Dispute centers on public’s right to know
Is the form that Okanogan County uses to determine if water is legally available for residential development a checklist used in the course of the county’s regular business — or is it privileged legal advice?
That’s the crux of the issue in a lawsuit filed against Okanogan County by the Methow Valley Citizens Council (MVCC), which filed a public records request to the county for the checklist, saying the public has a right to understand how the county makes decisions about permits for development.
Okanogan County contends that the memo, prepared by an attorney for the county, is an interpretation of a court ruling regarding water and is therefore protected by attorney/client privilege.
Okanogan County began using this process to evaluate water legality after a 2021 Okanogan County Superior Court decision in a lawsuit the county filed against the state Department of Ecology. The court found that lots created by subdivision after March 2002 can’t use a well to supply water unless the owners can show they have vested rights because the county had already approved building permits and water adequacy on their parcel.
This document is one of several checklists the county uses as part of its permitting process, MVCC attorney Paul Lawrence told Okanogan County Superior Court Commissioner Robert Colbert at a hearing on Thursday (Oct. 25). Court commissioners are lawyers who work with judges to hear cases and manage the caseload.
Okanogan County Planning Director Pete Palmer updated the county commissioners about her use of the checklist at open public meetings, Lawrence said. Palmer uses the checklist as part of a process to determine whether a proposed development is supported by legally available water. Because the permit is denied if there’s no legal water, and issued if there is a legal source of water, it’s a “make or break” decision in permitting, Lawrence contended.
But Okanogan County vehemently disputes that contention. The form Palmer uses is “quintessential legal advice,” Okanogan County attorney Sophia Amberson told Colbert. It’s a memo prepared by the county’s legal counsel, at the request of the county, regarding interpretation of the 2021 court ruling, she said. Palmer uses the memo to refresh her memory and reference law about the county’s legal obligations, Amberson said.
The Public Records Act requires that all public records maintained by state and local agencies be made available to all members of the public. There are narrow exemptions, including personal and financial information and privileged attorney/client communications.
Amberson contends that Okanogan County has bent over backward to keep the public informed, including posting permitting information on its website. Moreover, the county provided redacted copies of the checklist to MVCC. But the county can’t hand over protected legal advice to the public — “end of argument,” Amberson said.
Legal memo or basic form?
In legal documents, the county said the document is a “privileged and confidential Legal Memo” with recommendations and two charts, one for building permit applications and one for subdivisions. The memo gave Palmer a list of questions to consider, plus advice for analyzing the questions.
Just because the form was originally created by a lawyer doesn’t mean it’s exempt from disclosure under the Public Records Act, Lawrence told the court. The county can’t claim attorney-client privilege over a document it uses in its ordinary course of business, he said. Palmer fills out the form for every decision on a development permit, which is different from a specific question the county asked its attorneys, he said.
The county gave MVCC only redacted copies of the checklist in response to its records request, and that’s not adequate, Lawrence said. If a citizen is curious or concerned about the permitting process, or wants to know how the county makes decisions, that person won’t be able to understand the process by looking at redacted documents, he said.
MVCC didn’t ask to see a copy of the legal advice the county got, but merely asked to see what the county is using to make decisions, he said.
The county is required to provide specific reasons for redacting information and can’t simply say that it’s all covered by attorney/client privilege, Lawrence said. The Public Records Act requires a detailed log explaining why certain materials were deemed exempt from disclosure — for example, that they contain personal identifying information.
Palmer acknowledged in depositions that she uses the checklist regularly and makes her own notes, Colbert said. He asked county attorney Amberson if the document could have started as something covered by attorney/client privilege but later become a public record because of the way the county uses it.
Amberson drew a distinction between the questions on the checklist — which were given to MVCC — and the specific legal advice provided to the county. It’s the analysis and risk, which are what the county uses to make important decisions, that have been withheld, she said.
The county reportedly used the checklist about 50 times to determine water availability. Amberson said she doesn’t believe Palmer is using the checklist any more because she has now memorized the legal advice.
Palmer gathers information from the permit application and her own research, not from an attorney, MVCC said in court documents. Palmer described the checklist as a “tool to make legal available water determinations in compliance with that court order,” MVCC said in court documents.
Okanogan County brought the lawsuit against Ecology to resolve a disagreement regarding the legality of the county’s practices in assessing the availability of water for building and subdivision applications, and in anticipation of lawsuits, either by property owners whose applications were denied or by groups such as MVCC that oppose these approvals, the county said in court documents.
Palmer “immediately began using [the memo] to help inform her analysis of water availability for each permit application,” the county said in the court documents. Palmer marks up the document and keeps it in a locked filing cabinet, it said.
This process is different from “forms and checklists that are part of the planning department’s normal course of processing permits,” the county said.
Background of case
MVCC provided a sampling of the redacted checklists to the Methow Valley News. The questions are still legible, but the two “answer” columns (with headings of “Yes” and “No”) are mostly blacked out. Occasionally there is some readable text, such as “Go to next question” or “The order does not apply.”
Questions cover topics such as whether a lot is in a closed basin, if the applicant plans to use a permit-exempt well, and if there’s evidence of a vested right to develop the property. Some of the checklists include hand-written notes about when a well was drilled or people’s names.
Water availability is governed by state and county court rulings and legislation. There are several situations in the Methow Valley where water use for new homes is prohibited, or allowed only with special mitigations because water supply is limited.
Colbert praised the attorneys on both sides for their detailed briefing in the case, saying he rarely gets this level of assistance from legal counsel to help him understand the issues.
Colbert was given an unredacted copy of the checklist, but didn’t open the envelope until both MVCC and the county agreed that he could review it.
Colbert said he would review the unredacted document and the arguments and issue a decision. He didn’t provide a timeline for when he expects to rule in the case.