In the shadow of the budget preparations by governors across the nation that mark the start the negotiations with their respective legislatures, there is considerable activity to position bills on a wide range of issues.
In Washington state, the 2009 legislature will be asked to act on the recommendations of the state Sunshine Committee to narrow the circumstances under which public agencies can cite attorney-client privilege to prevent disclosure of certain public records.
The original standard in the state's Open Records Act had been that there had to be an authentic threat of litigation against a public agency had to exist. Two state Supreme Court decisions in particular -- Hangartner v. City of Seattle (2004) and Soter v. Cowles Publishing (2007) -- had a broadening effect on the exemption by upholding claims of attorney-client privilege. The state's daily newspapers -- individually and through their lobbying association -- claim the result has been the loss of public accountability.
As worrying for the daily newspapers is what they perceive as a proliferation of exemptions, which started at only 10 in the original 1971 law and have grown to over 300 today, and were a catalyst to the creation of the Public Records Exemption Accountability Committee in mid-2007.
By a 7-3 vote last Wednesday, the so-called Sunshine Committee voted to recommend new legislation that force a tightening of the privilege definitions under the act, and push back against the Supreme Court. The no votes included a state senator and a pair of public sector attorneys who provide advice to public officials on legal matters. One of the no votes belonged to an attorney who was enormously helpful to me in the early days of the e-government movement.
The state's largest newspaper has called the trio out by name, and not in a complimentary way, as part of its campaign to have the legislature codify the committee's recommendation.
We are entering the fourth decade of America's citizen-led experiment with open records laws. They were created around broad principles but refined, as the 300 exemptions attest, incrementally with scalpel-like incisions. Considering the source of the minority opinion in the privilege recommendation, the legislature would be well advised to avoid replacing the scalpel with the blunt force of a hammer.
In Washington state, the 2009 legislature will be asked to act on the recommendations of the state Sunshine Committee to narrow the circumstances under which public agencies can cite attorney-client privilege to prevent disclosure of certain public records.
The original standard in the state's Open Records Act had been that there had to be an authentic threat of litigation against a public agency had to exist. Two state Supreme Court decisions in particular -- Hangartner v. City of Seattle (2004) and Soter v. Cowles Publishing (2007) -- had a broadening effect on the exemption by upholding claims of attorney-client privilege. The state's daily newspapers -- individually and through their lobbying association -- claim the result has been the loss of public accountability.
As worrying for the daily newspapers is what they perceive as a proliferation of exemptions, which started at only 10 in the original 1971 law and have grown to over 300 today, and were a catalyst to the creation of the Public Records Exemption Accountability Committee in mid-2007.
By a 7-3 vote last Wednesday, the so-called Sunshine Committee voted to recommend new legislation that force a tightening of the privilege definitions under the act, and push back against the Supreme Court. The no votes included a state senator and a pair of public sector attorneys who provide advice to public officials on legal matters. One of the no votes belonged to an attorney who was enormously helpful to me in the early days of the e-government movement.
The state's largest newspaper has called the trio out by name, and not in a complimentary way, as part of its campaign to have the legislature codify the committee's recommendation.
We are entering the fourth decade of America's citizen-led experiment with open records laws. They were created around broad principles but refined, as the 300 exemptions attest, incrementally with scalpel-like incisions. Considering the source of the minority opinion in the privilege recommendation, the legislature would be well advised to avoid replacing the scalpel with the blunt force of a hammer.
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