Posted November 20, 2014 by Cooper Point Journal in News

Police Use Terrorism Exemption to Deny Public Records

Former Evergreen Student Sues Washington State Patrol After Agency Cites Terrorism Exemption

By Josh Wolf

Austin Nolen wasn’t looking for anything in particular when he filed a public records request with the Washington State Patrol (WSP) regarding Olympia’s 2013 May Day demonstration.

“At that time, I was sort of in the phase of mind where if anything interesting happens—request records about it, and maybe you’ll find something interesting,” said Nolen, who is a former Evergreen student.

While Nolen did discover the state patrol’s Incident Action Plan for Olympia’s 2013 May Day demonstration, what was most interesting was the patrol’s explanation for blacking out, or redacting, portions of the plan.

The WSP redacted information from Nolen’s records request, claiming that the information was exempt from public disclosure because it was intended to “respond to criminal terrorist acts,” which are defined as “acts that significantly disrupt the conduct of government or of the general civilian population…and manifest an extreme indifference to human life,” according to the Public Records Act.

Nolen filed a civil suit against the WSP arguing that the agency “wrongfully withheld and redacted” his public records request “without a valid claim of exemption,” according to Nolen’s case argument. Nolen’s case is one of the only known challenges to the terrorism exemption, and argues that the acts the WSP described “do not amount to a concern about criminal terrorist acts,” meaning the records should not have been redacted.

Nolen’s case is one of the only known challenges to the terrorism exemption.

According to Washington state law, state agencies must give access to all public records, unless the records fall under a “specific exemption,” in which case the state agency must prove why that information is not available to the public.

Public records requests must also consider that “free and open examination of public records is in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others,” according to Washington state law.

It’s not uncommon for state agencies to redact information from public records requests. Certain information is exempt from public records, such as names, addresses, and other sensitive information that is not required to be disclosed to the public.

When Nolen first received his public records request from the state patrol, he noticed that the documents didn’t match up. The WSP has various inter-organizational departments, and while the requests are processed through a central department, individual departments process records requests separately.

Nolen noticed that different departments redacted different information: some departments redacted information claiming that it was exempt because it was related to a “criminal terrorist act,” while others released the information for Nolen to read.

One of the inconsistencies in the patrol’s redactions was related to protecting banks from rock throwers. In one version of state patrol documents regarding “Site security at the Chase Bank on 9th and Capitol,” the WSP wrote: “Do not fall for diversionary tactics; ie. A suspect throws a rock at the window and runs away. Don’t chase and then five new suspects attack the bank while you’re chasing the distraction causing subject.”

In another copy of the same document released to Nolen, this information was redacted, and the state patrol claimed that it was exempt from disclosure because the information was intended to “respond to criminal terrorist acts.” By citing this terrorism exemption, the WSP implied that “diversionary tactics,” such as rock throwing, are terrorism.

Another inconsistency that Nolen’s case points out is the release of officer contact information, while another copy of the same document redacted the same contact information.

The WSP admitted in their Motion for Summary Judgment that “due to an administrative oversight, the agency withheld” some information “that is not exempt under” Washington state law. The WSP also admitted to a degree of fault by making a “clerical error” in the records request sent to Nolen, and said that the Thurston County Superior Court should award Nolen some amount of money.

Leading up to Olympia’s May Day 2013 demonstration, the state patrol was concerned that “potentially large incidents of criminal behavior will occur,” according to WSP documents obtained from Nolen’s records request. The state patrol wrote that buildings were “damaged and defaced,” in previous May Day events, and that “Groups known as ‘anarchists’ and ‘black block’, among others, have indicated an intention to create disturbances, specifically targeting banks and governmental representations.”

The WSP also mentioned the grand jury investigation into Seattle’s 2012 May Day demonstrations, in which former Evergreen students, and others who live in Olympia were incarcerated and ordered to testify, but refused to cooperate. “These suspects have been hailed as heroes for their refusal to speak against fellow protesters while under grand jury orders to do so,” writes the WSP.

Nolen’s case argues that the WSP’s concerns may have been justified, but these concerns did not amount to terrorism, and that the information should not have been redacted. “While certainly WSP may have had legitimate cause for concern about property damage, and perhaps assaults on officers, these concerns do not amount to a concern about criminal terrorist acts…And more importantly, these acts do not manifest an extreme indifference to human life,” according to Nolen’s case argument.

The next hearing in the case is set for December 19 at the Thurston County Superior Court.