The state's 1972 Public Disclosure Act ensures Washington citizens' right to view public documents, though it has been riddled with more than 50 exemptions since--like documents associated with a pending or ongoing lawsuit. Lawyers for the city and the monorail agency are currently fighting to broaden two of those exemptions in a court case that could drastically limit the Public Disclosure Act.
Last Friday, the case (actually two cases, combined by the Washington State Court of Appeals earlier this year) was sent to the state supreme court, where it could be heard as early as this summer. The first case, filed by local gadfly Rick Hangartner against the City of Seattle, involves a city decision to allow Sound Transit to work on light rail 24 hours a day, in violation of Seattle's noise ordinance. In that case, the city used an attorney-client privilege exemption to withhold three documents, even though none of the records related to an ongoing lawsuit. The second suit was filed by the anti-monorail group Citizens Against the Monorail (CAM) against the Elevated Transportation Company, now known as the Seattle Monorail Project. In that case, the ETC withheld hundreds of documents under the cloak of attorney-client privilege. Many were disclosed to other government agencies but withheld from CAM, the group's attorney, Judy Endejan, says. (Full disclosure: Endejan has represented The Stranger.)
Dozens of government agencies--including the Association of Washington Cities, the state attorney general, and the Washington State Transit Association (which represents Sound Transit)--have filed briefs in support of the city and the monorail.
The city and monorail agency are making two basic claims. First, they claim that because a public works agency like the monorail project will almost certainly get sued by somebody, all communications between agency attorneys and staff--even those that don't involve an actual lawsuit--could come up in future litigation, and so should be kept from public view. Second, they argue that because private citizens and corporations have the right to keep attorney-client communications secret, so should public agencies--forgetting that, in the case of a government agency, the public (not the agency's staff) is really the ultimate "client." Following the agencies' logic, Endejan says, would mean, for example, that "even though you pay for the city lawyer, you're not entitled to see the advice that your city attorney provides." The assumption, says attorney Bill Crittenden, who filed a brief on behalf of the Seattle League of Women Voters supporting Hangartner and CAM, should be that "these people work for us"--not for staff or board members of the agency.
If the agencies win, Crittenden worries, any e-mail or memo that is touched by an attorney could be sealed as a privileged "attorney-client" communication. Put another way, government agencies could keep documents from the public--or close the doors at public meetings--simply by copying e-mails to an attorney, or inviting a lawyer to sit in on a meeting, whether the agency is seeking a legal opinion or not.