Monday, January 7, 2008

Bad Advice Makes Bad Law

The simple truth of Justice Oliver Wendell Holmes’s admonition that “hard cases make bad law” was demonstrated once again in the Washington Supreme Court’s ill advised December 27, 2007 decision in Soter v Cowles Publishing Co. Like every case that comes to the Supreme Court for decision, this one started in a trial court, and it got there upon the short sighted advice of legal counsel. And while the issue should never have been pressed as it was by the lawyers involved, the Supreme Court could and should have avoided turning this hard case into bad law.

The hard facts started with the tragic death of a young student during a school field trip on a Friday afternoon. The boy had a well known peanut allergy but somehow the school lunch that day included peanut butter cookies. He went into an allergic shock after eating a cookie and died before help was administered. The school district’s superintendent immediately realized there was a potential that the parents might make a claim for damages and, before the weekend was over, the district retained counsel to conduct an investigation and tell them what happened and what the liability might be. So far, so good. When somebody is killed or grievously injured while under the charge or care of supposedly responsible agencies, it behooves them to be concerned about potential legal liability. Our courts are the place where our citizens seek justice in such cases.

Within a short time, the boy’s parents did make a claim for damages; and the district’s lawyers concluded their investigation. And not long after that, the district and its insurer settled the parent’s claim before anybody filed a lawsuit. Although money damages are meager justice for the loss of a child, in the settlement the district also agreed to take other steps in an effort to prevent the tragedy from happening again. But then the matter ran off the tracks.

Not quite so willing to sweep it all under the rug, the local newspaper, the Spokesman Review, made a public records disclosure request to see the fruits of the district’s investigation. The Public Records Act is our state’s freedom of information act. Its purposes are to keep the light on government and to hold government employees to public account when they err. The Act states quite plainly “the people 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.” After all, it is our government, these are our employees, and when the government acts they act for us. And a public school district is a public agency.

The Public Records Act does exempt from disclosure public records that “would not be available under rules of pretrial discovery for causes pending in the superior courts,” and the district objected that it should not have to disclose the records made by its attorneys during their investigation, which in the course of a lawsuit usually would be protected from discovery under the rules governing attorney client privilege.

Presumably, the district’s decision was based on the advice of their attorneys; and in a strict lawyer like analysis, they probably correctly advised their client as to its obligations under the law. The Supreme Court’s majority decision shows that the attorneys were, technically speaking, correct. But this highly technical approach turns the Public Records Act into something resembling an Official Secrets Act.

The investigation was concluded, the claim had been settled, there never was a cause pending in the superior court, and there was no further need to keep the results of the district’s investigation secret. If the reason for the rule does not exist, then the rule ought not be slavishly applied. A lawyer’s duty goes beyond advising the client of the strict requirements of the law; the lawyer should also give the client his or her best judgment about what is right and what is wrong. And shining a bright light on what happened in this tragic case after it was all said and done would have been the right thing to do.

The Supreme Court missed an opportunity to correct the lawyer’s misjudgment. Exemptions from disclosure of public records should be narrowly construed, especially in this day when government secrecy is growing at all levels. The people have a right to know what is in their public record, and the Supreme Court should have preserved that right.

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