The Cost of Secrecy

It shouldn't take a rocket scientist to comprehend the state's public- disclosure law. But Armen Yousoufian, 57, who once helped build missiles for Boeing, had to go where no man had gone before. He ran an eight-year gauntlet of closed King County government doors, bureaucratic roadblocks, and finger-wagging officials. They told him he just didn't understand a state law that is intended to splash sunshine on the schemes of public servants.

Later this month, he is likely to show just how wrong they were. Yousoufian could be awarded up to $825,200 in public funds, although out of the goodness of his heart he is asking for merely $742,680. State law allows up to $100 per day in fines against public agencies that fail to disclose requested records. In Yousoufian's case, King County—under executives Gary Locke and then Ron Sims—dallied for no less than 8,252 days, based on multiple types of documents Yousoufian sought over five years. The stalling dates back to the time of Yousoufian's first request in 1997 for documents related to the proposed new Seahawks stadium, now called Qwest Field, which was built largely with public money for team owner and Microsoft co-founder Paul Allen. Frustrated by the runaround, Yousoufian sued, and a King County Superior Court judge in 2001 found the county's actions "egregious," handing out a $5-a-day penalty.

Sore winner, Yousoufian appealed and won a rehearing on the penalty amount. Today, he says, "We're asking for $90 per day versus the original award of $5, which both appellate courts said was too low—and for the additional legal fees." Those would be his attorney bills, $330,000, he says. Altogether, at a penalty hearing set for Aug. 19 in King County Superior Court in Seattle, Yousoufian could be awarded up to $1,155,000 in public money because a public agency thought it didn't have to tell the public how it was spending public money.

That should be a stinging reminder to government officials and a victory for the little guy—although Yousoufian, a former Seattle hotelier, had some bucks to spend. Yousoufian's landmark victories have also strengthened the state Public Disclosure Act (PDA). In two subsequent court rulings, his case was cited in the awarding of daily penalties of $50 and $75. Legislative amendments have also pumped up the disclosure law this year. State Attorney General Rob McKenna, who has made a strong PDA a priority, has launched a statewide tour to inform the public about new aspects of the disclosure law. Among them is a requirement that officials must help citizens narrow the scope of requests and not flatly reject them as too broad, an easy out.

The recent efforts to make governments more respectful of the public-disclosure law, whether through litigation or outreach, are a good thing, but the law itself could use more work. The PDA still contains a loophole big enough to swallow up roomfuls of filing cabinets. A government official who wants to lock a record from public view can copy it to a government attorney and argue that it is attorney- client privilege that precludes disclosure. That aspect of the law was challenged last year by Seattleite Rick Hangartner, who sought documents from City Hall about light-rail permits. In Hangartner v. City of Seattle, the state Supreme Court (attorneys all, mind you) ruled against him and allowed the city to withhold records on an attorney-client basis, even though their release posed no threat of litigation.

"The nonlitigation-based attorney-client privilege the Supreme Court created in Hangartner will continue to be the great hiding place for information the government does not want to disclose," says Michele Earl-Hubbard, whose law firm, Davis Wright Tremaine, represents Seattle Weekly and The Seattle Times, among other media outlets. "This will continue until the Legislature, the Supreme Court, or the voters of Washington take the law back to the way it was before." Earl-Hubbard, who serves on the board of the nonprofit Coalition for Open Government (www.washingtoncog.org), says all that's needed is the insertion of four words. To be exempt, records should have to be "relevant to a controversy"— relevant to completed, existing, or reasonably anticipated litigation. But proponents of such a change have run into the "government-lawyer lobby," as Earl-Hubbard calls it—lobbyists supported by taxpayers to oppose opening records to taxpayers.

Obviously, there's need for more public and media access to records. Apparent or actual fraudulent and incompetent government practices abound. But it wasn't just high-profile bureaucratic shortcomings that voters sought to shine a light on when they passed the measure in 1972. The introduction to Chapter 42.17 of the Revised Code of Washington says it should be a matter of routine: "The provisions of this chapter shall be liberally construed to promote complete disclosure of all information respecting the financing of political campaigns and lobbying, and the financial affairs of elected officials and candidates, and full access to public records so as to assure continuing public confidence of fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected." Reads the preamble to the public-records statute and a companion law, the state Open Public Meetings Act (Chapter 42.30), passed by the Legislature in 1971: "The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know."