Agreeing it was all a mistake, the state’s campaign watchdog will recommend the Washington Attorney General take no action against Sound Transit for its improper release of nearly 173,000 email addresses of ORCA transit cardholders to the campaign promoting the $54 billion ballot measure to expand light rail.
In its ruling Thursday on a citizen’s action complaint, the four-member Public Disclosure Commission agreed with Sound Transit’s contentions the release of protected cardholder email data to the Mass Transit Now campaign didn’t break elections law but was simply an error made during its normal and regular course of complying with a public records request.
“I don’t see what additional work the Attorney General could do that would change my view that this was part of the normal course of business in terms of responding to public disclosure requests,” said PDC Chairwoman Anne Levinson. “Public agencies are required to comply with the public disclosure laws … and mistakes are made during the regular course of business.”
Attorney General Bob Ferguson, who was already sent a copy of the complaint last month, has until Oct. 6 to determine whether to take legal action against the agency. If he follows the PDC’s recommendation and passes, citizen complainant Conner Edwards can file his own civil action on behalf of the state.
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Edwards, a Tacoma political consultant, said he’s unsure he’ll pursue the matter in light of Thursday’s ruling.
“I am going to have to re-evaluate,” he said. “But I still think a violation occurred.”
The commission’s ruling Thursday came after the PDC’s staff reversed course on an initial assessment posted publicly last Friday that found Sound Transit’s distribution of the protected email addresses represented an “apparent violation” of the election law that bars public agencies from using their resources to promote political campaigns.
In the initial review, PDC staff investigator William Lemp recommended that the PDC ask Ferguson to take legal action against Sound Transit.
But in a presentation Thursday, PDC investigator Kirk Young — standing in for Lemp, who was out of the office — came to a different conclusion, based on new information provided this week.
Sound Transit gave the PDC the findings of its own internal investigation, completed Sept. 20 by the private MFR Law Group. It concluded the email disclosure was unintentional and that no evidence exists that Sound Transit colluded with Mass Transit Now, the group promoting the ST3 light-rail ballot issue on the November ballot.
“Based on my summary and review, it appears that Sound Transit, as part of its normal and regular conduct … responded to the two public records requests for information and that no preferential or special treatment was provided to the two requesters,” Young told commissioners.
Sound Transit legal counsel Desmond Brown, who came to Thursday’s hearing prepared to dispute the PDC’s original findings, instead told commissioners: “I have a slightly different presentation than I had planned to make. We concur with Mr. Young’s assessment of the situation.”
Brown went on to explain the ORCA email addresses were contained in a dormant file that had been inadvertently left in the agency’s GovDelivery data system following a mass mailing to ORCA customers in 2011. When Mass Transit Now’s campaign manager filed the first records request with Sound Transit in March, staff assembling the records didn’t know she was affiliated with the campaign and simply gathered all records they believed were legally required to be disclosed, Brown said.
“It was a mistake,” he said.
Edwards unsuccessfully argued to commissioners the law doesn’t base violations on intent, adding that agency staff didn’t seek a legal review before giving the ST3 campaign the email addresses.
Commissioners initially considered a motion to forward the matter to Ferguson for further review with no recommendation, but that failed. Then, they unanimously approved the recommendation Ferguson take no further action.
Levinson noted the PDC staff’s flip-flop on its findings are due to the truncated 45-day review process staff must work under to examine “citizen action” complaints.
PDC spokeswoman Lori Anderson said Thursday she doesn’t recall another case in which PDC staff changed its findings before a commission hearing.
“But I also don’t recall supplemental information coming in as it did in this case,” she said.
Sound Transit’s improper disclosure came to light after a concerned ORCA cardholder received a Mass Transit Now campaign email in August and contacted The Seattle Times. Under an ORCA privacy statement and an exemption to the state’s public disclosure law, public transit pass holders’ personal information is supposed to be kept private.
Sound Transit officials later acknowledged the improper release of emails, and the agency emailed an apology to affected ORCA cardholders. Brown also asked the campaign to delete the emails from its files. A Mass Transit Now spokesman has said the campaign did so.