Monday, January 31, 2011

BORDC-Tacoma Letter to City of Tacoma RE: Towery Files

Law Offices of
Gibbs Houston Pauw
1000 Second Avenue Suite 1600

Seattle, WA 98104

(206) 682-1080
FAX (206) 689-2270

Robert H. Gibbs
Robert Pauw

Neha Chandola
Erin Cipolla
Xia Hua
Devin Theriot-Orr
Lori Walls

January 27, 2011

City of Tacoma

Records Management Supervisor

City Clerk’s Office

747 Market Street, Room 220

Tacoma, WA 98402

RE: Incomplete response to Request No. 10-2798

via First Class Mail

Dear Sir or Madam:

I am representing Timothy Smith in his December 3, 2010 request pursuant to the Washington Public Disclosure Act, RCW 42.17 et seq., Request No. 10-2798. Please direct any and all further communication regarding this matter to my office at the address above.

We are in receipt of your response produced on January 19, 2011 via email. Your response is incomplete in several respects and therefore in violation of your statutory obligations under Washington’s Public Disclosure Act.

In particular, your response fails to include any of the documents generated in responding to the request, such as emails, memoranda, calendar appointments, and any other documents relating in any way to John Jakob AKA John Jacob Towery. Such documents are responsive and are routinely produced by other state agencies in responding to similar requests. These documents are necessary because it is unclear whether the City of Tacoma has exercised diligence in locating responsive documents from various departments within the city. For example, it is unclear from your response whether you contacted the City Manager, City Attorney, Police Chief, Fire Department and any other departments to see if they have responsive records.

In general, your response fails to include any log identifying documents that were withheld from production. Please note that if you are withholding production of a document based on your belief that it is not subject to disclosure, you are obligated to provide a log identifying the general nature of the document and the justification for withholding the document. Just to take one example, your response includes some redacted documents, but you have failed to include a log notating the justification under the Public Disclosure Act for redacting or withholding information.

Your response also fails to include any documents from the “Homeland Security Committee,” which were emailed to a distribution list which included Mr. Towery. These documents should not have been withheld at all, but even assuming that there was some justification for withholding the documents, you are obligated to identify the documents with particularity in your response, state that they are being withheld, and state a justification for withholding the documents.

There are also several distribution lists regarding the 2007 demonstrations at the Port of Tacoma including an electronic file called “email addresses” which contained Mr. Towery’s email address. Any and all emails to this distribution list are responsive to Mr. Smith’s request. Once again, if you contend that the documents are exempt from disclosure, you must identify each documents with specificity and provide a log stating your justification under the statute for withholding these documents from public view.

There is also a document entitled “Concept of Operations for Police Intelligence Operations” which we believe is in the possession of the City of Tacoma and is responsive in that it was partially authored by Mr. Towery.

Mr. Smith’s request also asked for all documents to be produced in their original, “long” form with all “internal and external messages handling and header data.” This would include, for example, electronic copies of .eml files for individual emails, rather than a pdf file containing the text of the email.

This is by no means an exhaustive list of the documents omitted from your response. Given that we have identified many documents that are clearly responsive and which were not produced, I recommend that your office reopen this request and conduct a searching investigation to locate any and all additional responsive documents to ensure that the City is in full compliance with its obligations under the Public Disclosure Act.

Finally, I feel it neccessary in light of the documents produced in your first disclosure to remind you of your obligation to redact personal and financial information, including social security numbers and residential addresses. See RCW 42.56.230. Such redactions are the responsibility of the protecting agency.

You have already received an extension in your initial response to this request, we believe that an additional 30 days should be more than sufficient for you to locate and produce the remaining responsive documents. Please produce the documents no later than March 1, 2011, in electronic form accessible by common software in public use by emailing them to me at If the files are too large to email, please send a CD-Rom with the files to the above mailing address.

Thank you for your assistance and attention to this matter. I can be reached at (206)708-8740 if you have any questions. Please note, however, that I have been unexpectedly pulled away from the office due to a family emergency, so I will be out of the office until Tuesday, February 8, 2011.


Devin Theriot-Orr

Cc Mr. Timothy Smith

Rose Spidell, Esq., American Civil Liberties Union

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