Minority Report on the Attorney-Client Privilege Exemption to the Public Records Act

Minority Report on the Attorney-Client Privilege Exemption to the Public Records Act

Public Records Exemptions Accountability Committee

November 15, 2008

By Senator Adam Kline, Ramsey Ramerman and Roselyn Marcus, Sunshine Committee members.

This minority report is prepared pursuant to Article VII of the Public Records Exemption Accountability Committee Bylaws.

By majority vote, the Commission has made a recommendation to the Legislature in the form of a statement that lacks the specificity required in legislative drafting. No specific change in the Revised Code of Washington can be gleaned from the statement. It seeks the return of the law governing the two privileges to its status before the Supreme Court decisions in Hangartner and Soter. The statement may be read to infer dissatisfaction with those two decisions, but little else can be gleaned from this statement. We have attempted to translate the words of the Commission's recommendation into plain and meaningful terms appropriate to Chapter 42.56 RCW, and can find no way to do this without adding new material beyond the scope of the recommendation.

Because many commentators, and the Court itself, argue persuasively that neither decision changed the status of the law, and because no specific action is provided in the majority's recommendation, there will continue to be disagreement as to the meaning of the privileges and will be an invitation to interested parties to re-litigate these two issues. Presumably, after much time, effort, and expense, the Superior Court, Court of Appeals, and finally the Supreme Court will re-decide these two issues. There is no reason to believe that the litigation will come to a different result.

If this body seeks to make recommendations for legislative action, it must say so in plain English. If it is the majority's intent that the two Supreme Court decisions should be changed legislatively, they should say so plainly, by setting forth the changes they intend in the statutory language. This recommendation fails to do that.

Here is an alternate proposal, based on other materials the Committee considered. It combines elements of Assistant Attorney General Tim Ford’s proposal and Ramsey Ramerman’s proposal. This draft legislation is intended to define the scope of the attorney-client privilege under the Public Records Act, not change existing law.

AN ACT Relating to public disclosure; amending RCW 42.56.290, and adding a new section to chapter 42.56 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. A new section is added to chapter 42.56 RCW to read as follows:

(1) Records reflecting communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice, and records prepared by the attorney or a public official in furtherance of the request for or rendition of legal advice, are exempt from disclosure under this chapter.

(2) Records are not exempt from disclosure under this section merely because they reflect communications in meetings where legal counsel was present or because a record or copy of a record was provided to legal counsel, if the elements of subsection (1) of this section are not met.

(3)If an agency elects to produce a record that would otherwise be protected by the attorney-client privilege, any privilege is waived only as to the record produced. The production shall not waive the privilege as to the subject matter addressed in the produced record.

(4) Nothing in this section shall be deemed to change the applicability of the privilege set forth in RCW 5.60.060(2) to public agencies, nor its scope when claimed by a public agency.