WA AGO told SOS to release attorney client privileged emails as ‘middle ground’

In May, The Center Square published a story regarding unredacted attorney-client privileged communications between SOS officials and AGO s. Those communications concerned a lawsuit filed against the state’s new income tax’s necessity clause, which prevents a voter referendum.

In a draft response to the lawsuit, former State Supreme Court clerk and now Deputy Solicitor General Karl Smith speculated that the state’s high court might “punt” on the constitutionality of the income tax by allowing a referendum to proceed, implying that voters would overturn it. A lawsuit has since been filed against the income tax, and a voter initiative to repeal it has garnered enough signatures to be on the November ballot.

When The Center Square reached out to the AGO for comment on Smith’s remarks, the AGO contacted SOS about the records. SOS then emailed The Center Square and requested that the unredacted records were released inadvertently and should be deleted. The Center Square declined to delete the records because they were newsworthy.

The Center Square has obtained from SOS via a public records request a fill out form letter to request individuals delete public records due to unredacted attorney-client privileged communications. The fill out form is also available to download from the Washington Association of Public Records Officers.

“I’ve never seen anything like it,” Washington Coalition for Open Government Secretary George Erb recently wrote to The Center Square after reviewing the fill out form letter. “It looks like a boilerplate form generated by a law firm — or maybe even AI? I’m puzzled why SOS would send you a do-it-yourself form.”

In response to SOS’ request to delete records, The Center Square instead appealed the redactions of other records received, arguing that the AGO had removed attorney-client privilege by discussing those communications via a media statement. SOS Public Records Office then informed The Center Square it would review the appeal with legal counsel.

In a May 20 message to Deputy Director of Operations Colleen Overton, Records and Public Disclosure Officer Cecilia Sequeira wrote that “AB (Alexander Bohler) took serious issue with the AG’s guidance to withdraw a couple of the redactions as a middle ground on the appeal and told me not to send anything with changes to the redactions to the requester and to speak to you before responding.”

Bohler works in the SOS’s Operations Division.

SOS ultimately turned over an unredacted attorney-client privileged email to The Center Square “in the interest of transparency,” but insisted it had not waived privilege.

The Center Square requested an interview with Secretary of State Steve Hobbs to discuss the AGO’s legal counsel on the records appeal, but did not receive a response.

The Center Square previously requested an interview with Hobbs, asking if he agreed to let the AGO publicly comment on attorney-client privileged communications.

“We have not waived attorney-client privilege,” SOS Communications Director Stefanie Randolph wrote in a May 28 email.