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Originally published May 27, 2013 at 9:15 PM | Page modified May 27, 2013 at 9:18 PM

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SPD admits it broke state law by withholding May Day memo

The Seattle Police Department has admitted it violated the state Public Records Act by withholding from The Seattle Times an internal memo about its response to the violent demonstrations of May Day 2012, and has agreed to pay $20,000 to the newspaper and its attorneys to avoid a lawsuit.

Seattle Times staff reporter

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The Seattle Police Department has admitted it violated the state Public Records Act by withholding from The Seattle Times an internal memorandum about the department’s response to the violent demonstrations of May Day 2012, and has agreed to pay $20,000 to the newspaper and its attorneys to avoid a lawsuit over the issue.

In a settlement agreement signed by Interim Police Chief Jim Pugel, the SPD “acknowledges that it had a duty to either produce the [report]” or cite a valid Public Records Act (PRA) exemption to its release.

“The Department agrees that ... it is never permissible to withhold the existence of a responsive document from a requestor or to improperly delay the release of documents,” a department statement says. “The department will reaffirm this message to the PRA staff and top department administrators.”

The Times filed a public-disclosure request for the memo in July after learning it contained a blistering internal review of the May Day response, particularly the interference in operational decisions by Assistant Chief Mike Sanford. The memo resulted in the SPD hiring an outside expert to review what happened.

Department commanders “believed that the report was subject to the deliberative process exemption, and that premature disclosure would prejudice the independent review,” according to the SPD statement.

But rather than informing The Times of that decision, as required by the Public Records Act, and giving the newspaper a chance to challenge the exemption in court, the department never officially acknowledged the memorandum existed, even though retiring Chief John Diaz talked about it in a story published in The Seattle Times on July 23.

Diaz acknowledged in April that he had ordered the memo withheld pending the release of the department’s own after-action report and an independent review conducted by retired Los Angeles Police Deputy Chief Mike Hillmann.

Those reports, both critical of the SPD’s preparations and response to vandalism during the May Day march, were released in April, nearly 11 months later.

The settlement was reached after the newspaper sent a letter to the SPD on May 9, alleging “egregious violations” of the Public Records Act, and demanded that the department acknowledge the violations and instruct staff and administrators that they cannot manipulate the release of public records “to serve other department goals.”

Otherwise, the letter said, The Times would sue and seek penalties and attorneys fees potentially amounting to hundreds of thousands of dollars.

The SPD agreed to pay the $20,000 to cover the newspaper’s legal fees and expenses.

“It is clear to us that this was a blatant violation of the state’s Public Records Act, and we felt it was not in the public’s interest to simply allow that violation to go by unchallenged,” said David Boardman, executive editor of The Times.

“We are gratified that the SPD acknowledges that such actions are ‘never permissible,’ and that they will take necessary measures to guard against this sort of violation in the future,” Boardman said.

The memo sought by The Times was written by Capt. Joe Kessler and sent to top chiefs Clark Kimerer and Nick Metz just weeks after the incident. It described contradictory orders, haphazard planning and operational interference by Sanford.

Sanford was removed as chief of the SPD’s patrol division shortly afterward.

Kessler complained that Sanford interfered with his command and, at one point during the violence, rushed into the crowd in plain clothes to make an arrest and had to be rescued by officers using pepper spray and batons.

The department was sharply criticized by downtown businesses for losing control of the streets to a small group of anarchists and vandals and having to respond with harsh tactics and force. After being called ill-prepared during last year’s May Day melee, police this year followed some of the recommendations that grew out of those failures.

The newspaper learned of the Kessler memo and on July 23 published a story in which Diaz said it raised “very serious” concerns. Indeed, Diaz would say later that Kessler’s observations led him to hire Hillmann.

The same day the story was published, Seattle Times reporter Mike Carter filed a public-disclosure request with the SPD asking for the memo’s release.

Between September and April, the department provided Carter with hundreds of May Day-related documents, but never the Kessler memo.

It formally closed the public-disclosure request April 3 upon the joint release of its official after-action report and the Hillmann report.

The afternoon of April 3, Carter confronted Diaz outside the City Council chambers. Diaz said he had deliberately withheld the Kessler memo because he was concerned it would distract from the department’s official report and Hillmann’s review.

Steve Miletich: smiletich@seattletimes.com or 206-464-3302.

Seattle Times staff reporter Mike Carter contributed to this report.

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