Citizen access to public records suffered a double blow this week. The state’s highest court, in a 5-4 ruling on a Spokane case, handed government agencies broad powers to keep documents secret and to fend off requests for public records.
The case stems from the May 2001 death of Nathan Walters, a third-grader with a peanut allergy who fell gravely ill on a school field trip after he was given a sack lunch containing a peanut-butter cookie.
The Spokane School District, anticipating the lawsuit that Walters’ parents later filed, hired attorneys to investigate its liability. A day before the district entered mediation with the family, the Spokesman-Review newspaper requested documents from the district’s investigation of Walters’ death.
Justice Bobbe Bridge, writing for the Supreme Court majority, upheld lower court rulings allowing the district to keep the documents under wraps. The reason: The investigator was hired by the district’s attorneys, not the district itself.
Never mind that the documents were created before a lawsuit existed, or that by the time the Supreme Court got the case, the family’s lawsuit had long ago ended with a nearly $1 million settlement. The court essentially said that public agencies can keep records secret forever by outsourcing their investigations to lawyers.
But the expansion of agencies’ ability to withhold documents concerning a controversy — the kind of documents that the public most needs to see — is not even the most harmful aspect of the Supreme Court ruling. The court also endorsed a tactic apparently gaining favor among public agencies: Sue records requesters before they can sue you.
When a public agency denies a public disclosure request, the citizen who wants the document usually gets to decide whether to spend time and money pursuing the fight into court. But in Spokane, the school district pre-empted the normal process by suing first in an attempt to get a judge to declare the documents off limits.
The maneuver worked, and now the Supreme Court has sanctioned it, giving all public agencies the green light to use taxpayer dollars to file what smacks of strategic lawsuits against public participation.
So not only do agencies have wide latitude to wield their lawyers as public disclosure shields, they also have at their disposal an intimidating weapon to ward off requests for records not even remotely associated with litigation.
The dissenting justices said it best. Justice Charles Johnson, writing for the minority, said the majority’s decision “essentially creates a public nondisclosure act.”
On the blog
Justice Barbara Madsen sided with the majority, but seemed to foresee the dangers inherent in keeping the Spokane records secret. See the Inside the Editorial Page blog: blogs.thenewstribune.com/oped.