A Citizen FOI Warrior in WA

My kinda guy...

A scruffy paralegal in an ill-fitting suit faced down a row of establishment lawyers in Superior Court on Friday, demanding access to the records of an association representing municipal interests and largely funded by tax dollars.

Arthur West, 47, of Olympia is a gadfly representing himself in the case, doing battle with an experienced legal team that includes a member of the Washington State Sunshine Committee, tasked with eliminating exemptions to the public records act.

His case against the Association of Washington Cities tests the reach of a decade-old court decision that the very-similar Washington Association of Counties is a public agency. A victory for West would expand the reach of the state's open government laws and would be a blow to a variety of groups that provide services to and lobby for local governments but operate largely outside of public scrutiny.

A representative of the state's newspapers, which often rely on public records and meetings laws to give the public a window on government, criticized the cities for fighting West.

"I don't see how they could deny him," said Rowland Thompson, head of Allied Daily Newspapers of Washington. The Seattle P-I is a member of Thompson's group.

"It's all public money, so I don't see how they can make the claim that they can withhold" records, Thompson said.

Friday's hearing puts the matter in the hands of King County Superior Court Judge Bruce Heller. Heller could issue a decision, since both sides largely agree on the facts, or he could decide a trial is needed to sort out the details. He did not indicate how long he would take to rule.

West argued in court that the association is the "functional equivalent" of a government entity that receives public money and exercises authority on a wide variety of issues.

"These are the people actually running our government behind closed doors," West said after the hearing.

The head of the association vehemently disagrees.

"I think he may suffer a confusion regarding advisory vs. authority," said Stan Finkelstein, the group's longtime executive director.

He said his group is merely a private association of government officials -- not governments -- which happens to carry out various public contracts and provides advice to its members and the state government.

His attorney, Steve DiJulio of law firm Foster Pepper, argued the point strenuously under polite questioning from Heller.

He called the association "a convenient contractor" for the state in its dealings with cities, and said it provides private services and gives advice but does not set regulations. He compared its role in state law with that of private-sector professional and trade associations.

According to court papers filed by West, the group is given duties in at least 50 state laws and regulations. It also has broad power to shape, but not make, appointments to state boards and set model legislation that cities have little choice but to adopt.

DiJulio contests that point, saying that a law requiring state transportation officials to work with the association was an example of a fee-for-service contract and nothing more.

"The state could have just as easily instructed the department to contract with Bechtel," he said, referring to an engineering firm that works on government contracts at all levels, including defense contracts for the rebuilding of Iraq.

West's view is somewhat different of what he calls the "shadow government."

"They have their hooks into virtually every agency of government in the state, except maybe the judiciary," he said under questioning by Heller.

Aside from DiJulio, the association's legal team includes Ramsey Ramerman, a specialist in opposing public-records requests who was appointed to the state's Sunshine Commission at the behest of the AWC and other groups representing local government agencies.

The 1999 case of Paul Telford v. Thurston County, which held the counties' association to be a public agency, outlined the four issues Heller will weigh in his decision: whether the group receives substantial governmental funding, was created by government action, exercises government authority and performs government functions.

The public records act is a creation of I-276, a 1972 citizen initiative that gave people in Washington state broad rights to review government documents and monitor government actions. Since then the law has been repeatedly weakened by the Legislature, which has added exemptions currently being reviewed by the Sunshine Committee of which Ramerman is a member.

The Association of Washington Cities has long opposed provisions of the 1972 initiative and unsuccessfully helped fight against disclosure in the 1999 Telford case. It opposed the creation of the Sunshine Commission and a recent proposal that would have required city councils and other government boards to make a recording any time they closed the doors to the public. The controversial, closed-door sessions are legal only in limited cases, but recent cases have shown that they are frequently abused. The recording would allow a judge to review the meetings when a citizen files a legal challenge.

More here.