Port told to release files

After it takes final action, a public agency can't withhold records pertaining to that decision, the state Court of Appeals has ruled in a victory for open-government advocates.

Four South Sound residents — Eve Johnson, Walter Jorgensen, David Koenig and Arthur West — appealed a judge's decision that the Port of Olympia can withhold hundreds of pages of records related to its lease negotiations with Weyerhaeuser. The public agency had argued negotiations were preliminary and therefore exempt from disclosure under state law.

The appellate court ruled in the nearly 3-year-old case that the port couldn't withhold the records once the lease was finalized. But it left unclear how many records will be released and when.

Withholding allowances

State law allows governments to withhold from the public preliminary notes, drafts and other correspondences where opinions are expressed or policies recommended or formulated. Court cases have upheld the exemption to permit uninhibited discussion during the decision-making process.

However, the appellate court makes clear the withholding of records isn't indefinite.

"Here, since the lease was executed prior to the records requests, documents relating thereto were no longer covered by this exemption," the judges wrote.

They concluded Thurston County Superior Court Judge Richard Hicks erred when he upheld the port's determination.

On Monday, they remanded the case back to Hicks to determine whether the port records are covered by other exemptions. Hicks also will determine what penalties and attorney fees must be paid. He had determined the records were illegally withheld for 123 days and set the penalty at $60 per day.

West voiced concern that the court's remand of the case could continue a long cycle of litigation in this and future open-records cases.

"This type of repeated shuffling back and forth between the courts is not in anyone's interest" and could result in a fight that takes years, he said.

Carolyn Lake, the attorney representing the port, did not return phone messages Wednesday.

History

In August 2005, the port agreed to lease some of it property to Weyerhaeuser, allowing the timber company to move its log-export operation from Tacoma.

Hicks reviewed 2,409 pages of records the port argued were exempt. In his March 29, 2006, order, Hicks criticized the port for its attitude to "maximize what can be kept secret and minimize what is to be made public." He continued that the public agency is "protective of their information as if there was something to hide when there is little of that nature. The only big secret undisclosed is why do they come at it in this way?"

Two weeks later, the port released 217 pages of documents under court order. Then West and Jorgensen took further court action to force the port to release more documents.

Christian Hill covers Lacey and the Port of Olympia for The Olympian. He can be reached at 360-754-5427 or at chill@theolympian.com.