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State Military Department paying $110,000 to settle public records suit

The state Military Department has agreed to pay $110,000 to a Seattle attorney and a King County activist to settle a long-running public records lawsuit centered on the Washington National Guard’s counterdrug task force.

Marijuana activist John Worthington of Renton and attorney William Crittenden sought the release of flight records and other documents.

Worthington had requested them since 2008 under the state Public Records Act, which applies to state agencies. News reports show that King County Sheriff’s deputies seized marijuana plants from Worthington’s home in 2007.

The National Guard was not involved in that seizure, but Worthington views the Guard’s involvement as a federal entity in a counterdrug task force as a violation of federal law that prohibits military authorities from participating in domestic law enforcement.

The National Guard repeatedly denied his requests under the state law, instead instructing him to file them under the federal Freedom of Information Act, which applies to the Defense Department.

Crittenden argued the federal law should apply only when the National Guard is called up for federal duty, such as an overseas deployment. The federal open records law generally is more difficult to use and less timely than state open government measures, which is one reason he and Worthington pressed their case under state law.

The case had moved through state and federal courts since 2010. Worthington and the state Military Department reached an agreement last month. It does not commit the Guard to turning over records through the Public Records Act in the future.

“They didn’t appear to have any coherent theory about why these were federal records,” Crittenden said. “They just always assumed they were. When someone like John Worthington challenged that assumption, they made up a bunch of inconsistent legal arguments and attempted to prevent the issue from ever being ruled on.”

Worthington obtained some of the records he sought through the Freedom of Information Act during the course of his lawsuit and others from the Public Records Act, a Guard spokeswoman said.

Guard officials say the case does not necessarily set a precedent, even for the counterdrug task force.

“We’re still in a dilemma,” said Lt. Col. Matt Cooper, a Washington National Guard attorney.

Washington National Guard activities clearly fall under state open government laws when citizen soldiers are called up to respond to a domestic emergency, Cooper said.

Similarly, Guard activities are obviously federal when citizen soldiers are training for combat deployments or serving overseas.

But the Guard also has several mixed activities that create unclear record keeping, he said. For instance, citizen soldiers and airmen can be called to active-duty for federal assignments on local soil, such as a cyber defense unit located at Camp Murray in Lakewood.

“It’s very unclear,” Cooper said. “These two systems are somewhat mutually exclusive when it comes to handling certain kinds of information.”

The National Guard Bureau coordinates a state-by-state counterdrug mission in coordination with governors. The military considers drugs to be a potential source of funding for terrorism.

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