Opinion

Court decision shields govt. from public

Open access to government at all levels is fundamental to our democracy. So when the courts or legislature inhibit our ability to monitor the actions of those elected and appointed to work on the public’s behalf, we think citizens need to be made aware of such. Sadly, the Washington State Supreme Court struck just such a

blow recently, in a decision that curbs free access to government documents long established under the state’s Public Disclosure Act. No less an authority than state Auditor Brian Sonntag has said the decision “inflicts the most significant damage done to state public access laws since they were approved by voters in 1972.”

What follows is a commentary by our colleague Scott Wilson, publisher of the Jefferson County Leader and president of the Washington Coalition for Open Government, on this troubling decision. The Review seconds his comments wholeheartedly.

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A sharply divided Washington State Supreme Court has snatched away a chunk of Washington citizens’ right to know what our government agencies are up to behind closed doors.

In a 5-4 decision released May 13, the high court invented for government agencies two new exemptions to the Washington Public Disclosure Act (PDA), the landmark initiative approved by voters in 1972. The sweeping new exemptions came in the form of a single ruling, Hangartner v. City of Seattle, on two cases in which citizens sought the records of Seattle-area agencies poised to launch billions of dollars worth of mass transit projects.

Former Supreme Court Chief Justice James Andersen, a longtime champion for open government, said the decision simply “guts the Act,” which, he added, was already “being nibbled to death by ducks.”

The most troubling new exemption says, in effect, that written exchanges between a government attorney and agency officials can be kept secret from the public under the principle of “attorney-client privilege,” even if there is no pending lawsuit against that agency.

There’s no doubt that agency officials need to confer confidentially with their attorney if fighting a lawsuit. The PDA explicitly allows this in its “controversy exemption.” But court majority replaced this narrow exemption with a much wider one that invites abuse.

The decision will allow some agency to assert that all documents prepared for or by its attorney gains the attorney-client privilege protection, regardless of lawsuits. Government attorneys at local and state levels now gain the ability to sprinkle a secrecy holy water over reams of documents to which the public should have access.

Led by Chief Justice Gerry Alexander, the court majority that invented this new exemption claims it remains narrow but offers no standards to ensure it. The same majority also created a second new exemption against records requests that do not specify the records sought. The majority ruled that an agency can simply ignore “over-broad” requests for documents, again without clear definition.

Wiser words come from the dissent of Justice Charles Johnson. Justice Johnson notes that the PDA explicitly mandates three times that future court rulings should promote full public access to records and narrowly interpret exemptions to this rule. The court majority does the opposite, creating new exemptions where none existed.

The PDA governs the relationship between the public and the agencies that serve them, Justice Johnson wrote. The attorney-client privilege is confined only to the relationship between the agency and its own attorney. The majority opinion allows this self-serving internal partnership to govern the much more important and statutorily protected relationship between a self-governing public and the agencies that serve them.

The PDA is among our cornerstone laws. Its intent is unambiguous: “The people, in delegating authority [to government agencies], do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Thanks to the Supreme Court majority’s vote, government agencies have gained broad new powers to decide what is good for us to know and what is not.

Proponents of open government, notably the Washington Coalition for Open Government (www.washingtoncog.org) and some of the parties involved in the Hangartner case, may ask the Supreme Court to reconsider. Barring a reversal, the Legislature must be called upon to re-assert the public’s rights. Citizens must once again remind our government agencies – and our high court – that the people insist on the mechanics of our government remaining visible and open.

– Scott Wilson

Publisher, Jefferson County Leader

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