Disclosure backers lose in state court ruling on student's death

OLYMPIA — A sharply divided state Supreme Court ruled Thursday that the Spokane School District was justified in keeping secret documents from its investigation into the death of a boy who suffered a fatal allergic reaction while on a school field trip.

In a 5-4 ruling that is sure to fuel an ongoing debate over the court's reading of the state Public Records Act, the majority said the documents were exempt from disclosure requirements because they were protected attorney "work product" and attorney-client communications.

The ruling also said government agencies can challenge records requests in court before releasing any information.

The dissent said the decision "essentially creates a public nondisclosure act" by vastly expanding government agencies' ability to invoke attorney-client privilege.

In May 2001, 9-year-old Nathan Walters went on a field trip with his third-grade classmates at Logan Elementary. Though the school had been notified that the boy was allergic to peanuts, he was given a sack lunch that included a peanut-butter-and-jelly sandwich, trail mix and a peanut-butter cookie.

The boy gave the sandwich and trail mix to his teacher, but ate half of the cookie before realizing what it was. He quickly fell ill and died later that day.

Almost immediately after the incident, Spokane Public Schools officials contacted their attorneys, who then hired a retired police officer to investigate. And within days, attorneys for the boy's family informed the district that they intended to file a wrongful-death claim.

A couple of months later, the two sides agreed to seek a settlement through mediation. About the same time, the Spokane Spokesman-Review newspaper filed a public-records request for "copies of all material related to the investigation."

But while the paper's request was pending, the school district agreed to a settlement that sent nearly $1 million to the boy's family and estate.

Later in 2001, before responding to the records request, the district filed a lawsuit against the paper. The district — claiming it was bound by law to protect the family's privacy — asked the courts to declare that 75 documents related to the case were exempt from disclosure.

While lower courts granted release of a few of the documents, they said the district was not required to disclose the rest of the documents in dispute, including the investigator's handwritten notes from interviews with 28 witnesses.

Writing for the majority in Thursday's ruling, Justice Bobbe Bridge said the documents were attorney-client communications and attorney work product — records protected under the Public Records Act as "relevant to a controversy."

"The attorney-client privilege exists to allow clients to communicate freely with their attorneys without fear of later discovery," Bridge wrote.

Joining the majority were Chief Justice Gerry Alexander and Justices Susan Owens, Mary Fairhurst and, writing a separate concurrence, Justice Barbara Madsen.

But Justice Charles Johnson, in a strongly worded dissent, said the majority had misinterpreted the controversy exemption. At the time the investigator did his interviews, "no controversy or legal action existed," Johnson wrote. And by the time the lower courts took up the newspaper's records request, the district and the boy's family had already reached a settlement.

"The majority 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," Johnson wrote.

Joining in the dissent were Justices Richard Sanders, Tom Chambers and James Johnson.

Mark Anderson, associate superintendent for the Spokane School District, praised the decision.

"If you know you're going to get sued, or are sued, then we have the right as a public entity — the same right as anyone else who might get sued — to be able to hire an attorney and have your communications with your attorney ... be kept private," Anderson said.

And Anderson said there was no question that the controversy exemption applied in this case.

"If you have a kid die under your watch, you know you've got a controversy," he said.

But open-government advocates said the decision goes even farther than previous rulings that they say expanded attorney-client privilege.

"This will create an incentive for agencies to direct all internal investigations be done through their attorneys ... rather than do them administratively as they might have in the past," said Toby Nixon, a former state lawmaker and now president of the Washington Coalition for Open Government, a group that includes media companies and government watchdog groups.

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