Loophole in records law must be fixed

The Olympian • Published November 21, 2008

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Members of the state's Sunshine Committee want to close a loophole in the law that allows government entities to block the release of public documents based on attorney-client privilege.

When state lawmakers convene in Olympia next January, they must give serious consideration to the Sunshine Committee's recommendation. The attorney-client exemption should only apply if the documents are relevant to a pending lawsuit -- a live controversy, in other words.

Too often, public officials forget that they are the mere keepers of the records that rightfully belong to the public. Too many exemptions to the Open Public Records Act have been created over the past 35 years, putting more documents beyond the reach of the public.

That's not right. They are called public records for a reason.

The Sunshine Committee was created in the summer of 2007 to examine existing public records laws and exemptions and look for ways to balance the public's right to know against the need of government to keep a limited number of records sealed.

The committee's work was complicated by a horrible state Supreme Court decision in the spring of 2004, when a 5-4 majority said when attorneys are involved, public documents can be withheld.

We castigated the opinion at the time and warned that bureaucrats would simply loop public attorneys into their decision-making processes, then claim the records of those decisions are exempt under attorney-client privilege.

That's pretty much what has happened.

At the time of the Supreme Court decision, Seattle attorney Judith Endejan, who argued the Hangartner case for the losing side, said, "This decision has probably done more violence to the public-records act than any other decision they've done." The decision involving the defunct Seattle Monorail Project and whether key records could be withheld from public inspection.

A separate decision, "Soter," in 2007 put up additional barriers to those seeking public documents. That case dealt with a Spokane-area student who died from complications of a peanut allergy on a school outing. Unfortunately, the court sealed the records. The Sunshine Committee recently attacked the Hangartner decision head-on and came away with a strong, 7-3 majority recommendation that the law be changed.

"We sent a signal from the committee that a seven-member majority felt the legal exemptions should not be any broader than before the two judicial rulings," said Ken Bunting, associate publisher of the Seattle Post-Intelligencer and sponsor of the motion that asked lawmakers to fix the problem, which Washington Coalition for Open Government has made a top priority since 2004. "I think it's still difficult," to get the issue passed into law, Bunting added. But he hopes the recommendation makes it an easier sell to lawmakers.

The issue now goes to lawmakers, where past squabbles between advocates and local governments have doomed legislation.

House Majority Leader Lynn Kessler, a Democrat from Hoquiam and a strong advocate for open records, plans to confer with Republican Attorney General Rob McKenna in hopes of drafting a bill that will make it clear that records can only be withheld on the attorney-client privilege if there is active litigation involved.

That bill should be a priority in the 2009 legislative session.