This afternoon, the City of Bellingham, under pressure from a concerned public, several of whom had filed additional Public Record Act requests, released the letter from Mayor Linville to Costco regarding expansion of a new store. Previously, the City had redacted the majority of the letter, claming it was exempted from disclosure under the deliberative process exemption. https://docs.google.com/file/d/0BzTIJpNycQV8TzVnU096ajFKaGM/edit?pli=1.
All’s well that ends well, right? Not exactly. In a letter to John Stark, reporter for the newspaper that filed the initial PRA request, the City continues to assert the right to use of the deliberative process exemption in inappropriate situations. https://docs.google.com/file/d/0BzTIJpNycQV8MUd2NlZGZGdTY2M/edit?pli=1.
The City attorney relies upon the authority of the Washington Court of Appeals in ACLU v. City of Seattle, 121 Wn.App. 544 (2004), http://caselaw.findlaw.com/wa-court-of-appeals/1034460.html. However, that case involved collective bargaining negotiations between the City of Seattle and its own union employees. The Court emphasized the on-going and sensitive nature of such negotiations. The Court’s decision considered the eight declarations submitted by the City establishing the negative impact of disclosure on successful negotiations, and the need to keep collective bargaining confidential.
In this case, the City of Bellingham is attempting to extend the deliberative process exemption to a third party developer who lacks any on-going connection to City business and operations. Nor is there a logical basis for extending the deliberative process exemption where Costco is already regulated under existing and non-negotiable City land use standards. Unlike Seattle, Bellingham has failed to establish that it would suffer any harm from public disclosure. (There is no PRA exemption that protects Costco’s privacy.)
Nor do I believe that any Washington Court would extend the deliberative process exemption to allow a municipality to make private deals with a third party on important matters of public health and safety. This violates the foundational principles of the Public Records Act. If the Mayor is developing new regional mitigation and stormwater policy, the appropriate forum for discussion is before the City Council and the Planning Commission, not in private conversations with Costco. I am concerned that the Mayor’s handling of this matter has tainted the SEPA process, which is an issue that must be dealt with in the future.
The City is clearly over-reaching. It has released the Costco letter, but not its aggressive and unsupported attempt to extend the deliberative process exemption to private deals that by-pass the public disclosure required under City statute. Let us hope that the City is simply trying to save face from a bad decision, and is not serious in its assertion of a right to withhold public records when discussing public policies with private parties.