today. Even open government advocates say, ‘Oh, it’s just a little thing. Don’t fight it,’” Cuillier said. “It’s incremental whittling away at public access to information.”
Anonymous sources
Cuillier says that about two decades ago, a national trend started up to try to protect the names of victims in criminal records. Today, he says, that tendency has spread to public human resources investigation records as well.
Over the last five years, public employees, particularly unions, have repeatedly advocated for more exemptions from public records.
“I think people are more worried these days about ending up the target, purely because they happen to be a public employee,” said Candice Bock, government relations director for the Association of Washington Cities.
City staffers have always had to deal with the occasional angry citizen. But in the age of social media mobs, Bock said, many feel a keen awareness of just how easy it is for one angry citizen to post something on Facebook or NextDoor, where it suddenly turns into a hundred angry citizens.
The Washington Legislature has made moves to restrict records involving employee investigation information several times before.
In 2019, in response to the #MeToo movement, the Legislature passed new exemptions to parts of the Public Records Act: Public employees who reported harassment or discrimination would have their names censored, unless they requested otherwise, in records requests for the ensuing investigations. So would the names of every witness interviewed.
Ideally, legislators hoped, that would make victims more likely to report misbehavior, protecting them from retaliation.
But for those trying to hold powerful leaders and institutions accountable, it was an immediate setback. Confirming the identities of accusers and witnesses — and reaching out to them for comment — is generally crucial to telling a full and accurate story. The Spokesman-Review, along with other Spokane media outlets, had sued to get the names of the women who accused a former community college president of sexual harassment, in an attempt to learn whether the college had failed to appropriately respond to the concerns. But after the 2019 law passed, a court reversed an earlier decision, and the names were never released.
“That’s the only way we can keep the system honest — is to know who is involved,” Cuillier said.
And in complicated investigations, with the identities of dozens of different parties blacked out, reporters are faced with trying to understand what happened without names.
“You could have somebody that was accused of seven things, let's say, and you wouldn't know if it was from seven people or one person,” said Rowland Thompson, longtime lobbyist for the Allied Daily Newspapers of Washington, a trade group representing media outlets. “You could think there was a rash of problems at the Public Works Department at Spokane, say, and then you come to find out it’s one person accusing everybody above them of harassment.”
Job titles have, with some investigations, been one of the only ways to reliably distinguish between different figures.
But others say that was a bug with the law, not a feature. In a city like Spokane Valley that has relatively few full-time staffers, it’s often simple to figure out an identity from a person’s position.
“If you disclose a job title, in most circumstances with a smaller workforce, you might as well identify them by name,” Konkright told InvestigateWest.
Title fight
Cuillier argues that job titles themselves are a crucial part of the public record.
“What matters is the circumstances — the titles are a big part of the circumstances,” Cuillier said. “Is it the police chief accusing the mayor of something, or an intern? Is it a high school cadet accusing the sergeant of abuse or a captain?”
Harassment and discrimination is frequently about abuse of power, Cuillier says. A job title shows that power.
One of the Spokane Valley report’s most serious accusations against Merkel was that, after a council meeting, he yelled at someone and tried to physically block her from leaving the room. That person? Pam Haley, a fellow councilmember and mayor of Spokane Valley, who Merkel considers one of his “political enemies.”
Under the proposed new law, when elected officials are witnesses or complainants, their job titles would be obscured, too.
Thompson argues there’s a due process problem with trying to obscure the identity of the accuser from the accused.
“I just cannot get past the fact that you can have a complete HR investigation — a virtual witch hunt of somebody — and they're not telling them who the person is who is accusing them of this,” Thompson said. “It’s anonymous. And it could ruin your career.”
Merkel points to the Sixth Amendment, which guarantees the right of criminal defendants to confront their accusers. While those constitutional protections only apply to criminal cases, he argues that the principle should apply more broadly.
There is a way for investigation subjects like Merkel to find out who his accusers and witnesses are: Sue. Names protected from the public eye are typically revealed during the discovery process.
“The thing that is going to happen is the only way that they can really find out is they're going to sue," Thompson said. "So I just think this sort of leads to more litigation."
Slippery slopes
As the bill heads to the Senate, the Washington Coalition for Open Government is officially neutral on the proposal.
Last week, the Washington Coalition for Open Government awarded InvestigateWest the Bunting Award for a series last year that exposed how the accrual of exemptions has clogged up the records system. But this bill, too, would add more work for agencies, including requiring records offices to alter audio recordings to disguise the voices of witnesses or accusers.
Some open-government advocates are just relieved that the bill isn’t more broad and sweeping. Thompson said the initial push from the Legislature had been to propose language that banned revealing “personally identifying information” of witnesses or accusers at all.
“If you do that, how would you know anything?” Thompson said.
Even if you removed Pam Haley's title from her transcript, there were plenty of other clues as to her identity, including the year she was appointed to the council, and the fact she owns a day care center and previously managed a bill collection business.
“You could get rid of the job titles, but if you're asking questions like, ‘What do you do for the city? Where do you work in City Hall?’” Merkel said, you can begin to figure it out.
But start removing any possible information that could be potentially linked to a person's identity, and you begin excising big chunks of the testimony, including crucial claims and context for understanding what was happening within local government.
In other states, like Oregon, some agencies have played reverse-detective— spotting records that, if combined with another, could allow someone to figure out protected identities, and then preventing the public from seeing that information.
“At that point we’re just starting to make the whole process secret,” Cuillier said. “I think that’s what a lot of government folks prefer — for their dirty laundry to be hidden.”
Even Merkel, who refers to himself as a “transparency hound,” is accused of having failed to turn over public records related to his NextDoor social media posts. The other City Council members voted last month to sue him under the Public Records Act, though Merkel claims he has already provided the records.
But while the public may be frustrated by losing access to information about their government under the proposed bill, Konkright said, journalists will learn even less about their government if victims are afraid to report at all.
“Many staff members stated they will just not come forward if there is any future incident,” Patricia Rhoades, Spokane Valley’s public records officer, told the Legislature.
She and other Spokane Valley veteran staff members — including the human resources director, city attorney, city clerk and former building inspector — testified in favor of the records bill, all by name.
The Legislature, at least, does not allow the public to testify anonymously.
This story was originally published by InvestigateWest, a nonprofit newsroom dedicated to change-making investigative journalism. Sign up for their Watchdog Weekly newsletter to receive stories like this one in your inbox.
A Report for America corps member, Daniel Walters covers democracy and extremism in the Pacific Northwest. Reach him at daniel@investigatewest.org.