(The Center Square) – The Washington Secretary of State’s Office has turned over unredacted attorney client privileged emails to The Center Square after it appealed the redactions of communication between SOS and the State Attorney General’s Office, though SOS insists it has not waived privilege.
The Center Square recently revealed that in the AGO’s draft response to Let’s Go Washington’s lawsuit to overturn a necessity clause in the newly enacted millionaires tax, former state Supreme Court clerk and now-Deputy Solicitor General Karl Smith speculated that the state high court might rule in favor of a referendum to prevent it from reaching them, implying that voters would overturn the tax.
Prior to the that story’s publication, SOS’s Public Records Office contacted The Center Square and said it had accidentally turned over unredacted attorney client privileged communications. The Center Square was requested to delete the records but did not do so.
When The Center Square reached out to the Washington Coalition for Open Government for comment on SOS’ request, Secretary George Erb wrote in an email that “disclosed government information enters the public domain and becomes part of the civic discourse. Accidental disclosures do happen. But ‘clawing back’ released information is more than an ‘Oops!’ moment. It erodes public confidence in our transparency laws and the agency that made the mistake. The burden is on the government to disclose everything the law allows and get it right the first time.”
The Center Square responded to SOS’s request by appealing the redaction of other records it obtained, noting that the AGO had publicly commented to the news outlet on attorney client privileged communications.
After a review, SOS’s Public Records Office turned over a previously redacted April 7 email by Smith sent to SOS staff summarizing the legal arguments they intended to use in their response to LGW’s lawsuit.
SOS Public Records Office noted in its email that “our counsel does not believe that attorney-client privilege is waived on all redacted records in this case.”
However, the email added that their legal counsel recommended releasing the April 7 email unredacted “in the interest of transparency.”
One of the legal arguments AGO intended to make, according to Smith’s email, is that “the emergency clause is not a sham.” The original draft bill for the millionaire’s tax did not contain a necessity clause; it was added after Purcell told its prime sponsor Sen. Jamie Pedersen, D-Seattle, that it should be added to prevent a referendum.
The tax does not take effect until 2028 and Department of Revenue does not begin collecting the tax until 2029.
“We also argue that they should have filed this lawsuit in superior court, but there’s a possibility that we will cut or shorten that argument,” Smith’s April 7 email to SOS states.
According to other unredacted communications obtained by The Center Square, Purcell cautioned against making this argument because the Supreme Court was as “favorable a venue as we’re likely to get.”
The state Supreme Court ultimately ruled against LGW and upheld the necessity clause, which prevents a referendum. An initiative ballot gathering process has since begun by LGW.
The Center Square recently attempted to speak with Chief Justice Debra Stephens about Smith’s comments, but she declined to comment besides saying “the opinions of the court speak for themselves.”
The Center Square also reached out to SOS requesting an interview with Secretary Hobbs to discuss the initial story, but did not receive a response.
