Employment Security Department pays $100,000 settlement in lawsuit over public records delays

The state Employment Security Department has paid $100,000 — and agreed to changes in handling of public-records requests — to settle a lawsuit over lengthy delays in turning over records.

Lynn Brewer, a mediator and business consultant, filed the lawsuit in November after growing frustrated with ESD dragging out a response to her request for documents related to a massive unemployment fraud scheme that stole nearly $650 million.

Brewer had filed her request, including communications between then-ESD Commissioner Suzi LeVine and Gov. Jay Inslee, under Washington’s Public Records Act on June 6, 2020, but by the time of her lawsuit had not received a single email or other document from ESD.

Brewer hired Tacoma attorney Joan Mell and sued the agency on Nov. 13 in Thurston County Superior Court, alleging ESD had violated the public-records law with “unreasonable” delays in providing responsive records.

The lawsuit contended the delays undercut Brewer’s effort to get to the bottom of how ESD had been defrauded — and to potentially file a class-action lawsuit to help thousands of Washingtonians who suffered as legitimate unemployment claims languished for months.

In an interview Tuesday, Brewer, a Kittitas County resident who calls herself “an accidental activist,” said this was her first records request filed in Washington and she didn’t know what to expect from the agency. She was not impressed.

“At the core of this is either incompetence, or they [ESD] certainly didn’t see the urgency to get out the information,” she said.

The Public Records Act says state and local agencies must respond to records requests within five days and provide an estimated time frame for the release of documents. It says agencies must provide “the most timely possible action.” But requesters have little recourse apart from lawsuits when agencies delay their responses for months.

In pursuit of Brewer’s lawsuit, Mell conducted depositions of ESD records officials, and the case had been set for a key summary judgment hearing this month before the settlement.

In the settlement, in addition to the $100,000 payment which went out last week, ESD agreed to alter some of its records procedures.

The agency will no longer provide notices to employees before the release of records, “when notice is not legally required or permissible.” Such notices by public agencies have typically slowed the release of records.

ESD also said it would revise its policy concerning employees’ use of text messages to conduct business, prohibiting them using cellphone text or chat applications — or to retain any such communications if they do.

In a statement Tuesday, ESD Commissioner Cami Feek cited the “historic demand and backlogs” facing the agency last year. The agency typically received about 50 “relatively simple” records requests a year, she said, but that skyrocketed in 2020, with requests covering “more than one million pages of records,” each requiring review and redactions before release.

“This workload came at the same time as a once-in-a-lifetime unemployment crisis and a never before seen criminal fraud attack. To address these challenges, we have added additional staff and updated our technology and processes in order to avoid the unfortunate delays that requesters experienced this past year and a half,” Feek said.

ESD spokesperson Nick Demerice said in an email the agency has boosted its public records unit from a single employee to three and has bought a new computer system to manage requests.

Brewer said she has received several installments of records from ESD since filing her lawsuit, but is still awaiting a complete response, more than a year after her initial request.

ESD has recovered $370 million of the nearly $650 million stolen by fraudsters, including some linked to international crime rings. Over the last couple of months, federal prosecutors have charged two Nigerian men for allegedly stealing benefits from ESD using stolen identities and simple email hacks.

Meanwhile, the Washington Coalition for Open Government (WCOG) this week honored Brewer with its Key Award for her battle to hold ESD accountable. The nonprofit public records watchdog group gives out the periodic awards to people and organizations for notable actions for the cause of open government.

“Citizen vigilance is the key to keeping government open and transparent. Lynn Brewer epitomizes that idea. She wouldn’t take no for an answer, and WCOG is proud to honor her,” said WCOG President Mike Fancher, a former Seattle Times executive editor, in a news release.

Brewer said she decided to settle, in part, because of the lawsuit’s growing costs and the risk that courts could rule sympathetically toward ESD’s argument that its records delays arose from the unique circumstances surrounding the COVID-19 pandemic.

“I want the system fixed. The money paid the attorney’s fees, but I want that system fixed,” Brewer said. “I do intend to hold them accountable.”