Court: Attorney-client privilege overrides open-records law

By Eric Pryne
Seattle Times staff reporter

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In a 5-4 opinion, the court concluded that attorney-client privilege supersedes the requirements of the landmark state Public Disclosure Act, approved by voters as an initiative in 1972.

Chief Justice Gerry Alexander, writing for the majority, said it's clear the Legislature created the exemption when it amended the disclosure law, which makes most government documents available to the public, in 1987.

But, in a strongly worded dissent, Justice Charles Johnson labeled that conclusion "absurd," arguing it "renders ineffectual the (law's) strong mandate to agencies that they must disclose public information."

News and open-government organizations reacted angrily to the ruling.

"This decision has probably done more violence to the public-records act than any other decision they've done," said Seattle attorney Judith Endejan, who argued the case for the losing side and sits on the board of the Washington Coalition for Open Government.

"Basically what it does is, it eviscerates the act," added former Supreme Court Justice James Andersen, another board member.

But local-government officials said the ruling simply gives communications between public-sector clients and their attorneys the same legal protection private-sector clients enjoy.

"I don't see this as a gloom-and-doom situation," said Vancouver City Attorney Ted Gathe. "I just see it as reaffirming the role of lawyers with all kinds of clients."

The ruling stemmed from two Seattle cases in which city officials, citing attorney-client privilege and other exemptions, refused to release some documents citizens had requested. One case involved the monorail, the other Sound Transit's light-rail line and a Pioneer Square "alcohol impact area."

The cases were consolidated for the high court's review. News organizations filed friend-of-the-court briefs siding with those seeking the records, while associations representing cities, counties, sheriffs, police chiefs, port districts, school officials and government lawyers argued the exemption should be upheld.
 
In his opinion, Alexander noted that the Legislature had added language to the Public Disclosure Act 17 years ago allowing agencies to withhold records whose release is prohibited by other state laws.

Since another state law says attorneys can't be required to reveal communications with their clients without the clients' approval, the chief justice wrote, it follows that "documents that fall within the attorney-client privilege are exempt from disclosure.... "

But Johnson, in his dissent, said that law is directed at lawyers, not government agencies, and so does not apply.

Justices Faith Ireland, Bobbe Bridge, Susan Owens and Mary Fairhurst sided with Alexander. Johnson's dissent was signed by Justices Barbara Madsen, Richard Sanders and Tom Chambers.

Kathryn Harper, spokeswoman for Seattle City Attorney Tom Carr, called yesterday's decision "good for the city and good for citizens." If the city is to avoid legal trouble, she said, it must have "open and honest discourse" with its lawyers.

That, in turn, requires confidentiality, Harper added.

But Andersen, the former justice, said the ruling "opens a loophole that you can drive a fleet of trucks through."

Agencies will cite attorney-client privilege in withholding many documents that should be disclosed, he said: "You've got something if they give it to you. If they don't, you're in litigation forever."

In his opinion, Alexander warned that unjustified claims of attorney-client privilege to avoid disclosure could subject agencies to stiff fines. The exemption is narrow, affecting only "communications and advice between attorney and client," he wrote.

Andersen wasn't impressed. "That's just conversation," he said. "That's the kind of conversation you put in to pick up votes."

In another part of the opinion, the court ruled monorail opponents' 2002 request under the Public Disclosure Act to inspect monorail agency offices and "all books, records (and) documents of every kind" was illegal because it was too broad.

The law "was not enacted to facilitate unbridled searches of an agency's property," Alexander wrote.

But Andersen and Endejan said that, too, erodes the law's sweep. "Now you're supposed to know what the agency has before you can request it," Endejan said.

Eric Pryne: 206-464-2231 or epryne@seattletimes.com