Battle over public records goes on

OLYMPIA — Local government officials, news organizations and citizen watchdog groups are stalemated in the most significant fight in years over Washington's open-records law.

The government groups want to solidify their victory in a state Supreme Court ruling last year that lets them keep records secret by invoking "attorney-client privilege," the traditional right of lawyers not to testify about conversations with the people they represent.

State law already shields some records from public disclosure if they're involved in a legal controversy, a lawsuit or a criminal case. But news-media executives and watchdog groups say the ruling vastly expanded public agencies' ability to claim attorney-client privilege and hampers citizens' ability to keep an eye on the government.

Government officials say those worries are overhyped, and that the court ruling does nothing more than reaffirm the way things have been for years.

"They are good, smart people, but they are dead wrong on this," said Roger Wynne, an assistant city attorney in Seattle.

Lawmakers had hoped to pass legislation to settle the attorney-client dispute, but leaders in the House and Senate said Friday they will likely set the issue aside until next year, or maybe leave it to a future court fight.

The legislation bogged down last week after one key lawmaker, Sen. Jim Kastama, D-Puyallup, who had sided with the government lawyers, was hit by an onslaught of negative newspaper editorials. One headline: "Government secrecy finds its champion."

A feud erupts

Government lawyers and the news media are old adversaries, but their tussles over public records typically take place behind the scenes. Rarely do they engage in such open political brawls.

The feud erupted last spring, when a sharply divided state Supreme Court ruled 5-4 that city of Seattle officials could use attorney-client privilege to withhold several Sound Transit-related documents from local activist Rick Hangartner. A lower court had sided with Hangartner and ordered the city to give up the documents.

At the same time, the Supreme Court also ruled against a group that had filed a request for all of the records kept by Seattle's monorail agency. The court said government agencies can reject public-records requests that are overly broad.

The Hangartner ruling was assailed by newspapers and other open-records advocates, including the conservative Evergreen Freedom Foundation.

Republican Attorney General Rob McKenna, acting on a campaign promise he made last fall, introduced legislation in the House and Senate aimed at reversing — or at least revising — the ruling.

Lawmakers found little to fight about over much of McKenna's proposal, including a provision overturning the Supreme Court's ruling on overly broad requests.

But lawmakers, faced with vastly different legal interpretations of Hangartner v. City of Seattle, struggled to find any middle ground between the two sides on the attorney-client issue.

Broad new authority?

Open-records advocates say government agencies should be allowed to claim attorney-client privilege only when there is a legal "controversy" — such as an ongoing or imminent lawsuit. They say that was the case prior to Hangartner.

Without that limitation, they say, the ruling gave government agencies broad new authority to withhold communications involving a lawyer.

"It gives a certain class of public employees a general exemption to disclosure, something no other class of public employees enjoy," said Scott Wilson, publisher of the Port Townsend Leader and president of the Washington Coalition for Open Government.

Critics also warn the ruling could allow agencies to claim attorney-client privilege on records prepared by other employees, such as paralegals and investigators.

Wynne, who argued the Hangartner case for Seattle, said the coalition is exaggerating the impact of the ruling. He said it simply reaffirmed how agencies had always interpreted attorney-client privilege and that the so-called controversy standard was never the law.

"If there wasn't a crisis before, then there isn't a crisis now, because nothing has changed," he said. "To say that anything has changed due to Hangartner is utterly false."

Wynne and other public lawyers say the so-called controversy standard is far too narrow and would inhibit candid exchanges between government agencies and their lawyers.

Lorraine Wilson, director of legislative and labor relations for Tacoma Public Schools, said school-board members and administrators should be able to get "unfettered advice" from the district's attorney.

"Our attorney is very concerned that very much of what she does is provide advice on things that could become disputes," Wilson said. "If somebody can troll through that advice, they might be able to find examples of things to turn into [lawsuits]."

Seeking a compromise

McKenna hoped his legislation would strike a fair compromise.

For instance, his bills call for stiffer fines on agencies that violate the disclosure law, but would shorten the length of time for people to file public-records lawsuits.

Newspapers and open-records advocates praised those provisions but complained that his attempt to define attorney-client privilege was tilted too far in favor of government attorneys.

But if they were unhappy with McKenna's language, they were furious at a new version put forward last week by Kastama that would essentially codify the attorney-client portion of Hangartner.

A day after Kastama's amendment was approved by a Senate committee, Wilson sent an e-mail to members of the open-government coalition calling it the "most serious organized attack" ever on the public-disclosure law.

"It's time for the media to get very active in this debate, in personal contacts and in publicizing the issue," he wrote.

Over the next few days, newspapers across the state — including Kastama's hometown paper — ran editorials blasting his amendment.

"A looming disaster for public access," read one editorial headline in The Seattle Times. "A dark day for open government," warned Spokane's Spokesman-Review.

McKenna said his personal view on the attorney-client issue is closer to newspapers' position than what government attorneys — including many who work for him — and Kastama are pushing for.

But with no compromise in sight, McKenna last week urged legislative leaders to leave the attorney-client provision out of his legislation. McKenna said he would try to find something both sides can agree to before next year's session.

"I don't want this one issue to kill the entire bill," he said.

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com