There's a conspiracy in Washington to keep the public's business private. Not a week goes by when Seattle Weekly or other news organizations don't get stiffed by public officials who are legally obligated to provide documents through formal public-disclosure requests. They ignore, procrastinate, quibble, and deny.
Many government agencies routinely find ways around the disclosure laws. Calling every memo a "draft" that is exempt is one trick. Discussing the public's business in improperly declared "executive sessions" is another. Claiming to protect proprietary business information is another dodge: Gee, we can't tell you the details of the $3 billion Boeing giveaway because it might help Boeing's competition. In the era of public-private "partnerships," that tends to hide lot of data from daylight.
When documents are provided, they are sometimes extensively redacted. Rick Anderson, Seattle Weekly's most experienced document diver, received 200 blank pages out of 400 from the governor's office about the Boeing deal. That eliminated every e-mail that had been copied by then-Gov. Gary Locke's office to Christine Gregoire's attorney general's office. And when the city of Seattle turned over documents on the Gates Foundation–Seattle Center land deal (see "Charitable Terms," p. 16), whole paragraphs were blacked out so the public couldn't see what "deliberation" took place as the deal was negotiated.
The public never sees much of the war over open government. Stories of failed requests, routine cover-ups, bureaucratic foot-dragging, and legal maneuvering can read like inside baseball. Public documents? Boring.
But necessary. Disclosure fights have been fought by media and watchdog groups across the political spectrum, from The Seattle Times, which has sued to get access to records of sexual predator school teachers and coaches, to the conservative Evergreen Freedom Foundation, which battled hard to get details of the Boeing deal, to the efforts of Seattle businessman Armen Yousoufian, who fought, and won, an epic legal struggle to get King County to give up public papers relating to the Paul Allen Seahawks stadium deal.
Expensive, time consuming, sometimes futile: It takes resources and commitment to play the game, commodities that the Goliaths of government have in abundance. The Davids—represented by the media, community activists, and good-government groups—are mostly fighting with slingshots. But the one effective arsenal we have is the law itself, even when it is defied, ignored, or warped beyond recognition by public officials and employees who see their mission as keeping the government's inner workings from a pesky public.
Right now, the Legislature is considering a new law that purports to strengthen and clarify our disclosure laws, such as boosting fines for failing to comply. The new attorney general, Republican Rob McKenna, has sent strong signals that he wants to take public disclosure seriously, and one of his moves created a position in his office to watchdog it. A major proponent of the current legislation is state Sen. Jim Kastama, D-Puyallup.
Unfortunately, the legislation is a Trojan horse. A major provision would codify a private-sector type of attorney-client privilege that would protect from disclosure virtually any advice given by government lawyers. Call it the Cover Your Ass Act of 2005.
The effort was stimulated by a lousy state Supreme Court decision that allowed the city of Seattle to withhold documents from a local activist, Rick Hangartner.
Protecting the privacy of legal advice during an active lawsuit, or even in the face of an impending one, is understandable (and accounted for in the state's 1972 Public Disclosure Act). But to broadly codify that idea in state law would be devastating to the public's right to know. Government lawyers argue that such a right already exists and that this new law simply articulates it. But if that's true, how come that right hasn't been asserted in document fights in the 30-plus years since the Public Disclosure Act was passed? Indeed, such legal documents have been disclosed—and shared between government agencies—as if no such privilege existed. Lawmakers are trying to set in concrete a bad Supreme Court decision.
Instead of applying the private-sector model of privilege to the public sector, lawmakers should first be addressing a key question: Who is the client the government lawyers are trying to protect with attorney-client privilege? In the case of government, the public is both attorney and client. We pay the salaries and expenses of both. They work for us, and we have every right to know what they're up to.
Another tip-off to the real agenda is that some advocates of the new law also sought to use the legislation to extend the legal privilege broadly to more government employees, including paralegals and investigators, a move that would have taken even more public documents off the table. The real mission here, folks, is to cover up and withhold as much as possible under the guise of openness and protecting the public interest.
The Legislature ought to pass a new law that repudiates the Supreme Court's Hangartner decision by reaffirming our right to know. And based on what's being tried in Olympia right now—combined with the routine stonewalling of government officials across the state—it needs serious reaffirming. We've had 30-plus years of semi-open government. Now is not the time to let the lawyers shut the door. It's time to kick the door down. If the Legislature won't do it, a citizens' initiative might.