Sunshine Committee ready for first batch of open-records reviews

KIMA

By Associated Press

OLYMPIA, Wash. (AP) - Now they get down to business.

Washington's Sunshine Committee, a panel of experts and insiders charged with strengthening the state's open records laws, is ready to delve into its first substantial bit of work this week.

At a meeting Tuesday in Ellensburg, the 13-member committee will begin scrutinizing some of the nearly 300 exemptions from the state law that calls for the free flow of government information.

They're not expected to get too deep into that list before suggesting an opening round of changes next month.

But committee members like House Majority Leader Lynn Kessler, D-Hoquiam, say they're eager to start combing through the ever-growing list of official government secrets.

"Now that we're going get into the meat and the substance of it, I think we're going to learn that some of these are just nutzoid, and some of them have some real reasons," Kessler said.

First, a few basics.

When voters approved the Public Records Act by initiative in 1972, there were only 10 tightly drawn exceptions to the general policy that all government records should be readily available to the public.

In the years since, lawmakers have liberally plumped the list of government documents that taxpayers aren't allowed to see.

The Sunshine Committee is in charge of combing through that list of exemptions and recommending whether they should stay, go, or be tweaked. Although the Legislature has the final say, some senior lawmakers are members of the committee.

They've chosen four exemptions to start the review, attempting to go after some "low-hanging fruit" along with weightier questions.

They first four up for review are:

- Ginseng information. It's been held up as an example of government secrecy run amok - the prohibition on releasing purchase, sales, or production data about individual dealers or growers of American ginseng.

But as Washington Coalition for Open Government President Toby Nixon points out, discussing the ginseng exemption opens the door to a whole class of agricultural and business records that have been declared off-limits for the public.

Committee Chairman Tom Carr says he's interested to hear the history behind the maligned exemption.

"These things don't just fall out of the sky," said Carr, who is Seattle's city attorney. "Someone proposed it and got the Legislature to pass it, so someone wanted it for some reason."

- Legislative records. Under a bill passed in the mid-90s, Lawmakers carved out a special exemption for themselves. But they didn't bring any other lawmaking bodies - like city or county councils - along with them.

"It's amazing how that kind of thing happens when you're the ones writing the laws," joked Nixon, himself a Republican former state Representative.

Essentially, the legislative records exemption gives individual lawmakers the final say over whether they want to release certain communications.

These days, that mostly means e-mails, and legislative lawyers say the majority that would qualify for secrecy are communications with constituents.

"It's a great flexibility, and it depends on the individual legislator," Carr said. "It's not really consistent with the philosophy of open government."

But committee members Kessler and Sen. Pam Roach, R-Auburn, both said it's important to shield a constituent's personal information from disclosure.

In any case, Kessler predicted the committee won't wade into that exemption before seeing if the state Supreme Court rules on the concept of a legislative privilege that could be invoked to prevent some disclosures.

The legal principle is up for its first appellate review in Washington as part of the lawsuit over Initiative 601's spending limits.

- Infant mortality data. State law prevents government officials from releasing local health department records about individual cases of child deaths. Aggregate data can be published in reports and studies.

This exemption is another that points to a larger class of shielded information, in this case health data - a topic that by itself could require days of hearings, Nixon said.

It's also a classic example of the balancing tests that public disclosure law often requires.

"Would we stop these reviews from happening entirely if the information were available?" Nixon asked. "That's the kind of political trade-off that the Legislature has to make when they look at these things."

- State employment applications. The Public Records Act holds that a person's application for a government job is secret, based at least partly on the notion that many candidates wouldn't seek state employment if their current bosses could catch wind of the job hunt.

Gov. Chris Gregoire invoked the clause earlier this year when she denied The Associated Press' request to see the applications of everyone who had been turned down for spots on the appointed Sunshine Committee.

The Democratic governor was heavily criticized by newspaper editorials and open-government activists, who ridiculed the idea that volunteer committee members could be seen as state employees.

Gregoire eventually relented, and asked Carr to take a look at the exemption in that light.

Nixon adds another concern: Even after someone is hired for a state job, their applications can be kept secret. That raises questions about how the public would know if an applicant was found to have overstated their resume, for example.

If it all sounds like a lot of minute detail, open-government advocates say to keep in mind that undiluted "sunshine" laws are the public's best tool for making sure the government is acting responsibly with its power and the taxpayers' money.

"The people either have access, or they don't have access," Roach said. "The door is either open or it's shut. There's no degrees."

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