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Deposition of John Pennington Block v. Snohomish County Department of Emergency Managem

BUELL REALTIME REPORTING, LLC 206 287 9066 Page

1 THE SUPERIOR COURT OF THE STATE OF WASHINGTON

2 IN AND FOR SKAGIT COUNTY

3 ________________________________________________________

4 ANNE BLOCK, ) 5 )

Plaintiff, ) 6 )

vs. ) 7 )No. 11-2-01357-2

SNOHOMISH COUNTY ) 8 DEPARTMENT OF EMERGENCY )

MANAGEMENT, ) 9 )

Defendant. )10

________________________________________________________11

12

13

14 DEPOSITION UPON ORAL EXAMINATION OF

15 JOHN PENNINGTON

16

17 Taken at

18 3000 Rockefeller Avenue Everett, Washington 98201-4046

19

20

21

22

23

24 DATE TAKEN: Tuesday, May 1, 2012

25 REPORTED BY: Sherilynn McKay, RMR, CRR, CCR 3236

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1 A P P E A R A N C E S

2

3 FOR ANNE K. BLOCK, ESQ. PLAINTIFF: LAW OFFICE OF ANNE K. BLOCK

4 115 3/4 W. Main Street Suite 204 Old Savoy Building 5 Monroe, Washington 98272

[email protected] 6

FOR SARA Di VITTORIO, ESQ. 7 DEFENDANT: SEAN D. REAY, ESQ.

SNOHOMISH COUNTY 8 3000 Rockefeller Avenue

M/S 504 9 Everett, Washington 98201-4046

[email protected] [email protected]

11

12 ALSO PRESENT Krista Dashtestani, Paralegal,

13 Law Office of Anne K. Block

14 Robert G. Lenz, Operations Manager, Snohomish County

15

16 *******

17

18

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20

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25

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1 I N D E X

2

3 EXAMINATION PAGE JOHN PENNINGTON

4 EXAMINATION BY MS. BLOCK........................ 5

5

6 - - -

7 E X H I B I T S

8 PAGE

9 Exhibit 1 ......................................

E-mail chain, top e-mail dated 4/5/09 from 1510 [email protected] to [email protected]

11 Exhibit 2 ......................................

12 Access document 30

13 Exhibit 3 ...................................... web page, Zimbra Collaboration Suite, 44

14 8/11/10

15 Exhibit 4 ...................................... Web page, Zimbra Collaboration Suite, 4616 5/20/10

17 Exhibit 5 ...................................... Declaration of Susan Forbes, 4/2/12 47

18 Exhibit 6 ......................................

19 E-mail string, top e-mail dated 5/2610 57 from [email protected] to

20 [email protected]

21 Exhibit 7 ...................................... E-mail string, top e-mail dated 7/222/09 60

22 from Kevin Prentiss to John Pennington

23 Exhibit 8 ...................................... E-mail dated 6/8/09 from John Pennington 61

24 to Diana Rose

25

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1 Exhibit 9 ...................................... E-mail chain, top e-mail dated 12/13/10 63

2 from John Pennington to Larry Calter

3 Exhibit 10 ..................................... Plaintiff's Second Set of Interrogatories 77

4 Exhibit 11 ..................................... 5 Complaint for Access to Public Records 90

6 Exhibit 12 ..................................... Claim for Damage Form 98

7

8

9 - - -

10

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25

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1 SEATTLE, WASHINGTON; May 1, 2012

2 10:18 a.m.

3 -o0o-

4

5 JOHN PENNINGTON witness herein, having

6 been first duly sworn on

7 oath, was examined and

8 testified as follow:

9

10 EXAMINATION

11 BY MS. BLOCK:

12 Q. My name is Anne Block. I'm here to depose John

13 Pennington in Block versus Snohomish County. Today is

14 May 1st, and it's approximately 10:20 a.m.

15 Mr. Pennington, have you ever been deposed

16 before?

17 A. Yes.

18 Q. When?

19 A. I was deposed through two family law cases, and

20 have been deposed for a traffic accident back when I was

21 a teenager.

22 Q. I'm sorry. I'm hearing impaired, so I'm going

23 to ask that you speak up a little bit here. So if you

24 could repeat the last statement that you made about the

25 car accident.

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1 A. Car accident, as a teenager, I was a witness.

2 Q. Okay. Could you spell your legal name for the

3 record?

4 A. My name is John Edward Pennington, Junior.

5 J-O-H-N, E-D-W-A-R-D, Pennington, P-E-N-N-I-N-G-T-O-N.

6 Q. Could you tell me where you're employment.

7 A. The Snohomish County Department of Emergency

8 Management.

9 Q. Who is your direct report?

10 A. My direct report is to Gary Haakenson, deputy

11 executive.

12 Q. Do you have any health problems that would

13 prevent you from telling the truth today?

14 A. No.

15 Q. Do you realize that you're under oath here today

16 and it carries the same weight as though you're in a

17 court of law?

18 A. Yes.

19 Q. In preparation for your deposition today, who

20 have you spoken to?

21 A. The two individuals in this room, Sean Reay and

22 Sara Di Vittorio.

23 Q. Mr. Pennington, do you understand why you're

24 here today?

25 A. No, I do not.

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1 Q. Plaintiff Anne Block filed a public records

2 request to the Department of Emergency Management, and

3 basically the Department of Emergency Management claimed

4 that it didn't withhold any records, and it didn't

5 provide an exemption log for the withheld records.

6 That's pretty much a public records suit. Are you

7 familiar with the Public Records Act?

8 A. I'm familiar with elements of the Public Records

9 Act.

10 Q. Tell me what you know.

11 A. I'm not the public records officer for my

12 department, so I am not that familiar with the Public

13 Records Act.

14 Q. Okay. Well, tell me what you do know.

15 A. Retention of public records, holding onto them

16 if they are in the public's interest.

17 Q. Would you consider an e-mail to be a public

18 record?

19 A. Yes, I would.

20 Q. Could you tell me what classes you've taken to

21 support the Public Records Act? Have you taken any

22 class whatsoever?

23 A. We've had internal training at the Department of

24 Emergency Management in the past couple of years.

25 Q. Okay. Tell me a little bit about your training.

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1 A. It was just training. It was an understanding

2 of retention schedules, an overview, but my direct

3 involvement with that has basically been just to archive

4 e-mails.

5 Q. Do you have any agreements with anyone, any City

6 entity, public official, which in any way relates to the

7 e-mails that are in question in this lawsuit?

8 A. No.

9 Q. Does the County, to the best of your knowledge,

10 have any agreements with any City government official,

11 past or present, which in any way relates to this

12 lawsuit?

13 A. No.

14 Q. You mentioned that you would archive e-mails.

15 Tell me exactly how you would archive e-mails.

16 A. I place e-mails after an extensive period of

17 time into what I believe is called the P drive. I have

18 archive folders for 2010, '11, pre-2007. Basically when

19 my in boxes start filling up I archive them in what is

20 known as a P drive.

21 Q. In this particular suit, e-mails that are

22 relevant to this suit, where exactly are the e-mails

23 that are in question in this suit?

24 A. I've not done anything with those e-mails other

25 than keep them on the system. They've been --

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1 Q. Did you have any discussions with anybody in the

2 County besides counsel here which in any way relates to

3 these e-mail records?

4 A. I need you to clarify that question.

5 Q. Okay. Have you had any discussions with anybody

6 which in any way relates to the e-mails that are in

7 question in this lawsuit, besides counsel here?

8 A. Yes. Diana Rose, my public records officer,

9 inside the department.

10 Q. So tell me a little something about your

11 conversations with Diana Rose.

12 A. My conversations with Diana Rose have basically

13 been about what the process is in this lawsuit of

14 retracting e-mails from the system.

15 Q. Did you ever instruct her to withhold any

16 e-mails?

17 A. I've never instructed Diana Rose to do anything

18 with e-mails.

19 Q. So if the City of Gold Bar released e-mails that

20 the County didn't release, for example, that were

21 relevant to your communication, do you have any idea

22 where those e-mails might be?

23 A. That's not my determination. That's the City of

24 Gold Bar's determination.

25 Q. Okay. It's -- if it's your e-mail

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BUELL REALTIME REPORTING, LLC 206 287 9066 Page:

1 communication, would you agree that it's your public

2 record?

3 A. I want you have to ask the question again.

4 Q. Okay. If it's your e-mail, if this is your

5 e-mail communication, and it relates to County business,

6 would you agree that that's a public record?

7 A. Yes.

8 Q. Okay. And so if the County didn't turn over

9 e-mails that were communication from you to the City of

10 Gold Bar in any way, that would be a public record,

11 would it not?

12 A. I'm trying to understand your question, of

13 whether or not you're trying to get me to define what a

14 public record is or is not.

15 Q. You haves already defined what a public record

16 was, Mr. Pennington. Now I'm asking you if a public

17 record was not turned over by the County, but it was

18 turned over by the City of Gold Bar, and it had -- it

19 was your communication, and not somebody else's in the

20 County, in other words, just yours, would you say that

21 if out were about County business, that it should have

22 been turned over?

23 A. I'm not going to answer that question because I

24 think it's not an appropriate -- there's not an

25 appropriate answer. I do not have anything to do with

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1 what is released from my department about my e-mails.

2 If Gold Bar has released an e-mail, and the County has

3 not, I am not that individual who knows anything about

4 it.

5 Q. Okay. So how do you know Crystal Hill?

6 MS. Di VITTORIO: Objection. That goes beyond

7 the scope of both this deposition --

8 MS. BLOCK: No, it does not go beyond the scope.

9 MS. Di VITTORIO: Please, let me have my

10 objection for the record, Ms. Block.

11 MS. BLOCK: Go for it.

12 MS. Di VITTORIO: Thank you.

13 The scope of this deposition is Public Records

14 Act, and their production of public records. His

15 relationship and/or knowledge of Crystal Hill is not

16 relevant to those determinations.

17 You can go ahead and answer the question,

18 Mr. Pennington.

19 THE WITNESS: You are all aware that Crystal

20 Hill is my wife.

21 BY MS. BLOCK:

22 Q. Let's go back. Let me clarify that request. In

23 2009, from January 1st, 2009, through June 1st, 2010,

24 who were you married to?

25 MS. Di VITTORIO: Objection. It goes beyond the

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1 scope of this deposition. This lawsuit is about public

2 records requests submitted between April of 2009 and

3 November of 2010. Who he was married to at any time in

4 that time period is not relevant to the issues before

5 the court, and I would ask you to rephrase your

6 question.

7 MS. BLOCK: I'm not going to rephrase my

8 question.

9 BY MS. BLOCK:

10 Q. Answer the question, Mr. Pennington.

11 A. I'm not going to answer the question.

12 Q. Mr. Pennington, you're under a court order today

13 to answer a question. All I'm asking you is to

14 basically tell me what your relationship was during the

15 time period that's relevant to this suit between you and

16 Crystal Hill.

17 MS. Di VITTORIO: So is your question who was he

18 married to between April of 2009 --

19 MS. BLOCK: I need to know who he was married

20 to --

21 MS. Di VITTORIO: -- and November -- can you

22 please let me speak, so we're not doing -- over the

23 court reporter?

24 MS. BLOCK: Ms. Di Vittorio, you're interfering

25 with my deposition. If you want to depose your client,

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1 feel free to. This is my deposition here today. Okay?

2 MS. Di VITTORIO: Ms. Block --

3 MS. BLOCK: You're interrupting over questions

4 that are absolutely relevant to the issue at hand, and I

5 have a right to establish a foundation here. All I'm

6 asking Mr. Pennington -- I'm not interested in his

7 personal relationship. All I'm asking him is who was he

8 married to at the time. This establishes that he was

9 not married to Crystal Hill.

10 MS. Di VITTORIO: So is your question was he

11 married to Crystal Hill during the time period relevant

12 to this lawsuit?

13 BY MS. BLOCK:

14 Q. Were you married to Crystal Hill between

15 April 1st, 2009, and June 1st, 2010?

16 A. No.

17 Q. Do you know what her position was,

18 Mr. Pennington, at the time between the lawsuit -- these

19 are all going to be relevant to the time period of the

20 lawsuit.

21 MS. Di VITTORIO: I appreciate your specificity,

22 Ms. Block. Thank you.

23 THE WITNESS: Crystal Hill was the mayor of Gold

24 Bar for a portion of that period of time.

25

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1 BY MS. BLOCK:

2 Q. During that time period, during the time period

3 that's relevant to the suit -- which that's what we're

4 going to stick to, Sara -- did you ever send e-mail

5 communication to her?

6 A. Yes.

7 Q. And between April 1st, 2009, and May 31st, 2009,

8 did you send e-mail communication to her during that

9 time period? Would that be a probable e-mail release?

10 Would you have sent an e-mail to her?

11 MS. Di VITTORIO: I think that was two separate

12 questions.

13 MS. BLOCK: Okay. Yeah.

14 BY MS. BLOCK:

15 Q. Would you have communicated with her via e-mail

16 during that time period?

17 A. Yes.

18 Q. Okay. And during the time period of April 2009

19 through April 30th, 2009, if I told you that the County

20 turned over one e-mail during that relevant time period

21 for your entire e-mail communication, would that be kind

22 of shocking to you?

23 MS. Di VITTORIO: Are you talking communication

24 with Ms. Hill?

25 MS. BLOCK: I'm talking in general, all e-mail

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1 communication from you, from your communication system,

2 that they turned over one e-mail in April 1st, 2009,

3 through April 30th, 2009.

4 THE WITNESS: I really don't have any emotion or

5 response to it.

6 BY MS. BLOCK:

7 Q. How many e-mails a day do you receive,

8 Mr. Pennington?

9 A. Probably between 50 and a hundred.

10 Q. Could you tell me for the record what e-mail

11 addresses you use?

12 A. Yeah. [email protected],

13 [email protected], [email protected],

14 [email protected], it used to be

15 [email protected], and [email protected].

16 Q. So for any of these e-mails that you just

17 listed, could you tell me whether or not you've used any

18 of them for County business?

19 A. No, not for County business.

20 (Exhibit 1 was marked.)

21 BY MS. BLOCK:

22 Q. Have you had a chance to review this,

23 Mr. Pennington?

24 A. Uh-huh.

25 Q. Can you tell me a little bit about what this

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1 e-mail is, and who it's from, who started the e-mail?

2 A. Well, it appears to be an e-mail from me.

3 Actually, it appears to be an e-mail that originated

4 with William Ekse, E-K-S-E. He is the urban area

5 security initiative, or UASI, Homeland Security director

6 for my department. He sent to me an e-mail that was

7 regarding funding for Snohomish County through this

8 particular federal grant over a period of time. It

9 appears as though he forwarded that to me on Friday,

10 April the 3rd.

11 I in turn sent that to my direct employers,

12 although it appears as though in this train that the

13 e-mail address from which it came is not included. It

14 went to my supervisors, and then it appears as though I

15 forwarded that e-mail to myself at Verizon.net so that I

16 could show my wife what a good job my department has

17 done.

18 Q. Well, you raise an interesting point. Being

19 that you raised it, we will ask you again the question,

20 since you brought it up, Mr. Pennington, on April 5th,

21 2009, when the e-mail was recorded, were you married to

22 Crystal Hill, your wife, at the time?

23 A. No.

24 Q. So it would be correct on April 5th, 2009, she

25 wasn't your wife.

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1 A. I think we've established that.

2 Q. Okay. That's fine.

3 So can you explain to me why this e-mail would

4 not have been turned over from the County?

5 A. I had no knowledge of what records have and

6 haven't been turned over from either Gold Bar or the

7 County.

8 Q. And so let's talk a little bit about Gold Bar,

9 being that this is really a Gold Bar e-mail that was

10 accidentally released. When is the last time you had

11 any conversations with anybody from the City of Gold

12 Bar?

13 MS. Di VITTORIO: Again, relevance. I'll

14 object. This is about production under the Public

15 Records Act of e-mails between April of 2009 and

16 November of 2010.

17 I am assuming based on your previous statement

18 that you're asking him to confine his answer to the time

19 period relevant to this lawsuit.

20 MS. BLOCK: That's absolutely right, and that is

21 still a standing statement.

22 THE WITNESS: What are the relevant dates?

23 BY MS. BLOCK:

24 Q. The relevant dates are April 1st, 2009, through

25 November 6, 2010.

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1 A. What is the question?

2 Q. The question is, Mr. Pennington, when is the

3 last time that you had any conversations with anybody

4 from the City of Gold Bar.

5 MS. Di VITTORIO: Between April 1st, 2009, and

6 November 6, 2010.

7 MS. BLOCK: And that is a standing. We're here

8 over public records, Mr. Pennington, that weren't turned

9 over.

10 THE WITNESS: If you'd like for me to answer the

11 question, I don't know who I met with within that time

12 frame from the City of Gold Bar, but I assure it

13 probably was either John Light, who is the public

14 records director, I probably appeared before the City

15 Council, because I'm pretty sure your organization was

16 videotaping me there, and anyone else such as Denise

17 Beaston, in the course of my work as emergency manager.

18 BY MS. BLOCK:

19 Q. Do you know who Joe Beavers is?

20 A. I'm very familiar with Joe Beavers. He's the

21 current mayor of Gold Bar.

22 Q. Okay. Could you tell me when the last time is

23 you spoke to Joe Beavers?

24 MS. Di VITTORIO: During the time period

25 relevant to --

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1 MS. BLOCK: I said, Sara, this is the standing

2 statement.

3 MS. Di VITTORIO: And I appreciate that, but for

4 the clarity of the witness, it's probably useful to be

5 specific when you're saying questions like when was the

6 last time.

7 MS. BLOCK: We're leaving it as a standing.

8 April 1st, 2009, through November 6, 2010, that is the

9 relevant time period during this lawsuit.

10 THE WITNESS: Is there a question?

11 BY MS. BLOCK:

12 Q. I just asked you a question, Mr. Pennington.

13 A. I heard a statement. Would you repeat the

14 question?

15 Q. Yeah, sure.

16 MS. BLOCK: Court reporter, could you repeat the

17 last question that I asked Mr. Pennington, about

18 Mr. Beavers?

19 (The record was read by the reporter as follows:

20 "Question: Could you tell me when the last time

21 is you spoke to Joe Beavers?")

22 THE WITNESS: Between that time frame, I don't

23 remember meeting with Joe Beavers outside of perhaps one

24 time a general meeting with him for breakfast to get to

25 know him.

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1 BY MS. BLOCK:

2 Q. When was that?

3 A. I don't recall.

4 Q. What was the conversation about?

5 A. The conversation was about him potentially

6 running for mayor.

7 Q. So you had a conversation with Joe Beavers. Did

8 Mr. Beavers ever meet at your house?

9 MS. Di VITTORIO: Objection. Relevance. How

10 does that relate --

11 MS. BLOCK: During the time period.

12 MS. Di VITTORIO: How does that relate to the

13 public records request -- can I please finish my

14 statement?

15 MS. BLOCK: You're interrupting my deposition.

16 If this continues --

17 MS. Di VITTORIO: It will continue as long as

18 your question ceases to be relevant to the facts of this

19 lawsuit.

20 MS. BLOCK: This is my deposition. If you want

21 to depose Mr. Pennington yourself, you can do that.

22 Otherwise, unless you have a valid objection here, I'm

23 asking that you clearly state it for me. Just objecting

24 saying -- questioning my questions is not going to hold

25 water here today. Okay? This is not your forum. This

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1 is mine. You want to reverse that and depose

2 Mr. Pennington, that is your choice. This is my

3 deposition today. I asked Mr. Pennington when, if he

4 ever met with Joe Beavers at his house.

5 MS. Di VITTORIO: Objection. Relevance. The

6 scope of this lawsuit is what records were turned over

7 in response to a public records request for the time

8 period between April 1st, 2009, and November 6th, 2010.

9 Whether or not he met with anyone at his home is not

10 indicative of whether or not a public record was created

11 or produced.

12 MS. BLOCK: Okay.

13 BY MS. BLOCK:

14 Q. Mr. Pennington, did Joe Beavers ever meet with

15 you at your home to discuss public records that are

16 relevant to this suit?

17 MS. Di VITTORIO: Go ahead and answer the

18 question.

19 THE WITNESS: No.

20 BY MS. BLOCK:

21 Q. Have you actually ever reviewed any deposition

22 transcript of Joe Beavers?

23 MS. Di VITTORIO: Objection. Relevance.

24 MS. BLOCK: During the time period. Again,

25 Sarah, I told you that there is a standing time period,

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1 April 1st, 2009, through November 6, 2010.

2 MS. Di VITTORIO: Objection, relevance as to the

3 issues of this lawsuit.

4 Go ahead and answer the question.

5 THE WITNESS: I'm not even sure I understand the

6 question.

7 BY MS. BLOCK:

8 Q. Mr. Pennington, I asked you whether or not

9 you've ever reviewed a deposition transcript of Gold

10 Bar's mayor, Joseph Beavers.

11 MS. Di VITTORIO: Objection. The same

12 objection.

13 Go ahead and answer.

14 THE WITNESS: No.

15 BY MS. BLOCK:

16 Q. Do you believe Mr. Beavers to be an honest

17 person?

18 MS. Di VITTORIO: Objection. Relevance as to

19 the issues of this lawsuit.


21 THE WITNESS: I have no opinion one way or the

22 other.

23 I'd like to take a break.

24 MS. Di VITTORIO: We can do that.

25 MS. BLOCK: Sure.

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1 Off the record, please.

2 (A break was taken from 10:41 a.m. to 10:44 a.m.

3 MS. Di VITTORIO: So on the record we'd like to

4 note a standing objection to any questions that go

5 beyond the subject matter of this lawsuit, which are

6 records, public records requested for the time period of

7 April 1st, 2009, through November 6th, 2010.

8 THE WITNESS: And what date?

9 MS. Di VITTORIO: November 1st.

10 And the search for those responsive records.

11 Thank you.

12 MS. BLOCK: And I'm going to actually counter

13 that for the record, so I can actually see that on the

14 transcript that we're today talking about public records

15 disseminated by or received by Mr. Pennington from

16 April 1st, 2009, through November, I believe 6th, 2010.

17 MS. Di VITTORIO: I apologize. It is the

18 November 6th. Thank you.

19 MS. BLOCK: So anything within the scope of that

20 falls within the court order by Judge Meyers, in my

21 opinion.

22 BY MS. BLOCK:

23 Q. Between 2009 and 2010, the areas that are

24 relevant to this lawsuit, were you assigned any kind of

25 computer system, Mr. Pennington, such as a laptop

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1 device?

2 A. No, not within that time frame at all. Just

3 my -- I think that I had a new computer put in, and I

4 can't remember the exact date, but the old one was

5 outdated, and I have no idea when that was.

6 Q. So would that be between the relevant dates?

7 A. I said I don't know.

8 Q. Okay. And I'm hearing impaired, so I'm going to

9 ask that you speak up a little bit.

10 A. I said I don't know.

11 Q. Okay. I only have 65 percent hearing in my

12 right ear, my left ear is completely deaf.

13 During the relevant time period, were you

14 assigned any Blackberry devices?

15 A. I was.

16 Q. During 2009, how many Blackberry devices were

17 you assigned?

18 A. I only carried one Blackberry, and that

19 Blackberry may have been changed out over time because

20 of technology advances. I don't recall.

21 Q. So from 2009 you were using a Blackberry device.

22 A. Yep.

23 Q. Was it the same Blackberry device in 2010?


25 Q. Okay. So would it be fair to say that you were

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1 using a Blackberry device in 2010 as well?

2 A. That's fair to say.

3 Q. Has anyone searched the Blackberry device for

4 responsive records to this lawsuit?

5 A. All I know is that the records have been

6 researched and every e-mail that I've sent has been

7 pulled off the computer through the Department of

8 Information Services.

9 Q. So if an e-mail showed up from you to the City

10 of Gold Bar during the relevant time period, but it

11 wasn't turned over from the County, would there be any

12 reason why that might happen?

13 A. I have no idea. That is not my decision.

14 Q. So you mentioned Diana Rose a little earlier.

15 She's the public records officer for your department?

16 A. Yes.

17 Q. Did you ever have any communications with her

18 about the e-mails that are relevant to this suit?

19 A. We've had conversations about e-mails, and the

20 process, more than anything else.

21 Q. Tell me about the process that you're referring

22 to in your last statement.

23 A. The process is I write, send e-mails, I receive

24 e-mails, she takes e-mail requests from you, which are

25 30 percent of my department's budget now, and she deals

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1 with them, and I don't see them again. That is the

2 process.

3 Q. So she basically would then go get the records?

4 A. I don't know.

5 Q. Okay. All right.

6 Now, the reason why we're here today is because

7 we're getting records from one place and not getting

8 them from the other place, which is the County hasn't

9 turned over their records. Now, we talked a little bit

10 about Diana Rose, and how she's the public records

11 officer for your department. Do you know if Diana Rose

12 is part of the public disclosure committee for Snohomish

13 County?

14 A. I do not know that.

15 Q. Would you have any knowledge whether or not

16 she's having any meetings about records that are

17 relevant to this suit with the Snohomish County

18 executor?

19 A. I don't know the organization you're talking

20 about. Diana Rose is my finance and admin specialist.

21 She is the finance and administration section chief in

22 the emergency operation center, and because of these

23 lawsuits and other issues she is the public records

24 officer for the Department of Emergency Management, who

25 she liaisons with. Outside of that, I don't know.

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1 Q. Let me ask you a question about your

2 supervision. Do you supervise Ms. Rose?

3 A. No, I do not.

4 Q. She's not a direct report to you?

5 A. That is correct.

6 Q. So who is she a direct report to, to the best of

7 your knowledge?

8 A. It's not to the best of my knowledge, it is my

9 knowledge.

10 Q. Okay. Great.

11 A. Tamara Doherty, D-O-H-E-R-T-Y, my deputy

12 director.

13 Q. So who exactly would you supervise in your

14 department? I'm trying to understand the dynamics of

15 your department in the public records here. Now, you

16 don't supervise Diana Rose, she directly reports to

17 Tamara Doherty. So who in your department would report

18 directly to you?

19 A. Doherty Doherty.

20 Q. So that's the only person in your department.

21 So that's the one person that you supervise?

22 A. Yes.

23 Q. So has Ms. Doherty ever received a public

24 records request that's relevant to this suit, or

25 searched the records in any way?

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1 A. I have no idea.

2 Q. So Ms. Doherty is --

3 A. Her name is pronounced Doherty.

4 Q. Okay. Well, excuse me, Mr. Pennington, I am

5 hearing impaired, so you're going to be hearing a little

6 speech impediment here, and you're just going to have to

7 suffer with that.

8 So Ms. Doherty, her function at Department of

9 Emergency Management, what is exactly her job title?

10 A. She is the deputy director for the Department of

11 Emergency Management.

12 Q. So has Ms. Doherty ever searched the records?

13 A. I believe I answered that I don't know.

14 Q. Okay. You said you don't know. Okay.

15 So how do you know Ms. Doherty outside, let's

16 say Department of Emergency Management, other than

17 Department of Emergency Management? Do you know what

18 her background is?

19 A. I do.

20 MS. Di VITTORIO: I'll renew my standing

21 objection.


23 THE WITNESS: I was the director of Federal

24 Emergency Management Agency for Region 10. You're well

25 aware of that. Tamara Doherty was my deputy director at

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1 the Federal Emergency Management Agency for Region 10.

2 BY MS. BLOCK:

3 Q. Okay. So Tamara Doherty followed you over from

4 FEMA to the County.

5 A. No. Tamara Doherty retired, and then she

6 applied to be the deputy director and I hired her.

7 Q. Okay. All right. So you hired Tamara Doherty

8 as the deputy director. When did you hire her? What

9 year?

10 A. I don't recall. I believe 2007.

11 Q. Do you know who Chuck Lie is?

12 A. No, I do not.

13 I know who Chuck Lie is. I have never met or

14 talked to him personally. I know who he is, only

15 through you and your website.

16 Q. You've never met Mr. Lie personally?

17 A. I have presented I think one time to the City of

18 Gold Bar, that he may have been a City Council member

19 there, but I do not recall meeting him ever personally.

20 Q. As director of Emergency Management, do you

21 possess Homeland Security clearance?

22 MS. Di VITTORIO: I'll renew the standing

23 objection.


25 THE WITNESS: I'm not going to answer that

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1 question because of my responsibilities and duties to

2 the Department of Emergency Management and other

3 responsibilities I may have as a federal employee.

4 BY MS. BLOCK:

5 Q. Well, Mr. Pennington, you're here today on a

6 court order. You do have to answer the questions

7 whether you like it or not.

8 A. I respectfully decline answering that question.

9 Q. Mr. Pennington, you're here under court order to

10 answer the questions.

11 A. I respectfully decline.

12 Q. Your attorney made an objection. I want an

13 answer whether you hold Homeland Security clearance.

14 A. I respectfully decline to answer the question.

15 MS. BLOCK: Exhibit 2.


17 BY MS. BLOCK:

18 Q. To the best of your knowledge, when you get a

19 chance to review those, could you tell me what exactly

20 this is a copy of? And this is just to the best of your

21 recollection.

22 A. I am under the impression that this is what I

23 now understand is an access document, and I do not

24 understand what access stands for, and I see your name

25 all throughout it.

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1 Q. Mr. Pennington, if you believe this to be an

2 access record, because it took me some time to figure

3 out how to get my hands on this access record, if you're

4 coming through the page, through the middle of the first

5 page, right through to the last page, you mention that

6 you see that it was my record, or at least it appears to

7 be.

8 A. I'd like to clarify. No. I don't know what

9 this document is, but I do know that that is what I

10 believe your name is.

11 Q. Okay. All right. I appreciate that.

12 If council member Chuck Lie stated that you

13 disseminated this record, via e-mail communication in

14 the County, would that be a true statement?

15 MS. Di VITTORIO: Objection. Calls for

16 speculation, and --

17 MS. BLOCK: During the relevant time period,

18 Sara.

19 MS. Di VITTORIO: And the standing objection.

20 Go ahead and answer the question.

21 THE WITNESS: Can you repeat the question?

22 MS. BLOCK: Court reporter, could you repeat the

23 last question.


25 "Question: If council member Chuck Lie stated

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1 that you disseminated this record, via e-mail

2 communication in the County, would that be a true

3 statement?")

4 THE WITNESS: I'm sorry. State it again.

5 (The record was read by the reporter as above

6 recorded.)

7 THE WITNESS: No, I don't believe that that's a

8 true statement.

9 BY MS. BLOCK:

10 Q. On Exhibit 2, Mr. Pennington, is that the first

11 time that you've seen Exhibit 2?

12 A. No.

13 Q. Where else have you seen that?

14 MS. Di VITTORIO: Objection. The standing

15 objection.


17 THE WITNESS: I saw this about three weeks ago,

18 three to four weeks ago, when it was sent to my house.

19 BY MS. BLOCK:

20 Q. Somebody sent that to your house?

21 A. It was sent --

22 MS. Di VITTORIO: Standing objection.


24 THE WITNESS: Sure. It was sent to my house and

25 was sent to my wife, the former mayor of Gold Bar, and I

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1 believe that it was material that was -- documents that

2 you had submitted in recall petitions.

3 BY MS. BLOCK:

4 Q. A recall petition for who?

5 MS. Di VITTORIO: Objection. Standing

6 objection.


8 THE WITNESS: I don't recall. But I have seen

9 this document.

10 BY MS. BLOCK:

11 Q. So somebody submitted it to you, and your

12 testimony here today is that's the only other time that

13 you actually saw that document, was three weeks ago?


15 objection for the line of questioning related to this

16 document.


18 THE WITNESS: The only time that I have seen

19 this document in this format, and looked at anything

20 that resembles this, was when it arrived at my house via

21 standard mail, and I didn't know what it was, and I

22 still to this day don't understand how to read it.

23 BY MS. BLOCK:

24 Q. So during the time period that's relevant to

25 this lawsuit, did you ever disseminate either, to any

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1 person, any nonconviction criminal history records, via

2 the County computer system?

3 A. No. Certainly not knowingly doing that, no.

4 Q. So how about unknowingly doing it?

5 A. Ms. Block, I don't know. I have not

6 disseminated this information. If I have disseminated

7 this information, I have never seen it, I've never

8 knowingly seen this document until three weeks ago. It

9 is the first time that I sat down and actually examined

10 it.

11 Q. Would you have access into the National

12 Corrections Image and Image Exchange Service over NLETS?



15 THE WITNESS: No.

16 BY MS. BLOCK:

17 Q. How about Defense Security Service?


19 THE WITNESS: No.

20 BY MS. BLOCK:

21 Q. Do you know who Matt Trafford is,

22 Mr. Pennington?

23 MS. Di VITTORIO: Can you say again? I didn't

24 hear it.

25

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1 BY MS. BLOCK:

2 Q. Matt Trafford, Matthew Trafford?

3 A. I know the name now, because of what you have

4 posted, and because of this lawsuit.

5 Q. So you say you know it now. So Matt Trafford

6 you didn't know until something that I posted? Is

7 that --

8 A. I asked the question whether or not Matt

9 Trafford may have been in our building for any training,

10 and no one could recall his name, but we don't remember,

11 we don't know. I do believe that there have been

12 conversations with somebody named Matt, but I can't find

13 the documents, I couldn't find him in the County system,

14 so I don't know.

15 Q. So you wouldn't have had any e-mail

16 communication with him between the time periods that are

17 relevant to this suit?

18 A. If I had any communications with him or anyone

19 with the Sheriff's Office, which he was with the

20 Sheriff's Office, it would have been regarding potential

21 criminal prosecution of you and charges against you for

22 cyber stalking, harassment and intimidation under

23 Washington state law.

24 Q. So Mr. Pennington, do you consider yourself to

25 be a public official?

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1 A. Yes.

2 Q. Would you say that a public official is held to

3 a different standard under the law than a private

4 citizen? Do you believe that your e-mails are subject

5 to the Public Records Act?

6 A. I believe that my publicly relevant e-mails,

7 according to state law, are subject to state law, and

8 therefore available.

9 Q. Let's do a little bit of an adverse. So if the

10 County didn't produce a record that was relevant to your

11 County responsibilities, such as a FEMA flood insurance,

12 would you say that that was a public record that should

13 have been turned over?

14 A. I am not responsible for redaction or

15 withdrawing or holding back of any public records. I

16 send e-mails, I receive e-mails, I conduct my business,

17 and the lawsuit that you're talking about and that

18 process is out of my hands.

19 Q. You mention that you use several private e-mail

20 addresses. Tell me what other public officials you

21 communicated with during this time period on those

22 private e-mail addresses that you're using.

23 A. I forward --

24 MS. Di VITTORIO: Actually, I'm going to

25 continue the standing objection.

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1 Are you asking about communications he had that

2 were related to County business or any communications he

3 had with anybody who holds public employment?

4 MS. BLOCK: I just want to know if he's using

5 his private e-mail addresses for County business.

6 THE WITNESS: Occasionally, and on very rare

7 occasion, I will forward information from the County to

8 my Yahoo account or to previously the Verizon or

9 Frontier accounts. Those are primarily done for the

10 purposes of establishing redundant capability for the

11 department, documents that are relevant to the

12 department if the Department of Information Systems

13 servers go down, things that would only be utilized in

14 pretty dramatic circumstances, things that I would need

15 to access while I'm on vacation.

16 I would occasionally contact the department to

17 check in with my deputy or any of the employees if I was

18 on vacation, is everything going okay. That would have

19 been done through the Yahoo account, every once in a

20 while Frontier or Verizon, whoever I could essentially

21 access to check in.

22 I would also occasionally forward documents that

23 were between myself and the Federal Government that may

24 have come to Snohomish County or things that were not

25 relevant to Snohomish County, I would send them

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1 sometimes to my Yahoo account, for things like teaching

2 back on the East Coast at the Emergency Management

3 Institute, things that were not County-related business.

4 Conversely, if I were at a particular training

5 on vacation time, on my own time, for Emergency

6 Management or Homeland Security, and I found some

7 particular part of a training relevant and potentially

8 beneficial to the County, I would sometimes forward that

9 immediately to snoco.org or the other Snohomish address

10 that I have.

11 So that's the limits of any business between the

12 two.

13 BY MS. BLOCK:

14 Q. So if you're using your private e-mail addresses

15 to send, forward, receive e-mails, how would the County

16 then be able to retrieve those?

17 A. If they have been sent, that's not my domain.

18 That's not my domain. They are captured through one of

19 the Snohomish County addresses, and at that point I'm

20 out of the picture. Somebody at that point is in the

21 process of addressing public records.

22 Q. Who would that be in the County here that's

23 relevant to your department?

24 A. I have no idea outside of Diana Rose.

25 Q. Are you familiar with a Mr. Hartley?

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1 A. I do know who Tom Hartley is, yes.

2 Q. Mr. Hartley, could you tell me, what he does for

3 the County?

4 A. No, I cannot.

5 Q. Has Mr. Hartley, during the time period that's

6 relevant here to the public records, has Mr. Hartley

7 ever contacted you via e-mail --

8 A. Yes.

9 Q. -- and asked you whether or not he could -- what

10 he could retrieve from your personal computer system?

11 A. I believe that there was a formal request,

12 someone sent me a formal request to do the retraction or

13 to retract documents from me, and I approved that. And

14 that may have been Tom. I don't recall.

15 Q. So other than your Blackberry device, devices,

16 do you have any other electronic devices such as a

17 Kindle, an iPod, an iPad, anything that you can receive

18 or send e-mail communication on during that time period?

19 A. No.

20 Q. And do you know if you have ever been given a

21 copy of responsive records that have been withheld in

22 this suit?

23 A. I need clarification on what responsive

24 records --

25 Q. Have you ever been given a copy of a disk that

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1 contains responsive records that were withheld in this

2 suit?

3 MS. Di VITTORIO: Objection. Assumes facts not

4 in evidence.


6 THE WITNESS: I've not been given any

7 information regarding this.

8 BY MS. BLOCK:

9 Q. Between April 1st, 2009, to June 1st, 2010, was

10 Crystal Hill writing your Superior Court motions on any

11 of your divorce proceedings?


13 objection.


15 THE WITNESS: You are well aware that she was.

16 BY MS. BLOCK:

17 Q. You said I was well aware. How would you know

18 that I was well aware, Mr. Pennington?

19 MS. Di VITTORIO: Objection. Renew the standing

20 objection.


22 THE WITNESS: Gladly. You post anything and

23 everything on the goldbarreporter.com.

24 BY MS. BLOCK:

25 Q. Okay. So you say I post everything on the Gold

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1 Bar Reporter. Is there any reason to believe that it's

2 I? Where are you getting this information from?

3 MS. BLOCK: He made the statement,

4 Ms. Di Vittorio.

5 MS. Di VITTORIO: I can still object. Can you

6 please let me speak, and not speak over me?

7 MS. BLOCK: Well, don't speak over me either,

8 Sara, we'll have no problem in today's deposition, but

9 the way we're going here, it's going to go to 5, maybe

10 6.

11 MS. Di VITTORIO: Actually, it won't be going to

12 5, maybe 6, because we have an agreement that this will

13 last no longer than six hours. But I'll renew the

14 standing objection.


16 THE WITNESS: You are the Gold Bar Reporter.

17 I've done the research. I have documents that you've

18 put on the Gold Bar Reporter every day, every couple of

19 hours.

20 BY MS. BLOCK:

21 Q. Mr. Pennington, you say it's me. Are you aware

22 that there are three other people that are a part of

23 that Gold Bar Reporter besides Anne K. Block?

24 MS. Di VITTORIO: Renew the standing objection.


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1 THE WITNESS: We're all very aware that you are

2 the owner of the Gold Bar Reporter website, that you

3 purchased -- that you also purchased

4 crystalhillpennington.com. We're also aware that you're

5 Michael Broaks, you're Mr. Broaks, you're a Snohomish

6 County blogger, and I'm very well aware of all of the

7 things that you have put on your website, because I've

8 been capturing it for three years.

9 BY MS. BLOCK:

10 Q. That is certainly the legal right to do that in

11 the United States, and I certainly support the First

12 Amendment, as you can see.

13 Let me ask you something else. Do you know who

14 owns the Seattle Times?


16 objection.


18 THE WITNESS: No.

19 BY MS. BLOCK:

20 Q. How would you say that reporter, let's say,

21 Emily Heffter, would be -- Sara, he brought it up, so

22 we're going to go through it.

23 Emily Heffter, you would blame the Seattle Times

24 for things that Emily Heffter wrote? Would that be a

25 good analogy?

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2 objection.


4 MS. BLOCK: He's making very libelous statements

5 here on the County's behalf.


7 objection.


9 THE WITNESS: What's the question?

10 BY MS. BLOCK:

11 Q. The question is would you -- you don't know who

12 the owner of the Seattle Times is. Would you blame

13 Emily Heffter for the content of her writing or would

14 you blame the Seattle Times?


16 objection.


18 THE WITNESS: I don't believe that the Gold Bar

19 Reporter, and I don't believe you are a journalist, or

20 that that is a journalistic publication. I don't know

21 how to answer your question, but I do know that you own

22 the Gold Bar Reporter, and I do know you post on me on a

23 routine basis things that are so factually incorrect

24 that they make me sick to my stomach.

25

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1 BY MS. BLOCK:

2 Q. Well, let's ask you one follow-up question on

3 that. Have you ever contacted the Gold Bar Reporter?

4 A. No.

5 MS. Di VITTORIO: I'll renew my standing

6 objection prior to his answer.

7 You need to pause.

8 THE WITNESS: Yeah.


10 BY MS. BLOCK:

11 Q. I'll give you a chance to review that.

12 MS. Di VITTORIO: I think we'd like to take a

13 short break.

14 MS. BLOCK: Sure.

15 MS. Di VITTORIO: Thank you. We'll go off the

16 record.

17 (A break was taken from 11:10 a.m. to 11:15 a.m.

18 BY MS. BLOCK:

19 Q. Mr. Pennington, did you have a chance to review

20 Plaintiff's Exhibit No. 3?

21 A. Yes.

22 Q. Is that your writing?

23

24

25

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1 MS. Di VITTORIO: Objection. Goes beyond the

2 scope of his deposition.

3 BY MS. BLOCK:

4 Q. Okay, Mr. Pennington. What is the actual date

5 in the right-hand corner of that e-mail?



8 THE WITNESS: August 11, 2010.

9 BY MS. BLOCK:

10 Q. So the relevant time period at question here is

11 April 1st, 2009, through November 6, 2010. Would that

12 letter fall within the scope of the lawsuit?



15 THE WITNESS: August 11, 2010 would.

16 BY MS. BLOCK:

17 Q. Okay. All right. So could you tell me whether

18 or not you're the author of that e-mail?


20 Go ahead and answer it.

21 THE WITNESS: I'm not the author of this e-mail.

22 BY MS. BLOCK:

23 Q. Do you understand what metadata is,

24 Mr. Pennington?

25 A. I do not.

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1 Q. Perhaps you should.

2 We'll give you another one.

3 MS. Di VITTORIO: I'm sorry. Was that a comment

4 that we needed to catch on the record?

5 MS. BLOCK: No, we don't -- here you go. This

6 is the next exhibit.


8 BY MS. BLOCK:

9 Q. In the top right-hand corner, would it be

10 correct to say that it's July 20th, 2010, would be the

11 date on the e-mail of this exhibit?

12 MS. Di VITTORIO: I'll go ahead and object, do a

13 standing objection to any line of questioning regarding

14 Exhibit 4.


16 THE WITNESS: It appears to be July 20th, 2010.

17 BY MS. BLOCK:

18 Q. And so would part of the topic of conversation

19 in this particular communication be Aaron Reardon?

20 A. I've not seen this e-mail before. I've not seen

21 any of this.

22 Q. So let me ask you whether or not you're the

23 author of this e-mail.

24 A. I am not the author of this e-mail.

25 Q. Earlier you mentioned the Gold Bar Reporter, and

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1 in your declaration to the Court in the most recent

2 filings up in Skagit County you mentioned that myself

3 had posted pictures of your children on the Gold Bar

4 Reporter. Would that be a fair assessment of your

5 declaration to Skagit County?

6 MS. Di VITTORIO: Renew my standing objection.


8 THE WITNESS: Yes.

9 BY MS. BLOCK:

10 Q. And so you made this statement, and it's become

11 part of this suit by your statement to the Court, so I

12 guess I'd like to know what evidence you have to support

13 that.



16 THE WITNESS: You posted the photos of my kids

17 and my wedding and the link on your website.


19 BY MS. BLOCK:

20 Q. When you have a chance to read that,

21 Mr. Pennington, could you tell me who the author of that

22 document is?

23 A. It appears to be Susan Forbes, one of the Gold

24 Bar reporters.

25 Q. Okay. What's the content of this statement?

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1 MS. Di VITTORIO: Objection. The document

2 speaks for itself.


4 BY MS. BLOCK:

5 Q. In your own words, Mr. Pennington.

6 A. "I am a Gold Bar reporter and the Gold Bar

7 Reporter has never posted a picture of any of the

8 Pennington children or the names of the children."

9 Q. Mr. Pennington, we're here today because we,

10 basically, I did not get public records from Snohomish

11 County that I saw from the County of Gold Bar, and

12 currently under the Daines Ruling that's not

13 permissible. So I'm going to ask you a series of

14 questions regarding the time periods and for which I'd

15 like a yes or no answer to that, and whether or not

16 there's more responsive records during the time period

17 in question. The lawsuit is April 1st, 2009, through

18 November 6, 2010. In April 2009 I received, via a

19 public records request from your office, six e-mails for

20 April of 2009. Your testimony is that you receive, or

21 send, about 50 to a hundred. Do you have any idea where

22 the rest of the responsive records are?

23 A. I send and receive e-mails on a daily basis, and

24 once those e-mails are completed, I either archive them,

25 leave them in my in-box, and you submit your public

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1 records request, I don't know what happens to them.

2 They are in a process that I am not involved with.

3 Q. So in May of 2009 I received 11 e-mails

4 responsive to my public records request which is subject

5 to this suit. Do you have any idea where the e-mails

6 are from May of 2009?

7 A. I'll reiterate that I send and receive e-mails

8 on a daily basis. Once they are completed I archive

9 them, I place them in P drives, they sit in my in-box,

10 they are retracted based on your request, your lawsuits,

11 and I am out of that process.

12 Q. And I'm going to ask you the same question for

13 June, where I received one, and I'm going to go down the

14 list, make it a little quicker. June 2009 I received

15 one e-mail for the entire month of June of 2009; 11

16 e-mails for July 2009; August, 37 e-mails, 2009;

17 September, 216, 2009; October 2009, 113; November 2009,

18 two; December 2009, two; January 2010, six;

19 February 2010, 19; April 2010, 16; May 2010, 131;

20 June 2010, 69; July 2010, 90. And that is exactly where

21 the cutoff point falls onto the Public Records Act;

22 however, what I did not receive were e-mails that were

23 responsive from the month of August, September, October,

24 November 2010. Do you have any idea where any of these

25 e-mails are during the time period?

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1 A. I'm going to reiterate that I send and receive

2 e-mails on a daily basis. Once they are done, I archive

3 them, I move them into P drives, they stay in my in-box.

4 If you request them, I am not involved in that process.

5 Q. Do you know who Larry Calter is?

6 A. Yes. Larry Calter is the former director for

7 the Department of Information Services.

8 Q. Do you know where Larry Calter is today?

9 A. I do not.

10 Q. Was Larry Calter involved in the collection,

11 inspection of the public records in this case?

12 A. I do not know.

13 Q. Did you ever send out an e-mail and ask for him

14 to inspect any of the servers, any of the computer

15 systems for records that are responsive to this request?

16 A. I do not recall that.

17 Q. Did you ever personally meet with Aaron Reardon

18 or anybody in his office which in any way relates to

19 this public records requests?

20 A. I believe that I have met with someone in the

21 executive's office, but -- and your name has come up,

22 but I don't know if it was regarding this lawsuit.

23 Q. Could you tell me why my name would have come up

24 in the executive's --

25 A. In the context of public records, Public Records

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1 Act.

2 Q. And so since it's relevant to the Public Records

3 Act, could you tell me the content of that

4 communication?

5 A. I don't recall those conversations.

6 MS. Di VITTORIO: Move to strike his last

7 answer, insert the standing objection, and reinsert his

8 answer, please.

9 BY MS. BLOCK:

10 Q. So when you're meeting with the executor's

11 office, would it be fair to say that it was Peter Camp

12 that was involved in this meeting?



15 THE WITNESS: I don't recall. I meet with Peter

16 Camp on occasion over a host of issues.

17 BY MS. BLOCK:

18 Q. Do you see Larry Calter today?


20 objection.

21 You can ask the court reporter to repeat the

22 question.

23 (Question was read back.)

24 THE WITNESS: No.

25

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1 BY MS. BLOCK:

2 Q. When was the last time you actually spoke to

3 Larry Calter?


5 objection.


7 THE WITNESS: I believe it was prior to him

8 leaving the County.

9 BY MS. BLOCK:

10 Q. What was that conversation about?



13 THE WITNESS: I do not recall.

14 BY MS. BLOCK:

15 Q. Did you ever ask Mr. Calter to remove e-mails

16 which are subject to this lawsuit?

17 A. No.

18 Q. From April 1st, 2009, through June 30th, 2009,

19 did you ever send or receive racist comments regarding

20 President Obama?

21 MS. Di VITTORIO: On his County computer?

22 MS. BLOCK: It wouldn't matter, as long as it

23 was County business, or excuse me, as long as it's

24 government business, it would be relevant to this suit.

25 MS. Di VITTORIO: So is the question has he ever

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1 sent or received racist comments during that time period

2 related to County business?

3 MS. BLOCK: We're going to let the court

4 reporter repeat the question.

5 MS. Di VITTORIO: I heard the question, I'm

6 asking for clarification.

7 MS. BLOCK: I'm asking for the court reporter to

8 repeat the question verbatim. Question.


10 "Question: From April 1st, 2009, through

11 June 30th, 2009, did you ever send or receive racist

12 comments regarding President Obama?")

13 THE WITNESS: No, nothing I recall, nothing at

14 all. But I receive lots of e-mail, lots of spam. I

15 send and receive e-mails all the time. I do not recall

16 anything like that.

17 BY MS. BLOCK:

18 Q. Do you have any knowledge why Joseph Beavers

19 would have placed the e-mail between you and Crystal

20 Hill during this time period, that's relevant to the

21 time period between April 1st, 2009, to June 1st, 2010,

22 into what he called exempt log?

23 MS. Di VITTORIO: Objection. Calls for

24 speculation.


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1 THE WITNESS: I have no idea.

2 BY MS. BLOCK:

3 Q. So you testified earlier that you have never met

4 with Joe Beavers regarding the public records that are

5 relevant to this suit. What I'm trying to find out is

6 why Joseph Beavers has County records that don't seem to

7 show up from the County. So would there be any type of

8 verbal agreement between you and the City of Gold Bar or

9 the County which in any way relates to the public

10 records that are subject to this suit?

11 A. I have no agreements with anyone on public

12 records. And my job is to send, receive the e-mails,

13 put them in the P drive, archive them as much as humanly

14 possible. They are out of my domain once that happens.

15 I have no agreements with Gold Bar, I have no agreements

16 with the County, I have no agreements with anyone on

17 this lawsuit or any public records issue.

18 Q. Now, you mentioned quite a few e-mail addresses

19 you were using that were private. I believe one was

20 Verizon, the other one was Yahoo. Has anybody from the

21 County actually searched those e-mail addresses, the

22 e-mail boxes for responsive records?

23 A. No.

24 Q. Do you actually archive the e-mails that are

25 coming from the County back to your home as you

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1 described you shuffle them back and forth, maybe when

2 you're out of town? How do you actually retrieve those?

3 A. If I forward a document from the Federal

4 Emergency Management Agency on training to the County

5 that I believe is beneficial to the County, something

6 that we might find useful, I will delete e-mails like

7 that, because they're in the public system, out of my

8 domain at that point.

9 If something comes from the County to my Yahoo

10 account, such as a -- our backup operations plans in

11 case a server malfunctions, and worst case scenarios, I

12 generally keep those in an in-box. There are no

13 folders, nothing that says County business. There are

14 no folders, it's all captured within the in-box.

15 Q. So this would be on which of the e-mail

16 addresses? Would it be Yahoo, Verizon, all of them?

17 A. I believe that within the responsive time frame

18 for this lawsuit they would be in Yahoo, because it's an

19 account that I recently started utilizing for personal

20 business.

21 Q. So you nobody from the County has actually

22 searched those boxes on any of the private e-mail

23 addresses? I just want to make sure I have this clear.

24 A. You are very clear.

25 Q. From August 1st, 2009, through November 6, 2010,

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1 that is the area that's relevant to this lawsuit, did

2 you ever communicate with Aaron Reardon during this time

3 period via e-mail?

4 A. Yes.

5 Q. Do you know how often something like that might

6 have happened?

7 A. Very rarely, but generally during disaster

8 events or preparing for a disaster event or in the

9 recovery phase of a disaster event. Sometimes it would

10 have been over scheduling or maybe an appearance, but

11 very rarely would Aaron and I ever communicate through

12 e-mail.

13 Q. So if you did, as you say, communicate via

14 e-mail during this time period on the probability, would

15 there be any reason why the County would not have turned

16 over those records?

17 A. If I send an e-mail and receive an e-mail, it is

18 out of my hands whether or not -- this is what the

19 process is at that point. I've reiterated it now a

20 dozen times, that I'm not involved in that process.

21 Q. Do you know how many copies of the e-mails there

22 are?

23 A. I have not idea what you're asking.

24 Q. We have e-mails that are responsive to this

25 suit, 2009, through November 6, 2010. Okay. Where are

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1 those e-mails being maintained for the County as we

2 speak?

3 A. I'm going to reiterate for the 13th time, I send

4 and receive e-mails, I have a DEM internal organization

5 public records specialist, who is Diana Rose. Beyond

6 that, I do not know what the process is, and remove

7 myself from that process.

8 Q. From April 1st, 2009, through June 1st, 2010,

9 while you were not married to Ms. Hill, do you have any

10 information as to whether or not she possesses

11 responsive records that are subject to this suit?

12 MS. Di VITTORIO: I'm going to renew the

13 standing objection.


15 THE WITNESS: Repeat the question, please.

16 (Question was read back.)

17 THE WITNESS: I do not know.


19 BY MS. BLOCK:

20 Q. In your own words, could you tell me,

21 Mr. Pennington, what this is?

22 A. This appears to be an e-mail originating from

23 May 25, 2009, from [email protected] to himself,

24 [email protected], and then May 26, at 8:26 a.m. it was

25 forwarded from [email protected] to

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1 [email protected], with the subject line "fwd:

2 Steve Higgins."

3 Q. Who is Steve Higgins?

4 A. I have no idea.

5 Q. Now, the content of this e-mail, we have a date,

6 and would you say that that was correct, from Crystal

7 Hill to you, on May 26, 2009?

8 A. It appears to be Tuesday, May 26, 2009.

9 Q. Okay. And so if the County did not turn over

10 this record, would you -- first of all, would you say

11 that this is a public record?

12 A. No.

13 Q. Why not?

14 A. Well, it was forwarded to Verizon.net, it has

15 nothing to do with my work, and I'm not responding to it

16 in any way. I don't know the individual.

17 Q. Okay. So you say I'm not responding to it in

18 any way. What do you mean by "responding to it" as far

19 as how that's relevant to whether or not it's a public

20 record?

21 A. I show no response. You're not submitting a

22 document to me that shows me responding to this, only

23 receiving this document. I don't know who this

24 individual is, I have never met Steve Higgins, I've

25 never met anyone from the Monroe Monitor, and this does

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1 not relate to emergency management or my function within

2 the Department of Homeland Security or the Department of

3 Emergency Management.

4 Q. Mr. Pennington, you testified earlier that

5 you're a public official. We understand that the Public

6 Records Act does apply to you. And your testimony here

7 today, it tries to appear that because you didn't send

8 it it doesn't -- it's not a public record. Now, other

9 than that, is there any reason, other than what you've

10 already stated on the record, is there any reason why

11 you believe that this is not a public record?

12 A. I'm not sure what your question really is at

13 this point.

14 Q. Well, I'm asking you whether or not you believe

15 this to be a public record. I believe that you stated

16 that you did not believe it to be a public record, and

17 you pretty much inferred that because you didn't send

18 it, and because it doesn't have to do with FEMA or

19 Homeland Security or Department of Emergency Management

20 that it's not a public record. But you testified that

21 you are a public official. Is there any other reason

22 why you would view this as not a public record, other

23 than the statements that you've already made?

24 A. This is, in my opinion, an e-mail that is not a

25 public record.

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2 BY MS. BLOCK:

3 Q. I'll give you time to review this,

4 Mr. Pennington.

5 In your own words, would you tell me what that

6 Exhibit 7 represents?

7 A. It appears to be an e-mail that originated with

8 me July the 22nd, 2009, at 11 o'clock in the morning,

9 between myself and Kevin Prentiss, P-R-E-N-T-I-S-S, and

10 a response from him dated July 22nd, 2009, at 1:53 p.m.,

11 from Kevin Prentiss to me.

12 Q. And the contents of that e-mail?

13 A. The contents of this e-mail are my conveying to

14 Kevin Prentiss my concern for my personal safety, the

15 safety of Crystal Hill, the safety of both of our

16 children, and examples of what I would characterize as

17 harassment, intimidation, overarching concern for our

18 physical safety, regarding you, Ms. Block.

19 Q. Okay. That's pretty much what I got from that.

20 Mr. Pennington, would you tell me the advice

21 that Mr. Prentiss gave to you?

22 MS. Di VITTORIO: Objection. The document

23 speaks for itself.


25 THE WITNESS: Mr. Prentiss suggests a

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1 recommendation would be a restraining order.

2 BY MS. BLOCK:

3 Q. Could you tell me if you've ever sought a

4 restraining order from Snohomish County?


6 Going ahead.

7 THE WITNESS: I have not.


9 BY MS. BLOCK:

10 Q. I'll give you chance to review that. Tell me in

11 your own words what that document means.

12 A. That document appears to be an e-mail from me to

13 Diana Rose on June 8th, 2009, at 3:14 p.m., with a --

14 dated unknown at the top -- that says thank you -- I'm

15 sorry, that says, "That you forward that e-mail chain to

16 Reardon's office for their documentation."

17 Q. What is it that you're trying to document with

18 this e-mail here on June 8th, 2009?


20 Q. On this e-mail, would there be any reason why

21 the County failed to provide this particular e-mail with

22 metadata?

23 A. I forward and send e-mails and beyond that

24 process, it's out of my hands.

25 Q. Did you remove the metadata from this particular

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1 e-mail, Mr. Pennington?

2 A. Ms. Block, I do not even know what metadata is.

3 Q. Do you know who Rick Kammerer is? And I could

4 be pronouncing that wrong. It is spelled

5 K-A-M-M-E-R-E-R.

6 A. Yes.

7 Q. Tell me how you know Mr. Kammerer.

8 A. His name is Kammerer.

9 He was the logistics section chief for the

10 Department of Emergency Management for a period of time

11 that I believe predates this lawsuit.

12 Q. I believe that you're incorrect about the

13 predating of the lawsuit, so I'm going to explore

14 further.

15 Mr. Kammerer worked at Department of Emergency

16 Management. Is that correct?

17 A. Yes.

18 Q. At any time during this time period did you send

19 or receive any e-mails from Mr. Kammerer?

20 A. Yes.

21 Q. I'm sorry?

22 A. Yes.

23 Q. Okay. Could you tell me if you did send and

24 receive from Mr. Kammerer during this time period, why

25 the County wouldn't have turned them over?

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1 A. I send and receive e-mails and once it leaves my

2 hands, I do not understand or know that process. Diana

3 Rose is my public records officer.

4 Q. When Diana Rose sends out a public records

5 request, does she notify you whether or not your, let's

6 say records, are being requested?

7 A. Back when you started filing public records

8 requests, in the initial stages, she let me know that

9 you had submitted a request, and it has gotten to the

10 point now where I'm never notified. It's just -- it's

11 overwhelming to her.

12 Q. Do you know when that stopped, when you were --

13 A. No, I don't.


15 BY MS. BLOCK:

16 Q. I'll give you a chance to look at the exhibit.

17 A. Okay.

18 Q. Could you tell me who's involved in this e-mail

19 chain?

20 A. This appears to be an e-mail from -- that

21 originated from me on Monday, December the 13th, 2010,

22 at 7:39 a.m., to Larry Calter, with the subject line of

23 "can you come in...," importance high, and a response

24 from Larry Calter to me, Monday, December the 13th,

25 2010, at 8:21 a.m., and a reply to me from -- from me to

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1 Larry Calter Monday, December 13th, 2010 at 8:25 a.m.

2 Q. And so the e-mail is with Larry Calter, and

3 earlier you testified he was with the Department of

4 Information Services. True?

5 A. Yes.

6 Q. And it appears that you're having a meeting with

7 Calter, the assessor's office, PDS -- PDS stands for

8 what, Mr. Pennington?

9 A. Planning and Development Services.

10 Q. Planning and Development Services. Then it also

11 appears that you're going to cabinet. I guess I'm going

12 to assume that cabinet means Reardon's office. Would

13 that be correct?

14 A. The cabinet is the executive cabinet of

15 department directors.

16 Q. Okay. And so who's part of that cabinet?

17 A. All of the County departments that are under the

18 executive control, and usually that is directed by Gary

19 Haakenson, the deputy executive.

20 Q. So would it be safe to say that this e-mail

21 represents a cabinet meeting between Gary Haakenson,

22 Larry Calter, the assessor's office, PDS, and yourself?

23 A. Can you ask that again? One more time?

24 Q. Sure.

25 Would it be safe to say that the e-mail

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1 represents that you're having a cabinet meeting between

2 Gary Haakenson, yourself, Larry Calter, the assessor's

3 office, and PDS?

4 A. No.

5 Q. Okay.

6 A. That is not what this e-mail is.

7 Q. Okay. You tell me what this e-mail represents.

8 MS. Di VITTORIO: I'm going to note a standing

9 objection to all the questioning regarding Exhibit 9 as

10 it's outside the time period relevant to this laws

Documents

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