BELLINGHAM - The city can legally withhold from the public much of the text of a letter from Mayor Kelli Linville to Costco Wholesale, in which she proposes steps to help the retailer build a new store, an open-government expert said.
Tim Ford, open government ombudsman at the Attorney General's Office, said that, because of recent case law, the city would likely win if this issue went to court.
Still, the redaction isn't something he personally likes, he said.
After filing a public disclosure request with the city, The Bellingham Herald was provided a heavily redacted copy of the June 20 letter. The city of Ferndale then sought an unredacted copy and was denied. Ferndale City Clerk Sam Taylor said he didn't think city officials were interested in spending taxpayer money to challenge the denial in court.
Bellingham's administration is negotiating with Costco over steps to help the Issaquah-based corporation build a new store near Pacific Highway and West Bakerview Road, and the letter spells out the city's offer. The company says the Meridian Street store is substandard in size.
Most of the letter was blacked-out when released, except for city commitments to build street segments and offer project management expertise of city staff in addressing site-specific concerns that state and federal agencies may have. The letter also makes clear that any offer is subject to City Council approval and legal review.
Taylor said he sought the letter largely because Ferndale Mayor Gary Jensen's focus is on ensuring the city's transportation system is protected. Taylor is public records officer for Ferndale.
Released text from Linville's letter says Bellingham would build streets providing easier access between the possible development site and the Slater Road-Interstate 5 interchange. The nearby stretch of Slater Road is in Ferndale, and that city plans large-scale retail development there.
"It's a new back door to Bellingham, but we're the welcoming mat to that back door," Taylor said. Ferndale sought an unredacted copy because "we wanted to know what Bellingham is offering Costco in order to protect our community."
Jensen and other Ferndale staff wrote an Aug. 7 letter to Linville expressing concern about potential traffic impacts and stating that the impacts to Ferndale's roads should be included in the environmental analysis.
In redacting the letter, Assistant City Attorney James Erb cited a provision of state public records law allowing the withholding of preliminary drafts, notes, recommendations and intra-agency memos in certain situations. Erb said the city is currently negotiating with Costco, and disclosure of the contents would "be injurious to the deliberative process" and would inhibit the flow of recommendations, observations and opinions. The redacted text also reflects policy recommendations and opinions, not raw factual data, he said.
Ford said Erb told him that "this is directly related to the Costco permit," but if the council approved the conditions, they would have far-reaching effects for other companies.
"Everybody else in the city will be impacted by policies that currently only Costco gets to negotiate with the city," Taylor said. "It's perhaps one of the most egregious things ever.
"The Walmarts of the world would never get an opportunity like this with the city of Bellingham," he added.
A decade or more ago, courts decided the exemption applied only to intra-agency memos in which officials discussed policy, Ford said. Since then, two cases have extended the exemption to covering negotiations with outside groups, he said.
"It just seems that in recent case decisions this exemption has been increasingly applied to new, broader contexts," he said.
SEE THE LETTERS
To see the redacted letter from the city of Bellingham to Costco, as well as Ferndale's letter to Bellingham regarding traffic impacts, click on these links: