The following essays represent the analysis and viewpoints of their authors.

Attorneys Often Steer Agencies Into Needless Litigation

By William John Crittenden

Lawyers who represent the government are a force to be reckoned with -- and not in a good way. They are unelected and beholden not to the public, but to the agencies that hire them. Too often they lead agencies in records disputes down legal paths that are needlessly time-consuming, costly and acrimonious. Repeatedly, the losers are requesters, taxpayers and frequently the agencies themselves.

Attorneys who represent government agencies generally have significant negative impacts on transparency. Attorneys trained and accustomed to representing private clients are often excessively secretive and litigious when advising or representing government agencies in transparency disputes. Without adequate supervision and public oversight, agency attorneys cause their agencies to unnecessarily withhold public records and take legal positions that are not in the public interest. Transparency requires the public to have the information necessary to hold public officials accountable. Elected public officials are entrusted by local voters to govern in the public interest, and if they fail, they can be removed from office by voters. Public officials are held accountable under both the Open Public Meetings Act (OPMA), Chap. 42.30 RCW, which requires most agency decision-making to be conducted in open public meetings, and the Public Records Act (PRA), which makes agency records and communications available for public scrutiny.

But when government agencies become involved in a legal dispute, transparency goes out the window, largely because of agency attorneys. Unelected agency attorneys are not chosen by voters and cannot be removed by voters.

An exception to the OPMA allows agencies to use “executive sessions” to discuss legal matters without public oversight. Agency attorneys not only fail to disclose the subject matter of executive sessions involving legal counsel but routinely fail to keep any records of such sessions and do not inform the public of what decisions, if any, the agency may have made in executive session.

The PRA includes exceptions for attorney-client privileged communications and attorney “work product.” Unfortunately, most agency attorneys apply these exceptions so broadly that the public is kept completely in the dark about legal matters and the work done by agency attorneys at taxpayer expense.

Aggressive advocates

Agency attorneys are both legal technicians and zealous advocates for their agencies in litigation. They are not impartial, are often unqualified to make policy decisions, and lack the interest in public service that motivates, or at least should motivate, their agencies. By the standards of behavior that are expected in science, journalism or public service, many if not most attorneys are partisan, secretive, amoral. It is an unfortunate reality that there is very little quality control in public service.

With few exceptions, there is no public process for hiring or retaining an agency attorney. Attorneys get agency jobs by schmoozing, often with other unelected public officials such as city managers.

In general, agency attorneys are unelected city employees or contractors. As a result, agency attorneys are not accountable to the public. Instead, they are beholden to the public official who hired them. Full-time agency attorneys are not independent from the policy makers who hire them, and they are incentivized to act in the interests of their employer. Private outside counsel are even more problematic, having the additional improper incentive not to solve transparency problems, but to bill as many hours as possible. Many outside attorneys do not even provide their agencies with written legal advice or complete copies of their files to avoid scrutiny of bad (or missing) legal advice or poor strategic decision-making, and to conceal the attorney’s involvement in a public controversy. Some agencies have had to be sued to force them to produce their attorneys’ invoices, which are supposed to be public records.

In contrast, the Washington state Attorney General, the Seattle City Attorney and the various county prosecuting attorneys are elected offices. These public officials are incentivized to ensure their own reelection by controlling the flow of information about how they do their jobs and manage their agencies.

Spreading secrecy

Agency attorneys create transparency problems when they become involved (or inject themselves into) agency decision-making without carefully segregating their legal advice from other records. The casual intermingling of privileged legal advice with other information results in too much non-privileged information being withheld. The mere inclusion of a lawyer in an email thread can cause an agency to treat the entire conversation as a privileged legal matter exempt from public disclosure. Agency attorneys fail to identify privileged legal advice as such, requiring time-consuming reviews of large amounts of records to ensure that privileged legal advice is properly redacted. Far too often agency attorneys simply do not bother to keep their unsophisticated clients informed, and they don’t even put in writing their legal advice, or the legal decisions allegedly made by their clients after being properly briefed.

Agency attorneys assert a PRA exemption for attorney “work product” far too often and too broadly. The “work product” doctrine is intended to prevent private litigants from obtaining an unfair advantage over their opponents by disallowing discovery into an opposing party’s research or investigation. This doctrine should have only limited application to government agencies where the cost of such research or investigation is paid by the taxpayers. Unfortunately, Washington’s appellate courts, which all consist of either attorneys with no prior experience with the PRA and/or former government attorneys, have uniformly failed to reign in excessive and unnecessary claims of “work product” by agencies.

Consequently, agency misuse of the “work product” exemption results in time-consuming reviews and excessive redaction of records that should simply be disclosed or remain unredacted. In 2019, the state Court of Appeals erroneously allowed Pierce County to withhold as “work product” numerous emails from prosecuting attorneys in other counties regarding whether to support former Pierce County Prosecutor Mark Lindquist’s efforts to withhold public records (text messages) behind a claim of “privacy.”

Currently, WashCOG is suing San Juan County for excessively redacting attorney invoices under a claim of work product.

This anti-transparency attitude bleeds over into PRA compliance generally. Far too often, an agency’s level of compliance with the PRA is determined by the legal advice provided by the agency’s attorney with no public input. Agencies allow their attorneys to determine which PRA exemptions to assert and in what format records will be provided.

Digital disorganization

When the PRA was enacted by the voters in 1972, most government records were on paper. Public officials had no choice but to employ clerks to keep such records logically organized in physical files. Used properly, the digital revolution should have improved government transparency and reduced the time and cost for obtaining public records. But as electronic records became more common over the past decades, the agency attorneys failed to advise their clients that they have a legal obligation to keep digital records just as organized as paper records. (See “Many Agencies Fail To Adequately Organize Their Records” on page 42.) The result is an ever increasingly disorganized mountain of digital public records. Thirty years ago, all records relating to a single agency decision or action might have been obtained by copying a handful of documents located in a file cabinet. Today, obtaining the same public information may require a broad PRA request requiring an agency to search large amounts of disorganized email, text messages, electronic files and even the private digital accounts and devices that public officials and employees should not be using for government business.

In August 2019, WashCOG asked the Washington Association of Prosecuting Attorneys (WAPA) to produce all records addressing any legal issues relating to either the PRA or OMPA. In response, WAPA admitted that its records were not organized and then took more than six months to review nearly 5,000 emails that were identified by keyword searches for phrases such as “public records act.”

Agency attorneys have failed to recognize and deal with the transparency problems and conflict of interests created by the use of private cell phones, computers and email accounts for government business. In the era of paper records, if a public official had a work-related telephone conversation at home and made a record of that conversation on a privately owned notepad, everyone understood that the resulting record was a public record. The fact that the public official’s phone and notepad were used was irrelevant, and the public official had no “expectation of privacy” in the resulting record.

But as private cell phones and private computers became ubiquitous, agency attorneys failed to advise their clients that any record relating to government is a public record, and that the use of private devices and accounts should be avoided. And when the public started requesting public records from the private devices and accounts of public officials, agency attorneys uniformly failed to recognize the conflict of interest between (1) the agency’s objective in complying with the PRA and avoiding unnecessary expenses and (2) the public official’s goal of withholding public records. Agency attorneys effectively abandoned their role as enforcers of the PRA and misused their offices and public resources to defend the “privacy” of the public officials. Agency attorneys are active in multi-agency organizations like the Washington Association of Prosecuting Attorneys (WAPA) and the Washington State Association of Municipal Attorneys (WSAMA). These organizations exist to improve the legal services that public attorneys provide to their agencies, and these organizations openly use public resources and government attorney time because, in theory, they are acting in the public interest. But these pseudo-governmental organizations operate with very little oversight, and tend to promote the personal and professional interests of the member attorneys. Through these organizations, agency attorneys spread misinformation about the causes of transparency problems and share ideas about how to resist complying with the PRA. Both organizations have filed amicus (friend of the court) briefs in PRA appeals to support the anti-transparency actions of their members against the public interest.

Reinforcing bad habits

Agencies are required to train public officials and employees in PRA compliance. Unfortunately, such training is often provided in house by an agency’s own attorneys or by private attorneys who provide such training as a way to promote themselves as “experts” in the PRA. This feedback loop reinforces bad habits and misunderstandings of an agency’s obligations under the PRA. Agency PRA training materials routinely fail to address records organization or the improvement of agency processes. Instead, agency training focuses on protecting the agency from PRA liability in the event of a lawsuit. As a result, agencies have become experts at providing disclaimers to requesters, asking requesters for unnecessary clarification, and dribbling out responsive records as slowly as possible while maintaining the illusion of PRA compliance.

But agency attorneys mistakenly believe that it is always their job to “defend” the agency’s conduct regardless of the public interest in enforcing the PRA. In cases where agencies should respond to PRA lawsuits by immediately producing the requested records, agency attorneys have caused the agency to continue to withhold the records so that the attorney can litigate the issue. For example, in a recent case the city of Tacoma was sued for failing to produce records in response to a PRA request that the city never actually received. Although a copy of the PRA request was attached to the complaint, which the city answered, the city did not start responding to the request until nine months later. The Pierce County Superior Court imposed a large penalty on the city. On appeal, the attorney for the city argued that, where the city had not actually received the original PRA request before being sued, it was her job to “defend” the city by continuing to withhold the requested records. Almost 50 years after the PRA was enacted, the state Court of Appeals had to explain what should have been obvious:

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[The City Attorney] could simultaneously argue the City did not receive the letters until it received the complaint and instruct the City to respond to the letters as PRA requests as soon as it received them. In fact, starting the PRA response, rather than waiting nine months for confirmation of something the City already knew—that O’Dea was seeking these records under the PRA—was the only reasonable course.

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O’Dea v. Tacoma, 19 Wn. App. 67, 82, 493 P.3d 1245 (2021). Since this opinion was issued in 2021, several other agencies have been found liable for PRA violations because their attorney caused the agency to continue to violate the PRA during the litigation rather than simply bringing the agency into compliance.

Litigation rabbit holes

Even the smallest agency can be drawn into expensive PRA litigation without understanding what it did wrong or why the agency’s conduct is unacceptable. Agency attorneys control the flow of information to elected officials such that agencies don’t have any understanding of what their options might be or what the attorney is doing on the agency’s behalf. Too often the egos and profit motives of attorneys cause them to maneuver their clients into vigorously defending absurdly anti-transparent legal positions at taxpayer expense. As a result, large amounts of tax dollars are wasted on the pointless legal maneuvers and arguments of attorneys. The lack of adequate oversight on agency attorneys produces an almost continuous taxpayer funded attack on the PRA in Washington courts. Decades of PRA litigation between overzealous agency attorneys and underrepresented requesters has made a mess of the case law interpreting the PRA.

The PRA explicitly forbids any consideration of the identity of a requester and/or the purpose of a PRA request. The PRA also imposes the “burden of proof” on agencies, requiring agencies to prove that they have complied with the PRA instead of requiring the requester to prove that a violation has occurred. Nonetheless, agency attorneys routinely ignore these rules, withholding evidence from courts while attacking the requester personally. Far too often these tactics work because Washington state judges have been slow to understand that a PRA requester is not just another plaintiff in litigation, and that agency attorneys in PRA cases are government officials with duties that most defense attorneys do not have. The conduct of agency attorneys increases litigation costs for both the agency and the requester, and often increases the acrimony and the determination of the requester to hold the agency accountable. For-profit attorneys are intentionally litigious because it produces more billable work.

Civil litigation is expensive, and the cost of litigation can quickly exceed the dollar value of the underlying dispute. As a result, the modern trend is for courts to encourage settlements of lawsuits. Court rules encourage settlement through so-called “offers of judgment,” by which the defendant formally offers the plaintiff a sum of money to dismiss a case, and if the offer is declined, the plaintiff cannot recover their attorney’s fees unless they obtain a bigger judgment in court than the declined offer. This process works as intended in most civil cases.

But Washington state courts have erroneously applied this procedure to PRA cases, which are supposed to be about government transparency, not money, with severe negative consequences for the PRA. In PRA litigation, the offer of judgment procedure has enabled agency attorneys to efficiently bail out of PRA cases that they have mishandled or over-litigated. By offering the requester a few thousand dollars to go away, the attorney can blame the PRA while avoiding any scrutiny of the attorney’s own excessive invoices. At least one well-known PRA defense attorney has done this in dozens of PRA cases involving the same requester, making obscene amounts of money while blaming the waste of tax dollars on the PRA.

William John Crittenden is a Seattle attorney and a member of WashCOG’s board. He often represents requesters, and he has represented the coalition in separate open-government lawsuits against San Juan County, the Washington State Association of Municipal Attorneys, the state Department of Corrections and Pierce County.