Washington's public records law under assault

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. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy." - RCW 42.17.251

Despite the straightforward purpose of Washington's public records law, the people's right to know has come under fierce assault by some state agencies and the judicial system. State attorney general Christine Gregoire has exacerbated the problem due in large part to the way she defines her job. In disputes between state agencies and taxpayers, Gregoire believes her principal role is to defend agencies.

This explains why her office has argued that some public records should be exempt from disclosure based on attorney-client privilege. She believes government agencies, not taxpayers, are the clients. It also explains why her office argued for a court order requiring the Evergreen Freedom Foundation to first receive approval from her office before requesting information related to the state's agreement with Boeing (an order currently under appeal).

This is a relatively new interpretation, at least in the broad manner in which her office argues against taxpayers and in the way the judicial system frequently concurs. Unless the legislature wants to redefine or clarify who the attorney general's principal client is, we need to establish some protection for the taxpayers whose business is being conducted and whose money is being used.

This explains why her office has argued that some public records should be exempt from disclosure based on attorney-client privilege. She believes government agencies, not taxpayers, are the clients.

State Agencies are not allowed, by state regulations to retain any attorneys except from the State Attorney General's office. The AG's office does have a valid role in taking the side of state agencies agains litigation against them. I just wish in the DSHS mess, the AG's office would have been competent in that role. Actually certain more compentent DSHS employees would have been even better.

This also means that there is a conflict of interest when some actions like enforcement of campaign finance laws or in this case a public information act are required. To that extent the AG's office needs to have a process so it can represent both sides fairly without "real" conflicts of interest.

As a consultant who has worked for a Public Utility District that had a freedom of information request filed against the utility (by a competing utility), I didn't mind when the utilities records were searched under a Public Disclosure Act request. I did feel that there was nothing in my contract with the utility that should compel me to search all my email correspondence and disclose any internal documents in my electronic files that were not transmitted to the client. However, a judge and attorney didn't see it that way. As a result a Public Disclosure Law "fishing trip" followed with repeated requests on all kinds of things not really related to the thing the competing utility claimed was wrong.

Let me be very clear.....I have seen a commerical business use the Public Disclosure Act as a form of harassment to discourage my firm from working for a government agency.

The Public Disclosure Act has gone way to far in demanding agencies to produce documents. However, there are some agencies out there that have not yet lived up to their disclosure requiements and they need to. This article fails to call for balance.

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