Panel hears opinions on government sunshine

A special state commission looking at ways to improve the law on government records ran Tuesday into a long-standing clash between confidentiality and the public’s right to know.

Government officials need to know that what they tell their attorneys will remain privileged, or they won’t ask for or receive advice, government attorneys told members of a special meeting of the Public Records Exemptions Accountability Committee. Government officials sometimes use attorney-client privilege to hide things that the public has a right to know, members of the news media and open government advocates argued.

The panel, often called the Sunshine Committee, didn’t come to a conclusion on what it will suggest the Legislature do about exemptions for public records tied to discussions between government officials and their attorneys.

But they heard a range of opinions, and even a bit of history.

Attorney-client privilege goes back to the 15th century in English common law and “is at the very core of our judicial system,” said Jim Craven, former city attorney for the city of Spokane. Private individuals and corporations have attorney-client privilege, he and other government attorneys said, and an agency – as well as the public it serves – would be at a disadvantage in a lawsuit if public officials weren’t afforded the same privilege.

“Public agencies are not an evil entity. Public agencies are doing the public’s work,” he said.

But Duane Swinton, a Spokane attorney who handles media law for The Spokesman-Review, said exemptions for attorney-client privilege, and the work an attorney does for a government body, should be strictly limited and not apply to facts assembled by a lawyer once a controversy is over, he said.

“It doesn’t apply just because a lawyer is meeting with an agency or providing advice concerning policy, rather than legal advice,” argued Swinton, who was representing the Washington Coalition for Open Government.

A case that prompted the Sunshine Committee to look at the attorney-client privilege for government officials involved Spokane School District 81 and a student with a peanut allergy who died during a 2001 field trip. The district eventually settled with Nathan Walters’ parents but filed suit against The Spokesman-Review to block the newspaper request under the Public Records Act for the investigative reports into the incident.

Last December, the state Supreme Court ruled 5-4 that the school district was correct to withhold the reports when it assumed a lawsuit was coming.

Carla Savalli, the newspaper’s assistant managing editor for local news, said the question about when public agencies can invoke attorney-client privilege is a public issue, not a media issue.

“To this day, the public has no idea what the district learned and what the district changed to make sure it doesn’t happen again,” Savalli said.

Bob Douthitt, a member of the Spokane school board who also is an attorney, said he believes government officials will be less likely to ask for advice if they know the advice can be revealed through a public records request: “You couldn’t freely converse back and forth.”