Silently withholding records - such as Tacoma LNG safety studies - betrays open government

Here’s a refreshing lesson in government transparency, one that touches on Tacoma and the controversial liquefied natural gas plant being built on the Tideflats.

You don’t always have a right to know every secret that Washington public officials are keeping from you. But you do always have a right to know the secret exists, and why they’re hiding it.

When officials play cat-and-mouse games over documents whose disclosure could be sensitive or embarrassing, it’s called “silent withholding.” Washington’s exalted Public Records Act doesn’t condone misleading tactics, and the state Supreme Court reinforced the law in a 1994 decision that expressly bars silent withholding.

Now, in a case involving safety studies for the LNG plant, the state Court of Appeals has issued an important reminder: Officials can’t get away with using evasion or ambiguity to usurp the public’s right to know.

In 2016, three citizen activists and a TNT reporter tried to obtain reports on the risks of fire, explosion and toxic hazards at the plant Puget Sound Energy was getting ready to build at the Port of Tacoma. Public record requests were filed with the city, but PSE intervened to block their release.

Two Pierce County Superior Court judges said the documents should be public, but PSE appealed. Eventually, the TNT obtained the records through another source and published stories that summarized the findings along with analysis from industry experts.

The upshot: The LNG plant would be equipped to contain gas leaks or spills on site. But consultants hadn’t spent much time evaluating the risk — slight but potentially catastrophic — that the 8-million-gallon storage tank could be breached.

With the information out, PSE dropped its appeal. Only then did the city release safety records to the citizen watchdogs. One of those individuals, perennial records activist Arthur West, sued the city because it hadn’t notified him of the existence of relevant records beyond what he specifically requested.

There might be valid security or proprietary reasons not to turn documents over to the public — in other words, not to “produce” them. But that’s beside the point, the Court of Appeals said in its ruling against the city last month.

“Silent withholding is not about the production of documents. It’s about the disclosure of documents,” the Court said. “A record is disclosed if its existence is revealed to the requester in response to a Public Records Act request, regardless of whether it is produced.”

If a person doesn’t know what secrets a utility company is keeping, he can’t fight very effectively to have them exposed to sunshine, can he?

No, the Public Records Act doesn’t require public officials to have telepathic powers and anticipate every document a requester might want. But voters had high standards when they approved the PRA 46 years ago, and that includes expecting officials to err on the side of divulging too much, not too little.

“To the extent the City was unclear about the scope of West’s request, it had an obligation to request clarification,” the Court concluded. “Because it did not disclose the existence of responsive documents to the request, it silently withheld those documents and violated the PRA.”

A trial court will finalize the details of West’s claim. Meantime, Tacoma’s battle over LNG rages on.

Construction is underway on a plant that would convert 250,000 gallons of natural gas a day to LNG, a cleaner-burning fuel for Alaska-bound cargo ships. But opponents say the city’s environmental review is flawed, and the state Attorney General apparently agrees. The Puget Sound Clean Air Agency has yet to issue a key permit.

There’s a lot to untangle, but no matter where you stand on the project, this much is clear: For the well being of their families and the economy, Tacomans need access to good information based on sound science.

For officials to withhold it, whether overtly or silently, is an abdication of public trust.