Counter suit filed in records request

By Brad Shannon | The Olympian • Published October 13, 2007

Pierce County prosecutors are trying to turn the tables on the powerful Building Industry Association of Washington in an ongoing battle over public-records disclosure.

A Thurston County judge rejected the builders' claims in August that Pierce elections officials withheld records or destroyed them improperly in connection with voter-registration fraud in the 2006 elections.

Superior Court Judge Anne Hirsch found that elections workers destroyed two e-mails, but there was no legal requirement to keep copies of e-mails that another agency was required to keep.

Prosecutors since filed papers in Thurston County alleging the builders' lawsuit was frivolous and that the BIAW now owes taxpayers a refund of lawyer fees — a move that could break ground for state records law.

"There are legitimate Public Records Act lawsuits. This is one of the most illegitimate ones I've ever seen," deputy prosecutor Daniel Hamilton said Friday of the BIAW's original suit. "We're bringing a counterclaim against a litigant that sued us. The counterclaim was made because of statements that were false (in the original suit) and by the end of it were known to be false."

"It's the first time it's happened to us," BIAW executive vice president Tom McCabe said this week.

"My personal opinion is it's a county that's out of control and thumbing its nose at the Public Records Act," he added.

One of McCabe's attorneys, Greg Overstreet, and Rowland Thompson of Allied Daily Newspapers of Washington said they are unaware of such an action being brought against the requester of public records — or of one succeeding, if one was filed — in Washington.

McCabe and Thompson said the prosecutor's tactic could intimidate a person who brought records requests to a government, then was forced into court over a denial of the records.

But the Pierce County prosecutor said his intent is not to chill requests and that no category of lawsuits is immune to the rules governing frivolous claims. Hamilton said court rules and state law allow for the awarding of attorney fees if one party's claims are found to have been frivolous — and he knows of no law or reason that lawsuits over public records requests should be exempted from those standards.