“The people of this state do not yield their sovereignty to the agencies that serve them … The people insist on remaining informed so that they may maintain control over the instruments they have created.”

Without immediate action by the Washington Legislature, these stirring words in the introduction to the Public Records Act may soon become hollow rhetoric.

This danger stems from a 5-4 decision recently handed down by our state Supreme Court, which will make it easier for agencies to hide documents behind the curtain of “attorney-client privilege.” The ruling is the latest of several decisions by the court which broadened public records exemptions related to this privilege.

The sad facts of the case involve a nine-year-old boy who died from an allergic reaction after eating a peanut-butter cookie given to him in a school lunch. The school district (Spokane) immediately hired a third-party investigator through its law firm, who interviewed witnesses and visited the scene.

Later the boy’s family gave notice they intended to file a wrongful death claim, but the parties settled the claim through mediation, thus avoiding a public airing of the facts of the incident at trial.

The Spokesman-Review attempted to uncover the facts by requesting the district’s investigation documents. The district denied the request, taking the unusual step of suing the newspaper to prevent the records from being disclosed.

They claimed the records were privileged as being created in concert with the district’s attorneys “in anticipation of litigation,” and couldn’t be released even though the case was settled.

These records didn’t represent just part of the file; they included every single document produced in the investigation except for a one-paragraph accident report.

The exemptions the district used to deny the request are intended to protect documents created for an ongoing legal controversy. That’s reasonable, but it should be limited to legal opinions or strategy being used in pending or actual litigation. Government officials should not be able to hide the facts of a tragedy by putting their attorneys in charge of the investigation.

The Supreme Court, however, ruled that the “legal controversy” exemption applied because litigation was likely. But that broad interpretation, the dissenting justices warned, “essentially creates a public nondisclosure act, turning the act inside out so that documents are withheld from the public unless the public can demonstrate that no remotely connected litigation exists, past, present or future.

That’s not a remote hypothetical. Litigation could be “anticipated” almost every day in some agencies.

This decision is the latest brick in a wall being built between the public and public documents. In 2004 the wall’s foundation was laid with the court’s decision in the case of Hangartner v. City of Seattle, in which the traditional attorney-client privilege was applied to the Public Records Act, shielding communications between Seattle and its attorneys despite no anticipated litigation.

Since then a trend has developed of government bodies having attorneys prepare documents and sit in on meetings, just to claim attorney-client privilege. Keeping all communication between agencies and their attorneys secret is a recipe for bad and unaccountable decision-making and for potential corruption.

Justice Barbara Madsen, who filed the concurring (and deciding) vote in the Spokane School District case, did so because she felt case precedent and the wording of the law demanded it. But she seemed frustrated by the result and strongly implied the Legislature should examine the exemptions.

Even the majority opinion acknowledged the potential for misuse of the “legal controversy” exemption, and said such concerns should be “directed toward the Legislature, which is in a position to change the law if it sees fit.”

Open government advocates are also looking to the Legislature for a fix. In November, the Washington Coalition for Open Government, a nonprofit group of attorneys, legislators, citizens and media, released a list of recommended reforms for the 2008 Legislature. At the top of the coalition’s list was a fix for the attorney-client privilege problem.

The court’s decision underscores the need for legislators to immediately act on this reform, which would greatly narrow the scope of the “legal controversy” and attorney-client exemptions.

As the Public Records Act says, “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.” Government officials and their attorneys should not be able to use legal loopholes to limit which public documents the public is allowed to see.