POLICY HIGHLIGHTER

Volume 14, Number 14
June 29, 2004

Washington's public records law under assault
Independent public records advocate needed

"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.

Recently Texas did just this and created a people's public records advocate. Frustrated with the acts of some state officials who were unlawfully withholding documents from the public, Texas Attorney General Greg Abbott hired a prosecutor whose "only job in the Office of the Attorney General will be to prosecute open government act violations." By word and action, Texas' attorney general has made it clear that access to public records is of paramount importance.

Due to the aforementioned conflict of interest in the attorney general's office, it wouldn't help to put a Special Prosecutor for Records Violations there. Instead we argue for the creation of a Public Records Advocate and Special Prosecutor to be created under the authority of the state auditor's office. In addition to making sure public records compliance received proper attention, in many cases, a public records advocate could serve as a recourse to the court system. (This would not preclude going to court, if the need or desire existed.)

Though contrary to the actions her office has taken, the attorney general's website correctly states, "Citizens can control their government only if they can remain informed about the decisions their government officials are making." An independent Public Records Advocate and Special Prosecutor would help ensure the public has access to the information necessary to remain in control.

Prepared by: Jason Mercier | Budget Research Analyst | 360-956-3482

Evergreen Freedom Foundation P.O. Box 552, Olympia, WA 98507 Phone: (360) 956-3482, Fax: (360) 352-1874 Email: effwa@effwa.org