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Monday, October 25, 2004 - Page updated at 12:00 AM

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Gregoire's record mixed on public-disclosure laws

Seattle Times staff reporter

Election 2004


One of a series of stories on the lives and careers of the candidates for governor.
In her 12 years as attorney general, few issues have caused Christine Gregoire more political grief than her office's failure to comply with the state's public-disclosure laws.

The state has paid hundreds of thousands of dollars in fines and fees, and the courts have reprimanded Gregoire when her office, or other state agencies represented by her lawyers, have failed to turn over public records.

Gregoire, the Democratic candidate for governor, has been a strong public advocate of open government, but public-access lawyers and civil libertarians have questioned her actions in court.

"Her record has been a pretty mixed bag, in my opinion," said Scott Wilson, president of the Washington Coalition for Open Government, a nonprofit organization of groups intent on preserving the state's open-meeting and -records laws.

Wilson, who is publisher of the Port Townsend & Jefferson County Leader, praises Gregoire for sending attorneys and staff members to educate local officials on compliance with the Public Disclosure Act.

"When I was president of the state Newspaper Publishers Association, we would sponsor forums and her people would come to talk to local officials and emphasize the important of complying with the act," he said. "She's done a great job that way and deserves a lot of credit."

Yet Wilson also questions the decision to file briefs in two cases that public-access advocates think have undercut the act's intent and effectiveness.

In those cases, Gregoire's lawyers argued that judges should limit fines against agencies that break public-disclosure laws. Her office also has argued that the court should reinforce an exemption that allows government officials to withhold information that involves communications with attorneys.

"In these recent cases, it's clear that she chose to express an opinion ... that seems to put her squarely on the side of public agencies trying to deny access to citizens and limit penalties," Wilson said.

Last week, Gregoire's public-access record crept into the gubernatorial campaign. After she criticized her Republican opponent, Dino Rossi, for refusing to release his personal income-tax returns, state Republican leaders replied in a sharply worded news release:

"Now Christine Gregoire is for disclosure??" read the statement from state Republican Party Chairman Chris Vance. "Gregoire has a long record of failing to disclose documents and favoring government secrecy."

Attorneys who have worked in the public-disclosure section of Gregoire's office defend her record, saying open government is a high priority.

"When you get hired here, Chris asks everyone the same question: 'Who is your client?'" said office spokesman Fred Olson. "The answer had better include 'the public.' "

Who are the clients?

Gregoire took office in 1992, the year the Legislature amended the Public Disclosure Act to provide for a formal attorney-general review of cases in instances where state agencies claim a public record is exempt from disclosure. The review involves an attorney in the Attorney General's Office, not associated with the agency, examining the request with an eye toward the Legislature's mandate that the act be interpreted liberally.

"Chris did have an attitude that the Public Disclosure Act was very important," recalled Jeffrey Lane, a retired senior assistant attorney general appointed at the time to oversee the reviews. "She took pains to set up a small subsection to make sure the public was appropriately dealt with."

"I had hundreds of telephone battles with agencies trying to informally resolve matters," said Lane, who headed the three-lawyer group for nine years. "I would say that a very high percentage of the time, we resolved these with the requestor being satisfied and the agencies giving up way more than they had originally intended to."

If there was no resolution, the Attorney General's Office would sometimes write a formal opinion, providing a record of her office's stance. Since 1994, there have been 51 such opinions, almost all of them siding with the agencies, said Nancy Krier, the senior assistant attorney general who took Lane's job when he retired.

Krier said the number of public-disclosure requests has exploded in recent years. That has slowed down the entire system.

The Attorney General's Office alone released 290,000 pages of documents just last year, she said.

When state public-disclosure disputes can't be resolved, they proceed to court, where an assistant attorney general will likely fight to keep the record private.

"There is a conflict in the system," says Rowland Thompson, executive director of Allied Daily Newspapers of Washington, which lobbies on behalf of the industry, including The Seattle Times. "These public-agency attorneys sometimes forget the 'public' part."

Thompson thinks public-sector attorneys only reluctantly acknowledge that they must try to serve two clients — the public and the state. A conflict is inevitable when the interests of the two diverge, and it's been Thompson's experience that protecting the state is most often the default position of public lawyers.

"Chris might talk about disclosure," he said. "But most often, in the end, the agency wins out."

$500,000 in penalties

Every year, state agencies turn over hundreds of thousands of pages of documents to lawyers, reporters and citizens, following a mandate enacted by citizen initiative in 1972.

While the act directs the courts to interpret the act liberally, it also contains dozens of exemptions that allow agencies to withhold information.

While some states, such as Texas, empower the attorney general to enforce public-disclosure laws, Washington's law makes no such provision: The state's attorney can advise an agency to comply with the act but cannot force it to do so. That job is left to the courts.

If an agency loses in court, the act requires it to pay attorneys' fees and a penalty of between $5 and $100 per day.

Since Gregoire took office, the courts have ordered agencies represented by her office to pay nearly $500,000 for failing to turn over public records.

The largest case involved the Department of Health and Human Services' withholding of key documents from attorneys suing on behalf of boys abused at the OK Boys Ranch. Singling out a former department head and a senior attorney in Gregoire's office, a judge hammered the state for $417,500 in 1998.

Gregoire's office also was tagged for $33,000 in fines and fees in 1998 for not giving public documents to the Evergreen Freedom Foundation.

This past June, Gregoire and her private lawyers were sanctioned and reprimanded by a federal judge in Seattle for repeatedly failing to turn over documents in a lawsuit against the Attorney General's Office by a former assistant attorney general who claimed she had been wrongly blamed and fired for missing a deadline in an appeal, for which the state paid nearly $19 million.

Court decisions

In the past year, the Washington State Supreme Court has handed down two major public-disclosure rulings, both seen as blows to the act by public-access advocates, civil libertarians and media lawyers.

In both cases, Gregoire's office — while not involved in the dispute — filed briefs urging the justices to recognize an exemption to the act that even her own attorneys recognize can be easily abused, and to limit fines imposed on agencies that illegally withhold public documents.

In one of the cases, Hangartner vs. City of Seattle, Gregoire's lawyers urged the justices to make sure that the privilege protecting conversations between lawyers and their clients be recognized for attorneys who represent public agencies.

The court adopted that stance, and attorneys representing the media and other groups worry that agencies will use that exemption to prevent the release of documents that should be public.

Krier, the senior assistant in Gregoire's office, said the attorney general has made it a priority to educate agencies on the limits of the exemption.

"Chris understands those concerns and has instructed us to make sure that exemption is not broadly construed," Krier said.

The other case involved a lawsuit filed by Armen Yousoufian, who had sued King County Executive Ron Sims for illegally withholding for nearly three years documents relating to the costs of the Seahawks stadium.

Yousoufian had argued that the county should face the daily $5 to $100 fine for each document it withheld — a calculation that could have cost the county up to $30 million for failing to turn over those public records.

Gregoire's lawyers argued that agencies should not be penalized on a per-document basis. The court adopted that argument, saying the penalties should be assessed on a per-request basis. The penalties levied on the county had added up to about $26,000, but the trial court now must refigure that total, based on a ruling that will increase the amount.

The "Yousoufian [case] was not a means to get out from underneath penalties," Krier said. "The issue was how to calculate those penalties and the possibility that it could cost the taxpayers millions."

Morton Brilliant, Gregoire's campaign spokesman, said her record on open government can perhaps best be measured by her decision, in 1994, to prevent state agencies from settling lawsuits in secret.

"As a result of that decision, she herself has taken some pretty hard knocks in the press," Brilliant said.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

Copyright © 2004 The Seattle Times Company

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