Justice wins access to ethics investigation documents

The Washington state Supreme Court unanimously ruled last week that Justice Richard Sanders, a member of the court, was entitled to receive four documents wrongfully withheld from disclosure based on claimed attorney-client and work product privileges, in a case springing from an ethics investigation against the judge.

In a holding addressing multiple issues related to the state's open records act, the court largely upheld a lower court’s ruling that the state violated Washington's Public Records Act by wrongfully withholding nonexempt documents. However, the court minimized the award for Sanders’ attorney's fees and reversed the lower court’s interpretation of the attorney-client privilege.

In 2003, Sanders visited Washington’s sexual predator center on McNeil Island. Shortly after, the Commission on Judicial Conduct admonished Sanders for his visit, claiming that many residents had active cases in the court system and his visit jeopardized principles of judicial impartiality.

A year later, Sanders filed a public records request with the state attorney governor’s office. He requested all records pertaining to the commission’s ethics inquiry. In response, Sanders received about 1,000 pages of material, including a list of exemptions for 144 documents that were redacted or withheld.

In 2005, Sanders sued, claiming that the attorney general's office failed to provide an explanation as to how the claimed exemptions specifically applied to the withheld documents and that the office wrongly withheld nonexempt documents, thus violating the Public Records Act. The state responded by hiring outside counsel and releasing 33 additional documents, said Dan Sytman, spokesman for the attorney general's office.

The lower court ruled Sanders showed that 5 percent of the 115 remaining withheld documents were nonexempt, or not covered by an exemption. The court awarded him $55,443 — 37.5 percent of his costs and attorney fees. The Supreme Court reduced this award to a total 25 percent of his costs and fees in the appeal process because only four additional documents were turned over.

The Supreme Court upheld most of the trial court’s rulings, including the state's assertion of the work product privilege, which protects materials prepared for trial, as a valid exemption for some of the disputed documents. The court also held that the state failed to provide a brief explanation of how the exemptions were applied to withheld documents, which is required by law. The court held this omission to be an aggravating factor in determining costs and fees due Sanders.

“Claimed exemptions cannot be vetted for validity if they are unexplained,” the court wrote.

“The court's opinion provides helpful guidance about the Public Records Act and should assist agencies to comply with its requirements,” Sytman noted.

The court also affirmed the lower court’s $8 per day penalty to the state for withholding documents, resulting in an $18,112 penalty. The Public Record Act’s stipulates that per-day penalties must fall between $5 and $100.

However, the Supreme Court reversed the lower court’s interpretation of attorney-client privilege as an basis for exemption for some of the disputed documents. The ruling stated that the privilege applies only to legal advice between the attorney and client, not to all communication between the two, as the lower court had advocated.

Paul Lawrence, Sanders’ attorney, said he was glad to receive the additional documents and that the attorney-client privilege was narrowed, but was unsatisfied with the lowered award.

“Our position is that when you bring a Public Records Act case and are successful in gaining numerous records, you should be entitled to a full award, so we do believe that the reduction was not warranted," Lawrence said.

“I think that there’s a concern that the approach to the attorney fees and award and penalty will act as a disincentive to people pursuing their Public Records Act claims.”

Lawrence plans to file a motion for reconsideration, saying the Supreme Court made a factual error in its ruling. The Supreme Court believed Sanders’ attorneys had the opportunity to review the disputed documents, but that was not the case, Lawrence said. This made it harder for Sanders’ attorneys to challenge specific disputed documents.

Sytman said the attorney general's office had no response to Lawrence’s statement.

Justice Sanders is up for reelection this year.