Attorney-client limits debated

Critics say committee needs to tighten disclosure rules

By Brad Shannon | The Olympian • Published July 09, 2008

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The "sunshine committee" reviewing the state's public-disclosure law is moving away from taking sides on the controversial question of how far attorney-client privilege should go.

City government advocates such as Kent city attorney Tom Brubaker told the committee during its monthly meeting Tuesday in Olympia that the law is not abused, and the privilege helps him gather data. Others said the privilege is key to encouraging officials to seek good advice.

But Toby Nixon of the Washington Coalition for Open Government wants to put limits on what kind of documents or advice from lawyers get shielded from disclosure.

The committee is reviewing hundreds of records-law exemptions and making recommendations to the Legislature for changes.

Nixon watched the committee hearing quietly but said in an interview that the law needs tightening.

'Potential' abuses

Two narrowly decided state Supreme Court decisions since 2005 — involving Sound Transit and a Spokane School District child's death — opened the door to "potential" abuses by local governments, Nixon said.

Agencies now can use the privilege to shield more documents than necessary, even if they involve routine advice to a city council on its land-use options when no legal controversy is at hand, Nixon said.

In the Spokane case, he said, the district's lawsuit against the records requester to prompt a legal ruling was chilling and the first such action he knew of.

Lawyer John Alfred Manix, who represented the Spokane School District in the public-records fight related to the child's death, disagreed, telling the committee "the law as it stands now is where it ought to be."

Manix and the schools sued The Spokesman-Review of Spokane over whether to disclose results of an investigation into the death of the child. The Supreme Court sided with the schools, shielding documents from disclosure on grounds that they were attorney work product — including handwritten notes from members of the district's legal team — even after the district and family settled a lawsuit.