Toby Nixon - nixon.to@leg.wa.gov

Kathy Haigh - haigh.ka@leg.wa.gov

Brendan Williams - williams.br@leg.wa.gov

Pat Sullivan - sullivan.pa@leg.wa.gov

Jan Shabro - shabro.ja@leg.wa.gov

Kelli Linville - linville.ke@leg.wa.gov

Initiative 276, passed by voters in 1972, requires public access to government records, unless the record is exempt from disclosure. Within five business days of a request for a public record, an agency must 1) provide the record; 2) acknowledge the request and provide a reasonable estimate of the time needed to respond to the request; or 3) deny the request. [See G.R.I.T. Note #1 below.]

If the request is denied, the person making the request may ask the attorney general for a written opinion on whether or not the record is exempt. [See G.R.I.T. Note #2] Such a request does not establish an attorney-client relationship. The requester may seek court action and, if successful, shall be awarded all costs, including reasonable attorney fees, in connection with the legal action. The court also has the discretion to award an amount between $5 and $100 for each day that the requestor was denied the right to the public record.

One of the specific exemptions from disclosure relates to records relevant to a controversy in which an agency is a party (RCW 42.17.310(j)). However, in the recent Hangartner case, the Washington Supreme Court interpreted that the attorney-client privilege in RCW 5.60.060(2) applies regardless of the controversy exemption. [See G.R.I.T. note #3 below.]

Appropriation: None. [See G.R.I.T. Note #4]

Fiscal Note: Requested on January 24, 2005.

#1: Any denial to fulfill a Public Disclosure request must also be accompanied by a explanation for refusal to supply the record(s)/document(s). (back to top)

#2: This statement is not true, in practice. (The specific RCW this refers to is 42.17.325, but it is, apparently, not applicable to local city jurisdictions. For example: When we began requesting public documents from the City, and ran into problems (delays, blow-offs of requests, absence of legal compliance with the PDA), we -- and several others -- contacted the AG's office several times. We were ALL told the same thing: The AG's office does not offer advice, assistance or opinions, legal or otherwise, on what material is, or is not, exempt, unless requested by a jurisdiction. This has, in fact, been one of our most vocal complaints: That taxpayers must expend their own private funds to file a lawsuit in the offending jurisdiction's county superior court. We also sought relief with the state Auditor's office, stating the City was egregiously violating the PDA, offering them substantial documentation, yet it amounted to a one-line mention in their audit of the City for that year. (back to top)

#3: This once-powerful tool by which citizens could hold their governments accountable, the PDA has experienced a slow, but inexorable erosion of its authority. Most records which could disclose a government's illegal backdoor shenanigans -- one of the prime intents of the law -- as well as so-called "private" information (such as the education and background of city officials, in Sultan's case, Rick Cisar, Craig Bruner and others), are exempt, as well as a growing list now categorized as non-disclosable. Presently, the categories/types of "private" information exempt from disclosure totals 59 main categories (as well as sub-categories within each main category, plus 29 specific and separate RCW's covering subjects such as: apple merchants agricultural records, information on commercial fertilizer distribution, fireworks records, certain information on American ginseng growers or dealers, public livestock market information, and the list goes ever on, "pulling" the teeth out of this law. (back to top)

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