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Port accused of violating public records laws in new lawsuit

It contests redaction of parts of oil terminal lease

By Aaron Corvin, Columbian Port & Economy Reporter
Published: June 2, 2015, 12:00am

A local environmental group and one of its members have sued the Port of Vancouver, alleging it violated the state’s public records law by redacting parts of a lease it signed with two companies for what would be the nation’s largest rail-to-marine oil transfer terminal.

In the suit filed on May 27 in Clark County Superior Court, Clark County Natural Resources Council and John Karpinski, a member of the group, contend the port is unlawfully concealing particular lease information. The blacked-out information includes when the port or companies may opt out of the contract early if certain conditions aren’t met and oil-handling targets the companies must hit to have a shot at building a second terminal or expanding their operation.

In an email to The Columbian on Tuesday, Abbi Russell, a spokeswoman for the port, expressed confidence in the port’s handling of lease information under the state’s Public Records Act and Uniform Trade Secrets Act. She said the port works “to keep redactions to the minimum necessary to provide as much information as possible while still protecting the ability of the port and its tenants or prospective tenants to do business.”

Russell also said that, under state law, “ports are empowered to provide certain business-type services, mainly to facilitate trade promotion and industrial and economic development. As a port sets rates and enters into agreements with private companies, it’s competing for business. That’s why the disclosure of certain information, such as shipping rates, could harm a port’s expected revenues if released to the public. It’s also why ports are allowed to seek protection of such critical information.”

The public records lawsuit argues otherwise. It says the information cloaked by the port must be disclosed under the state’s public records law and that the information falls out of the scope of the state’s trade secrets law. The port’s lease redactions “constitute a flagrant violation of (Washington’s Public Records Act) and amounts to an abuse of public power,” according to the complaint filed by the plaintiffs’ attorney, Jacqui Brown Miller, of Jessica Jensen Law in Olympia. “This violation has been ongoing for almost one year, and even over (plaintiffs’) objections.”

Superior Court Judge Robert Lewis is expected to convene a preliminary hearing on the matter at 9 a.m. June 19.

The complaint makes several requests of the court, including requiring the port to hand over the lease with no redactions; issuing the maximum $100 per-day penalty against the port for each day it withheld records; and awarding plaintiffs’ attorney fees and costs.

The public records suit is the second involving the port’s actions under the state’s sunshine laws. The other active complaint, filed by Columbia Riverkeeper, the Sierra Club and Northwest Environmental Defense Center, alleges the port illegally excluded the public from some meetings in deciding the oil terminal lease.

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In legal filings in that case, the port denies wrongdoing. It also argues it rendered the open meetings lawsuit moot by holding a new public meeting on Oct. 22, 2013, after which port commissioners revoted unanimously to approve the lease with Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company. The port’s first unanimous vote to approve the oil terminal contract came on July 23, 2013.

‘An oxymoron’

The public records lawsuit concerns a May 27, 2014, email sent to the port by Karpinski, a Vancouver attorney, on behalf of himself and Clark County Natural Resources Council. In the email, Karpinski requested an unredacted copy of the oil terminal lease.

In its reply, the port sent Karpinski a copy of the lease, with redactions, and a list of reasons for the redactions under state law. Those reasons included the state’s Uniform Trade Secrets Act. If certain pieces of information in the lease were made public, the port argued, it would harm the port’s ability to negotiate, damage its competitiveness and hamper its revenues.

However, the public records lawsuit contends the port’s reasons for concealing information are “legally insufficient” and that the state Legislature “did not intend for public ports to keep ‘prices’ and ‘oil-volume-triggers’ secret by claiming a ‘trade secret’ exemption under the (Trade Secrets Act) through the (Public Records Act).”

“In light of the overriding public interest in public disclosure that permeates” the state public records law, the complaint argues, “the phrase ‘public agency trade secret’ is an oxymoron.”

In her email to The Columbian Tuesday, Russell said: “The Tesoro Savage lease is 429 pages long and only 11 pieces of information were redacted. Because we are dedicated to being as transparent as possible, the only information redacted was info that, if made public, has a high risk of harming the port’s ability to compete and generate economic benefit for the community.”

Tesoro and Savage, in partnership as Vancouver Energy, want to build an oil transfer terminal capable of handling an average 360,000 barrels of crude per day. Their proposal is undergoing an environmental impact analysis by the Washington state Energy Facility Site Evaluation Council. The evaluation council is expected to issue a draft impact analysis in July.

Eventually, the council will make a recommendation to Washington Gov. Jay Inslee, who may approve or deny the project, or send it back to the council for more work. The outcome may be appealed to the state Supreme Court.

Columbian Port & Economy Reporter