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Spokane, Washington  Est. May 19, 1883

Open-meeting exemptions likely to stand

Richard Roesler Staff writer

OLYMPIA – Despite concerns by open-government advocates over two recent court rulings, a state task force looks unlikely to recommend changing the law that allows public officials and attorneys to keep some of their discussions and work secret.

“It’s not broken, so please don’t fix it,” attorney Don Austin told the Legislature’s Sunshine Committee on Tuesday in Olympia.

The group is examining the hundreds of exceptions that allow state and local governments to withhold information from the public. Among the most high-profile: attorney-client privilege for government agencies.

In a Spokane case involving The Spokesman-Review, the state Supreme Court in December ruled 5-4 that Spokane Public Schools was correct to deny the newspaper’s request for records involving a student’s death. Nine-year-old Nathan Walters, who was allergic to peanuts, died on a field trip in 2001 after eating part of a peanut butter cookie.

The school district settled with Walters’ parents but sued the newspaper to block the request to see the district’s investigation of what happened. As the product of its attorneys’ work, the district said, the interviews and other records were exempt from disclosure.

Critics of that court decision and a 2004 one involving attorney-client privilege say the rulings make it easier for public officials to shield much of what they do from the public.

Cities, school districts or any other government agency could simply hire attorneys to do any controversial investigations, then deny any public requests for the records, said Toby Nixon, president of the Washington Coalition for Open Government.

“Almost anything that a government agency does could potentially result in a lawsuit,” he said. “If that’s interpreted to mean it’s all privileged, the public could be excluded from almost everything.”

It’s one thing to withhold information in the face of a real threat of a lawsuit that could cost taxpayers money, he said. But he and other advocates say that the recent court rulings leave the exemptions much too broad.

Spokane attorney John Manix and other lawyers Tuesday said such fears are overblown.

Manix – who represented the school district in the peanut allergy case – blasted what he called “deplorable demagoguery” by blogs and newspaper editorial pages about the court ruling. He says the ruling changed nothing.

The only way the two teachers and parent volunteer involved in the incident would speak with him, Manix said, was after repeated assurances that their statements would remain confidential.

Doing away with such protections, he said, leaves government agencies – and taxpayers – more vulnerable to lawsuits. The school district, he said, needed the protection of knowing that opposing lawyers wouldn’t read their work and communications.

“Much less, for the cost of a postage stamp and a one-sentence public records request, would their disclosures to us be divulged in the headlines of The Spokesman-Review,” he told the panel. If someone believes an agency is wrongly hiding information, he said, the person can file a lawsuit and ask a judge – privately – to review the records.

Not everyone on the task force was convinced that the law works well.

Without disclosing the investigation records, “how can the public find out what the hell happened?” asked Fred Garred, a retired newspaper publisher.

“It’s a very good question,” Manix responded. He noted that the district convened a blue ribbon commission to examine what happened and how to prevent such problems. “In some ways, I think it is a casualty – a necessary casualty – in certain circumstances, that a detailed explanation of what happened is not given,” he told Garred.

The task force is drafting a recommendation that lawmakers do not change the law.

Task force member Jay Rodne, also an attorney, said that open government boils down “to education and training of your people and instilling culture of openness. You can’t do that by legislative fiat from Olympia.”

The group expects to make a final decision at its next meeting in September.