Throw open city records? State insurer says no way
Times Snohomish County Bureau
Some Monroe City Council members wanted to make city business as open and transparent as possible. They proposed prompt disclosure of public records, broadcast of all council meetings and online access to all city documents.
City leaders also wanted to waive their right under the Public Disclosure Act to withhold some documents related to legal advice and negotiations, if their lawyers said they could do so without opening the city to liability.
But what was intended as a "good-faith effort to instill more confidence in government," according to Councilman Mitch Ruth, instead provoked a threat from the city's insurance provider that its liability coverage would be canceled.
Saying he was "just short of outraged," Lew Leigh, executive director of the Washington Cities Insurance Authority (WCIA), told the Monroe city attorney that the organization, which pools payments and risk to 128 municipalities in the state, would consider "immediate member termination" if Monroe proceeded with its plan to waive attorney-client privilege in releasing some records.
The issue is one of statewide importance, say open-government advocates, because attorney-client communication is one of the most frequently invoked reasons to deny citizens access to government records.
The 1972 Public Disclosure Act contained 10 exemptions, including communication from attorneys about an actual lawsuit, said Toby Nixon, president of the Washington Coalition for Open Government. But the Legislature over the years has added about 400 exemptions to the law, and public agencies have successfully argued that it extends to all communications between a public entity and its attorney, he said.
The action of Monroe's insurance pool, he said, suggests that "public entities are going to be compelled to take every possible measure to not disclose, even if they want to."
It also points to a trend open-records advocates decry — the ability of public agencies to run embarrassing or negligent actions through their attorneys to prevent disclosing the records.
The concern was highlighted in a recent state Supreme Court ruling, which held that the Spokane School District did not have to turn over records about the death of a student on a field trip because its lawyers had conducted the investigation.
"School districts or other public entities, if they can afford it, will call attorneys to do an investigation, and the documents will be considered exempt from disclosure," said Tim Ford, the open-government ombudsman in the state Attorney General's Office.
Monroe officials say they were responding to controversies over several years in which public-records requests were denied and subsequent events suggested the city was protecting relationships with developers or shielding council members with conflicts of interest.
"It ends up looking like we're the bad guy, like we've got something to hide," Ruth said.
The most recent controversy involved attempts in 2005 to eliminate the city ethics board. Citizen activist Meredith Mechling requested city e-mails leading up to the council meeting at which the ethic board's elimination was to be considered.
When the records were turned over, she said, they were heavily redacted so it was impossible in many cases to tell who they were from or to. Mechling filed a lawsuit later that year saying the city had violated the disclosure law. Arguments in the case were heard in November, and a decision is expected early this year.
"When the City Council changes course suddenly and without public discussion, it's assumed the discussion took place elsewhere," Mechling said. "That's why public records such as e-mails are so important."
Mechling said she learned the importance of public records when the developer of the 300-home Fryelands development in west Monroe failed to pay school-impact fees. City officials told her that the land-use application was submitted before the enactment of mitigation fees, but when she requested a copy of the application, she was told the record no longer existed.
Ultimately, a state auditor's investigation in 1999 found that the city should have collected $850,000 in school-mitigation fees. The auditor also agreed with Mechling that the then city council was violating the state's Open Public Meetings Act by adjourning to a local bar to continue discussions about city business.
"I didn't set out saying, 'I'm going to be an open-government activist,' " Mechling said. "I suddenly realized open government is a big deal."
The Public Disclosure Act contains a provision protecting public agencies from legal action if they release records in good faith. And though the act says attorney communications may be withheld, it leaves that to the discretion of the public entity.
But the insurance carrier said efforts to waive the attorney privilege would be like turning a poker hand to its opponents.
"Cities are in a race to put all their records online and broadcast all of their meetings. That's common. But disclosing what the city attorney advises his client, particularly if it involves a lawsuit, that's when I came out of my rocker," said WCIA's Leigh.
Ruth now concedes that total transparency in government probably isn't possible. The cost to put all documents online is prohibitive for a small city, he said, and many would be redundant or insignificant.
But he still finds the insurer's threat to cancel the city's liability coverage "disturbing."
"When did openness and honesty become a risk-management problem?" he asked.
Lynn Thompson: 425-745-7807 or firstname.lastname@example.org
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