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APPEALS COURT RULES FOR GOLD BAR IN RECORDS CASE
November 16, 2012
Editor’s Note: this story originally appeared 11/15/12 in the Chronicle’s Breaking News column on front page
Part of state appeals court decision ruling city of Gold Bar acted within reasonable time frame in attempting to respond in light of difficulty city had in retrieving public records request information. CLICK TO ENLARGE
(SEATTLE, WA) -- The Washington State Court of Appeals has handed down a ruling in favor of the city of Gold Bar, Washington in the matter of a complaint filed on May 17, 2010 over earlier public records requests made by a Gold Bar woman.
An appellate court decision dated Nov. 13, 2012 affirmed and upheld an earlier trial court judge’s summary judgment dismissal of the case filed by Susan Forbes of Gold Bar.
Forbes alleged in the suit that the city had violated the Public Records Act (PRA), Chapter 42.56 because the city had “failed to respond to her requests for public records.”
Forbes made three requests for records from the city, the first being May 20, 2009, a second request in November of that year and a third request made in March.
The public records act requires a public agency to promptly respond to requests for records within five business days by providing the records, denying the request or providing a reasonable time frame with which to respond to the request.
In handing down its decision the Appellate Court said the act also “recognizes there are situations where an agency needs additional time to respond to a request. That was the situation here.”
“We are happy to have won the appellate court ruling and appreciate the fine work of our city attorneys,” said Gold Bar Mayor Joe Beavers of the decision announced Tuesday.
CITY WENT TO GREAT LENGTHS TO ACCOMMODATE REQUESTS
The appeals decision noted the city of Gold Bar went to extraordinary lengths to fulfill records requests including hiring an outside computer consultant while the city council was reviewing 27,000 emails and hiring additional help to respond to not only the Forbes request, but dozens of other requests.
The appellate court said that by July 2009 after the previous mayor had left and current mayor Beavers came into office,” there were 82 record requests from Forbes and other persons aligned with her. Most of those requests were processed quickly, except for those that required extensive production and review of documents. To avoid the city from coming to a standstill, the city hired an additional employee and transferred an employee from the maintenance department to work on responding to Forbes’ requests.’
The decision said the city sent records to Forbes as they became available and sent numerous communications to Forbes during this time to keep her apprised of the status of the requests and the city’s response thereto.
Forbes brought suit when she became dissatisfied with the time it took to release the records and for what she described as a failure of the city to create a log outlining each record withheld “on the personal emails of the various past and present city officials.”
The city went to court to demonstrate it had complied with the records request to the best of its ability and moved for dismissal of the suit based on those grounds and the initial trial court judge did grant the city’s motion and dismissed Forbes’ lawsuit “with prejudice,” meaning the court closes the case permanently.
It was that decision - the summary judgment dismissal of the case with prejudice - that Forbs appealed to the appellate court.
COURT SAID OPERATIVE WORD IS REASONABLE
The court noted that the operative word in the Public Records Act is “reasonable” and indeed the initial trial court found the city had acted within a reasonable time frame to the records requests and said, “the search was reasonably calculated to uncover all relevant documents.”
The appellate court also noted that Gold Bar ended up paying 12% of the city’s annual income responding to public records requests in 2010 and said the city made 28,290 records available in 11 disclosures between Nov. 6, 2009 and Sept. 16, 2010.
In her appeal Forbes had wanted the court to conduct an “in camera review” of the numerous “personal emails” of city officials that were not handed over by the city to Forbes.
The city had maintained they were not relevant to the public records requests that had been filed.
In camera is where the court itself reviews the records in private to determine if some or all of them should be handed over.
In its ruling the appellate court said it found this in camera step unnecessary, “and further found that Forbes did not have any clear articulation as to why such a review would be appropriate thus, the request amounted to nothing more than a fishing expedition,” said the court’s opinion on page ten of the ruling.
PUBLIC OFFICIALS PERSONAL EMAILS ARE NOT PUBLIC RECORDS, SAYS COURT
The appellate court also clearly noted that “the purely personal emails of those government officials are not public records…(because) here the records are not those discussing governmental conduct, but rather emails in which there is not city business referenced or discussed.”
And in a footnote to its ruling the court said, “Because all (public) officials had consented to a search of their personal computers, we do not address whether such a search would violate Article 1, section 7 of the State Constitution that, “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Gold Bar Mayor Joe Beavers is one of several small town mayors in the state now looking to the state legislature to come up with changes in the 1972 Public Records Act that will accommodate the public’s right to request and receive records in a timely fashion but stop what Beavers and others say are abuses of the PRA by just a few people – abuses so serious they threaten to bankrupt small towns.
Gold Bar is currently in the midst of finance difficulties due to the expense of issues relating to public records requests and the same issues are also draining the finances of other small towns already cash strapped by the Great Recession.
A recent God Bar initiative on the ballot in the Nov.6 election that would have increased property taxes a few dollars a month to raise enough money to deal with the litigation that town has been involved with the past few years, all relating to public records, was defeated by voters.
Now Gold Bar officials have to figure out how to deal with a large hole in the budget from primarily the expense cutting side, and if that doesn’t work the town may be looking at disincorporation.
HOW A FEW ARE VIRTUALLY BANKRUPTING SMALL TOWNS
In tiny McKenna, Washington a husband and wife team took the town for almost a quarter million dollars in attorney fees and fines for failing to comply with the couple’s numerous records requests.
Tiny Mesa, Washington was brought to the point of financial ruin for the same reason.
Prosser, Washington waged a four year battle with an angry man, his wine barrels and a naked blow up doll who dinged the small town for $175,000 all based on filing public records requests.
State Attorney General Rob McKenna has gone on record as saying some people have learned to “punish” elected officials and public agencies through abuse of the public records act.
Gold Bar Mayor Beavers claims part of the problem is the legislature inadvertently built into the act a “financial incentive” for those who would abuse and game the system and that incentive must be eliminated or small towns will continue to be held hostage by those who seek to punish their communities by purposely causing extraordinarily high expenditures related to public records requests.