(The Center Square) - The release of sensitive internal communications between the Washington State Attorney General’s Office and lawmakers about how to push forward a millionaire's tax appeared to be "on the fly" and "discriminatory," with some getting all the documents and other heavily redacted versions, records and interviews obtained by The Center Square show.
The records release raises questions about the AGO's ability to fairly abide by the state's transparency laws and whether they violated attorney-client privilege. The Center Square and a competing news organization received records the office later said were confidential, attorney-client records while opponents of the tax and other obtained only redacted documents.
Coalition for Open Government Secretary George Erb said that is a problem.
“It almost sounds like that the attorney general office is basically making midcourse corrections on the fly,” he told The Center Square. “It’s all kind of nutty. It just sounds like a screw up.”
On April 22, The Center Square published an exclusive story based on documents obtained through a public records request to the AGO. The 988 pages were entirely unredacted and contained discussions between AGO attorneys and state lawmakers on how to craft an income tax bill so it would “force” the state Supreme Court to revisit 90 years of legal rulings that prohibit a progressive income tax in the state.
Although the state House and Senate have their own attorneys, the AGO is still considered to be the attorney for the state Legislature and has previously redacted prior communications with legislators released to The Center Square on that basis.
However, former state attorney general Rob McKenna, who is involved in the lawsuit against the income tax, has criticized the AGO’s communications over the income tax.
“Getting into the role of strategizing with a legislator on how to get around the Constitution just isn’t right," he told The Center Square in April. "It should not be done.”
It is unclear why the records the office claims are attorney-client communications were released unredacted. According to a March 27 email obtained by The Center Square, AGO Paralegal Michele Sanchez sent Assistant Attorney General Spencer Coates suggested redactions to records requested by The Center Square.
Separately, the Secretary of State released records to The Center Square after the AGO release but asked the news organization to delete them because the office deemed them attorney-client records. The Center Square declined, finding the records newsworthy and important for the public to know.
Unredacted Records For Some
Within hours of The Center Square’s story, Washington State Standard’s Jerry Cornfield contacted AGO Deputy Communications Director Mike Faulk, requesting the same records, according to emails obtained through a public records request.
Faulk emailed back that he was “checking to see if that’s the case,” then corresponded with AGO Public Records Officer LaDona Jensen, asking “if the records in this story came from our office?”
After Jensen confirmed The Center Square had received the 988 pages, Faulk forwarded Cornfield’s email to Jensen. By the end of the day, Jensen provided Cornfield with the same 988-page document and prior records that the office provided to The Center Square.
The Center Square obtained the same records Cornfield received to verify those contained no redactions.
The Center Square reached out to Jensen to discuss the discrepancy with requesters, but did not received a response.
Redacted Records For Others
Two days after the story was published, Let's Go Washington filed a records request seeking the same records. The request was acknowledged by the AGO Public Records Office on April 28.
On April 30, The Center Square was contacted by Jensen, who wrote in an email that the 988-page document “contains attorney-client / work-product privileged material that should have been redacted. This is a notice that disclosure by our office was inadvertent and does not constitute waiving of any privilege.”
On May 21, LGW received a 562 heavily redacted pages.
“It's inappropriate for the AG to be…making a policy in a discriminatory way,” LGW Founder Brian Heywood told The Center Square in an interview. LGW is the sponsor of an initiative to get the income tax repealed and has garnered enough signatures now to put it on the ballot.
Heywood also said they have sought the unredacted version of the full 988 pages, but he has yet to receive it.
“That, that to me, like that really suggests…their policy is based on spur of the moment decision making, not on any sort of principle,” he said. “That seems inappropriate and unprofessional for the top legal entity in the entire state.
“There's no way that was not a hot potato within the office, right?” he added. “I'm absolutely sure they were focused on it internally.”
According to records obtained by The Center Square, the AGO top leadership including Attorney General Nick Brown were actively involved in crafting media statements when local news outlets contacted them about The Center Square’s story.
Fewer Redacted Records For Others
Another requester, Elan Engel, submitted on April 27 a request using almost identical language and the same timeframe as The Center Square’s request. His request was acknowledged on May 4, and a batch of records was provided on May 28. Although the 436-page document did not redact anything, it also did not contain numerous records cited in The Center Square’s April 20 story.
"What’s the point of redacting it (public records) for subsequent requesters?" Erb said. "They’re going to complain, rightfully so."
Engel, whose request is still active, recently received a record installment of 1,602 pages.
After The Center Square reached out to Jensen requesting a phone interview, Faulk emailed a statement that said "following the initial disclosures, it was decided for due diligence to include language acknowledging there was an inadvertent disclosure on future releases and that this did not waive privilege. After that message was finalized, the records were released."
His statement also said "records staff confirm none of those 988-page packages were released redacted. It is possible, but we do not know without more specifics or going back through all of them, that there were duplicates produced in other searches for each specific request that could have been redacted, which would have been our policy in the first place."
The Center Square has since received new installment of records as part of its request, but they contained redactions. The redactions were appealed on the basis that Brown and the income tax’s prime sponsor, Sen. Jamie Pedersen, D-Seattle, both publicly commented on the attorney-client privileged communications after the story broke.
Among those instances was at an April 28 AGO press conference, where Brown defended the AGO’s role in having a necessity clause added to the income tax, preventing a referendum. Pedersen also discussed the communications with Fox 13 Seattle's Evening News Anchor Hana Kim in a May 6 interview.
On June 17, AGO Public Records Counsel Jennifer Steele wrote to The Center Square that “you provided information and statements of your belief that members of the AGO have made public comments that you allege has waived any privilege that may be attached. I have reviewed the information that you provided as well as the redactions made to the produced records. I have determined the exemptions as applied to the records will remain intact.”
The Center Square has since filed follow up requests with the AGO concerning discussions with legislators about the new income tax. In response to the request, Chief of Staff David Postman wrote to Chief Transparency Counsel Morgan Damerow in an email “let’s make sure this gets a careful look for privileged communications.”
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