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POLICY HIGHLIGHTER Volume 15, Number 7 Public records must remain public Washington's constitution and voter approved public records law clearly indicate that the people must be allowed to have access to information concerning the activities of government: the people do not yield authority to state officials to determine "what is good for the people to know and what is not good for them to know."
Despite this clear directive, some legislators are now poised to essentially gut the state's public records law by creating an expansive new exemption to records disclosure in the form of a broad-based attorney-client privilege. Considering just who the actual client of the government attorney is, the people, any denial of public records on the grounds of government attorney-client privilege must be severely restricted—not broad-based. A bill to address this problem, SB 5735, has been introduced by Attorney General (AG) Rob McKenna. Unfortunately, even in its original form, SB 5735 did not go far enough to ensure the use of an attorney-client privilege exemption was narrowly defined. Action by a Senate committee last week expanded the attorney-client privilege even further. Even though an amendment offered by Sen. Adam Kline (D-Seattle) to address this problem was not adopted in committee, it could still be considered on the full floor of the Senate. Sen. Kline's amendment would define the attorney-client privilege exemption to exist only if the public records requested related to something subject to an actual legal controversy (the agency was being sued or reasonably anticipated it would be sued for the activity in question). The only time an attorney-client privilege exemption for government attorneys (who should be representing the interest of the people—not government) makes sense is if an agency is preparing for court and needs to plan legal strategy. Without such legal action, the advice of government attorneys is actually made on behalf of the public as a whole, meaning that the denial of records to the very individuals government attorneys are supposed to be representing is without merit. Should the legislature not consider Sen. Kline's amendment and leave SB 5735 in its current form, defenders of the people's right to know may be left with little choice but to kill the bill and look to an initiative to restore the state's public records law to its original intent. Additional InformationState auditor airs concerns, Olympian 3/3/05 Bill will hurt open access to records, Olympian 3/3/05 Government secrecy finds its champion, Tri-City Herald 3/3/05 A looming disaster for public access, Seattle Times 3/2/05 Records bill adds limits to access, Olympian 3/2/05 Keep state's public records open to public, King County Journal 3/2/05 Public disclosure under siege again, News Tribune 3/1/05 Public vs. privilege, Seattle PI 3/1/05 Prepared by: Jason Mercier | Budget Research Analyst | 360.956.3482
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1 Part Honesty; 2 Parts Arrogance At a March 23, 2005, House Appropriations hearing on a bill to gut the voter-approved I-601 spending limit, Rep. Jim McIntire (D) asked a supporter of I-601’s two-third supermajority requirement for the legislature to raise taxes the following question: "Can you name a time when we [legislators] have actually not just set it [supermajority requirement] aside by majority vote? I mean, this is in many respects a procedural motion that has no bearing. It’s a statutory constraint that cannot constrain any legislature that chooses as a majority to set it aside . . . have we ever used a supermajority [to raise taxes]?" - Rep. Jim McIntire (D - 46) Despite the arrogance of some state officials, Washington's constitution is clear: "All political power is inherent in the people..." |
