Attorney-client limits debated

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.

Sen. Adam Kline, a Seattle Democrat and lawyer, said lawyers and government agencies need protected conversations on the same "level playing field" as corporate and other privately retained lawyers. He asked the committee to vote in September in favor of sending no specific recommendation to the Legislature on the issue.

Paul Telford, a Port of Olympia commissioner, said he has seen both sides and thinks the attorney-client privilege can be confusing.

"You shouldn't have to have an attorney looking at every one of these to decide what is exempted and what isn't," Telford told the committee, suggesting a state clearinghouse could help people sort it out.

"I've said the understanding of the rules is only as good as the last court case. We just can't operate this way. … We need to know the rules. The public needs to know the rules. The current system, in my opinion, is broken," he added.

Split on topic

Members of the committee appeared to be split on the issue.

Rep. Jay Rodne, a North Bend Republican and attorney, said the privilege protecting legal advice from disclosure has worked for hundreds of years; he urged voters to use the ballot box to fix secretive governments.

"Local governments ignore and resist transparency at their own peril," Rodne said.

But retired newspaper publisher Frank Garred of Port Townsend said Telford's comments show there is a problem, though of uncertain size.

Sen. Pam Roach, R-Auburn, said she wants to take legislative action in January, borrowing legal language from other states.

Committee Chairman Tom Carr, Seattle's city attorney, said three panel members were absent, so it is unclear how the 13-member committee might vote on Kline's proposal.

Nixon said that the Coalition for Open Government, which has journalists and good-government advocates in its ranks, plans to ask lawmakers for limits on use of the attorney-client privilege in January — with or without the committee's recommendation. In the meantime, he plans to share the coalition's views with each committee member.

"Either way, the Legislature is going to hear our position," Nixon said.