FOREWORD

Washington’s public records and open public meetings laws, passed separately in the early 1970s, are a product of the “open government” climate brought about by distrust of government accountability and by misuse of government power during the civil rights and Vietnam protest era. Citizen groups such as the League of Women Voters, Common Cause, Coalition for Open Government, and others succeeded in promoting such legislation at a time when conservative opposition to such measures was discredited. Subsequent events of the 1970s, particularly Watergate, vindicated the need for the reform legislation; however, changes in the political climate, increasing sophistication of government agencies and their attorneys, decline of “open government” groups, and public antagonism towards the press led to legislative and judicial retrenchment from the mid-1980s to present, including an increase in the number and scope of exemptions.

The open records law was passed by Washington voters in November 1972 as Initiative 276. The law took effect January 1, 1973. Previously, there was an ill-defined common law right to public records that was seldom litigated.

Note: The open records law was part of the Public Disclosure Act, codified at RCW Ch. 42.17. Effective July 1, 2006, the open records law was re-organized and recodified as RCW Ch. 42.56 and is now referred to as the Public Records Act.

The major thrust of Initiative 276 was reform of campaign financing and lobbying by requiring disclosure of sources of contributions and expenses. The public records portion of the initiative was a relatively small section and was not the focus of much debate. Since the drafters did not pay extensive attention to the public records section, it is sometimes hard to reconcile how certain sections fit together or what the precise intent is.

The only “legislative history” for Initiative 276 is the State of Washington Voters Pamphlet (November 7, 1972), which contains statements for and against the ballot measure as well as a summary of the proposed law, a summary of the law as it then existed, a summary of the effect the proposed law would have, and the actual text of the new law.

In interpreting the current public records law, appellate judges have cited the Voters Pamphlet as evidence of legislative “intent,” thus giving the Pamphlet some persuasive effect. The Pamphlet described the prior law as follows:

Access to public records is largely governed, under present law, by court decisions under which members of the public having a legitimate interest therein are entitled to examine all records in the custody of a public official which that official is required by law to maintain. However, in the case of records which the official having custody is not required by law to maintain, the disclosure or nondisclosure of information contained therein is largely within the discretion of this official. [Emphasis added.]

The pamphlet went on to explain that the effect of Initiative 276 was to require disclosure of all public records “regardless of whether or not the particular record is one which the official having custody is required by law to maintain.” The Pamphlet also noted that state and local government agencies would have to meet a number of detailed requirements with respect to the maintenance and indexing of all the records and that public inspection was subject only to certain exceptions relating to “individual rights of privacy or other situations where the act deems the public interest would not best be served by open disclosure.” These statements, and others in the Pamphlet, are usually cited by appellate judges writing pro-disclosure opinions or dissents.

Appellate judges writing pro-disclosure opinions or dissents have also routinely cited the declaration of policy set forth at the beginning of the Act, Rev. Code of Wash. (“RCW”) 42.17.010(11), which says that “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.”

Subsequently, there have been persistent efforts — some successful, some not — to add exemptions. The press, on the other hand, has only been successful on two occasions in obtaining significant pro-access amendments. In 1987, a restrictive definition of the “right to privacy” was formally added to the Act after some judicial waffling had created uncertainty with respect to the common law. RCW 42.56.050. In 1992, the Legislature adopted more than a dozen amendments requested by the press, including a broader definition of “public record,” a specific definition of “promptness,” increases in civil penalties, and immunity for public officials who release public records in good faith.

The current Open Public Meetings Act, which was adopted in 1971, has a preamble that is often cited by appellate judges.

The people of this state do not yield their sovereignty to the agencies which 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 retain control over the instruments they have created.

RCW 42.30.010. The Washington Supreme Court has referred to this preamble as one of the strongest statements of legislative policy contained in any state statute. Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975). In 1992, the Legislature added this same language to the public records law. RCW 42.56.030.

There is very little legislative history available on most Washington law, including the Open Public Meetings Act. The Washington Legislature seldom maintains a record of floor debates and has nothing comparable to the Congressional Record or the committee reports prepared by the U.S. Congress. At best, there is an occasional colloquy put into the official record for the purpose of clarifying a particular point.

Consequently, the primary “authority” for interpreting the 1971 law is contained in Attorney General Opinion (“AGO”) No. 33 dated October 29, 1971 (and cited as 1971 Op. Atty. Gen. No. 33). This AGO recites the following history to the 1971 Act:

[By enactment of the 1971 Act], the legislature basically replaced our earlier 1953 public meetings act with a comprehensive new act dealing with this subject. This new act was patterned closely after a California statute, commonly referred to as the “Brown Act”; and it is also somewhat similar to an open meetings act which was passed several years ago in Florida.

Before examining the provisions of the new act let us first, for comparative purposes, note the general thrust of the earlier law which it has replaced. Prior to August 9, 1971, when [the new law] became effective, the meetings of public agencies in this state — both state and local — were governed by RCW 42.32.010-.030. The first section of that act required that the adoption of any ordinance, resolution, rule, etc., be done in a meeting open to the public. If the date of that meeting was not fixed by law or rule, then in advance of the meeting there was to be notification to the press, radio and television in the county in which the meeting was to be held. The second section, RCW 42.32.020 specifically permitted the public agency to hold executive sessions and to exclude the public therefrom for all purposes other than “final adoption” of an ordinance, rule, regulation, etc. The third section, RCW 42.32.030, required that minutes be kept of all regular and special meetings, except executive sessions, and further required that those records be open for public inspection [this section continues to remain in effect].

Under this prior legislation it was quite possible for a public agency to take all the preliminary steps toward action, save only the final act of formal adoption of the rule or other directive, in sessions which were closed to the public. It is important that this be understood, because a legislature which enacts a new law such as that we are here considering must be presumed to have been aware of the scope and effect of its prior law on the subject and have intended to accomplish change therein.

The Open Public Meetings Act has been the subject of less court interpretation and legislative revision than the Public Records Act. In part, this is due to its clearer language and history.