County may have improperly destroyed public records.

The following message was emailed to Kitsap County Public Records Officer R'lene Orr, on 7/30/2005, at 8:04pm.

R'lene,

Thanks for the quick response to our request for review of overdue records.

However, regarding our Item No. 1 (re: missing fax cover pages), I do have a concern about your statement that, under state record retention procedures, the requested records "have no public retention value."

I assume you are referring to Item No. 4 in the table of "Administrative materials with no retention value" (page S-16, Washington State General Records Retention Schedule for All Local Government Agencies), which reads, "Letters of transmittal, which do not add any information to the transmitted materials."

The key phrase in the provision is "do not add any information to the transmitted materials." Because the fax imprints on the pages supplied (see sample below of Commissioner Angel's Confidentiality and Nondisclosure Agreement) do not include information identifying the sending and receiving parties of the transmitted materials (no phone numbers, no names), the cover pages are essential in order to provide that information, as well as any supplementary information that may be on the cover pages.

It appears that the county may have improperly destroyed public records. The county may want to check with the other party/parties involved in the fax transmittals in hopes that the missing pages can be recovered.

Thanks,

Charlie Burrow, KCRP

Why hasn't county provided requested records?

R'lene Orr
Kitsap County Public Records Officer

R'lene,

Pursuant to KCC 3.76.120, I am hereby requesting review of the County's failure to produce the following requested records:

1) The first page of each of three fax transmittals dated 9/10/2003, 9/16/2003 and 9/23/2003, relating to confidentiality agreements signed by county officials and staff. We requested these records initially on 6/24/2005, and in a followup on 7/8/2005.

2) Records requested on 6/22/05: a) tape of 4/11/2005 regular commissioners meeting, b) copy of notice of 3/28/2005 and 4/11/2005 hearings on "corrective" ordinance No. 336-2005. We received an estimate that these records would be available by 7/8/2005.
3) Requested records reflected in your letter dated 7/8/2005 (copy below). In my email message forwarded to you on 7/16/2005 (below), I requested that you identify, pursuant to RCW 42.17.320, the specific exemption of the Public Disclosure Act on which you are basing your decision to delay our request until "completion of the investigation into this matter," which you estimated would be complete by tomorrow, 7/29/05. I have not received a response to that request.

After considerable difficulty in obtaining identification of the Washington State Patrol personnel investigating "this matter," I spoke this morning with WSP Detective Dan Presba (phone: 360-405-6642, email: dan.presba@wsp.wa.gov), who indicated that he was assigned to this matter on 7/18/05 and had not received any of the estimated ten information transmittals that I had sent to the Attorney General's office since 7/9/05, and which I understood had been forwarded to persons working on the investigation. I am scheduled to meet with Detective Presba next week to review the situation in full.

I understand that, pursuant to KCC 3.76.120, you will refer this request to the county administrator by the close of business tomorrow.

Thanks for your prompt attention to this matter.

Charlie Burrow, KCRP

Letter to North Kitsap Herald

Editor, NK Herald:

Contrary to Dona Keating's Reader Sound-Off column (Herald, 7/23/05), the Attorney General is not investigating whether public records used in Kitsap County's off-the-record negotiations with the International Speedway Corporation (ISC) are exempt from disclosure under the public records law (RCW 42.17.310).

As has been widely reported (see 7/13/2005 Herald, for example), the AG is investigating whether the County attempted to conceal public records by turning them over to a private entity, the Kitsap Regional Economic Development Council (KREDC), which was acting in behalf of the ISC.

Willfully concealing a public record is a violation of RCW 40.16 and, in the case of public officials, is punishable by up to 10 years in prison, or up to five years in prison for other persons.

According to news accounts, the concealed records were provided to the KREDC by county staff and included road project maps, transportation studies and traffic statistics, information that is not exempt from disclosure under the public records law. KREDC Executive Director David Porter acknowledged as much, when he told the Herald that "The material they gave me wasn't sensitive ... But the fact that I was asking for it was."

Mr. Porter says he's fearful that "someone could see that he was making a certain request and file a Freedom of Information request to determine its contents," thereby tipping off his client's business intentions.

Mr. Porter's fears are ill founded. The public records law, RCW 42.17.270, specifies that persons requesting records "shall not be required to provide information as to the purpose for the request," thus Mr. Porter is free to request records in the name of the KREDC without divulging his client's identity or intentions.

But Mr. Porter's real problem is that he wants much more than just existing records. He wants public employees to assist in creating new records tailored to his client's interests (testimonials of support, maps, studies, market analyses, etc.), at public expense but without the public's knowledge. Thus the need for secrecy agreements and the hiding of public records.

The public needs to make it crystal clear to Mr. Porter, and the public officials and staff who've been taken in by his scam, that secrecy is antithetical to the public process and that public employees are not private servants.

Charlie Burrow

Why won't the AG's office identify who's conducting the Kitsap County investigation?

On July 6, the Kitsap County Prosecutor announced that he was asking the Attorney General to conduct an investigation into possible public records law violations by Kitsap County (apparently uncovered while processing a public disclosure request that I submitted on June 24).

On July 7, I emailed the AG's Public Records Officer, asking "can you identify the individuals in your office, and at the Washington State Patrol, to contact about this investigation?"

On July 8, I received the following response from Assistant AG Greg Overstreet:

"I am the Attorney General's public records ombudsman. I received your July 7, 2005 inquiry about Kitsap County. As you know, the Kitsap County Prosecuting Attorney asked the Attorney General's Office to investigate this issue. Since your inquiry and the Prosecuting Attorney's center on the same issue, I will respond to your inquiry with the completed investigation when it is complete."

Note that Mr. Overstreet did not answer my question about who to contact about the investigation.

Subsequently, I cc'd several emails to Mr. Overstreet that I thought contained information that might be useful to the investigators. Mr. Overstreet responded by saying that they would be forwarded to the "right person."

On July 14, I emailed Mr. Overstreet:

"Greg, I have some info I'd like to fax to the investigators. Do you have a number that I can use for that?"

Instead of providing the fax number of the investigators, on July 15, Mr. Overstreet replied:

"Best thing to do is send them to me and I'll get them to the right person. My fax number is (360) 664-0228."

On July 18, I called the State Patrol, asked who I could talk to about the Kitsap investigation and was told to contact the AG's office. I called Mr. Overstreet's number, left a message, then sent him an email:

"I called to ask for contact information for the person(s) in the AG and state patrol who're working on the investigation."

On July 18, Mr. Overstreet replied:

"I'm not sure if we give out the contact information for the WSP investigators. However, I am forwarding this on to the person will know and, if he can, will forward your email to right person at WSP."

Note that Mr. Overstreet did not respond to my request for contact information "for the person(s) in the AG ... who're working on the investigation."

On July 19, I emailed the following public records request to Mr. Overstreet:

"Greg, pursuant to RCW 42.17, please provide me with copies of:

"1) your communication "to the person will know" (about contacting WSP investigators), as referenced in your last email, dated July 18, 2005, re: Kitsap County investigation.

"2) your communication to the "right person," as referenced in your July 15, 2005, 12:00 PM, email to me regarding documents I later faxed to you.

"3) your communication to "the right person working on the investigation," as referenced in your July 14, 2005 10:26 AM, email to me."

Mr. Overstreet has not yet responded to my request.

Was taping banned at county technical review meeting?

Received an email this morning from a citizen who'd attended a technical review meeting conducted by Kitsap County staff on Wednesday, 7/20/2005, at Givens Community Center. The meeting was to review the Timbers Edge proposal that would allow about 130 homes in the Illahee area in East Bremerton. The meeting turnout was apparently too large to hold at the county offices, as is normally the case, so was held at the Givens Center instead.

Before the meeting, a citizen reportedly asked a county planner, Meg Sands, if it would be okay to record the meeting on tape but was told no. Then, after the meeting, another planner, Jason Rice, asked the citizen whether she'd recorded the meeting. The citizen replied no and asked where it was stated that the meeting couldn't be recorded.

Apparently, staff could not identify any policy, regulation or law prohibiting the recording and referred the matter to the Prosector.

This morning, I sent my own inquiry to the County, asking whether taping of the Timbers Edge meeting was denied and asked whether the County had an established policy on taping meetings.

Stay tuned.

email transcript:

To: Washington State Attorney General, attn: Public Records Officer
From: Charlie Burrow
Date: July 7, 2005
Subject: Kitsap County investigation

According to today's Seattle Times:

"[County prosecutor Russell] Hauge is asking the state Attorney General's Office to inquire about why some studies and other documents created by county staff were handed over to the private Kitsap Regional Economic Development Council and the International Speedway Corporation (ISC) Taking them out of the county record meant they didn't turn up when a local resident filed a request under the state Public Disclosure Act to see all documents pertaining to the proposed racetrack."

"[Commissioner Endresen] asked the county public works department last week for copies of work they had done regarding the proposed track. A traffic planner wrote her back and said he had given all his work to the Economic Development Council."

Excuse me if I sound naive but If the records in question were created by county staff, wouldn't they also exist on the county's computer(s), backup files, etc. If so, I would assume that some sort of security measures were in place to protect against someone "(t)aking them out of the county record" without authorization. Is the county's records retention system so faulty that a traffic planner could have "given all his work to the Economic Development Council" without any assistance?

Also, can you identify the individuals in your office, and at the Washington State Patrol, to contact about this investigation? Thanks.

Best regards,
Charlie Burrow

email transcript:

To: Cindy Baker, Director, Kitsap County Department of Community Development
From: Charlie Burrow
Date: July 7, 2005
Subject: ISC permit process

Cindy,

Today's Seattle Times reported that "The county anticipates a proposal from ISC later this month."

Can you clarify what specific permit type you are expecting?

Also, I notice that you emailed the Board of Commissioners on May 12 (see copy below), advising that you would be having a formal pre-application meeting after you received more specific information from ISC.

Please put me on the roster of interested members of the public for notification of the pre-application meeting, which I understand must be sent to interested members of the public within fifteen days of receipt of an application for preapplication review, in accordance with Kitsap County Code, Section 21.04.040,
http://nt2.scbbs.com/cgi-bin/om_isapi.dll?clientID=170596&infobase=procode-7&softpage=Browse_Frame_Pg

Thanks,

Charlie Burrow

Newspapers report attorney general to investigate Kitsap County:

7/7/2005 Seattle Times: "Kitsap County may have violated records rules with NASCAR project"
http://seattletimes.nwsource.com/html/localnews/2002364066_nascar07m.html

7/7/2005 Kitsap Sun: "State AG Called In To Look At Track Process"
http://www.kitsapsun.com/bsun/local/article/0,2403,BSUN_19088_3908831,00.html

The Sun quoted Commissioner Chris Endresen, regarding confidentiality agreements signed by county officials and employees:

"The one that I signed, I signed as part of a business-retention program in December '02," Endresen said. "It didn't have anything to do with NASCAR."

Oh, really! Take a look at Endresen's signed agreement: http://www.tangledwebsite.net/nd-endresen.html

Note the lower left corner of the document, which is preprinted, "Adopted by KREDC Board of Directors on January 16, 2003."

How could Commissioner Endresen have signed "in December '02," on a form that apparently didn't exist at the time?

Note also that Commissioner Endresen checked the form as a KREDC board member. Assuming that her memory is foggy about when she signed the undated form and she actually signed it sometime after 1/16/2003, when the form was apparently approved by the KREDC board, then why did she check off that she was on the KREDC board? According to the record, she was not on the board after the end of 2002:

One county commissioner at a time sits on the KREDC board, on a rotating basis. Take a look at the KREDC's 2002 and 2003 annual reports, on the KREDC's website: http://www.kitsapedc.org/default.asp?ID=62

Note that Commissioner Endresen is listed as a KREDC board member, on page 13 of the 2002 annual report: http://www.kitsapedc.org/pdfs/2002AnnualReport.pdf

Note also that Commissioner Jan Angel is listed as a KREDC board member, on page 5 of the 2003 annual report: http://www.kitsapedc.org/pdfs/2003AnnualReport.pdf

(Commissioner Endresen may want to clarify just when she signed the confidentiality agreement.

BUSTED!

How did the county get nailed?

How did it come to light that the county was hiding records relating to the NASCAR racetrack proposal? Apparently, the county has squirrelled away racetrack related records by handing them over to the Kitsap Regional Economic Development Council (KREDC), agent for the International Speedway Corporation (ISC), in order to keep them out of public hands.

In early May, after reading news reports of private meetings and secrecy agreements between county commissioners and racetrack officials, I asked the county for all county records relating to a proposed NASCAR racetrack. Two weeks ago, I picked up (for $67.05) 447 pages of documents, including secrecy agreements signed by thirteen county officials and employees. Each pledged to the KREDC not to disclose "confidential" information relating to ISC's racetrack proposal.

Before paying for the records, I checked to see if they included a report issued in May 2004, the "Green Flag" report [7.16MB], which was kept secret for a year, before it was "outed" by unnamed citizens in May and posted on the Internet. Because the report's cover letter was signed by the then-Chair of the Board of Commissioners, Patty Lent, the "Green Flag report qualified as a county record and thus should have been included in the disclosed records. It wasn't.

I showed staff my copy, which I'd printed off the Internet, and suggested that a copy should have been included in the records provided by the county. I was asked why I needed a copy, since I already had one. I explained that the chair of the KREDC Board of Directors (Lary Coppola) had suggested, in his June Kitsap Business Journal column, that the "outed" report may have been altered in order to "smear our elected officials." Therefore, I couldn't be sure that the copy I had was complete and accurate, so I needed a copy of the original.

Eventually, apparently after consulting with the prosecutor's office, staff agreed by phone, on June 24, to seek a copy from the KREDC. I followed up immediately with an email, pointing out additional records that weren't provided in the disclosure and requested copies of them, too.

I believe that the 6/24 phone and email requests led to the "discovery" that the county had been hiding racetrack related records and resulted in the call to the attorney general.

I haven't yet received the records I requested in my follow-up. The race goes on.

BULLETIN

According to reporters at the Kitsap Sun and Seattle Times, the Kitsap County Prosecutor has asked the Washington State Attorney General to investigate possible violations of the public records law by Kitsap County officials and employees.

It appears that International Speedway Corporation (ISC) and Kitsap Regional Economic Development Council (KREDC) representatives persuaded county offiicials and employees to turn over to ISC/EDC, for "safekeeping," county generated documents used in responding to the ISC-NASCAR racetrack proposal, in order to keep them out of public hands.

Both papers are expected to publish the story tomorrow.