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September 2004The Hangartner Decision: The Supreme Court Limits Access to Public RecordsThis article presents several views of the Washington State Supreme Court's recent decision on the Public Disclosure Act. The opinion of the Supreme Court of the State of Washington filed on May 13, 2004, became final in the Hangartner1 case on July 30, 2004. The case was remanded to the Superior Court from which the appeal was taken for further proceedings in accordance with the Supreme Court's opinion. A motion for reconsideration was denied on August 2. Hangartner: Both Sides of the Story — An OverviewBy GREG OVERSTREET AND KRISTAL WIITALA KNUTSON Introduction What is all the controversy about? The Public Disclosure Act (PDA), chapter 42.17 RCW, requires state and local agencies to provide public records to requesters.2 The media, watchdog groups from all political persuasions, litigants (or soon-to-be litigants) against agencies, and average citizens use the PDA to keep informed about their government. Agencies spend a significant amount of time and resources responding to PDA requests. The Court in Hangartner changed the public's access to government information in two ways. First, the opinion excused agencies from responding to an "overbroad" request. Second, Hangartner held that records covered by attorney-client privilege are exempt from disclosure under the PDA. Brief Background on the Public Disclosure Act The PDA lists approximately 80 specific exemptions from disclosure.6 One exemption allows an agency to withhold records "relevant to a controversy to which the agency is a party but which records would not be available to another party" through discovery in a civil case.7 This provision is known as the "controversy" exemption. Several non-PDA statutes exempt other records from disclosure. A good example is RCW 68.50.105, which prohibits disclosure of autopsy reports. In what is called the "other statute" exemption, the PDA incorporates these non-PDA statutes by deferring to any "other statute which exempts or prohibits disclosure of specific information or records."8 Facts of the Cases The second case involved a request to the Seattle monorail agency9 by a group called Citizens Against the Monorail (Citizens). The request was made shortly before a vote on whether to increase taxes to fund an expansion of the monorail. Citizens asked to review "all books, records, documents of every kind and the physical properties" of that agency. It is important to keep in mind that the monorail agency was tiny: it occupied about 600 square feet of office space and had only one employee. The agency claimed that several documents were protected by the controversy exemption, the "other statute" exemption, and/or RCW 5.60.060(2). The trial court ruled for the requester. Holding10 Attorney-Client Privilege The Court cautioned, however, that this exception must be narrowly construed and that agencies may claim it only to protect advice and documents created to communicate with an attorney, or they risk being fined under the PDA for acting in bad faith.16 As additional support, the Court observed that the Legislature could have excluded attorney-client privilege from the "other statute" exemption. The Court said that RCW 5.60.060(2)(a) "unquestionably" applies as an "other statute" to exempt records from the PDA.17 Attorney-Client Privilege Conclusion Hangartner: A Public-Sector Perspective on Attorney-Client PrivilegeBy BERNIE FRIEDMAN Both the majority and the dissent in Hangartner began with the proposition that the requested documents came under the attorney-client privilege. The disagreement between the majority and the dissent centered on the question of whether the Public Disclosure Act (PDA) trumped the attorney-client privilege. The majority held, in effect, that it might, but invoked the "other statute" language of RCW 42.17.260(1) to incorporate the testimonial privilege set forth in RCW 5.60.060(2)(a) and exempt attorney-client privileged documents from the PDA. The dissent disagreed, noting the statute speaks only to attorneys, not to agency clients who may possess the sought documents. Presumably, in the absence of the "other statute" language, all nine justices would have held that the PDA defeats the attorney-client privilege. Lawyers reading this exchange may have been puzzled, as I was, at this spare description of the attorney-client privilege. I feel sure it is the universal belief among attorneys and judges alike that the attorney-client privilege applies to clients as well as attorneys. If you are defending a deposition, and your client is asked to relate a communication you had with him or her, you will object on the grounds of privilege and instruct your client not to answer, confident any judge would sustain your objection. That being true, the limited reach of RCW 5.60.060(2)(a) cannot be a complete statement of the attorney-client privilege. In fact, it is not. In 1899, speaking of the predecessor of RCW 5.60.060(2)(a), which contained nearly identical language, the Supreme Court said: "We think the statute merely declares and confirms the existing rule at common law relating to professional communications between attorney and client." Hartness v. Brown, 21 Wash. 655, 662, 59 P. 491 (1899). In Pappas v. Holloway, 114 Wn.2d 198, 203, 787 P.2d 30 (1990), the Court said: "This same privilege afforded the attorney is also extended to the client under the common law rule." Thus, the common law is the source of the attorney-client privilege in Washington, not RCW 5.60.060(2)(a). Pursuant to the common law, our courts would sustain the attorney-client privilege even without that statute. Having established the common-law roots of the attorney-client privilege and its application to both attorneys and their clients, we can look at the Hangartner case and the interplay of the privilege with the PDA. The PDA is a statute. Statutes in derogation of the common law are strictly construed. See Hays v. Miller, 1 Wash. Terr. 143, 146 (1861). Thus, to the extent the PDA purports to impinge upon the common-law attorney-client privilege, it must be strictly construed against such intrusion. See Sutherland Stat. Const. § 61.01 (5th ed. 1992) (discussing strict construction of statutes in derogation of the common law). But the PDA is entirely silent on the attorney-client privilege. While RCW 42.17.310(1)(j) exempts records "relevant to a controversy to which the agency is a party," this statute does not speak of the attorney-client privilege, and, in fact, extends to records that are not privileged communications between attorneys and clients at all. For example, the reports of consulting experts are not an attorney-client communication but are certainly relevant to a controversy. They are exempt from public disclosure because they are generally not discoverable. See CR 26(b)(4) and (5). Thus, to begin with the assumption that the PDA by implication may obviate the attorney-client privilege between a government agency and its lawyers seems wrong. "A fundamental and time-honored principle of the common law is not to be deemed uprooted by implication." Poling v. Poling, 116 W. Va. 187, 190, 179 S.E. 604 (1935). Obviously, the Legislature has the authority to declare the existence or nonexistence as well as the boundaries of the common-law attorney-client privilege in the public sector, but it has not done so in the PDA. If it is the will of the Legislature to make available for public inspection otherwise privileged documents, it could enact such a statute. In the absence of any explicit statutory declaration, however, the common law ought to govern, and attorney-client privilege should prevail over the assertion that the PDA supplants it. The Court should have decided Hangartner in that light. The truly interesting question, and one the Court might have discussed, is the scope of the attorney-client privilege in the public sector. For instance, I doubt many would argue that a confidential memo from a municipal attorney to a city council containing legal advice about a potential but not actual controversy should be subject to disclosure. The PDA ought not be a suicide pact. But what about after the controversy is concluded? Why shouldn't elected public lawyers like the attorney general and county prosecutors be held accountable for the legal advice they render their public clients by allowing the public to see what that legal advice was after the fact? Likewise, in the case of municipalities and special-purpose districts that hire attorneys to advise them, should not the elected officials be held accountable for the quality of the legal advice they purchase for their constituents, just as they are accountable for the quality of the police and fire protection they oversee, or water and sewer service they provide? Moreover, shouldn't the electorate be entitled to know, for instance, that their elected officials may have ignored good legal advice, leading to disastrous results for a community? If that legal advice is withheld from the public because of the attorney-client privilege, the electorate will be deprived of knowledge that could very well inform their vote in the next election. And exactly who owns the privilege in the first place? Is it the elected officials, high-ranking municipal employees, or the public at large? I pose these questions, but make no attempt here to answer them. Many similar questions arise when one begins to think about the multilayered policy implications of the attorney-client privilege in the public sector. I leave these questions and answers to interested readers. The Overbroad Issue in HangartnerBy MELODIE BANKERS The Hangartner opinion stated clearly: ". . . a proper request under the PDA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents." Clear and narrow identification is the heart of the matter. A request for "any and all" records is a practical nightmare, because: (1) it is not possible to certify that "all" records have been located and even a thorough search may not reach "all" of the agency's records, particularly if the requester is in a hurry; and (2) it is difficult to be certain that the requester has asked for what he or she really wants when a request is very broadly stated. Nonetheless, it is unlikely that any public agency will refuse to comply with a request for public documents that it determines are overbroad even though Hangartner held that "a government agency need not comply with an overbroad or 'invalid' request." When is a request overbroad or vague? In practice, the answer varies by situation. A "vague" request is one that is not sufficiently tailored to clearly define what the requester seeks. An "overbroad" request is often vague but is usually stated in a way that captures documents that are not germane to the requester's objective. A request for "any and all" documents is often both vague and overbroad. The tension between the public's right to know and protection of the privacy rights of others is not new. Agencies recognize the strong statutory mandate requiring disclosure of public documents. This policy, of course, must be balanced by the equally strong statutory mandate requiring agencies to check all documents for exemptions and apply other laws and rules limiting disclosure, including federal and state privacy protections. The dissent in Hangartner suggests that the request made by Citizens was clear — produce all books, records, and documents of every kind pertinent to the purpose for which they were sought. This last phrase creates some issues for agencies. Responding agencies are interested in clarity — it is often helpful to know the use for the documents in order to identify and prepare the precise documents that will be most helpful. RCW 42.17.270 requires agencies to "not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose of the request." For agencies, this section means that they must give each requester the same level of service — and we know that the reason behind the request cannot be used to stonewall or limit the response. Without some details, however, it is often difficult, if not impossible, to determine that a search for "all" records was conducted and all unprotected documents were provided. Thus, in the interest of full and proper disclosure of the responsive documents, each request for clarification must be balanced against the right of the requester to refuse to answer. While the court makes a distinction, in practice, overbroad requests are usually vague, creating logistical and practical problems for compliance. When a vague or overbroad request is received, it is difficult to know whether the way in which the request is interpreted will unearth the "right" documents. The requester may not be sure what he or she seeks. If the request is vague or overbroad, and the requester does not clarify or narrow the request, the agency will disclose documents based on its interpretation of the request — and that may not exactly match the vision of the requester. (Requesters object to paying for copies of documents they really don't want.) Often, vague or overbroad requests come from members of the public, many of whom have difficulty phrasing their requests, or from lawyers and public-interest groups, where it is logical to presume that the records are for legal proceedings. In both cases, it is prudent to be sure that the documents handed over will provide the most useful assistance to the requester as quickly as possible and that materials do not include information that is protected from disclosure. Hangartner: The Requester's PerspectiveBy MICHELE L. EARL-HUBBARD In 1992, the state Legislature enacted a series of amendments designed to increase public access to records and to ensure governmental accountability. Among other things, it took the unusual step of adding a strong statutory construction provision to the Public Disclosure Act (PDA): 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. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy. (RCW 42.17.251.) One would think that, in the face of such a strongly worded mandate for broad disclosure, any attempt to liberally construe exemptions and narrowly construe the PDA would be easily dismissed by our courts. But the majority opinion in Hangartner came out the other way and turned the foundation of public-records law on its head. The Newly Created Overbroad Exemption Attorney-Client Privilege Exemption (1)(j) covers the attorney-client privilege, attorney work-product privilege, and other privileges. It is narrower than the attorney-client privilege that is afforded private clients, because the records must relate to a controversy. The "other statute" amendment stated that records could only be exempt based on statutes that clearly mandated withholding of records. The PDA set forth the boundaries of the privilege through (1)(j). A common-law privilege did not survive the PDA and has no place in the PDA. So why does this matter? In the Hangartner case, the City of Seattle acknowledged that three of the withheld records — memos of a city attorney to the city council regarding the City's designation of Seattle neighborhood as an alcohol impact area — did not relate to a controversy and so would not be exempt under (1)(j). Numerous other communications are created between government lawyers and government agencies about matters that will never end up in court. Agencies ask government lawyers whether certain measures are legal or prudent, and lawyers respond. Agencies then follow or reject that advice. We recently learned that our federal government asked federal lawyers to analyze the legality of proposed methods to torture Iraqi prisoners around the Geneva Convention. If there is a broad privilege that only the agency can waive, an agency could choose to release attorney communications when those communications support agency actions, but withhold those communications that show the agency is disregarding legal advice, being untruthful about the content of such legal advice, or controlling the legal opinions to support the actions the officials wish to take. The public deserves to know, when there is no controversy, what questions our government is asking, what answers they are getting, and how agencies respond. The "client" of the government lawyer is the public agency, and not the official or employee with whom the lawyer converses. The lawyer and agency employee know or should know when they converse that their communication is governed by the PDA — which has only the narrowly defined controversy-based privilege available, so communications absent a controversy have no reasonable expectation of privilege. Public-client lawyers are paid for by the people. The public and Legislature have weighed the pros and cons of compelled disclosure when there is no controversy. They struck the balance in favor of openness. The public will not get to learn the legal advice given during litigation, as litigation-related communications are covered by exemption (1)(j). But communications for which there is not a lawsuit, and for which there is no reasonable anticipation of a lawsuit, should be disclosed. Kristal Wiitala Knutson has served for three and a half years as the first agency-wide manager of the public-records-disclosure process for the Department of Social and Health Services, an activity costing over $1.7 million in staff time per year. She previously served as a DSHS review judge for "too many years." She can be reached at 360-902-7649 or knutskw@dshs.wa.gov. Bernie Friedman has been special assistant to the secretary for loss prevention and risk management at DSHS since October 2000, where he has overall responsibility for the Department's compliance with the Public Records Act. Before that, he was a law clerk for six years to Justice Phil Talmadge at the Washington State Supreme Court. He can be reached at 360-902-7860 or bernkathalana@juno.com. Melodie Bankers has been with the Health Care Authority since 1999, where she is director of legal and contract services, the agency's HIPAA privacy officer, and public disclosure officer. Before that, she was a staff attorney for 11 years in the Insurance Commissioner's Office. She can be reached at 360-923-2728 or mban107@hca.wa.gov. Michele Earl-Hubbard is a partner at Davis Wright Tremaine LLP in Seattle, vice president and a founding director of the Washington Coalition for Open Government, and a senior editor of the forthcoming WSBA Administrative Law Section's Public Disclosure Act deskbook. She practices media law and frequently represents requesters in public-records matters. She can be reached at 206-628-7636 or micheleearlhubbard@dwt.com.
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