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Home / Washington Business - January/February 2005 / Gaining Access to Public Records |
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Gaining Access to Public Records |
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Written On: January/February 2005 |
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Written By: by Kris Tefft - AWB General Counsel |
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Washington’s Public Disclosure Act says, in part:
“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” includes businesses and organizations like the Association of Washington Business. Ready access to public records is a major tool in AWB’s representation of its members in front of the Legislature and state agencies.
In 2005, access to public records promises to be a major issue, because our state judiciary recently eroded the intent of the Public Records Act. James Andersen, retired chief justice of the Washington Supreme Court, said the act is being “nibbled to death.” State Auditor Brian Sonntag said the Supreme Court “has ripped the heart out of what voters intended” when they passed the act in 1972.
The reason is the Supreme Court’s action on Hangartner v. City of Seattle.
Hangartner involved two requests for public records. One was to the City of Seattle for bills relating to a proposed light-rail system and a proposed alcohol-impact area. The city withheld documents claiming they were exempt under a general claim of attorney-client privilege and the “controversy exemption” which applies to ongoing or reasonably anticipated litigation.
In the other case, Citizens Against the Monorail asked the Seattle Popular Monorail Authority for all documents relating to development of a proposed monorail. This general request came after more specific requests were ignored. The Monorail Authority withheld more than 1,200 documents claiming the same exemptions.
The Supreme Court judicially created the exemption of “overbreadth,” holding that the monorail requestors were not entitled to any public records. Citizens asked for so much, the court said, that their request was invalid. The court wrote: “When a request is invalid, the agency is excused from complying with it.” The Supreme Court denied Hangartner’s request on the basis of attorney-client privilege found by reading a general testimonial privilege into the public records act.
Those relying on requests to obtain information from public records fear a number of consequences stemming from Hangartner. For example, will requests for “all” records be ignored, will agencies have discretion to determine the overbreadth of a request, and will agencies become the sole arbiters of what is overbreadth.
On the attorney-client front, concern exists that any documents involving an attorney will be withheld, forcing the requester to challenge the legitimacy of the attorney-client privilege. Moreover, attorneys might be used to conduct investigations, exempting reports from disclosure requirements, and the litigation exemption will provide no limitation on documents that can be withheld relating to public legal advice.
A coalition of business, professional and civic organizations propose returning public records law to what it was before Hangartner. The judicially-created overbreadth exemption would be repealed, and the scope of the attorney-client privilege would be clarified, ideas that are controversial to some agencies. AWB will argue that the people should have ready access to public records provided that reasonable limitations exist to protect proprietary business information that must, by law, be submitted to state agencies.
In the meantime, how can you best seek public records? Common-sense guidelines include:
• Be as specific as possible about the records you need. If you don’t know what records exist, specify the topic you’re interested in.
• Ask for an index of public records prior to making your request. Agencies are required by law to maintain an index.
• Be courteous with the public records official, but be firm about your right to promptly and completely inspect and copy the public records you have requested.
• Maintain a complete record of your request and all communications you have with the agency in the event you are forced to go to court.
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