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Originally published Monday, March 3, 2008 at 12:00 AM


Kate Riley / Times staff columnist

When it comes to open government, a sledgehammer is sorely needed

The citizens' window into local government workings has been sliding steadily shut. All over the windowpanes are the fingerprints of a majority...

The citizens' window into local government workings has been sliding steadily shut.

All over the windowpanes are the fingerprints of a majority of the state's Supreme Court justices, state lawmakers doing favors for their local-government lobbyist pals and the governor.

Time to prop that window back open with a heavy stick of a voter initiative.

As a rule, laws are better made in the give-and-take of the legislative process than with the sledgehammer of a warts-and-all initiative. But on rare occasions, when the better angels of our elected officials are muzzled by special-interest groups, the initiative is the last, best resort.

A sterling example is Initiative 276, the original Public Disclosure Act. In 1971, 72 percent of Washington voters embraced the measure's transparency for campaign donations and lobbying and establishment of an open public records law.

Washington is a national leader for its thorough and accessible public disclosure reports — the first defense against a government-for-sale. But over the years, the law regarding open records has utterly eroded. The original law established only 10 types of sensitive records agencies could keep out of the public eye. Now there are about 300.

While the Legislature last year established a Sunshine Committee allegedly to review the validity of all that sanctioned secret-keeping, Gov. Christine Gregoire slapped open-government advocates in the face with her choice of chairman, Seattle City Attorney Tom Carr.

Four years ago, in Hangartner v. City of Seattle, the state Supreme Court upheld Carr's efforts to expand municipal government's attorney-client privilege, creating a rush of public agencies including attorneys in routine matters to keep them out of the public eye. Then-Attorney General Gregoire's representatives argued alongside Carr.

In December, expanded attorney-client privilege was upheld again by the state Supreme Court in a 5-4 decision in Soter v. Cowles Publishing Co. When a student suffered a fatal allergic reaction after being given peanut butter, the Spokane School District handed off its investigation to an attorney, then claimed the findings were secret because of attorney-client privilege.

The Soter swing vote — Justice Barbara Madsen — wrote a concurring opinion that was sympathetic with the scathing dissent. But she kicked the issue to the Legislature: "... it is the Legislature's province to amend a statute, not this court's."

Fine. The Legislature has failed now for four sessions to remedy the attorney-client expansion. And an agile effort by Rep. Brendan Williams, D-Olympia, to deal with the other Soter disaster — a bill to prevent agencies from suing people who merely request documents — died in committee.

Talk about intimidation. Align agency-paid lawyers against a middle-class family with bills ranging from water service to soccer cleats, and guess who walks away?

Only one open-government bill of 16 introduced is moving. SHB 2567 would increase penalties from $100 for elected officials who violate the 1971 Open Meetings Act. The bill would barely boost the penalty range to $250 to $1,000. That doesn't quite make up for 37 years of inflation.

Don't conclude your lawmaker is a committed champion for open government because he or she voted for this bill. Rather, ask your representatives what they did to support a now-dead bill that would have required local governments to record those closed meetings so a judge could review them for violations. The bill was killed despite Herculean efforts by House Majority Leader Lynn Kessler and a few others.

See the irony? State lawmakers are poised to increase penalties, while they wink at their locally elected counterparts and make sure the evidence of violations stays buried. As open-government advocate Greg Overstreet commented, "That's like getting tough on DUIs but outlawing Breathalyzers."

Time to fix this. It might take two initiatives — one for public records and one for public meetings.

One thing is clear: Government does not know best. The people cannot hold elected officials accountable without a big window into government decision-making.

The window cleaner isn't working. Let's break out the sledgehammer.

Kate Riley's column appears regularly on editorial pages of The Times. Her e-mail address is; for a podcast Q&A with the author, go to Opinion at

Copyright © 2008 The Seattle Times Company

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