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S-R loses court battle over school records

Thomas Clouse
Staff writer
December 28, 2007

The Washington Supreme Court sided Thursday with Spokane Public Schools in a six-year legal battle with The Spokesman-Review over access to witness accounts of the events that led to the death of a third grader on a school field trip in 2001.

The 5-4 ruling upholds the school district’s decision to withhold public documents when it assumed a wrongful death lawsuit was likely.

“The school district is obviously pleased with the court’s recognition that we did the right thing,” said associate superintendent Mark Anderson. “It affirms that we, as a school district, have the same rights as any other individual who gets sued to have the attorney-client privilege, which was our key to the case.

“But it reminds us of the sad situation that brought about the case, which was the tragic death of one of our students.”

Duane Swinton, the newspaper’s attorney, had a decidedly different view of the ruling, predicting it will hamper citizens’ ability to know the dealings of government.

“Agencies that have high profile matters that come before them I think will use this opinion as an excuse to call in legal counsel immediately and shield public records,” Swinton said. “I think the same thing applies to the likelihood we will see more agencies … filing lawsuits to stop the release of records.”

The parents of 9-year-old Nathan Walters, a student at Logan Elementary School, had made his peanut allergy known to school officials. But the school did not provide a special lunch for Nathan for a May 18, 2001, field trip to a farm.

Nathan noticed the problem and returned the peanut-butter-and-jelly sandwich and trail mix that was in his lunch bag to his teacher. But he took a bite of the cookie before realizing it contained peanuts, according to court records. Nathan began to have an allergic reaction that later killed him.

Immediately recognizing the school district would face a wrongful death lawsuit, school officials contacted their attorneys, who then hired a private investigator to interview 28 witnesses. The Spokesman-Review filed a records request to review those documents; the request was denied.

The school district then sued the newspaper over the request.

The case cycled through lower courts before it was argued in March before the nine Washington Supreme Court justices. And most of the comments from the justices at that time seemed critical of the school district’s position.

“Some of the most serious incidents that occur in the school district are going to be the very ones that the public won’t know anything about. … Isn’t that the upshot of your argument?” Justice Barbara A. Madsen asked school district attorney John Manix. “… (T)he (incidents) where you kill a child – inadvertently, negligently or whatever … those will never be known under this rule so we will never hold our school districts accountable for the policies they have in place.

“I read the facts in this case. I almost fell off my chair,” Madsen said at the time. “Is this what we want?”

Despite her questions last March, Madsen concurred with the majority decision written by retiring Justice Bobbe Bridge, who will be replaced soon by Debra Stephens, a state appeals court judge from Spokane who served for more than a decade on the Orchard Prairie School District board.

In siding with the school district, Bridge wrote that “the requested records were relevant to a controversy to which the school district was party and the records would not have been available under the civil rules of pretrial discovery because they were protected by either the work product doctrine or they reflected attorney-client privileged communication.”

Joining Bridge and Madsen in the majority were Justices Gerry Alexander, Susan Owens and Mary Fairhurst. The dissenting justices were Charles Johnson, Richard Sanders, Tom Chambers and James Johnson.

Carla Savalli, the newspaper’s senior editor for local news, said she was disappointed and surprised by the ruling.

“What is very concerning is that the ruling encourages agencies to cut off access to public documents, and it encourages agencies to sue the requestor,” Savalli said.

Anderson agrees somewhat that agencies could use the ruling to shield records. But he contends the school did not do that in this case.

He said school officials took the case to Spokane County Superior Court because they wanted a judge to decide whether they should follow federal guidelines, which preclude the release of student records, or the Washington open records law, which called for the release of the documents.

“I would say, though, that if a serious incident happens and either you are or know you are getting sued by another party, public entities should have the right to use legal counsel to prepare for the case and have what is shared privileged from the public records law,” Anderson said.

“A student died under our watch. We knew we were going to be sued,” he said. “So the communicating with our attorneys early in that case was what our argument was about.”

But in the process, all of the records – except for one paragraph – that other parents could use to review how the district responded were legally closed from the public, Swinton said.

In a settlement, the school district paid the Walters family $960,000.

“We can’t forget what occurred in this case,” Swinton said. “The whole set of facts relating to what happened, and the fact that they paid out nearly a million dollars, the public doesn’t know why. That’s the tragedy of the case.”

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