School can’t sue to keep superintendent’s settlement secret

From the Spring 2000 issue of The News Media & The Law, page 31.

Usually an agency with an open records request grants it or denies it. But a Washington state school district followed a different course. Keeping copies of many records only in its attorneys’ offices, it filed for an injunction against the requesters and asked the court to determine that the requested documents were attorney-client or attorney work product records. It subpoenaed the newspapers filing the requests and forced them to defend in court their right to the requested records under the state’s open records law.

The superior court judge who heard the case in late March refused to find the records exempt and ordered the school district to give over the records immediately and to pay the costs of the litigation.

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The Mercer Island School District and its school superintendent of seven months abruptly reached a settlement agreement in mid-February. Under the agreement, Superintendent Paula Butterfield would leave and the school district would buy out the last two and one-half years of her three-year contract for $194,000. Under the agreement, everyone would keep silent about what had happened to sour the relationship. They would all tell the public that Butterfield had not been “a good fit.”

Jane Meyer, editor of the Mercer Island Reporter, filed an open records request for documents that would explain the changes. Four days later, Tan Vinh, a bureau reporter for The Seattle Times, filed a similar request. Shortly after Vinh filed his request the district asked him to clarify if he meant just records in the district’s office or records in offices of both the district and its attorneys. Vinh wrote back that he would like both.

The school district responded to the two requests without actually denying any records. It would provide for inspection and copying of records in its files. But it had destroyed office copies of most of the records, keeping only copies in the offices of school district attorneys.

On the day the school board made that response, its attorneys sought an injunction in King County Superior Court to keep from having to release the records themselves. They claimed that release of the records in their offices was protected by the attorney-client relationship and as attorney work product, and they asked the court to endorse that viewpoint with a formal injunction against the newspapers. The attorneys subpoenaed the newspapers to show cause why their requests for information should be fulfilled.

The Times and Reporter asked the court to award court costs and to sanction the district for bringing “this meritless action.”

Records were plainly “owned by the District, and subject to the state’s open records act,” The Times said. A client cannot avoid production of records by storing them in its lawyers’ offices. An agency must either determine that an exemption applies or provide the records, the newspaper said.

The newspapers noted that Washington law provides for injunctions against disclosure of specific public records if they fall within exemptions, but that did not happen in this case. Under Washington law, they said, records are either open or covered by an exemption and any party claiming records are exempt must show what harm would occur from disclosure.

The district’s attorneys did not even cite an exemption, and they cited no harm to be caused by disclosure either, according to the newspapers. The district’s suit was frivolous, forcing the newspapers to defend a lawsuit and wasting court time and resources, the newspapers told the court.

At a meeting the night that the school district sought the injunction, nearly 300 persons met with school board members for nearly three hours, and according to Mercer Island reporter Nora Doyle, they expressed anger and frustration that the school board would pay Butterfield almost the entire remainder of her three-year contract and sign away the right to tell why. She wrote that representatives of the Parent-Teacher Association said they were “blind-sided” by the move and were not given a chance to weigh in on the decisions.

The school board promised to involve the public in its search for a new superintendent. A few days later it released Butterfield from her agreement not to talk. However, Butterfield did not release the school board from its agreement to remain silent.

After a late-March hearing, the King County Superior Court judge told the school’s attorneys they would not get their injunction. He gave the district one day to release 39 documents about the controversial buy-out to the Reporter and The Times. He also ordered the district to pay attorneys fees for the two newspapers.

Butterfield, a former Fulbright Scholar who was named Montana Superintendent of the Year in 1998, was already on several national boards when she was hired in 1999 to head schools in the Mercer Island District, a school system described by local newspapers as having high student scores and the support of a community willing to fund its schools through bonds and levies.

Her evaluation released to the newspapers found her availability to the PTA “wonderful” as were her meetings with parents and her evaluation of the “potential of the community,” but it cited “no confidence” from key staff and concluded overall that if her performance did not improve, it would “likely affect” the board’s willingness to continue her contract.

Vinh reported that the released records showed staff communications to the board cited her for disorganization and lack of attention to local matters.