Update: Shortly after this article was published, the city of Seattle released one of the documents requested by Jason Mercier, who has written a response regarding the original justification to withhold it. A new request for all consultant report-related documents has been made.
The city of Seattle is claiming that a $50,000 consultant report for its progressive income tax ordinance is exempt from public disclosure, but open government advocates say the argument for doing so doesn’t pass the smell test.
“The people of Seattle paid $50,000 for this work, and they’re entitled to see it,” said Coalition For Open Government President Toby Nixon.
The contract between the city and the Economic Opportunity Institute (EOI) called for the think tank to provide Seattle with “expertise on economics, financial forecasting, policy research and design, drafting legislation and legal issues to inform the drafting and defense of legislation” in creating a local progressive income tax, which has now had several lawsuits filed against it.
Documents obtained by Lens show that when Washington Policy Center’s Director of Government Reform Jason Mercier made a public information request last month related to the city’s proposed tax, it withheld the consultant report written by EOI Executive Director John Burbank under the claim of attorney-client privilege (RCW 42.56.070 and 5.60.060) and attorney work product (RCW 42.56.290).
However, Nixon told Lens that this only applies if the work is performed on behalf of the city attorney or by an attorney or law firm. Yet in this case, the contract was between the city and EOI, and the contract is signed by the City Council’s Central Staff Director Kirsten Arestad.
Although the contract with EOI included $35,000 in “legal counsel and research,” Burbank’s biography on EOI’s website shows no law degree, and EOI describes itself as an “independent, nonpartisan, non-profit public policy center,” not a law firm.
“My position on it would be he’s (Burbank) not an attorney, this wasn’t done as part of the work of an attorney,” Nixon said. “It is not privileged under attorney-client privilege. I don’t see how they have any valid claim.”
Mercier told Lens there’s another problem with the situation. EOI was behind Initiative 1 in Olympia last year that would have created a local progressive income tax; a proposal that was solidly defeated. Burbank has also previously spoken in support of using a local ordinance to trigger a legal challenge in hopes that the State Supreme Court would overturn 80 years of rulings that have prohibited the tax, which is an explicit objective of the Seattle tax ordinance.
“It would be kind of like me going to the governor and saying, ‘Hey I think you should do this policy,’ and he says: ‘Here’s a $50,000 contract; help me do this policy,’” Mercier said.
With the city on the cusp of filing legal briefs defending the tax, Nixon said the consultant report’s content might undermine their arguments. “Maybe they’re actually concerned that they’re on unsteady legal ground. Maybe people were actually advising them in those documents … But we don’t know now.”
“What I was primarily looking for (with the public records request) was ‘what you guys (the city council) were thinking as to why you could do this,’” Mercier said. He is now weighing his options on whether to appeal the decision or make a revised request.
“I just don’t see how an income tax advocate making a pitch to you would be subject to attorney-client privilege,” he added.
On top of the $50,000 consultant report, the city has hired an outside law firm for a quarter of a million dollars to fight its legal battle.
When contacted by Lens for comment, a staff member in the Seattle City Attorney’s Office said they are reviewing the matter. This story will be updated with their response when available.