High court shields attorney-client records

OLYMPIA -- A sharply divided state Supreme Court reaffirmed attorney-client privilege exemptions from the state's Public Records Act, and said government agencies can challenge records requests in court before releasing any information.

In a 5-4 ruling published Thursday, the high court said documents relating to a child's peanut-allergy death while on a school field trip could be withheld from The Spokesman-Review of Spokane because of exemptions for attorney-client privilege and attorney work product.

"We conclude that the vast majority of the documents at issue here are protected from disclosure because they are handwritten notes or memoranda about witness interviews created by the legal team, making them protected work product," Justice Bobbe Bridge wrote.

The ruling also found that state or local agencies can seek a judgment in Superior Court over whether a particular record is subject to disclosure.

"It's not a good day for public records in the state of Washington," said Duane Swinton, the attorney who represented the Spokane newspaper in the case.

The newspaper sought witness accounts of events leading to the death of Nathan Walters, a Logan Elementary third-grader who died on a school field trip in 2001.

Despite his known peanut allergy, the 9-year-old boy was given a sack lunch full of peanut products by the school. He ate a peanut butter cookie that day and died.

After the boy died, Spokane Public Schools hired a retired police officer to investigate, with his efforts overseen by the district's attorneys.

The school district said the investigator's notes could not be publicly released because they were considered part of an attorney's "work product," and were protected by attorney-client privilege.

On Thursday, the Supreme Court's plurality wrote that because a lawsuit over Nathan's death was expected, all of the investigation documents fell under a "controversy" exemption in the law.

"The dominant purpose of the attorneys' investigation was to prepare to defend a claim brought by Nathan's family," Bridge wrote for the court.

"The attorney-client privilege exists to allow clients to communicate freely with their attorneys without fear of later discovery," Bridge wrote, joined by Chief Justice Gerry Alexander, and Justices Susan Owens and Mary Fairhurst. "The privilege encourages free and open communication by assuring that communications will not later be revealed directly or indirectly."

Fairhurst also signed a concurrence written by Justice Barbara Madsen, who agreed with the majority "because it is correct on the law that the Legislature has enacted."

"However strong the policies favoring disclosure, every exemption included in the public disclosure act ... results from a deliberate weighing of competing interests by the Legislature, and it is the Legislature's province to amend a statute, not this court's," Madsen wrote.

In a scathing dissent, Justice Charles Johnson wrote that the majority "erroneously expands the scope of what have been narrow exemptions to the public disclosure act."