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Court exempts Wash. state judiciary from disclosure

Thu., Oct. 15, 2009, 2:27 p.m.

SEATTLE — The judiciary in Washington is exempt from public disclosure requirements under the state’s Public Records Act, the state Supreme Court ruled Thursday, creating what a critic called a “huge black hole” in government accountability.

The 7-2 decision upheld decisions in King County Superior Court and the state Court of Appeals in denying a request by David Koenig concerning Federal Way Municipal Judge Colleen Hartl, who stepped down and was censured by a state panel last year after having a sexual encounter with a public defender who routinely appeared in her courtroom.

Koenig, who has wrested tens of thousands of dollars from local government agencies that denied his requests, sought all public records relating to the Hartl flap, including correspondence to and from Municipal Court Presiding Judge Michael Morgan. Federal Way officials provided 183 pages of documents but none of the correspondence.

Koenig also requested documents concerning job-related exemptions from Municipal Court jury duty and the appointment of temporary judges and was given some material in August 2008, but other files were withheld as court documents.

The correspondence and other withheld documents were exempt from release under a 23-year-old ruling that held court records are not subject to the Public Records Act “because the judiciary is not included in the PRA’s definition of `agency,”’ Justice Susan Owens wrote for the Supreme Court majority.

“The Legislature acquiesced to that decision by not modifying the PRA,” Owens added.

The statute defines “state agency” as a “state office, department, division, bureau, board, commission or other state agency.” “Local agency” is defined as a “county, city, town, municipal corporation, quasi-municipal corporation, or any special purpose district, or any office, department, division, bureau, board, commission or agency thereof, or other local public agency.”

The president of the Washington Coalition for Open Government, former state Rep. Toby Nixon, R-Kirkland, said the group would ask lawmakers to bring the judiciary under the law.

“Changing this will be part of the coalition’s legislative agenda,” Nixon said. “I think that the Legislature is going to agree with this…

“I can’t imagine that the Legislature would believe the kind of records that were involved in the Koenig case should be kept from the public.”

Michele Earl-Hubbard, a lawyer specializing in media and public access cases in Seattle, said the ruling did not bode well for an appeal she has pending before the high court on the Yakima Herald-Republic’s request for records on the payment of more than $2 million to lawyers who represented two men convicted of killing a father and his 3-year-old daughter in 2005.

Under a Yakima County Superior Court ruling, the 1986 ruling “prohibits (the application of the law to) anything that touches the hand of a judge,” Earl-Hubbard said. “I find it really troubling when the judiciary issues a ruling that exempts itself from laws that are designed to keep government transparent.”

Justices Richard B. Sanders and Barbara A. Madsen did not participate and were replaced as justices pro tem by appellate Judges Joel M. Penoyar, who signed the majority opinion, and Kevin M. Korsmo, who wrote that he believed the case in 1986 was “wrongly decided” but added, “only the Legislature should overturn the longstanding construction of a statute.”

Koenig’s lawyer argued in vain that the 1986 ruling applied only to court case files, which must be publicly accessible under common law — a stronger right of access than the Public Records Act. “This interpretation has no basis in the (1986) opinion,” Owens wrote.

Rulings that deny access to court material other than case files have “mushroomed all over the state … and now have left this huge black hole” in public disclosure, Earl-Hubbard said.

Justice Debra L. Stephens, in a dissent signed by Chief Justice Gerry L. Alexander, wrote that the majority misinterpreted the earlier decision on the issue of whether the law defines the judiciary as a government agency.

The 1986 ruling “did not answer, indeed could not have answered, this question because it was not before the court at that time,” Stephens asserted.

“In the end I believe we do a disservice to interpret the PRA, a broad mandate for open government, to exempt entirely the judicial branch of government,” she wrote. “Courts plainly meet the statutory definition of `agency.”’

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