Court: E-mails were OK to delete

Pierce County move legal, judge rules

By Brad Shannon | The Olympian • Published September 08, 2007

A Thurston County court ruled Friday that Pierce County elections officials properly destroyed two e-mails last year, but that destroying records is not a lawful way for government to avoid records requests.

The decision by Thurston County Superior Court Judge Anne Hirsch was a clarification of her earlier ruling, which also backed the Pierce County Auditor's Office in its quarrel with the Building Industry Association of Washington. At issue was how to apply the Public Records Act in cases in which records no longer exist.

The deletions "were not a violation of the Public Records Act because those informational e-mails were not subject to disclosure under the Public Records Act," Hirsch said.

The BIAW contended that the two destroyed e-mails, which it obtained copies of from other agencies, showed that other records might have been illegally withheld by Pierce County. But Pierce County deputy prosecutor Daniel Hamilton said the trade group's case was frivolous — in effect a claim for records that did not legally exist.

The BIAW had sought hundreds of records from Pierce County.

The BIAW wanted to see how the county handled voter-registration forms submitted by workers employed by ACORN, or the Association of Community Organizations for Reform Now, which advocates nationally for low-income people.

In a related King County case pursued by the BIAW, seven former ACORN employees were charged with felonies in July in connection with submitting more than 1,805 fraudulent voter registrations.

The BIAW might appeal Hirsch's ruling, lawyer Andy Cook said after the hearing.

He said of the decision, "We think it does give government agencies the green light to delete public records, then come to the court and say they don't exist."

Hamilton said he has a counterclaim pending to declare the BIAW's records lawsuit "frivolous," which, if successful, could lead to a claim for legal fees against the BIAW. He said either side could initiate action on the claim in a month or so.

"Quite frankly, we think his counterclaim is frivolous, though we haven't claimed that" in court papers, Cook replied. "It's an attempt by governments to stifle requesters. Basically, it's a threat for daring to ask for public records. It's a new tactic we're starting to see."