Attorney general strains to withhold public information

The News Tribune


"The people of this state do not yield their sovereignty to the agencies that 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. The people insist on remaining informed so that they may maintain control over the instruments that they have created. ..."


(RCW 42.17.251)

"Independence Forever!" Those were the last public words spoken by John Adams, one of our nation's founders and America's second president. Adams spent his life warning fellow citizens that government is powerful, freedom is fragile and citizens must resist the "first approaches of arbitrary power."

In this spirit, laws have been crafted in Washington state to ensure that citizens remain in control of their government, rather than vice versa. Sadly, the people's legally protected authority has come under fierce assault by some state agencies and the judicial system.

Despite being elected as the people's attorney general, Christine Gregoire is using her office to fight for the "right" of state agencies to withhold information from the public. Unfortunately our state's judicial system too often acts as a willing accomplice.

The language of our public disclosure law, however, is clear: Public officials must be transparent about what they are doing with the public's money on the public's behalf. Still, Gregoire and certain state agencies believe they have the right to decide what is "good" and "not good" for us to know.

This troubling position is exacerbated by the way Gregoire defines her job. Gregoire believes her principal role is to defend agencies. This explains why her office has argued some public records should be exempt from disclosure based on attorney-client privilege. She believes government agencies, not taxpayers, are the clients.

Equally troubling is that our state courts are often moving in a similar direction. Consider the following:

•In the recent Rick Hangartner v. City of Seattle case, the Supreme Court ruled 5-4 that documents covered by attorney-client privilege are exempt from disclosure, and that "overbroad requests" may be rejected by state agencies. It was Gregoire's office that submitted a brief to the court arguing for the attorney-client privilege exemption.

•The attorney general's office has submitted a brief for use in the pending Supreme Court ruling in Yousoufian v. King County arguing that the amount of fines levied on agencies found guilty of withholding public documents should not be based on the number of documents illegally withheld, but simply on a per-day basis.

•Gregoire's office successfully argued for a court order limiting the Evergreen Freedom Foundation's access to public records related to the state's multi-billion dollar Boeing contract. Now the foundation must first receive approval from her office before requesting information. (EFF is appealing that discriminatory order.)

•On June 25, the Humane Farming Association filed a lawsuit against Gregoire's office for withholding public records they requested regarding the way cows are slaughtered at Washington meat processing plants.

Though most courts seem to be following Gregoire's lead, some judges have fought back, even fining Gregoire's office for violating the public records law:

•U.S. District Judge Thomas Zilly recently ordered federal sanctions and fines against Gregoire's office for failing to turn over documents requested by former attorney general employee, Janet Capps. Capps is the individual identified by Gregoire's office as responsible for missing a legal appeal filing date in 2000, which cost the state $17.8 million.

Before Gregoire settled with Capps on July 2 for more than $300,000, Capps was challenging her dismissal and had requested the documents to use in her court challenge.

•In 1998, Gregoire's office was fined $33,000 by Thurston County Superior Court Judge Richard Hicks for failing to disclose records in a timely manner to the Evergreen Freedom Foundation. When Judge Hicks was assigned to EFF's most recent records lawsuit against the state, the attorney general's office filed an affidavit of prejudice to have him removed.

Even when the attorney general's office is not directly involved, this elitist attitude of "government knows best" is becoming more evident:

•King County Superior Court recently ruled The News Tribune could not have access to the internal University of Washington investigation notes concerning the now-infamous women's softball drug scandal.

•The City of Tacoma is defiantly refusing to make public the entire report of an administrative investigation of the police department by the Washington State Patrol. That investigation was launched in the aftermath of the David Brame scandal.

Gregoire's view of the attorney general's role in records disputes is a relatively new interpretation, at least in the broad manner in which her office argues against taxpayers and in the way the judicial system frequently concurs.

Because of this, we need to establish some protection for the taxpayers whose business is being conducted and whose money is being used.

A public official in Texas did this by creating a people's public records advocate. Frustrated with the acts of some state officials who were unlawfully withholding documents from the public, Texas Attorney General Greg Abbott hired a prosecutor whose "only job ... will be to prosecute open government act violations." By word and action, Texas' attorney general has made it clear that access to public records is of paramount importance.

Due to the apparent conflict of interest in the attorney general's office, it wouldn't help to put a special prosecutor for records violations there. Instead, a public records advocate and special prosecutor should be created under the authority of the state auditor's office.

In addition to making sure public records compliance received proper attention, in many cases a public records advocate could serve as a recourse to the court system. (This would not preclude going to court, if the need or desire existed.)

The attorney general's Web site states, "Citizens can control their government only if they can remain informed about the decisions their government officials are making." An independent public records advocate and special prosecutor would help ensure the public has access to the information necessary to remain in control of their government.

Unfortunately, we are well past government making the "first approaches of arbitrary power" Adams warned us about. This makes it harder to wrest control back from where it doesn't belong, but if we are to remain in charge of our government, wrest it back we must.

Jason Mercier is a budget research analyst for the Evergreen Freedom Foundation, an Olympia-based "policy research organization dedicated to individual liberty, free enterprise and limited government."


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