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Jan. 29, 2023

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Judge: C-Tran email can remain a secret

Message was exposed -- inadvertently -- to a city staff member

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A Clark County Superior Court judge granted C-Tran’s request Friday for an injunction to keep the city of Vancouver from releasing a C-Tran email to The Columbian. Judge Robert Lewis reviewed the email and said the contents did fall within the attorney-client privilege exemption from disclosure under the Public Records Act.

The Columbian, which has a standing request for Vancouver City Council email under the PRA, was named as a defendant in the lawsuit as required under the PRA.

The email was sent Feb. 6 by C-Tran attorney Tom Wolfendale to Vancouver Mayor Tim Leavitt, who serves on the C-Tran Board of Directors.

Leavitt forwarded the email to City Manager Eric Holmes.

That forwarding qualified the email as one to be given to The Columbian under its standing request. The city notified Wolfendale it would be releasing the email, prompting the request for the injunction after The Columbian declined to waive its request.

A single member of the C-Tran Board of Directors — Leavitt, in this case — lacks the authority to waive attorney-client privilege, Wolfendale wrote in his request for an injunction, and said the content of the email relates to “a (legal) controversy involving C-Tran.”

Jonathan Young, an assistant city attorney, told Lewis he hadn’t read the email because it was labeled attorney-client privilege. He said the city was put in an unusual position, as there’s no simple rule under state law saying a single member of a board of directors can waive privilege.

In a written declaration, Leavitt said he should not have forwarded the email to Holmes.

“I forwarded the email as an oversight,” Leavitt wrote. “Because I serve two municipalities, I temporarily forgot (Holmes) is not part of the C-Tran attorney-client privilege relationship.”

Wolfendale reiterated Friday that the forwarding of the email was inadvertent.

Lewis questioned Wolfendale about what type of information members of C-Tran’s board can share with their respective jurisdictions, and Wolfendale said there’s a narrowly defined area of attorney-client privilege.

The Columbian’s attorney, Eric Stahl from the Seattle firm Davis Wright Tremaine, had asked Lewis in a written response to determine whether C-Tran had met its burden of proof in establishing that the email should be exempt.

C-Tran did meet the burden of proof, Lewis said, and he ordered the email sealed.

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