The state Supreme Court has taken the “right” out of the public’s right to know.
In a ruling that inflicts the most significant damage done to state public access laws since they were approved by voters in 1972, the court said “overbroad requests” may be rejected by governments and documents covered by attorney-client privilege are exempt from disclosure.
“The (Public Disclosure Act) was enacted to allow the public access to government documents once agencies are allowed to determine if the requested documents are exempt from disclosure; it was not enacted to facilitate unbridled searches of an agency’s property,” Chief Justice Gerry Alexander wrote.
We’re not talking about trespassing on private property here. We’re talking about giving citizens access to information that with very few exceptions belongs to them.
In a stinging rebuke of the majority decision, Justice Charles Johnson wrote:
“The majority … judicially creates a new broad exemption to disclosure that has no statutory or case support … disregards the principles underlying the (PDA) … the purpose of the PDA is to ensure the sovereignty of the people and the accountability of the governmental agencies that serve them … Courts must take into account the policy of the PDA that free and open examination of public records is in the public interest, even though such an examination may cause inconvenience or embarrassment to public officials or others.”
We agree with Justice Johnson. This ruling, regarding some Seattle Monorail and Sound Transit records, hands government agencies too much discretion in deciding which records to disclose or to withhold. It gives bureaucrats the opportunity to wrap themselves in the Supreme Court decision and to deny records requests by making broad interpretations of what is privileged information, or to determine that filling a broad request is inconvenient.
And, if, as the court said, agencies are not required to keep indexes of their records, how can citizens be expected to narrow requests?
Can public records requests be an inconvenience? You bet they can. Agencies and local government around the state, including our office, have used hundreds of hours of staff time and hundreds of reams of paper to fill requests.
But I look at it this way. These records don’t belong to us. The work we do is on the public’s behalf. Therefore, it follows that the public should get to see the work we do.
I also believe the court’s whisker-thin, 5-4 ruling sets a dangerous precedent, and seems to contradict two previous decisions:
* In 1989, the court said, “… full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society. The provisions of the act are to be liberally construed to promote full access to public records so as to assure continuing public confidence in governmental processes, and to assure that the public interest will be fully protected.”
* And in 1995, the court held that “without tools such as the Public Records Act, government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests.”
That’s a situation no one wants to see.
An effort is under way to get the court to reconsider its decision. But clearly, should the court decide not to reconsider, the Legislature must respond to the decision’s effects and preserve the right of citizens to view government activities openly and without restraint.
Our office is ready to work with the Legislature, the Washington Coalition for Open Government, other interested groups and citizens in drafting legislation in response to the court’s ruling.
At the very least, this legislation should clarify the language in the Public Disclosure Act to:
* Define what constitutes attorney-client privilege regarding public documents.
* Define “broad” and “overbroad.” What is a citizen’s responsibility when asking for records?
* Make it absolutely clear that public agencies are to keep an index of their records so requestors are able to, if they wish, narrow requests to specific documents. Otherwise, any request could be considered “overbroad.”
* Create an arbitration board to resolve records disputes between citizens and governments. As it stands now, the only option available is for citizens to take the government to court in what is often a drawn-out and expensive procedure for both parties.
On May 13, without knowing what the Court was to rule that day, former state Supreme Court Justice James Andersen said the Public Disclosure Act was being “nibbled to death” by the growing number of exemptions.
The Supreme Court’s ruling wasn’t a nibble. It ripped the heart right out of what voters intended.
Brian Sonntag is the Washington state auditor.
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