Open government advocate asks court to declare secret port meetings illegal

An open-government advocate said Thursday he is filing suit in King County asking a judge to declare a series of secret meetings between the port commissions of Tacoma and Seattle illegal.

Arthur West, an Olympia resident who has made a career of challenging government secrecy, said he believes commission members have wrongly had private meetings to discuss how the two ports can improve their competitive stance in the maritime business.

The two port commissions have had eight meetings, including one Wednesday at Sea-Tac Airport, from which the public was barred, in an attempt to reach agreement on new strategies to attract more shipping business to Puget Sound.

The commissions say their lawyers have advised them that such executive sessions are legal under federal law governing the Federal Maritime Commission. The two ports sought and received Federal Maritime Commission approval to discuss joint marketing and operating strategies early last spring.

But West, who has successfully sued governments throughout the state concerning open government issues, says the state’s Open Public Meetings Act is not preempted by federal law as the ports’ attorneys say.

That state law provides that port commissions can have private sessions only under narrow circumstances such as when discussing national security matters, pending litigation, real estate issues and personnel matters.

“The Washington State open Public Meetings Act is not, and never has been preempted by federal law, and any such preemption would violate the 10th Amendment, which provides that ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people,’ ” West said in his legal complaint.

West said his research indicates that while the FMC rules allow it to keep the notes and minutes from such joint meetings private, that provision in federal law was designed to keep outsiders from seeking disclosure of those documents under the federal Freedom of Information Act, not to govern or dictate whether local governmental bodies could have secret meetings.

That’s the same conclusion reached this week by Seattle attorney Michele Earl-Hubbard, a lawyer whose practice focuses on open-government issues.

The News Tribune sought Earl-Hubbard’s evaluation of the legality of the private commission meetings after a News Tribune reporter was denied access to a Sept. 10 joint commission meeting at Sea-Tac airport.

Port officials say they need to conduct private meetings because they’re sharing sensitive financial and operating information that could put them at a disadvantage to competing ports or to potential customers if they were publicly disclosed.

The two ports say they haven’t yet reached any agreement about how to improve their competitive standing against growing rivalry from Canadian, Mexican and East Coast ports, from new competition from an enlarged Panama Canal or from new muscle flexed by newly formed shipping company alliances.

Peter McGraw, Port of Seattle spokesman, said the port had not yet received a copy of the lawsuit and would be unable to comment Thursday. Port of Tacoma spokeswoman Tara Mattina said the port maintains the sessions are legal because the federal law, not state law, governs the meetings.

West said he intends to ask the King County Superior Court to enjoin the two ports from having further private meetings and then might seek damages, fines and attorney fees for any violation of the Open Meetings Act.

Late Thursday, the two ports announced a public joint study session for 10 a.m. Tuesday at the Fabulich Center, 3600 Port of Tacoma Road. The two commissions will hear the preliminary results of a new economic impact study of marine traffic at both ports.