Tumwater approves confidentiality agreement with Port of Olympia

A common interest and confidentiality agreement between Tumwater and the Port of Olympia for the continued development of the Bush Prarie Habitat Conservation Plan (HCP) is moving forward.

Tumwater City Council voted to authorize the agreement during a meeting on Tuesday, October 3, contingent upon the addition of language into the agreement stating that no documents disclosable under the Public Records Act (PRA) and the Open Public Meetings Act would be exempt from disclosure.

The agreement allows the two parties to declare their communications about the HCP as confidential. The scope of the agreement protects communications relating to the plan’s ongoing development and subsequent applications for an incidental take permit, which the US Fish and Wildlife Service (FWS) issues.

Local residents raised concerns about the provisions of the agreement, which was initially scheduled as part of the consent agenda before it was pulled out for the council’s consideration.

Jeff Myers, a legal consultant for Tumwater, told the council that the documents help preserve existing privileges so that the attorneys and staff can collaborate as they develop their legal strategy and does not create any new privileges or exemptions from public disclosure.

As disclosing information protected by attorney-client privileges to a third party could cause the waiving of such privileges in the court, the agreement — specifically in section six — makes it so that Tumwater and the Port can communicate confidentially without the risk of waiving such protections.

Kittitas County v. Allphin case

Myers cited the Kittitas County v. Allphin case, which supports the protection of communications between local governments and state agencies in matters relating to law enforcement.

In this case, Kittitas County and the Department of Ecology (Ecology) faced a lawsuit for withholding from a PRA disclosure their communications with each other as they issued a regulatory enforcement action against Chem-Safe Environmental. The Superior Court decided in favor of the county and Ecology, believing that the common interest doctrine applies in the context of the PRA.

Division 3 of the State Court of Appeals upheld the Superior Court’s decision. It stated in its opinion that the common interest doctrine allows separate parties to communicate confidentiality in matters about their common claim or defense.

Port Communications Manager Taber Lee told The JOLT that the agreement was a “routine document” to extend attorney-client conversation privilege between Port staff and other attorneys and staff. Lee added that the agreement does not affect the actual documents of the HCP.

As Tumwater and the Port have been working on the HCP since 2016, Councilmember Joan Cathey inquired why the agreement is only coming up now. City Administrator Lisa Parks said they are now at a point where the FWS is asking for requirements that the two parties would have to process with certain risks.

Parks added that the agreement is part of a “multi-faceted strategy” to get to a point where there can even be a final Habitat Conservation Plan.

“We're at the stage where we're trying to develop that strategy, and this [agreement] is a tool that the attorneys believe they need in order to be able to collaborate and cooperate amongst themselves,” Parks said.

4-2-1 vote in favor

Most of the council members initially stated that they were not comfortable with the agreement as it was presented, so Councilmember Angela Jefferson suggested adding language to make sure that public documents would not be exempted from disclosure due to the agreement.

The council eventually voted 4-2-1 in favor of the agreement as long as the additional language will be included.

Councilmembers Cathey and Charlie Schneider voted “nay” saying the agreement needed further discussion, while Peter Agabi abstained.

City staff clarified before the discussion ended that the Port would also have to agree to the additional language. The agreement may return to the council if the Port modifies the agreement further.