The public’s right to access government documents and the government’s power to keep certain information private are at loggerheads in San Juan County.

The Washington Coalition for Open Government (WashCOG), a nonpartisan, nonprofit advocacy group, sued San Juan County last week for violating the Public Records Act.

The dispute, which dates back to April 2020, centers on what and how much may be redacted from outside legal counsel invoices included in public records requests. The county responded to a public records request from WashCOG with heavily redacted public records.

In October 2020, the county sued WashCOG in Whatcom County Superior Court to block release of public records relating to outside legal counsel invoices. WashCOG responded with a counterclaim against the county.

“When the Public Records Act was passed, there were only 10 exemptions cited,” said Mike Fancher, president of WashCOG and former executive editor of the Seattle Times. “There are 400 exemptions today, with more coming. We are having to fight defensively.”

The Open Public Meetings Act and Public Records Act were passed in 1972. WashCOG was formed in 2002 after journalists grew increasingly frustrated at what they perceived as a slip in citizen access and a decay in both laws.

“San Juan County taxpayers have a right to know what they are paying for,” Fancher said. He also expressed concern for citizens statewide who are attempting to file public records requests. 

Fancher said that people making legitimate public records requests have been threatened with lawsuits by governments and by individuals named in public records. The intimidation by lawsuit makes it uncomfortable to request legally accessible documents. “The government can then operate without citizens able to hold it accountable,” said Fancher.

More outsourcing

Small counties like San Juan County drew WashCOG’s attention, Fancher said, because they were increasingly using outside legal counsel. Preventing or inhibiting access to the public records of outside legal counsel violates the Public Records Act by blocking access to what work was done and what legal fees were paid, Fancher said.

While San Juan County has worked to improve the efficiency of responding to public records requests by hiring a public records officer and installing new software, the issue raised by WashCOG is not a matter of efficiency.

Fancher wrote in a letter to the county on Nov. 15, “WashCOG believes the County’s ongoing violations of the [Public Records Act] and its litigation conduct risk exposing the county to significant liability.” 

WashCOG provided Salish Current with email transmittal records of Fancher’s letter and a copy of WashCOG attorney William Crittenden’s letter to all three county commissioners and prosecuting attorney Randy Gaylord. Commissioner Jamie Stephens said he could not find record of having received the letter. Fancher said WashCOG never received a response from the county. 

Transparency versus privacy

“We believe San Juan County is unnecessarily incurring a significant amount of legal fees by withholding and excessively redacting attorney invoices,” Fancher wrote. “The law is clear, attorney work product should be transparent.” 

WashCOG on Jan. 20 sued San Juan County in Skagit County Superior Court for violating the Public Records Act.

Crittenden wrote to Gaylord on Nov. 15, requesting that the county produce records withheld and or improperly redacted. Crittenden argued in the letter that in a similar matter, Thurston County was found liable for improperly redacting attorney invoices. The letter contended that the 2007 state legislature clarified that outside counsel invoices are considered public records and only narrow redactions are permitted. 

Gaylord disagrees. “With the public records laws, transparency conflicts with privacy and other governmental concerns. That’s why there are hundreds of exemptions from disclosure,” he said. “In this case, only the description of work was redacted, not the entire invoice.” 

Gaylord contends that, although the invoices were heavily redacted, there was transparency in that the requestor, WashCOG, could confirm who is working for San Juan County and how much the county is paying for that work. “The requester had available the name of the law firm, the attorney’s file number or matter description, the initials of the person doing the work, the amount of time spent, the hourly rate and the amount of money that was charged,” Gaylord said.

Privileged communication

Fancher, however, said it was not a violation of attorney-client privilege to leave information pertaining to some of the work done, such as a half hour on a telephone call or two hours making copies. He reiterated that taxpayers have a right to know where their money is being spent. 

Gaylord contends that county staff redacts portions of public records based upon laws which protect privacy interests, security concerns and other reasons expressed by representatives in the legislature. 

“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. Invoices may also contain the ideas and impressions of the attorney which are known as attorney work product. Statutes and case law protect both of these categories of communications so only that one portion containing the exempt material is redacted,” he wrote. 

Gaylord added that public records laws allow for portions of records to be redacted that should not be released for privacy or other reasons. “San Juan County uses a standard set of codes to refer to material that is not subject to release. These codes and the key to the codes were provided with the attorney invoices. One of the codes was for attorney-client communications. Another code was for attorney work product. Both are well-established reasons to redact portions of records that are requested.”

For the records

In the suit filed on Jan. 20, WashCOG 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 reasonable attorney fees and court costs. 

On Jan. 21, WashCOG petitioned the Whatcom County Superior Court for a partial summary judgment to require San Juan County to produce properly redacted records that were at issue in the 2020 suit the county filed against WashCOG. That suit is scheduled to be heard on Feb. 18.

Gaylord said that San Juan County will be filing what he called “a timely response to the public records lawsuit brought by Mr. Crittenden and the Coalition.” He said he is hopeful that there will be a decision by March of this year. 

“We are not doing this to settle,” Fancher said. “We are doing this to get the proper records that we legally requested.” 

— Reported by Heather Spaulding

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