AGO redacts internal emails about Perkins Coie amicus brief on litigation exemption

(The Center Square) – The Washington State Attorney General’s Office is claiming that email communications regarding an amicus brief filed in support of Perkins Coie’s federal lawsuit concerned anticipated or actual litigation by the AGO as the basis for redacting several emails.

The Center Square has appealed the exemption request, but the redactions were upheld.

In March, numerous AGO officials including Solicitor General Noah Purcell engaged in communication via email with both Perkins Coie and internally about an amicus brief it eventually filed the day after the private law firm sued over President Donald Trump’s executive orders cancelling its contracts and security clearance.

The Center Square obtained numerous emails in a batch of public records that were redacted under attorney work product privilege, which exempts “drafts, notes, memoranda, or research reflecting the opinions or mental impressions of an attorney or attorney's agent prepared, collected, or assembled in litigation or in anticipation of litigation.”

The emails contained the subject line “common interest privilege,” which exempts “communication between attorneys who have a common interest or a joint defense agreement that reveals opinions or mental impression of attorney, or information prepared, collected, or assembled in litigation or in anticipation of litigation.”

However, the AGO Public Records Office only redacted the emails under attorney work product privilege.

The Center Square appealed the records redaction in an email to Deputy Attorney General Christina Beusch, noting that the emails concerned an amicus brief for a lawsuit in which the AGO could not be a litigant or anticipated litigant.

The Center Square also inquired what litigation the AGO could have been planning in those emails.

In a letter to the Center Square, Beusch wrote that "the redacted text is internal AGO communications among attorney staff regarding the drafting and filing of an amicus brief by the AGO. The AGO is participating in the litigation as an amicus in the case. The attorneys were working in anticipation of filing the amicus brief. The discussions between and mental impressions of the attorneys engaged in the drafting and review of the brief are work product and are privileged. The work product privilege is not limited to just the party who filed the case that is the subject of the amicus brief."

The Center Square reached out to the Washington Coalition for Open Government for comment on the redacted emails, but the organization declined to comment.