San Juan County and the Washington Coalition for Open Government are currently fighting a battle of privacy versus transparency.
The coalition sued the county on Jan. 20 in Skagit County Court for violating the Washing State Public Records Act (RCW 42.56) by “excessively redacting attorney invoices and providing insufficient explanations for withholding information,” according to a press release.
San Juan County prosecutor Randy Gaylord says the records were redacted due to privacy reasons.
The lawsuit asks the court to order the county to provide properly redacted records, along with written explanations for any withheld portions. WashCOG is also seeking penalties against the county as well as reimbursement for attorney fees and court costs.
The Public Records Act was originally passed by Washington voters in 1972. It grants public access to all records and materials by state and local agencies. WashCOG was formed by journalists who struggled with either not obtaining public records or with receiving heavily redacted records. It is meant to keep those entities in charge of public records in check with the act.
Background on the most recent lawsuit
The first coalition request was made in April 2020 in relation to the county using an outside attorney, Olympia-based Jeff Myers, during the San Juan County v. Kilduff case.
“We asked the county for copies of service invoices from that outside law firm. The county provided the records. They gave us the records, but they were heavily redacted excessively and the county offered little explanation for why the information was withheld,” said George Erb, a board member of WashCOG and a Western Washington University journalism professor. “All of this is contrary to the state Public Records Act and clearly violated.”
In June 2016, Edward Kilduff of Lopez Island sued the county in an attempt to recover penalties and attorney fees and to remove Councilman Jamie Stephens from his seat. According to lawsuit documents, the case was filed by Kilduff because of public employees’ alleged failure to produce public records and that Stephens allegedly occupied two incompatible public offices. In addition to being a councilman, Stephens also served as the county’s public records officer.
In December 2017, a Skagit County Superior Court Judge ruled that Kilduff would owe the county rather than be paid by it. He was ordered to pay San Juan County $10,000 for “bringing an improper lawsuit” to remove a public official and “recovery of attorney fees for defending against a frivolous lawsuit.”
The county has the option of assigning an attorney from within the prosecutor’s office or using an outside attorney for lawsuits. Erb stated that hiring outside attorneys is not out of the ordinary. However, fewer redactions are allowed for records involving outside attorneys and records are expected to be thoroughly inspected.
On May 21, 2020, the county produced the first installment of records to WashCOG, consisting of a 94-page PDF file, including 81 pages of excessively redacted invoices. All of the descriptions of work performed by the attorneys were redacted and replaced with the code “1C, 2.”
According to Erb, 1C referred to RCW42.56.290 and code 2 referred to RCW 5.60.060(2)(a) and RCW 42.56.070(1). The statutes pertain to records that are exempt from disclosure because they deal with litigation and attorney-client privilege.
“We redact portions of public records based upon laws which protect privacy interests, security concerns, and other reasons expressed by your representatives in the legislature,” said Gaylord. “The invoices from attorneys are one way an attorney communicates with a client about the work that is being performed. Invoices are a classical attorney-client communication, which is privileged and not subject to disclosure.”
Gaylord’s argument falls under that of Hangartner v. Seattle (2004) and Sanders v. State (2010), which asserts that certain information in public records regarding communication made from client to attorney is exempt from disclosure. RCW 42.56.210 also states that certain personal information that could inflict harm is exempt from disclosure under the Public Records Act.
Gaylord stated that public record laws and transparency can be an issue with privacy concerns, which is why there are so many exemptions.
However, according to RCW 42.56.904, “It is the intent of the legislature to clarify that no reasonable construction of chapter 42.56 RCW has ever allowed attorney invoices to be withheld in their entirety by any public entity in a request for documents under that chapter. It is further the intent of the legislature that specific descriptions of work performed be redacted only if they would reveal an attorney’s mental impressions, actual legal advice, theories, or opinions, or are otherwise exempt under chapter 391, laws of 2007 or other laws, with the burden upon the public entity to justify each redaction and narrowly construe any exception to full disclosure. The legislature intends to clarify that the public’s interest in open, accountable government includes an accounting of any expenditure of public resources, including through liability insurance, upon private legal counsel or private consultants.”
WashCOG attempted to have the county voluntarily comply to avoid litigation. On Oct. 9, 2020, it made a new public records request. That same month, the county sued WashCOG in Whatcom County Court, seeking a declaratory ruling that the county was not required to produce the records publicly.
On Nov. 13, 2020, the county produced an installment of records consisting of a 9-page PDF file of redacted attorney invoices. On Feb. 11, 2021, WashCOG filed a Public Records counterclaim against the county for excessively redacting the invoices and failing to produce adequate exemption logs.
The county later dropped its lawsuit and WashCOG began to revise the requested format of the public records. The counterclaim still currently stands as the first of the two ongoing lawsuits.
On March 4, 2021, WashCOG’s counsel received an email from Myers, which indicated that the county had asked him to represent it. On April 2, Myers filed the county’s Answer to Counterclaim, denying any public records violation.
The county continued to produce installments of redacted attorney invoices until July 2021. According to Gaylord, a new filing of records from the county in response to the Whatcom County lawsuit is set to be made by March 2022.
“Of course, there will always be ways to improve our response to public records requests,” Gaylord said. “With more staff, we could respond more quickly. Training on the basics and nuances of public records laws is done every year. I would like to see the law changed in a way that promotes communications with a requester so that requesters get the records that they want without creating an unnecessary burden to the county searching for and providing records that are not needed.”
Colleen Smith contributed to this story.