The Gristle

The diction of redactions

Wednesday, September 5, 2012

THE DICTION OF REDACTIONS: Perhaps no single measure better demonstrates the power of the citizens initiative to transform public dialogue and public policy than Washington’s Open Government Act, which was printed on a ballot 40 years ago this month as state Initiative to the People 276, approved by voters the following November, and signed into law in January 1973. The law sets a standard for the disclosure of government records that is among the most comprehensive in the country.

The act relies on the antiseptic qualities of “sunshine” to assure citizens of Washington that governmental systems and individuals who operate within them are open and accountable. The act’s heady preamble asserts “The public’s right to know… far outweighs any right that these matters remain secret and private.”

Based on these assertions, some observers find the deep redactions in a June 20 letter from Bellingham Mayor Kelli Linville to the real estate development director of Issaquah-based Costco Wholesale troubling. Most of the letter was blacked-out when released, except for city commitments to build street segments and offer project management expertise of city staff in addressing the site-specific concerns to state and federal agencies.

The redactions amount to a private discussion between the city administration and a potential developer about a matter of tremendous potential impact to areas north of the city, the possible shift of one of the city’s largest big-box retailers to an already inadequate freeway interchange at Bakerview Road and Pacific Highway, with the attendant potential for abandoning and leaving derelict their current big box north of Bellis Fair Mall.

As the Gristle reported last week, the mayor characterized the redactions as concerning area-wide planning for stormwater and wetlands mitigation, and outlined the potential partnerships with Costco that might make large-scale planning financially feasible for the city. Linville stressed that these matters need to be discussed and approved by Bellingham City Council. She likened the matter to the sorts of property discussions that frequently occur in council’s closed executive session, an analogy critics say is not apt.

Ferndale Mayor Gary Jensen, who originally requested Linville’s letter through a public disclosure request, could only respond to the portions of the letter that were disclosed, detailing road improvements that might enable a secondary route to the new store location via the Slater Road and Interstate 5 interchange. That’s an area Ferndale already has plans for, Jensen noted. He requested details on the amount of vehicle traffic anticipated in the Costco expansion.

While the working relationship between Ferndale and Bellingham remains strong, some Ferndale City Council members have expressed concerns the expansion will make Ferndale the welcoming mat to a new back door into Bellingham. The expansion could crimp Ferndale’s own plans for Slater Road. They can only imagine the additional horrors Mayor Kelli blotted out in black ink.

Other critics despair of potential risks to the coming environmental review, which requires early and thorough public notice of project proposals, with a strict clock of review and appeals process that triggers under the State Environmental Protection Act (SEPA). Already, important parameters of discussion have been roped off, they note. The concern is particularly acute, as Linville is proposing a new (and potentially much better) model for wetlands and stormwater mitigation, a regional planning model Linville helped champion while in the state Legislature yet still under-reviewed and in its infancy.

Still others are unconvinced of the city’s rationale for the redactions.

City attorneys say the material is exempt under the deliberative process exemption of the Public Records Act. The city cites two prior court cases related to union negotiations and lease agreements to argue they have a right to negotiate citywide policies with a private corporate entity, a declaration the open government ombudsman, state Assistant Attorney General Tim Ford, finds unconvincing.

Employing such arguments, the city must be able to demonstrate how disclosure of information would harm the city in future negotiations, the point of those rulings.

“The entire community will be impacted by whatever proposal is brought forward, and only one company has gotten a say in even what is going to be brought forward for public debate,” Ferndale City Clerk Sam Taylor observed. Long a champion for open government, Taylor was formerly the excellent government affairs reporter for The Bellingham Herald. “I’m somewhat surprised more people aren’t concerned about that,” Taylor said.

“In a decade of dealing with public records I’ve never seen any jurisdiction withhold a document in the way Bellingham is. That is disappointing to me as an advocate for open government, and I would always encourage municipalities to be more transparent in any way they can,” he said.

Ford believes the City of Bellingham could endure, even prevail in a challenge to their claims of process exemption. He could not comment further because the instructive text is… redacted. Challenges are costly, and courts presume governments are acting in the interests of citizens. That doesn’t mean the spirit of public disclosure is not bruised, he cautioned.

Look: Kelli is trying to do something she believes is in the public’s interest. She is trying to do it in a way she believes best achieves that goal. And in all probability the entire contents of her June 20 letter may be disclosed when she briefs City Council later this month.

But simply because we might support an end doesn’t mean we should look away while the means curtail open and transparent government. The city is pursuing legal arguments that declare it can withhold information when it is not at all clear the city is entitled to withhold that information. That’s troubling.

UPDATE, SEPT. 5: As anticipated, the city released the entire text of the letter.

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