Recent public records rulings imperil openness

This editorial appears in the Oct. 27, 2009, Yakima Herald-Republic.

The once-proud status of open records in this state has taken a beating recently.

Last week, the U.S. Supreme Court stepped into the flap over releasing the names of those who signed petitions for Referendum 71. The authors of that statewide measure want voters to reject the latest expansion of Washington's domestic partnership law, which the Legislature passed earlier this year.

In what experts say was a rare move, the high court, in an 8-1 ruling, barred the Washington Secretary of State from releasing the names and instead put the matter in limbo as the justices ponder whether public release of the petitions violates the signers' right to free speech.

It could be another year before the Supreme Court decides if it will even consider the matter. Until then, the names of everyone who signed initiatives in this state, including Tim Eyman's Initiative 1033, which is also on the Nov. 3 ballot, will be under lock and key.

This issue flared up after gay-rights activists vowed to post online all of the names and addresses of Referendum 71 petition signers. Those who signed referendum petitions argued that releasing the names would have a chilling effect on free speech and would open them up to potential harassment.

When an overwhelming 72 percent of voters approved the state's Public Disclosure Act in 1973, they envisioned an expansive interpretation of what constitutes a public record. Petitions for a statewide initiative or referendum fell under the act's umbrella of transparency. A petition signer has no expectation of privacy and, in essence, declares through his or her signature an intent to change how the state operates. Furthermore, petition gathering is not some secret process, screened off from public view, but is openly conducted in front of supermarkets, on courthouse steps and outside crowded football stadiums.

We trust that when the Supreme Court gets around to looking into this matter, the justices will conclude as our Secretary of State has: that signatures are subject to public disclosure.

Equally as worrisome is a recent ruling from our state Supreme Court that the judiciary is exempt from the state's Public Records Act. The case in question involves documents concerning Federal Way Municipal Judge Colleen Hartl, who left her job and was censured by a state panel last year for having a sexual encounter with a public defender who had often appeared in her courtroom.

The state's highest court ruled the judge's correspondence and other court documents were exempt from disclosure under a 1986 ruling that concluded the judiciary is outside the records' regulations because it was not specifically mentioned in the act's definition of what constitutes an agency.

Proponents of the records act vow to ask lawmakers to correct this flaw when the Legislature convenes in January.

However, that may not come soon enough to help with an appeal before the state Supreme Court brought by this newspaper. We have sought court records detailing payment of more than $2 million in public money to lawyers who represented two men who now stand convicted of killing a father and his 3-year-old daughter in 2005 in Yakima.

The court is expected to hear the appeal sometime next year.

These two cases involving the state's Public Records Act are troubling in their magnitude. They speak to the need that openness in government can never be taken for granted but must always be defended, no matter the hardship.

* Members of the Yakima Herald-Republic editorial board are Michael Shepard, Bob Crider, Spencer Hatton and Karen Troianello.