The state Supreme Court this morning issued a 5-4 decision saying the Spokane school district was within its rights to withhold documents the local newspaper tried to get under the state’s Public Records Act. The justices upheld a Court of Appeals decision that rejected The Spokesman-Review’s request to see 75 documents related to a tragic case of a 9-year-old who died while on a school field trip.

At issue was whether exemptions to the Public Records Act for attorney-client privilege and attorney work product should apply in the case. The majority opinion, written by Justice Bobbe Bridge, said that earlier court decisions on public records give the district latitude to withhold the documents. She said:

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. Three additional documents are protected work product created by the legal team, even though they are not handwritten notes from witness interviews. The remaining documents involve privileged communications between the attorneys and their clients.

Joining the majority were Chief Justice Gerry Alexander and justices Susan Owens, Mary Fairhurst and, writing a separate concurrence, Justice Barbara Madsen.

The dissent says the decision is a major blow to the state law that requires release of public documents. Justice Charles Johnson wrote:

The majority essentially creates a public nondisclosure act, turning the act inside out so that documents are withheld from the public unless the public can demonstrate that no remotely connected litigation exists, past, present, or future. The result of this broad, expansive extension of what should be and have been narrowly crafted exemptions, is well beyond the exemptions' intended parameters, past any meaningful limitation, ultimately encouraging public agencies to hide public records from the public.

The facts of the case couldn’t be sadder. It involves the death of student Nathan Walters. He died after eating part of a peanut butter cookie served to him on a field trip. He was highly allergic to peanuts and although school staff had epinephrine with them to inject Nathan if he had been exposed to peanuts, the shot was not administered soon enough to help. His parents said they would sue for wrongful death, though they and the district eventually settled the claim instead through mediation.

As part of the settlement both sides agreed not to discuss the case publicly.

Before the mediation began, though, The Spokesman-Review filed a request for all documents related to the case. The district withheld documents that had been collected while its attorneys were expecting the wrongful death suit. That included notes from a private investigator who interviewed witnesses and notes from the attorneys to the school superintendent with “their factual theories and what they perceived to be the strengths and weaknesses of a wrongful death case against the school district.”

The majority says some of the records could be withheld because they were “relevant to a controversy” which creates an exemption in the Public Records Act. The newspaper and Allied Daily Newspapers, a press organization that filed a friend of the court brief, argued that the documents were done in the ordinary course of business and should be made public.

But the majority of the Supreme Court said that earlier court decisions give an “almost absolute protection for a legal team's notes prepared from oral communications.”

The attorney-client privilege exists to allow clients to communicate freely with their attorneys without fear of later discovery. The privilege encourages free and open communication by assuring that communications will not later be revealed directly or indirectly.

The majority rejected arguments from the newspaper and the dissenters on the court that today’s ruling would encourage government officials “to hand contentious or potentially embarrassing investigations over to their attorneys to avoid public disclosure.

"As the Court of Appeals noted, the school district fully acknowledges the need for liberal access to agency information, but the school district also raises its countervailing duty to safeguard the public treasury by aggressively defending itself against civil liability."

Madsen wrote separately to say that that dissent “addresses strong policy arguments in favor of public disclosure,” but that the majority is correct on the law.

However strong the policies favoring disclosure, every exemption included in the public disclosure act, chapter 42.56 RCW, 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.

Joining Johnson in his strongly worded dissent were justices Richard Sanders, Tom Chambers and James Johnson. Johnson wrote:

The majority erroneously expands the scope of what have been narrow exemptions to the public disclosure act, formerly chapter 42.17 RCW. In doing so the majority fails not only to effectuate the mandate of the act, but also expansively denies disclosure in this case where, both legally and factually, no basis exists to withhold disclosure.

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Sadly, under the majority's broad application of the exemption to the facts of this case, public agencies will be encouraged to request their counsel to hire investigators to look into incidents, the result being that all those public records are exempt from disclosure forever, even where no controversy exists.

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In this case, the majority leaps to the conclusion that, because the district's attorneys hired the investigator, then automatically the investigation notes must be protected by attorney work product exemption. This conclusion is unsupported by our prior cases and disregards our responsibility to apply exemptions narrowly.