Port fined $159,000 to ‘deter future malfeasance’ over withholding documents

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Photo by Steve Dunkelberger

Pierce County Superior Court Judge Frank Cuthbertson slapped the Port of Tacoma with a $159,000 fine for violating the state’s Public Records Act by withholding documents between port, city, Economic Development Bureau of Tacoma-Pierce County and the Tacoma-Pierce County Chamber officials regarding the 2016 Save Tacoma Water initiatives that bubbled up in the wake of the planned methanol plant siting on the Tideflats.

The natural gas to methanol development later died, but the effort to conserve water remained, prompting a grassroots effort called Save Tacoma Water to gather signatures for initiatives that would have required a vote of the people to allow large water users to draw from Tacoma wells and rivers. Lawsuits ensued over legal questions about citizen-started initiatives, however. Save Tacoma Water and its supporters claimed that the port, city and the business groups had worked together to kill their efforts before the official campaign started. They sought e-mails between the government agencies and the business groups to prove their case. The port first withheld them under the argument of attorney-client privilege and then cited clerical error.

Cuthbertson didn’t buy either argument.

“In this case, a number of documents were withheld, and later released, actually related to a ‘communications plan,’ not litigation, while others were shared with individuals who were not clients (voiding the attorney-client privilege argument,)” the judge wrote in his decision last week. “The port was grossly negligent in withholding documents that were clearly responsive, notwithstanding any misunderstanding about the (public records) request. The port’s intransigence warrants a penalty that will deter future malfeasance.”

The documents were made public 410 days after public records champion and governmental gadfly Arthur West first requested them. They should have been released after 15 days.

Photo courtesy of Bradley Thompson

“In this case, the search led to the discovery of responsive documents,” the judge wrote in his decision. “However, the failure to produce, or even identify, 39 pages of documents until over a year after the initial request denied (West’s) right to inspect or copy the documents. This was unreasonable and a violation of the PRA. … The Public Records Act does not allow silent withholding of entire documents or records, any more than it allows silent editing of documents or records. Failure to reveal that some documents have been withheld in their entirety gives the requesters the misleading impression that all documents relevant to the request have been disclosed. In this case, the port acted in bad faith by silently withholding documents that were responsive. … The people of this state do not yield their sovereignty to the agencies that serve them, 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. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Three pages of documents, which were only disclosed late last year, prompted the highest fine under state law – $100 a day – while fines for withholding other documents were lower because the port has since changed its process of handling document requests.

“We are disappointed in the ruling, especially since we rectified the response as soon as we realized we had overlooked a few records,” the port’s Communications Director Tara Mattina wrote in a response for comment. “We also believe the ruling is inconsistent with similar case law.”

West believes the port will appeal for two reasons, in hopes of lowering the fine amount and to deter future requests for information that the agency doesn’t want publicly known.

“It wasn’t an honest mistake. It was deliberate policy,” he said. “The Port of Tacoma is not known for pinching pennies when it comes to defending itself against public records request cases. They have a blank check,” funded by taxpayers. “They don’t see the benefit of complying. That isn’t the mentality of these types of agencies.”

Outside of an appeal of the $159,000 fine, the issue is far from over. The state Attorney General’s Office is appealing a lower court’s dismissal of a case against the port and business groups that alleges they failed to disclose their expenses to kill the water-right initiatives as campaign costs. The lower court ordered the AG to pay attorney fees of $121,000.

Save Tacoma Water was awarded $15,000 from the City of Tacoma in December for withholding public records about a related issue – the billing invoices for all the taxpayer money spent to keep the water protection petitions off the ballot at a time the city was technically a defendant when the port sued Tacoma for allowing the petitions to gather signatures.

The Port of Tacoma, Economic Development Board and the Tacoma-Pierce County Chamber would later win an injunction against the initiatives. The city was listed as a defendant in that action because the city clerk allowed the signature gathering to start, but the city then filed a cross claim siding with the port’s legal arguments against the legality of the initiatives themselves.

E-mails later showed the legal strategy was tossed around city hall and port offices before the lawsuit was filed.

“That’s what proved all of our allegations from the get go,” Save Tacoma Water organizer Sherry Bockwinkel said. “This goes all the way back to the very beginning. It’s a pretty big win.”

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