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Sept. 22, 2020

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Open records advocate suing Clark County over Madore’s Facebook

Washington courts tend to err on the side of granting access to politicians’ communications, but social media has not yet been tested

By , Columbian Education Reporter
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An open government advocate is suing Clark County over Councilor David Madore’s Facebook page.

Arthur West of Olympia is filing a suit in Cowlitz County Superior Court against Clark County alleging the county “silently and unreasonably withheld records” from Madore’s controversial Facebook page.

West filed a public records request with Clark County on July 25, asking for public records concerning Clark County business from Madore’s Facebook page. The county did not provide records after Madore signed an affidavit saying there are no public records on his Facebook account.

Others, including The Columbian, have made similar requests over the past year, but the county has always replied that the county didn’t have access to those records and therefore could not provide them.

Though Washington courts tend to err on the side of granting access to politicians’ communications from their private accounts or devices, social media has not yet been tested.

“I would hope that it becomes precedent setting,” West said.

Cowlitz County Superior Court had not officially received the complaint, which West mailed from Olympia, as of Thursday afternoon.

West, however, had the county served Thursday. The Prosecutor’s Office confirmed it had received a copy of the complaint but did not offer further comment.

“We’ll be responding to it in a timely fashion as we move forward,” Deputy Prosecutor Bill Richardson said.

Madore’s attorney, Nick Power, declined to comment.

Concerns over affidavit

West also pointed to concerns over the affidavit Madore signed swearing he did not have public records.

Last year, the state Supreme Court ruled in Nissen v. Pierce County that text messages created on public officials’ personal phones are public records if they deal with public business. Nissen limits agencies’ abilities to obtain those records, however, leaving it up to public officials to provide requested messages from their devices.

Shortly after the decision, the county adopted a policy requiring that if records requests are made for public records on personal devices, the individual official must sign an affidavit swearing they’ve provided records.

In Madore’s affidavit connected to West’s request, Madore edited a line reading “there are no records related to the governance of Clark County in my personal social media Facebook accounts.” Instead, Madore crossed out “related to the governance of Clark County,” and added “public” between “no” and records.”

It’s a technical change, but one West believes proves Madore has something to hide.

“By redacting the declaration, Clark County Council Member Madore implicitly admitted that the records do involve the governance of Clark County,” West wrote in the suit.

West’s suit against Clark County is nearly identical to a lawsuit that the records advocate filed earlier this year against the city of Puyallup.

In that case, West is suing over City Councilor Julie Door’s Facebook page, alleging that the city withheld records from that page after West filed a request for all city-related records sent or received to her “Friends of Julie Door” Facebook page.

Door declared in that case that her page is “not a public record and does not contain any records with information related to the conduct of government.” That case will be heard by a Pierce County Superior Court Judge later this month.

West said he took an interest in Madore’s Facebook page after filing the suit against Puyallup.

“I saw this Madore thing come up, and thought, ‘Oh, well gee, he’s an even worse example than council member Door,’ ” he said.

West is seeking costs, attorney fees and per diem penalties from the county for allegedly failing to disclose records. He did not specify a dollar amount and said he’s not suing the county for the money.

“I do it more to set precedent to further the goals of open government,” he said.

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