Justices to hear S-R case on access

Nathan Walters had a known allergy to peanuts.

Still, the third-grader was given a sack lunch full of peanut products during a Logan Elementary School field trip – a mistake that killed him. Autopsy results showed he ate half a peanut butter cookie and died after going into anaphylactic shock.

Six years later, many questions remain: Why didn’t the school order a special lunch for the boy? How was he treated? What could have been done to prevent his death?

Since 2001, The Spokesman-Review has been involved in a legal battle with Spokane Public Schools for records that could provide some answers.

After making its way through the court system, this precedent-setting case will be heard Tuesday by the Washington state Supreme Court.

Editors at The Spokesman-Review said the case is about more than obtaining old records from a taxpayer-financed public entity.

“This case is also about protecting the public’s right to information,” said Carla Savalli, senior editor for local news. “The school district has argued that its investigation into Nathan’s death should be kept from the public because the attorneys who managed the investigation are protected by attorney-client privilege and work product.

“If the court allows that argument to stand, the impact will reach far beyond the death of Nathan Walters. How will the public ever learn about other deaths, accidents or controversial cases if agencies can simply turn their entire investigations over to attorneys and then classify all records as protected?

“For public safety reasons alone, the public deserves to know how the school district investigated the death of one of its students and what it did to assure it wouldn’t happen again.”

When the newspaper filed a public records request in 2001 asking for documents related to the investigation of Walters’ death, the district responded with a lawsuit, claiming it was obligated to protect the family’s privacy. Nathan Walters’ parents, however, have since removed their names from the suit. Rick Walters and Teresa Walters received just under $1 million to settle their claims against the school district.

The district’s actions could create a chilling effect on the public’s right to obtain public documents, since anyone filing a records request could become the target of a lawsuit, according to lawyers for The Spokesman-Review.

Brian Benzel, superintendent for Spokane Public Schools, said the district filed a “declaratory judgment” because it was caught at the time between two conflicting interests: the newspaper’s records request and a family’s right to privacy.

“We didn’t know which rules to follow,” said Benzel, noting that the district has filed no other such actions in response to numerous records requests. “We haven’t had a records dispute of this magnitude.”

Duane Swinton, the newspaper’s attorney, will argue that the school district incorrectly used the attorney “work product” exemption for information that should be considered public record.

After Walters died, Spokane Public Schools hired a retired police officer to investigate, but his efforts were overseen by the district’s attorneys.

The school district contends that the investigator’s notes are considered attorney work product – prepared by a team of lawyers in anticipation of a lawsuit – and protected by attorney-client privilege; therefore the district is not obligated to release them under the state’s public records law.

“By doing what they did, they eliminated all the public records,” Swinton said. “In this particular case, the work product doctrine operated in a way to eliminate public access to any records concerning the death of a 9-year-old child on a school-sponsored trip.”

A year ago, the Washington Court of Appeals upheld a lower court ruling that stated the documents sought by the newspaper are exempt from disclosure because they were considered attorney work product.

Swinton said work product should indeed be recognized as an exemption but should be applied so the public is not deprived of information.

Benzel, however, said the school district is entitled to the same privileges and protections as everyone else.

“It’s beyond my belief that we would be viewed as withholding information when we are exercising rights that everyone in America has,” said Benzel, who is retiring after six years as superintendent.

“If our conversations with our lawyers have to be given to the press, then they also go to the plaintiff’s lawyers. We’re at huge disadvantage in that situation. It’s inconceivable to me how we can work in the legal environment. …

“If we didn’t follow these rules of the law, our public would be exposed to extraordinary cost.”

Dozens of state agencies, including the Washington State Association of Municipal Attorneys and the Washington Association of School Administrators, have filed amicus briefs on behalf of Spokane Public Schools indicating that although they are not part of the litigation, the court’s decision may affect their interests.

Benzel pointed out that the ruling on attorney-client privilege already has been upheld by two courts.

“We’ve prevailed on this issue and look forward to doing so again,” he said.