Public's right to know is under serious attack

Thomas Jefferson characterized the basis of our government as "the opinion of the people."

And people are very opinionated about their government. Look at the turnout in the past election.

But the public is losing ground on the finer points of monitoring its government, ranging from knowing who participated on a federal energy policy task force, to gaining insight into how Seattle develops policy for light-rail systems.

Citizens need ways to hold their government accountable beyond noticing more potholes or a higher tax bill. At the federal level, the means has been the Freedom of Information Act (FOIA). In Washington, it has been the voter-enacted Public Disclosure Act.

Both are under attack. A recent Associated Press review found that, even though FOIA requests to federal agencies are increasing, they are granted less often.

Some of the clampdown is related to the 9/11 terrorist attacks. Former Attorney General John Ashcroft dramatically shifted the Justice Department's policy on FOIA requests. Under his predecessor, the standard was to disclose the information unless there was "foreseeable harm." Ashcroft told agencies he would support their decision not to disclose if there was any "sound legal basis" not to.

Here in Washington, the citizen-approved Public Disclosure Act is arguably under the worst attack since it was enacted 33 years ago.

Last year, the state Supreme Court ruled against Rick Hangartner, a citizen who requested documents related to the Seattle policy for light-rail-system permits. By the slimmest of margins, the court ruled the city could cite attorney-client privilege to keep certain documents private even though there was no threat of litigation. Previously, public agencies could cite that privilege only if there was this treat. In the same decision, the court also ruled public agencies did not have to comply with requests they deemed "overly broad."

Naturally, public watchdog groups from the left and the right — not to mention news organizations — were upset. Under the new standard, much of the information in The Seattle Times' award-winning investigative series about coaches who sexually abuse athletes would have been almost impossible to learn.

New Attorney General Rob McKenna proposed a bill he hoped would make the law clearer. But a dangerously amended version that codifies the Hangartner decision passed out of the Senate. The only hope is that the House's more reasonable version, which puts off the attorney-client issue for another day, is enacted.

The Department of Corrections requested another troubling bill after KING-TV asked for records to help it evaluate the process of how sex offenders are categorized upon their release.

Open-government advocates question also if government officials are doing too much.

"You've seen the original public records law blown apart as Washington state goes into private business," said Jason Mercier of the Evergreen Freedom Foundation. The conservative public-policy research group used the law to scrutinize details about the state's deal to keep Boeing 7E7 manufacturing here.

Case in point is Gov. Christine Gregoire's intriguing proposal to set up a grant fund to help advance biotechnology industry in Washington. The fund uses money she earned Washington for her role as lead attorney general in securing a multistate tobacco settlement.

But the bill would create perturbing new exemptions to the state access laws. The reason is to protect proprietary information of would-be grant applicants.

Perhaps understandable, but the existing law already covers that. The voter-approved standard is to protect the information if disclosure would produce an adverse result. The new wording is hazier: reasonably be expected to result in private loss.

A government lawyer wouldn't have to be very smart to make sure that covered anything fund officials wanted it to.

I hate to rain on the governor's parade, but you really have to wonder if it's a good idea for government to be going into enterprises where it keeps secrets from citizens. Disappointingly, people I talked to say this particular sweeping public-policy decision has been little mentioned and has been eclipsed by the promise of the grant fund.

The Public Disclosure Act's preamble offers an important perspective lawmakers should ponder as they consider limiting public access:

"The people of this state do not yield their sovereignty to the agencies that serve them. 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 people insist on remaining informed so that they may maintain control over the instruments that they have created."

Can government ever know best? I don't think so. And neither did Washington voters, lo those many years ago.

Kate Riley's column appears regularly on editorial pages of The Times. Her e-mail address is kriley@seattletimes.com