"I have never felt so backed into a corner as I have in the past 24 hours."
—Erika Chen, Seattle Human Rights Commissioner
by Carolyn Bick
The Emerald's Watchdragon reporting seeks to increase accountability within our city's institutions through in-depth investigative journalism.
The Emerald has obtained the unredacted email the Seattle City Attorney's Office (SCAO) sent to the Seattle Human Rights Commission (SHRC) in which the SCAO told the SHRC that it could not seek amicus status with the federal court overseeing the Consent Decree. The Emerald originally reported on this email in this breaking story. It has also obtained two new recent memos from the SCAO addressed to the SHRC.
Based on these communications (all of which are labelled as attorney-client privileged), it appears that the SCAO and the City are opposed to the SHRC seeking amicus status. In these communications, the SCAO maintains that only Mayor Bruce Harrell has the power to approve making public the communications from the SCAO to the SHRC about this matter.
As briefly described in the above story, the SHRC's intent in seeking amicus status would be to directly engage with the federal court regarding concerns the SHRC said the Community Police Commission (CPC) was not bringing to the fore or adequately addressing, despite multiple attempts to get the CPC to do so.
The email, sent by assistant city attorney Ariel Schneier at 1:48 p.m. on April 8, 2022, starts out in all capital letters, "ATTORNEY CLIENT PRIVILEGED.
"Dear Commission Chairs," the email begins, "It has come to the City Attorney's Office's attention that the Seattle Human Rights Commission has voted to pursue amicus curiae status with the federal court overseeing the Seattle Consent Decree and is considering independently obtaining pro bono attorney services to do so. We must advise you that the Human Rights Commission does not have the authority to undertake either of these two actions."
The introductory wording — "It has come to the City Attorney's Office's attention" — seems to support what the Emerald reported in its initial story: That the email from the SCAO was unsolicited and potentially adversarial in nature.
"As a City commission, the SHRC may exercise only the authority granted to it by the City, as enumerated in Chapter 3.14.931 of the Seattle Municipal Code [SMC]," the email continues, citing the chapter of the SMC regarding the SHRC's duties and responsibilities.
"Furthermore, the SHRC is represented by the City Attorney's Office and per Article XIII, Section 3 of the Seattle City Charter, the City Attorney has exclusive authority over litigation involving the City: 'The City Attorney shall have full supervisory control of all the litigation of the City, or in which the City or any of its departments are interested and shall perform such other duties as are or shall be prescribed by ordinance,'" the email reads, quoting this section of the City Charter. "The City Attorney's office has not delegated to SHRC any authority to join litigation on an amicus basis or engage outside counsel.
"We are happy to discuss this further either by email or in a meeting," the email concludes.
The portion of the Seattle Municipal Code (SMC) the SCAO cites does not appear to explicitly prohibit the SHRC from seeking amicus status.
It is also unclear whether seeking or attaining amicus status is considered "litigation," as referenced in the Charter article above.
Additionally, it should be noted that the chapter of the SMC regarding bias-free policing explicitly frames biased policing as a human rights issue. This would appear to mean that biased policing — which the SMC literally states is at the heart of the results of the investigation by the Department of Justice (DOJ) that led to the Consent Decree — and everything that causes, results, and stems from it are problems that may fall within the SHRC's wheelhouse.
"The City Council expresses concern that the policies, practices, training, and data collection efforts related to bias-free policing in the Seattle Police Department appeared problematic for the Department of Justice," the SMC chapter on bias-free policing opens. "Biased policing can erode public trust and damage efforts to make Seattle a safe city for all its residents and visitors.
"In addition to policy and practice changes within the Seattle Police Department," the chapter's statement of purpose continues, "it is the Council's intent to ensure protection of the human rights as set forth in the Universal Declaration of Human Rights, endorsed by the Seattle City Council in Resolution 31420 proclaiming Seattle to be a Human Rights City, to all persons as they relate to biased policing activities and to require the policies, training, and data that safeguards against such activities in the City of Seattle."
While the April 8 email appeared to suggest that the SHRC could seek the SCAO's leave to "join litigation on an amicus basis or engage outside counsel," the more recent memos from the SCAO seem to take that option off the table entirely. Written on official letterhead from the SCAO, the memos lay out legal arguments as to why the SCAO believes that the SHRC cannot seek amicus status or directly engage with the federal court overseeing the Consent Decree.
The first memo the SCAO sent the SHRC, dated April 25, 2022, is from SCAO's Civil Division Chief Thomas Kuffel. The memo opens with a summary of events, chiefly that the SHRC voted on April 7 to seek amicus status. The memo then states that "the SHRC's interest in providing input on the Consent Decree case, consistent with its authority under the Seattle Municipal Code (SMC), is appropriately directed to forums other than the federal court," and lists three points, which the Emerald includes here verbatim:
The memo then breaks down each point in a section labeled "Discussion."
Regarding the first point, the SCAO states that "[u]nlike the SHRC, the CPC has a legal history with the Consent Decree case and has a functional independence recognized in its formation ordinance." The memo then launches into a background of the CPC's creation and eventual attainment of amicus status and says that the CPC's attainment of said status came in 2013 as, essentially, a by-product of a court ruling that denied a CPC motion to intervene in court proceedings: "In the same order denying the CPC's motion to intervene, the Court granted the CPC amicus curie [sic] status in the litigation, emphasizing that the Court "values the role carved out for the CPC in the Consent Decree and wants to hear its views on issues raised by the parties herein. … In short, the CPC did not itself seek amicus status with the Court, but rather, was granted amicus status as an alternative to intervening as a party to the litigation. The CPC had the authority to petition the Court to intervene in the first place because such authority was granted by the ordinance governing the CPC."
In the second point, the SCAO once again claims that "The SHRC has specific roles and duties set forth in the Seattle Municipal Code, and those duties do not encompass the authority to initiate participation in litigation, especially litigation to which the City is already a party," and proceeds to state the following subpoint, underlined: "The SHRC is a City-formed commission governed by the SMC. The SHRC has neither the functional independence nor the Consent Decree history of the CPC."
Again, while it is true that the SHRC does not have the same history as the CPC, nothing in the SMC appears to explicitly prohibit the SHRC from doing anything. Rather, the SMC chapter that the SCAO cites simply outlines the SHRC's duties.
The memo contrasts the CPC and the SHRC, saying that the CPC has "functional independence" granted to it by the federal court, while the SHRC, created in 1963 by the Seattle City Council, was later given over to control by the executive (the mayor). It says that the "SMC does not currently grant, and has not historically granted, the SHRC authority to appear before any court or participate in litigation as a 'friend of the court' or a third-party intevenor [sic]" and that "neither the Settlement Agreement nor the Court has acknowledged a role for SHRC to play in the Consent Decree case."
Thus, the memo states in the next subpoint, again underlined: "As a City commission formed by City ordinance, the SHRC does not have the authority to intervene in ongoing litigation as an entity separate from the City."
The memo says that because the SHRC is seeking amicus status "based on the belief that there are gaps in critical information presented to the Court that support 'our need for continuous police accountability'," this "amounts to seeking status as an 'intervenor.'
"Intervenor status is intended for legal entities that are not parties to a case but can show that their interests are or will be impacted by the case's outcome. As indicated above, the SHRC is a City-formed commission and is not a separate legal entity," the memo says. "Therefore, because intervenor status is for non-parties, and because the SHRC is part of the City which is already a party to the case, intervenor status (although labeled as 'amicus curiae') is not a viable option for the SHRC or other commissions with a strong interest in cases already involving the City."
This seems to suggest that the City operates as one unified whole, at least in the executive department.
However, the SCAO memo continues, this does not mean that the SHRC is prevented from "commenting on the Consent Decree in a meaningful way," and that even though the CPC and the SHRC are different, "the SHRC does share the ability to direct feedback to the City's officials as one of several alternatives for expressing the SHRC's position on the Consent Decree."
This echoes what Seattle City Councilmember Lisa Herbold told The Stranger in an early April article regarding the SHRC's vote to seek amicus curiae status. However, the option to provide feedback — which may or may not be taken into account or provided to the federal court — to City officials is not the same as direct interaction with the federal court.
The memo closes with the SCAO presenting the SHRC with a number of options "for expressing its interest in matters relating to the Consent Decree."
"The SHRC can, by majority vote of its Commissioners at an SHRC meeting: Pass a resolution expressing the SHRC's position; Issue a letter to stakeholders; Decide to engage with and advise elected officials on matters within SHRC's purview and interests; Highlight policy recommendations in its report to the Mayor and City Council; and Decide to engage with (or continue engaging with) the CPC to provide input," the memo states.
None of these options would seem to ensure that community concerns are directly brought before the federal court.
The memo closes: "Although the SHRC focused on pursuing amicus curie [sic] status as a path to meaningful engagement in matters relating to the Consent Decree litigation, the SHRC's ability to do so is limited by its distinction from the CPC and its responsibilities established by the SMC. The SHRC may, however, exercise a number of alternatives that comport with the SHRC's role and responsibilities as a City-formed commission."
The second memo, dated May 4, 2022, is briefer, and this time includes Mayor Bruce Harrell on its recipient list. Once again, the memo was sent by Kuffel. In addition to addressing the SHRC's attempt to seek amicus status, the memo also addresses the issue of attorney-client privilege.
Readers may remember that, in the Emerald's original story, the Seattle Office of Civil Rights' (SOCR) communications officer said that she was told that only Mayor Bruce Harrell has the authority to waive attorney-client privilege in this matter: "I have been told that the Commission as a City entity is not able to release privileged communications, so neither myself nor the Commission could release any unredacted communications to you from Ariel Schneier as it'd be a violation of ACP and the City's ethics code. The Mayor is the only one in the City who would be able to waive the privilege."
The May 4 memo continues along those lines. Unlike the April 25 memo, the May 4 memo appears to all but state in its opening paragraph that, should the SHRC attempt to attain amicus status, the SCAO will attempt to ensure that it cannot. This time, however, the memo also frames the increasingly contentious issue of the SHRC "weighing in on Consent Decree issues" — in this case, seeking and attaining amicus status — as "a practical matter," and that, should the SHRC weigh in on such matters (again, in this case, by attaining amicus status), it would be "neither fruitful nor efficient."
"In a memo dated April 25, 2022, the CAO advised that the Seattle Human Rights Commission (SHRC or Commission) did not have the authority to file an amicus brief in the Consent Decree case and proposed instead, that the SHRC direct its concerns to other forums because the SHRC has multiple options for expressing its concerns in a manner consistent with its duties and authority," the memo reads. "If SHRC declines to follow CAO advice (which was not a 'cease-and-desist order'), the CAO reserves the right to oppose the SHRC's amicus request, if filed.
"As a practical matter, it is neither fruitful nor efficient for the City of Seattle to have the SHRC or other sub-agencies of the City individually weighing in on Consent Decree issues. The Court set up stakeholders and accountability partners through which the SHRC's concerns can be communicated, and the CAO has advised the SHRC to engage with those stakeholders and accountability partners."
The memo then moves on to address questions raised by SHRC commissioners, which the Emerald has included verbatim:
In the summary following these items, the memo says that if the SHRC wants to disclose these protected communications — again, presuming that the mayor is the ultimate client — it must decide by majority vote at a meeting to request that the mayor waive attorney-client privilege for specific communications "in detail so that each Commissioner clearly understands what they are voting to release."
The memo states that because the SHRC is a commission within the executive department, it may benefit from attorney-client privilege that protects SCAO communications within the department, but it doesn't have the authority to waive said privilege. It then essentially states, again, that the mayor is the ultimate client of the SCAO: "As the head of the Executive Department and the Chief Executive Officer, the Mayor holds the authority to waive privilege protecting attorney-client communications with the Executive Department."
Finally, the summary closes with what appears to be a warning: "Disclosure of attorney-client privileged communications without first obtaining the waiver may be inconsistent with each Commissioner's duty to refrain from disclosing confidential information, as required by the Ethics Code."
The SCAO then moves on to a discussion of each of the three items raised at the beginning of the memo. It states that the SHRC's communications with the SCAO are considered confidential and subject to attorney-client privilege because the office's client is the City of Seattle, which encompasses "all City departments, offices, and branches of government." However, the SCAO then states that because "attorney-client privilege protects communications between the CAO and the Executive Department … that privilege extends to departments and commissions within the Executive Department, including the SHRC."
The SCAO claims that because the SHRC is staffed by SOCR, an office within the executive department, "the SHRC falls under the umbrella of privilege held by the Executive Department."
While it is true that the SHRC staff member who handles communications for the SHRC is an official City employee, according to the SMC's chapter that covers SHRC and other commission staffing, the members themselves are not employees of the City nor are all of them mayoral appointments: "eight members shall be appointed by the Mayor, eight members shall be appointed by the City Council, and four members shall be appointed by the Commission as constituted; provided, that such appointments shall be made so as to reflect the diversity of the community." Moreover, none of the members of the SHRC take oaths of office.
The memo then moves on to what the SHRC may share with the public. While it says that the SHRC is required to share certain information as it pertains to the Open Public Meetings Act (OPMA), it is not entitled to share confidential information, which the SCAO says includes information that falls under the umbrella of attorney-client privilege, "such as communications with or from the City Attorney's Office. Disclosure of privileged communications requires a waiver of the privilege, and the authority to waive privilege is held by the Mayor.
"As each Commissioner learned during onboarding with the SHRC, the Ethics Code prohibits SHRC Commissioners from disclosing or using any confidential information gained by reason of their official position for other than a City purpose," the memo reads, citing the City of Seattle Code of Ethics.
It is unclear whether the SHRC seeking amicus status would constitute "a City purpose," given that the City's purported purpose regarding the Consent Decree is to align with the Consent Decree.
"As stated in the SMC," the memo continues, "the SHRC's purpose is to serve as an advisory body performing the specific responsibilities set forth in the MC [Municipal Code]. Prior to the SHRC's or a Commissioner's disclosure of confidential information, such as attorney-client privileged communication, without first obtaining a waiver from the Mayor, the SHRC or Commissioner should consider whether the disclosure is consistent with the Commissioner's duties under the Ethics Code."
As several SHRC commissioners pointed out in the commission's most recent May 5 meeting, the commission feels strongly that its duties are to the community and to include the community's voices and ideas.
The memo also says that if commissioners choose to share something, they must vote to do so as a whole commission, but again, any decision to share privileged information — in this case, legal information — would first require a waiver from the mayor.
The SCAO memo wraps up its points in a conclusive summary, in which it frames the SHRC's relationship with the SCAO as one of benefit — but again with the claim that the SHRC has no power to decide what attorney-client privileged communications to share with the public: "Communications between the CAO and SHRC benefit from the protection of attorney-client privilege, but the SHRC and its individual commissioners do not hold authority to waive that privilege. In the context of attorney-client privileged communications with the SHRC, the Mayor holds the authority to waive the privilege."
The SCAO states that it "strongly recommends preservation of the attorney-client privilege" but that if the SHRC is "interested in disclosing privileged information," the steps the commission must take would be the following (verbatim from the memo):
SHRC Co-Chair Julia Ismael said in the May 5 meeting that, immediately following the April 7 vote to seek amicus status, two commissioners were forced to resign from the commission due to what Ismael said their employers deemed conflicts of interests. The two commissioners were Schuyler Reid, of Human Rights Watch, and Roopali Dhingra, of the King County Department of Public Defense.
This means that the commissioners now number just nine people, despite having room for up to 21 representatives.
With regards to sharing at the meeting, the commissioners were able to talk around the issues raised in the April 8 email and the two memos contained within this story but did not talk about the specific contents of the memos. Commissioner Erika Chen seemed to indicate that the SCAO strategically sent out emails to each commissioner in such a way as to skirt the State's Public Disclosure Act and in a way that prevents the SHRC from doing what the commissioners see as their basic job.
"Comissioners, you have received multiple emails on which you were BCC-ed — so, therefore, not required to adhere to public record — attorney-client privileged communications from the City Attorney's office. So, you should have all received that — not to say that you've had time to review or necessarily process the information that we have received, because it's a lot," Chen said. "But I will say that these things are at odds. Due to attorney-client privilege, we are not allowed to discuss anything under attorney-client privilege in an open public meeting forum as this, as we currently are. So, we cannot address the contents of those communications.
"That makes it really difficult for us to move forward and to include community in our work and in our decision-making as we like to do," Chen said. "I see us as a bridge from community to City officials. So, therefore, we like to include community — we want to be as open as possible. However, with the recent communications and advice we have received there are some things we are not allowed to discuss publicly. We can, I think, at this time, discuss our feelings … and reactions to the communications we have received.
"We can … plan how we move forward, but it's been made pretty impossible for us to talk as a whole commission, either via email or a public meeting — anything that is under the OPMA [Open Public Meetings Act] — about anything that is attorney-client privileged," Chen said. "The only way we can do that is to have a meeting with a City Attorney present, which would then create — that meeting would not be a public meeting, it would be an attorney-client privileged meeting."
Several of the commissioners expressed their feelings on the matter. Ismael said that she is grateful that Ramadan coincided with these communications from the SCAO, because "in this last month for me, it has been nothing shy of a spiritual battle.
"I have dedicated my personal life — decades of my life, energy, and force — to ensuring that the community in which I live and raise my children is as equitable and safe as humanly possible. And through this experience, I have come across a lot … of challenges, both to my person and to an organization … I am representing," Ismael said. "But I will tell you: In these decades that I have had of advocacy work, this last month has topped it all. It has been the culmination of every single roadblock that has ever been imagined to be put in front of me and my work."
Ismael briefly noted that she worked as a paralegal in her mother's legal practice.
"Never in my life could I have even imagined the kinds of conversations that have been occurring," Ismael said. "And to find myself in the position now in this meeting where it feels like a game of chess and they have put me in near-checkmate — to take away every single opportunity I have … on every single level. Never have I experienced such maltreatment."
Ismael said that the SHRC has not had a single direct consultation with the SCAO about the matter and that the SHRC has simply been receiving these communications. She said that the May 4 memo, received a little more than 24 hours before the May 5 meeting, did not allow the commissioners time to discuss anything prior to the meeting.
Following publication of this story, the Emerald learned that this is not true and that the SHRC co-chairs met with the SCAO in some capacity before the May 5 meeting.
"Something smells so bad here. How much proof and evidence do I need to know that I am not supported? I am not suffering from cognitive dissonance here," Ismael said. "I am not feeling supported … by those that are tasked with that very job. … We are doing this because we need to. … That's what guides our work. I don't know what guides their work."
Chen said that they agreed with much of what Ismael said, and that the entire situation is "tough."
In the four years she has been on the SHRC, Chen said that she has faced "a lot of things," but that "I have never felt so backed into a corner as I have in the past 24 hours.
"I have never felt so bullied by an institution — who, at the same time, is saying, 'We are helping you.' It is boggling my mind," Chen said. "I will say, a hypothetical situation … that crossed my mind is honestly, eff it. I will organize these commissioners to quit. I will organize us to write a letter to the public explaining how we have been backed into a corner and how we are not supported by the institution that says they set us up to be a bridge to advise them, and instead we are backed into corners, put under gag orders, and basically just put on a platform to say, 'Look, we have a human rights commission.'
"That's the first thing that came to my mind, was I am going to organize us to write a public letter and just all publicly quit, and then let's see," Chen said. "The thing about that option, though … is that there is no winning option here, in my mind. They have backed us so far into a corner that I can't think of an option that gets us to be able to have the conversations and do the work that we want to do. Even if we quit, that just leaves us so that the mayor and City Council can appoint whoever they want to appoint that just uphold the status quo agenda.
"So, it's like, we are backed into a corner, and now we have to stay, if we want to fight that," Chen said. "I am just feeling really defeated. I am feeling really down. I am feeling really angry. I am feeling so many things, and none of them are good."
Chen listed several possible options for the commission that they and other commissioners came up with together, including asking Harrell for a waiver, having a City attorney present for a meeting to discuss the content of the memos in a meeting format, or discussing the contents of the memos in a "buddy system" format so that they neither violated the OPMA nor the stated attorney-client privilege.
Commissioner Natasha Bennett said that she also wanted to distill and explore what the commission's next steps are but also that she has "a lot of questions around our independence … a lot of questions around our duties as tasked by the City, as well as our responsibilities and obligations to the community, and I think those three things are very much in tension."
Commissioner Guneeta Chadha said that she was also "very frustrated" and that "like everyone else, I am honestly very upset."
"I don't want to cry, but that is how frustrated I am with the process. There's not much more I can say," Chadha said, adding that she also wanted to discuss future steps. "This is very disheartening … What are we supposed to do? What is the role? Why are we here? … Again, it comes down to status quo. … It's very performative, obviously. I will leave it at that."
Commissioner Tyrone Grandison said that he is "beyond disappointed" with what has happened, yet it is as "expected as the rain in February.
"It's just disheartening to be in a space where an attorney — I am trying to figure out what to say so I don't say anything I can't say — it's really rough to be in a space where … a question that was very pointed was asked: 'Is the Seattle Human Rights Commission independent?' And the answer from the people that are supposed to be advising us that actually wrote the rules, that wrote the regulations that created us — their department came back with a definitive, 'No.'
"[This] shook me to my very core. Because that's not what I signed up for. That's not what [SOCR] is preaching. That is not what we send, what we convey to the public," Grandison said. "So I am with Erika. Let's all quit and write a letter. Air it all out."
SHRC Chair Allan Nyaribo said that he felt similarly to Grandison.
"Tyrone's sentiment that this is not exactly what I signed up for rings true to me, just because an institution or somebody somewhere decided that I can advocate for one thing but not the other, and my understanding of the commission is not that," Nyaribo said. "I should be able to advocate for things that matter to people and what we are trying to do here was actually was advocate for people who were going through the ringer, as it were. So, at this point, I am stuck. I am really frustrated."
Additionally, Chen noted that, because she and another commissioner's terms are up in two months, the nine-person commission will be whittled down to a mere seven people out of a possible 21.
SHRC commissioners expressed that they did not want to meet with Harrell or go to him for a waiver. They tentatively decided to meet in executive session and in small groups to talk about the situation facing the SHRC and decided to postpone its next Criminal Justice Task Force meeting, which was originally set for May 9, in order to discuss the issues. The next task force meeting will be on May 23, unless announced otherwise.
The Seattle Times recently reported that the City settled out of court with the publication regarding former Mayor Jenny Durkan's missing text messages. In that story, SCAO's communications spokesperson Anthony Derrick is quoted in a statement saying that the City of Seattle "shares the common goal of improving governmental transparency."
The Emerald reached out to the SCAO with several questions, which readers can find below. However, Derrick told the Emerald that the SCAO could not comment on almost any of the questions, because they "constitute legal advice or privileged communication." Previously, Derrick told the Emerald that it could not comment due to attorney-client privilege.
"Here's what I can tell you," Derrick said in an email on May 11. "The City Attorney's Office represents the City of Seattle, including all of the departments and entities within the City. This occurs even when City departments have distinct interests they wish to advance. Questions of legal conflicts of interests in a municipal setting require a case-by-case assessment by the attorneys, evaluation of applicable authority, and communications with the clients."
Derrick also said that the "City Attorney has sole supervisory control over the City's litigation per the City Charter, Article XIII, Section 3. If you wish to evaluate the specific authorities of City entities or commissions, you should look to the City code and charter for guidance."
He added: "Just to clarify, the CPC moved to intervene and was granted amicus status by the courts on its own volition."
This does not appear to be what the April 25 memo said. That memo framed the CPC's attainment of amicus status as something that was granted in place of the CPC becoming an intervening party. The memo framed the CPC's attainment of amicus status almost as a by-product of the court's denial for intervention.
The Emerald's questions to the SCAO were as follows:
Another question that arises, based on the SCAO's refusal to answer any of the Emerald's questions, is: If these are broad assertions that can be applied to any situation, why won't the office comment on them in a theoretical sense or to clarify what the law is?
The Emerald also reached out to Mayor Bruce Harrell for comment and will update this story if it receives any response. This is unlikely, however, as this will be the third time the Emerald has reached out to Harrell's office within the span of two weeks regarding the issue of the SHRC seeking amicus status. The first two times produced no answer from Harrell's office, despite the fact that the SCAO communications appear to frame Harrell as one of the key decision-makers in this situation.
Author's Note: This article originally only referred to Chen with she/her pronouns. However, Chen uses she/they pronouns. This was an oversight on the author's part, for which they sincerely apologize. The article has been corrected to reflect Chen's pronouns according to the Emerald stylebook. In this case, the pronouns "she" and "they" are used alternately throughout.
Featured Image: Photo by Salivanchuk Semen/Shutterstock.com
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The South Seattle Emerald™ is brought to you by Rainmakers. Rainmakers give recurring gifts at any amount. With around 1,000 Rainmakers, the Emerald™ is truly community-driven local media. Help us keep BIPOC-led media free and accessible.
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