February 13, 2005 Article in Spokane Spokesman-Review

State laws let governments hide more files

But attorney general, legislators aim to reverse trend in open-records rules

Richard Roesler
Staff writer
February 13, 2005

OLYMPIA – When Washington voters overwhelmingly approved Initiative 276 in 1972, the new law said government files would be open to the public, except for 10 narrow categories.

Schoolchildren's records, for example, would remain secret. So would things like driver's license test questions, and some police investigation documents.

Three decades later, that list has blossomed to include at least 80 categories under which state and local governments can keep their records secret from taxpayers. Some attorneys count 200 to 300 exemptions, depending on legal interpretations. There are now exemptions for old railroad contracts, the names of people in van pools, and sales information for American ginseng dealers.

"This list grows every year," said Michele Earl-Hubbard, a Seattle lawyer specializing in open-records laws. "Every special interest group in the world has gotten their own special exemption."

This year, however, many of the most powerful lawmakers in Olympia are backing bills that would make it harder for government officials to withhold records – and slap them with much bigger fines when they illegally do.


Behind this effort is new Attorney General Rob McKenna, a Republican who spent much of last year's campaign vowing to push for more transparent government. One of his first acts as attorney general was to hire an expert public-records attorney named Greg Overstreet to be his "Public Disclosure Act evangelist." Part of Overstreet's job will be to act as an ombudsman when disputes arise between state agencies and citizens seeking government records.

"I'm a very strong believer in the concept of checks and balances," McKenna said in an interview. Open meetings and open public records laws, he said, "keep everyone honest."

'People get jerked around'

Armen Yousoufian would agree. Yousoufian is a 57-year-old former real estate broker who divides his time between homes in Seattle and Vashon Island.

In the spring of 1997, Yousoufian was skeptical of local plans to demolish the Kingdome and build Safeco Field and a new Seahawks stadium. As the managing partner in a large Seattle hotel, he knew that the Kingdome brought in a lot of business. Not just baseball, but home shows, evangelists, tractor pulls and basketball tournaments. Nonetheless, he'd heard King County Executive Ron Sims assuring radio listeners that the deal made economic sense, based on a study the county had paid for.

So Yousoufian, skeptical of the claim, asked to see the study. After hours of talking to people in three different offices, a staffer handed him a copy of the report. He took it home, where he found that part of the report was missing.

"I got annoyed," he said.

The next day, he wrote a letter to the county. He asked to see the entire study, find out what it cost, and see any documents detailing how it was ordered – and by whom.

"I'm curious, and I've got time on my hands," he said. "I just wanted to satisfy my curiosity."

Thus began a years-long dispute. The county gave Yousoufian some documents, but not all of what he wanted. In the spring of 2000, he filed suit, saying King County was violating the Public Disclosure Act, the law that had been created by the initiative nearly 30 years before. He found an attorney and figured he'd spend $10,000 or $20,000 to get the documents.

"At least I would have the satisfaction of making a point," he said.

He ended up spending $150,000. To this day – nearly eight years after asking to see the county records – he says he still hasn't received everything he asked for. A judge ruled that the county had, in fact, broken the law with its delays and negligence. The state Supreme Court agreed in a ruling last year. Yousoufian and the county are awaiting a court hearing to determine how much he'll be awarded in attorneys' fees and penalties.

Yousoufian said the treatment he received from the county is not unusual for citizens who ask to see government records.

"People get jerked around and told to go to hell, and there is no penalty for the bureaucrat, because the fines get paid by the taxpayers," he said. "And the reality is that it is the very rare taxpayer that will sue. So these bureaucrats are doing this with impunity.

"Who in their right mind," he said, "would go as far as I did?"

'It's a huge burden'

On the other side of the issue is Patti Holmgren, director of community relations for the Tacoma Public Schools.

About 10 months ago, she said, the school district was contacted by a man who proposed a program to cut down on the achievement gap for African American students. He wanted the district to hire him to run the program, and he filed some public-records requests seeking information about low-income students and federal programs.

But when the school district said it didn't have a job for him, the man began filing more and more requests, Holmgren said.

"He's put in 48 requests since October," she said. Staffers have spent "hundreds and hundreds" of hours combing through the documents, blacking out confidential student information and preparing 20 document boxes full of the requested records.

"He said, 'The only way I can get your attention is to file public records requests. I will keep doing them until I bring you to your knees,' " Holmgren said. She said the man has given the district an ultimatum: hire him, settle with him for up to $1 million, or face a lawsuit. His most recent request, she said, was for the e-mails for eight administrators and the five school board members, forever.

"All of their e-mails, period," she said. The staff must now go through thousands of e-mails, she said.

"It's a huge burden," she said.

Special circumstances

Yousoufian's case wasn't the only big public-records case the state Supreme Court ruled on last year. In May, the court ruled 5-4 against Rick Hangartner, who had requested documents related to Seattle's proposal to build a light-rail system. Hangartner got most of what he'd sought, but the city withheld three documents, citing a line in state law that allows government officials to withhold legal documents if there's a "controversy" – such as a lawsuit – pending. The city, however, was not involved in any light-rail lawsuit at the time.

The Supreme Court agreed, saying that attorney-client communications can be kept secret, even if taxpayers are paying the lawyer and the client is a public agency or official. In a related case, the justices also said that government agencies can reject a public-records request for being too broad.

"That really fuzzes it up," said Scott Wilson, publisher of the Port Townsend Leader and president of the Washington Coalition for Open Government. "It leaves it up to the discretion of some clerk sitting in a large bureaucracy, deciding that they don't want to bother with this request."

Spokesman-Review Publisher Stacey Cowles also is a member of the Washington Coalition for Open Government.

Under the court's ruling, Earl-Hubbard said, any legal advice can be kept secret. When an official says he did something "because our lawyers told us to," she said, there's no way to find out if that's true. Advice from geologists or accountants or other consultants, however, gets no such protection.

Roger Wynn, the assistant city attorney in Seattle, says the furor over the Hangartner decision is much ado about nothing. Officials could always withhold legal advice from disclosure, he said.

"There is no crisis," Wynn told lawmakers recently. It's a narrow exemption, he said, not the black hole that newspapers and open-government advocates say. In the Supreme Court ruling, he noted, the justices warned agencies not to abuse the attorney-client privilege.

"The privilege is not being abused," he said.

McKenna's bills are an attempt at a compromise. They would explicitly allow officials to keep legal advice secret, but wouldn't allow secrecy just because a lawyer was at a meeting or was sent a copy of some paperwork.

The bills – HB 1758 and SB 5735 – would also:

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Prohibit agencies from denying requests because they're too broad.

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Boost the penalties for violating the law from $5-$100 a day to $50-$500 a day.

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Require the attorney general's office to come up with a "model rule" for disclosure, which local governments could copy.

Earl-Hubbard and some other open-records advocates don't like the bills, saying they leave too much of an attorney-client privilege for government to hide behind. If a similar case goes to the Supreme Court, she argues, there's a good chance the court would rule differently. One of the five votes on the Hangartner case has been replaced by Justice Jim Johnson, a likely vote for open records. But as Yousoufian discovered, it might require $150,000 in attorneys' fees to get there.

Despite such misgivings, McKenna's bills have a lot of political horsepower behind them. They're backed by a who's-who of Olympia's most powerful lawmakers from both parties. Sponsors include Senate Majority Leader Lisa Brown, D-Spokane, the Senate minority leader, the House majority and minority leaders and 10 committee leaders from both chambers.

"The people have the right to know," said Rep. Mark Miloscia, D-Federal Way.