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Withholding public records costs Port of Tacoma $159,000; judge makes finding of gross negligence

The Port of Tacoma violated the state Public Records Act last year, acted in bad faith and showed gross negligence during the process, according to a decision handed down this week by Pierce County Superior Court Judge Frank Cuthbertson.

The price of that failure: $159,000, including the maximum penalty — $100 per day — for withholding three pages of records from activist Arthur West for 410 days.

“The Port’s intransigence warrants a penalty that will deter future malfeasance,” Cuthbertson wrote.

Port officials are considering an appeal.

“We are disappointed in the ruling, especially since we rectified the response as soon as we realized we had overlooked a few records,” said Tara Mattina, a port spokeswoman. “We also believe the ruling is inconsistent with similar case law.”

The records in question relate to initiatives filed in 2016 by activists opposed to a methanol plant slated for construction on the Tacoma Tideflats. The activists also opposed a proposed liquid natural gas facility in the same area.

Emails between port leaders, the Tacoma-Pierce County Chamber and the Economic Development Board for Tacoma-Pierce County represent the three pages that triggered the highest fines. Other records are tied to a communications plan shared among the entities, intended as a response to activists. The port initially claimed they were protected by attorney-client privilege.

West, a longtime activist on public-records issues, is not affiliated with Save Tacoma Water, the local group that opposed the now-abandoned methanol plant and the still-active LNG proposal. He filed suit in 2016, seeking records discussing the citizen initiatives proposed by activists, who hoped to require a public vote on construction projects that would use high volumes of water.

Those initiatives never reached the ballot. They were deemed illegal after a court challenge by the port and the economic development groups.

Additional controversy followed when state Attorney General Bob Ferguson weighed in, charging that the port and the economic groups violated campaign-finance laws by using public funds to oppose the proposed initiatives. That complaint was dismissed in late 2016, though the state has appealed.

The disclosure suit filed by West featured an unusual element: the port released a subset of records to him almost a year after his initial request, claiming the additional pages were discovered belatedly.

In court, port attorneys had argued against penalties for nondisclosure, saying the agency’s errors reflected a misinterpretation of the law and confusion over the requested records, rather than deliberate resistance.

Cuthbertson disagreed, saying the port’s actions amounted to “silent withholding” of records the agency should have known were public.

Mattina said the port has changed its protocol for responding to records requests to prevent future mishaps.

“We have a disciplined system to respond to public-records requests as quickly and accurately as possible, and we continually look at procedures, tools, training and other ways to improve,” she said.

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