Thursday, May 13, 2004 - Page updated at 12:00 AM

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Court ruling narrows open-records law

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OLYMPIA — The Washington Supreme Court dealt the state's open records law a double blow today, ruling that public records requests can be ignored if they are too sweeping and upholding the attorney-client privilege as a method for avoiding scrutiny of public documents.

The sharply divided 5-4 decision stems from two cases involving mass transit projects in Seattle.

One came from the bitter 2002 campaign to expand Seattle's Monorail system. A few weeks before the election, Citizens Against the Monorail filed a massive public records request, trying to force information about the project's tax increases into the public arena.

The Elevated Transportation Co. — now the Seattle Popular Monorail Authority — argued that the request was too broad, but lost in the lower courts, although it was allowed to withhold some documents under the attorney-client privilege. The Monorail measure passed by just 864 votes.

The high court held that the entire request under the Public Disclosure Act was too broad and therefore invalid.

"We will not interpret a statute in a manner that leads to an absurd result," Chief Justice Gerry Alexander wrote for the majority, noting that the law requires some identification of the records. "The PDA was enacted to allow the public access to government documents once agencies are allowed the opportunity to determine if the requested documents are exempt from disclosure; it was not enacted to facilitate unbridled searches of an agency's property."

The dissenting justices said Alexander's ruling damages the core purpose of the open-records law by carving out a broad new exemption that would toss out many public records requests. Many requests, like the one aimed at the Elevated Transportation Co., call on an agency to give up all records related to a specific subject of great public interest.

"What better way to 'identify' all of ETC's public documents than simply to request all of ETC's public documents?" Justice Charles Johnson wrote. "Further, the record shows that ETC clearly understood the request and acknowledged its breadth, but never asked for clarification."

In the other case, the majority sided with the City of Seattle in its long-running battle with Rick Hangartner, who sought documents related to Sound Transit's light rail project. A lower court had sided with Hangartner and ordered the city to give up documents it argued were protected by attorney-client privilege.

One question in the case was whether the broader attorney-client privilege, which is spelled out in a different part of state law, trumps the public records law.

"The trial court erred in ordering the city to produce its documents because the trial court never determined whether the documents were protected by the attorney-client privilege," Alexander wrote in sending the case back to the lower court for review of the documents.

Open-records advocates have argued that that agencies routinely run sensitive documents through their legal departments and then wrongly claim a privilege that is designed to protect lawyers from being forced to betray their clients' secrets.

"The attorney-client privilege statute is directed at the attorney, not the agency," Johnson said in the dissent.

Alexander did caution that abusing the attorney-client privilege to protect records from public scrutiny could trigger heavy fines under the act's requirement that government agencies act in good faith.

"The attorney-client privilege is a narrow privilege and protects only 'communications and advice between attorney and client;' it does not protect documents that are prepared for some other purpose than communicating with an attorney," Alexander wrote. "Should an agency prepare a document for a purpose other than communicating with its attorney, and then claim that the document is protected by the attorney-client privilege, the requesting party might well claim that the agency has acted in bad faith."

Joining Alexander in the majority were Justices Faith Ireland, Bobbe Bridge, Susan Owens and Mary Fairhurst. Siding with Johnson in dissent were Justices Barbara Madsen, Richard Sanders and Tom Chambers.

The case is Rick Hangartner v. City of Seattle, No. 73930-7.

Copyright © 2004 The Seattle Times Company


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