Right to know crumbles with attorney-client privilege ruling

Tuesday, February 12, 2008 5:31 AM PST

Longview Daily News - Longview, WA, USA

This state's 1972 open records act lays out a basic principal of representative government: "The people, in delegating authority, 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."

The courts and the Legislature have gradually chipped away at the voter-approved law. They seem intent on making it easier for agencies to withhold information from the public. Many disclosure exemptions are reasonable, but some are wrongheaded. One of the latest falls into the latter category.

In a recent 5-4 decision, the State Supreme Court dramatically expanded the law's "attorney-client privilege" exemption. The court ruled that the Spokane School District did not have to disclose its lawyer's investigation into the death of a 9-year-old who died from an allergic reaction after eating a peanut butter cookie given to him at lunch. The investigation grew out of the parents' notice that they would sue the district. The case eventually was settled out of court. But the district even then refused to disclose the report to the Spokane Spokesman-Review, saying it was prepared by an attorney "in anticipation of litigation." The Supreme Court went along with school officials, saying the "legal controversy" exemption applied because litigation was likely at the time the investigation took place.

What kind of reasoning is this? One of the dissenting judges warned that the ruling "essentially creates a public nondisclosure act, turning the act inside out so that documents are withheld from the public unless the public can demonstrate that no remotely connected litigation exists, past, present or future."

If authorities had previously chipped away at the Open Records Act, this ruling blasts a tunnel through the heart of it. It will just encourage government agencies to ask lawyers to prepare documents and attend meetings so they can claim attorney-client privilege.

That's happening already, says Toby Nixon, a former legislator and president of the Washington Coalition for Open Government. And it's an ominous trend, he warns: "Keeping all communication between agencies and their attorneys secret is a recipe for bad and unaccountable decision-making and for potential corruption."

In the peanut butter case, the Supreme Court even acknowledged its ruling could lead to abuse and shenanigans, but it noted that it's the Legislature's job to fix the law.

The Legislature has an opportunity to do so during its 60-day session, now in progress. Getting lawmakers to address the attorney-client privilege problem is the top legislative priority for open government advocates.

Lawmakers need to act to close down this court-created loophole, which gives bureaucrats far too much latitude to decide what we should or shouldn't know.