From the May 20 – May 26, 2004 issue

News

Closed-Door Policy

State Supreme Court Guts Public Disclosure Law

by Erica C. Barnett

The Public Disclosure Act (PDA) requires government agencies to turn over public documents to anyone who asks for them, regardless of whether that information is embarrassing, controversial, or inconvenient to produce. But in a far-reaching decision last week on two cases that were consolidated by a lower court, the Washington Supreme Court created new exemptions that, taken together, will gut the state's public disclosure law.

In the first case, the city refused to hand over documents related to Sound Transit's light-rail construction and the Pioneer Square Alcohol Impact Area to local gadfly Rick Hangartner, arguing that the records were shielded by attorney-client privilege. In the second suit, the Elevated Transportation Company (now the Seattle Monorail Project, or SMP) used a similar argument to withhold hundreds of documents from the anti-monorail group Citizens Against the Monorail--even though, in many cases, the documents were simply cc'd to an agency lawyer, or were never even touched by an attorney's hand.

The lawsuits dealt with two major questions: Is a request for all of an agency's documents too broad? And can government agencies use attorney-client privilege to keep public records out of citizens' hands?

The court's decision makes two troubling changes to public disclosure law. First, it creates a sweeping new attorney-client privilege for public agencies, exempting all legal communications from disclosure (despite the fact that the public, as much as government staff, is really an agency's "client"). Second, it allows agencies to deny any requests they consider "overbroad," without asking the person requesting the information for clarification. Taken together, the new exemptions could give agencies carte blanche to withhold virtually anything they don't want to disclose. Although agencies protest that they would never withhold documents they know are public, the record isn't so reassuring. SMP director Joel Horn, who protests that "no one has disclosed the way we've disclosed," nonetheless makes an alarming case for withholding information from anti-monorail activists: "This lawsuit was politically motivated. Why should our research on how to build the project go to people who want to stop the project?"

The answer--because the law says it should--should be obvious to anyone entrusted with leading a public agency. Michele Earl-Hubbard, an attorney with the Washington Coalition for Open Government, puts it plainly: "If you want every record of an agency, you are entitled to get every record of the agency." One of the central tenets of public disclosure law, after all, is that the public has the right to all public records, regardless of what citizens want to do with the documents, or whether agencies consider it a hassle to provide them. But that basic principle may no longer hold true in Washington. And while agencies from the SMP to the city attorney's office argue that they would never use the new exemptions to withhold documents that should be disclosed, citizens shouldn't have to rely on the goodwill of public agencies to get their hands on documents that ought to be theirs for the taking.

barnett@thestranger.com