Courts are exempt from state's Public Records Act

The Washington State Supreme Court ruled 7-to-2 earlier this month to exempt courts from the state's Public Records Act.

On Oct. 15, the court resolved City of Federal Way v. David Koenig. The case required justices to decide to what extent the Public Records Act (PRA) applies to the judiciary branch. The case was filed Sept. 24, 2008, in King County Superior Court. It appeared in the state's Supreme Court on appeal. Justices there based their decision on the 1986 precedent-setting Nast v. Michels case. At issue was how to interpret the Nast finding.

"We conclude that Nast continues to stand for the principle that the PRA does not apply to the judiciary and that the appellant has not demonstrated a compelling reason to overturn Nast. Under the doctrine of stare decisis, we will overturn precedent only if it is incorrect and harmful and appellant has failed to demonstrate either," Justice Susan Owens wrote as the majority author.

Justices Owens, Charles W. Johnson, Tom Chambers, Mary E. Fairhurst, James M. Johnson and justices pro tempore Kevin M. Korsmo and Joel M. Penoyar voted to continue the exclusion of court records and the judiciary branch from the Public Records Act (RCW 42.56). Justices Gerry L. Alexander and Debra L. Stephens dissented. Justices Barbara A. Madsen and Richard B. Sanders did not participate.

"I think it was a very self-serving decision, both in Nast and this case as well," Koenig said.

Records request

In February 2008, Federal Way resident Koenig requested all public records relating to the resignation of former Federal Way Municipal Court Judge Colleen Hartl. The request included correspondence between the city and Presiding Judge Michael Morgan. The city released 183 pages of documents. The pages did not include correspondence between itself and Morgan. Based on the Nast decision, the city maintained that the court was not subject to the (PRA) and thus court correspondences were not considered public record. Koenig disagreed and continued to push the issue. The city filed the lawsuit.

"It seems counterintuitive to me," Koenig said. "I don't see it as supporting city interests or public interests."

Setting precedent

The state's Supreme Court, in the 1986 decision, ruled the PRA is not applicable to court case files because the common law provides access to those files, and the PRA does not provide for exceptions to public disclosure requirements already in place under the common law. In deciding Nast v. Michels, the court established the PRA does not apply to court case files because the judicial branch does not meet the act's definition of the word "agency," according to the City of Federal Way v. Koenig court opinion.

The PRA defines agency as the following: "Every state office, department, division, bureau, board, commission or other state agency" and "every county, city, town, municipal corporation, quasi-municipal corporation or special purpose district, or any office, department, division, bureau, board, commission or agency thereof, or other local public agency."

Koenig argued the Nast decision only applies to court case files accessible through the common law, and correspondence between the city and court is public record. The PRA defines a public record as a "writing containing information relating to the conduct of government...(that is) prepared, owned, used, or retained by any state or local agency."

Dissenting views

Stephens, writing on behalf of the dissenting justices, said she believes the justices ought to apply the narrowest possible reading of the Nast opinion and the PRA. She interprets Nast to exclude court case files, but not the judiciary branch, from the PRA, according to her dissent.

"Moreover, a narrow reading should prevail when we are interpreting the PRA, as it remains 'a strongly worded mandate for broad disclosure of public records,'" according to Stephens' dissent.

The state's Public Records Act first came into being in 1972 as Initiative 276. The initiative granted the public access to most state, county and city government records. The legislation has undergone changes since its creation, but its intent — to allow the public insight into how its governing bodies operate — is still at the core of the law.

The PRA reads: "The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created."

Koenig said his attorney has contacted the Washington Coalition for Open Government and is hopeful the coalition will propose legislation strengthening the state's PRA.

Check it out

To view the court's City of Federal Way v. Koenig opinion, click here.

To read the the PRA in full, click here.

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