And Mark Burnfield, the county public disclosure officer was not only brisk with me, but informed me that “the GPT website is intended as a convenience to the public and the County is free to decide which documents are appropriate to post there.”

When the public was upset about the MAP [Multi-agency Permit] process, which allowed the applicant to meet privately with the state agencies and tribes, this is certainly not the story we were provided. The MAP Team Standard Operating Procedures, dated April 22, 2011, stated that “the majority of the website will be open to public access, including information on MAP Teams, MAP Team meeting agendas and notes, documents related to the proposed project, and MAP Team planning tools..A section of the website will be accessible only by MAP Team members, as allowed by the Public Records Act, Section 42.56.280 RCW “Preliminary drafts, notes, recommendations, intra-agency memorandums” to allow for Team deliberations and discussion on preliminary drafts, notes, and recommendations associated with the proposed project.”

This refers to the “deliberative process” exemption, which is limited to internal discussions regarding policy (along with some other limitations) and which is extinguished when the document is finalized. So my question is why didn’t the administration release these documents after they were done with preliminary discussions and recommendation?

It might be a good idea for people to write to the Executive and Tyler Schroeder, and ask why the GPT application has not been denied and closed out. Expending more time,resources and public funds on an application that can not move forward is not in the public’s best interest. If SSA wants to submit a new, revised project, it can submit a new application, but there is no rational basis for the county to continue drag this matter out.

Read Wendy’s post in the Whatcom Hawk Facebook group here.

Here is Wendy’s  last correspondence with Tyler Schroeder:

Sent: Tuesday, August 23, 2016 6:33:29 AM
Subject: Re: comp. plan amendments to Cherry Point UGA/GPT

Tyler,

Clearly, the GPT website is not open and transparent if important records were withheld without public disclosure. I was certainly unaware this was occurring and it is a serious problem. The GPT website has functioned essentially as an on-going public records request, as it was meant to disclose all public records connected to this project and prevented the county from being inundated with PRA requests. It was a convenience for both the county and the public. Therefore, it was improper to withhold documents without disclosure, along with a proper exemption log required by state law.

You state, “throughout this process, attorney client and deliberative document have not been included on the websites. This has been consistent with the Memorandum of Understanding signed by the Co-Lead agencies early in the EIS process.“ An agency cannot define the scope of a statutory exemption, nor can an agency agreement not to disclose a record create an exemption that does not exist in the law. RCW 42.56.070(1); Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30 (1989); Servais v. Port of Bellingham, 127 Wash.2d 820 (1995).

It is unclear to me why you would be relying upon a deliberative process exemption as a basis to withhold records .The PRA requires exemptions to be narrowly construed to promote the public policy of disclosure. RCW 42.56.030. Moreover, the deliberative exemption, to the extent that it exists, is self-limiting and extremely restrictive. RCW 42.56.280. It only protects records during a limited window of time while the action is “pending.” The withheld records are no longer exempt after final action is taken. This would have obligated the administration to release the documents as soon as they were implemented.

The deliberative process privilege is subject to further restrictions. It applies only to those portions of a record containing recommendations, opinions, and proposed policies. The exemption does not apply to records or portions of records concerning the implementation of policy or the factual basis for the policy. RCW 42.17.310 (1)(i); RCW42.56.210 (1)(i); WAC 44-14-06002; Progressive Animal Welfare Society. v. Univ. of Wash, 125 Wash.2d 243, (PAWS II) (1994). Thus, unless disclosure of the records would reveal or expose the deliberative process, as distinct from the facts used to make a decision, the exemption does not apply. Hearst Corp. v. Hoppe, 90 Wn.2d 123 (1978).

According to Washington law, an agency asserting this privilege must show that:
records contain predecisional opinions or recommendations expressed as part of a deliberative process;
that disclosure would be injurious to the deliberative or consultative function of the process;
that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally,
The exemption does not include purely factual matters, or the raw data on which a decision is based
Cowles Pub. Co. v. City of Spokane, 69 Wn. App. 678, (1993), Dawson v. Daly, 120 Wn.2d 782 (1993).

I have a great deal of skepticism that such a situation can be shown within the limitations of a SEPA/EIS contract extension. It is the administration’s burden to establish this. But assuming this burden could be met, the administration had further obligations to advise the public that documents were being withheld from public review, and to redact and produce the remaining parts of the records if exempt information could be effectively deleted. This was not done. The administration was also required to produce an exemption log, a matter that you and I have previously discussed. I know that you are aware of this obligation, making your failure to do so appear willful. In fact, I question the actual need for the deliberative process, and note that the county was not required to enforce this exemption.

The Washington State Supreme Court explained the requirements for a exemption log in Rental Housing Ass’n of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). It must reflect : type of document/description of document; date; author/sender; recipient (including cc’s) if applicable; statutory exemption and brief explanation of the withholding; number of pages. The Court confirmed that the “brief explanation” should provide enough information for a requestor to make a threshold determination of whether the claimed exemption is proper. Nonspecific claims of exemption such as “proprietary” or for that matter, “contractual” or “deliberative” are insufficient. Any log that fails to include any of these minimal details may be deemed insufficient or noncompliant with the PRA, thereby subjecting the county to mandatory penalties and attorneys’ fees.

And none of this gets to my question which you have repeatedly refused to answer. The land use applications pertained to the construction of a pier, and the ability to construct a pier was foreclosed by the denial of necessary permits by USACE and DNR. The only logical and rationale action for the administration is to deny the applications and close ts file. You did not need approval from the applicant. The EIS contract contains a right to terminate clause. Why hasn’t this administration exercised its right and ability to bring this case to a quick and timely closure, preventing expenditure of additional staff time and public funds on a project that cannot move forward? This is the question that you have repeatedly avoided answering.

Incredulously, here we are, literally months later, with the administration providing several secretive contract extensions, none of which are typical or required by law. You now assert for the first time that unnamed documents were withheld without notice based on the deliberative process privilege and attorney client privilege, neither of which, even if applicable, would prevent the public release of GPT documents. You previously asserted that applicant, whose project cannot move forward, has not decided whether to complete or conclude the EIS, although both options appear to require at least an additional 6 months. (Excuse me if my facts are not completely accurate, but operating only under the confusing information that you supply is quite a handicap.) Finally, you keep referring to your “co-lead”, but from what I can tell, DOE is not actively involved in this issue with you and the MAP was placed on hiatus pending the SEPA/EIS process.

These facts and the administration’s conduct warrant further review as they constitute an abuse of administrative discretion and suggest pursuit of a political agenda, rather than sound land use policy. What this administration seems to have forgotten is that it works for the residents of this county… not SSA, not the consultant, not the co-lead.

Accordingly, I am requesting an exemption log reflecting each document that was withheld from posting and public review on the county GPT website. The exemption log should contain all of the information required under state law, as discussed above. I would also like an explanation of how each of the elements necessary for achieving the deliberative exemption privilege, and/or any other claimed privilege, have been met. I would like to know the date that withheld documents were finalized and the date they were eventually released, if indeed they have ever been released. Please keep in mind the county’s potential liability under the PRA. I hope you will take this request seriously.

If you prefer that I submit this as an official PRA request, I will do so, although as I have noted, the GPT website functions as a de facto on-going PRA request.

Sincerely,
Wendy Harris