Judge orders public records training for Tacoma department heads. ‘A breakdown somewhere’
City of Tacoma department heads will get court-ordered public records training after a recent ruling in a lawsuit against the city.
Public records activist Arthur West sued the city in 2016, arguing that it failed to provide records related to Puget Sound Energy’s planned liquefied natural gas plant on the Tacoma Tideflats.
Judge Frank Cuthbertson ordered the city to pay $36,800 in penalties Jan. 31 for negligently failing to disclose a fire protection study and a siting report.
Cuthbertson also ordered the records training.
“The City’s process for responding to public records requests includes training and supervision, and an automated system for receipt of requests and production of records, which is a mitigating factor in establishing an appropriate penalty,” Cuthbertson wrote.
He continued: “The Court, nonetheless, finds that additional Public Records training to all City Department heads is needed with the intent that the importance of a clear and consistent process of compliance with the Public Records Act ripple out to City Department Heads, and the Court expects the City Attorney’s office to conduct such training.”
Asked about the decision, a city spokesperson told the The News Tribune in a statement: “The City of Tacoma respects the court’s decision and takes its obligations under the Public Records Act seriously, including training of its employees, elected officials and volunteers.”
The statement went on to say: “The City Attorney’s Office provides training in a number of formats — including using the training materials prepared by the Washington State Attorney General Office for this purpose. The City Attorney’s Office plans to provide department directors with training over the next few months and will add department directors to its training schedule going forward.”
Asked if he knew of other cases in Washington state that ended with public records training, the president of the Washington Coalition for Open Government, Toby Nixon, thought of one.
It was a lawsuit against the King County Housing Authority by a resident.
Nixon said he thinks the public records training in that case was part of the terms of a settlement as opposed to being ordered by a judge, but he couldn’t remember all the details.
When told about the order for training in the LNG lawsuit, Nixon said: “That’s a great thing to order,” and added that he “might feel a little bit better if it was an independent party that was providing the training.”
“It’s been WCOG’s position for a long time that every public employee as part of new employee orientation should receive training, at least to the extent of how it impacts them,” he said.
Asked about Tacoma’s recent public records history, Nixon said: “Tacoma seems to attract a lot of complaints about public records, but I don’t have in my head enough details of all of them to be able to say: ‘There’s a pattern here.’ But I have seen there have been multiple lawsuits against Tacoma.”
$3 million in fines
The News Tribune asked the city for a tally of penalties it has been assessed in the past five years for violations of the Public Records Act.
The city listed five cases, including West’s, in its response Friday to the newspaper’s public records request.
The assessed penalties totaled nearly $3 million.
One case, which is on appeal and has not yet been paid, accounts for $2,607,940 of that. In that lawsuit a fired police officer alleged the city improperly withheld records related to his termination.
The three other cases involved documents about a police cellphone surveillance tool, commonly called a Stingray.
The city was assessed a $182,340 penalty, which has not been paid pending appeal, after the American Civil Liberties Union sued for records about how police used the device. Attorney fees and other costs amounted to another $115,530 in that case, The News Tribune reported.
Redaction of the nondisclosure agreement the city signed to get the Stingray cost the city $50,000 after the Center for Open Policing sued.
The city also paid West $47,630 after he sued for Stingray-related records. The court found some records withheld from West met a “specific intelligence information exemption” under the Public Records Act. A three-judge panel of Division II of the Washington State Court of Appeals overturned that decision last month, 2-1.
“We hold that the information redacted by the City does not meet the specific intelligence information exemption, the trial court erred by granting the City’s motion for summary judgment because a material issue of fact existed regarding two documents, and the City did not conduct an adequate search for responsive records,” the opinion said.
West said the appellate court ordered the disclosure of invoices and purchase orders that identify the specific Stingray equipment the city has. Without that information, he said the public doesn’t know the capabilities of the equipment or what type of information it’s being used to collect.
“There’s only a few places across the country where that’s happened, where an agency has been required to disclose what particular Stingray equipment that it has,” West said. “It’s sort of a big deal.”
It could mean more penalties when it makes its way back to Superior Court for further proceedings — though the city could appeal.
“Again, it’s a pattern of failing to perform a reasonable search and then trying to narrow the request unreasonably,” West said. “They’ve been doing this same pattern of conduct over and over again. I think the judges are just getting tired of this.”
As for the LNG lawsuit, the city sent West’s check Thursday, he said, for $37,400, including costs.
According to a transcript of the recent hearing that West provided The News Tribune, Judge Cuthbertson told the attorney representing Tacoma:
“I take you at your word when you state that the city is making good-faith efforts, but I want to order this because I think there was a breakdown somewhere, and I think that the legal department’s understanding of the PRA really needs to be rippled out so that we don’t have this again — we’re not back again. Citizen West doesn’t have to drive to Tacoma again.”
“He likes it here,” the attorney said.
This story was originally published February 16, 2020 at 7:00 AM.
