As the web page for the Public Disclosure Commission (www.pdc.wa. gov) states, “The Public Disclosure Law now relies both on the antiseptic qualities of Ôsunshine’ and several prohibitions to assure the citizens of Washington that their governmental system and the individuals who operate it are open and honest.” There is also a federal equivalent known as the Freedom of Information Act (“FOIA”), 5 USC ¤ 552. Since sunshine is our theme for the month, we thought we would provide an update on the Public Disclosure Act (“PDA”).

What is the PDA, Anyway?
The PDA reminds me of the old story about a committee of blindfolded people trying to identify an elephant by each person feeling a different part. While the PDA has a common theme of sunshine in government, it is broken down into five different areas of information that cover ground as broad and varied as a candidate’s personal wealth, allowing the press to be present at City Council meetings, and access to web cam tapes. A lawyer in private practice may be familiar with one of the aspects of the PDA, such as campaign contributions, and be unaware of the other areas it covers.

Specifically, the PDA covers five different areas of information:

• The personal financial affairs of candidates and people holding state elected offices or local offices where the jurisdiction has 1,000 or more registered voters;
• Campaign finances for people seeking state office or a local office that is county-wide or that has 5,000 or more registered voters, and certain special interest groups;
• Lobbyists;
• Most political advertising; and
• Public records.

The focus of this article is the little patch of sunshine known as public records requests because it has been the subject of a recent, somewhat controversial, State Supreme Court decision.

Public Records Requests
The PDA provisions relating to public records requests are set forth in RCW 42.17.250 et seq. The general concept behind the PDA is that all state and local agencies1 must make their records2 available to the public.

There are numerous exceptions, however, including, among others, exceptions for personal information whose disclosure would violate the right of privacy (RCW 42.17.310(1)(b)); specific intelligence information and investigative records (RCW 42.17.310(1)(d)); witness identity where the disclosure would endanger a person’s life, physical safety, or property (RCW 42.17.310 (1)(e); preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated (RCW 42.17.310 (1)(i)); work product similar to CR 26(b)(4)(RCW 42.17.310(1)(j)); employment applications (RCW 42.17.310(1)(t); employee and volunteer residential addresses and telephone numbers (RCW 42.17.310(1)(u).

Attorney-Client Privilege a Hot Topic
Recently, the attorney-client privilege exemption has been the focus of media attention. In City of Seattle v. Hangertner, a State Supreme Court opinion issued on May 13, 2004, the City claimed that certain documents relating to light rail were exempt from disclosure under RCW 42.17.310(1)(j) and RCW 42.17.260(1), which exempts from disclosure records that are protected under an “other statute,” citing attorney-client privilege, RCW 5.60.060 as the “other statute.” At the time of the request, there was a considerable amount of debate over the permits for temporary structures and uses necessary for construction, but no pending litigation. The opinion, which decided two consolidated cases, also addressed a document request by Citizens Against the Monorail to the Elevated Transportation Company (“ETC”) for “The CDs containing ETC’s most important electronic communications,” which was objected to as overbroad.

The City’s claim that the work product doctrine applied was based on the City’s contention that there was a “litigation-charged atmosphere.” The court held that this description of the situation did not fit the “relevant to a controversy” test that had been developed in a previous case, Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993).

The City fared better on its attorney-client privilege claim to exemption from the PDA. The court held that including the attorney-client privilege within the “other statute” exemption to the PDA complemented the work product exemption, rather than rendering it “meaningless and superfluous” as the plaintiff had contended. The majority also disagreed with the dissent’s opinion that the attorney-client privilege would “swallow ... the PDA’s purpose of allowing citizens a right to public records.”

Using the PDA
The following are some general tips on using the PDA:

• Make your request in writing and reference the PDA or FOIA in your request.
• Send the request to the correct agency. Do a little research beforehand to figure out which agency actually has the records you want.
• Ask to review the public records index (if there is one--see RCW 42.17.260(3) for details) so that you can tailor your request.
• Make your request as specific as possible. Requests such as “the CDs containing ETC’s most important documents,” or a “request for general policy guidelines” are too broad.
• Get an estimate from the agency of the volume of responsive records and how much the copies will cost before requesting that the documents be copied.
• If you receive a letter from the agency telling you certain records have been withheld and you disagree with the agency’s analysis, ask for a log of withheld documents and ask if any of the documents could be produced with redactions.
• If you believe documents have been wrongly withheld, suit can be filed against the agency in superior court to enforce the PDA. n