For Whom the Clock Ticks

Neighborhood Alliance v. Spokane County is already one of the wildest public records fights in state history. The Supreme Court’s decision in the case may resolve one of the primal open government questions that agencies face: is it more cost-effective to divulge embarrassing public records, or destroy them?

By Tim Connor

In February of 2005, someone in Spokane County’s Building and Planning Department made a simple mistake.

He or she left a piece of paper on the lens of a photocopier where it was found by another county employee. Although it looked to be an innocuous departmental seating chart on its face, there was something curious about it. In the middle of the schematic there was a rectangle indicating a cubicle, in which were typed two names: “Ron & Steve.”

To the county employee who found the chart in the copier, it posed an interesting question: who the heck are Ron and Steve? In the fullness of time, the identities of the two men would become apparent, if not perfectly clear. One was Ron Hand, a former county employee who was being re-hired. The other was Stephen Harris, the son of Phil Harris  the then-chairman of the Board of County Commissioners. Stephen Harris was the third of Harris’s sons hired by the county. All had been hired after their father had been elected.

Breean Beggs and Bonnie Mager on the steps of the state Supreme Court, January 27, 2011

There was also this troubling fact: the seating chart was found in the copier two weeks before the job Stephen Harris filled would even be advertised.

As scandals go, this one wasn’t all that complicated. Notwithstanding the denials from the commissioner and the county, the appearance was that a powerful county official had used his influence to put a third son on the county’s payroll. Moreover, the hiring process appeared to be a cynical joke–a gesture merely to provide legal cover for nepotism.

The publicity over the charges likely made the difference in Phil Harris losing his seat, later that year, to challenger Bonnie Mager. But before Mager announced her decision to run, she had filed a public records request. On behalf of the Neighborhood Alliance of Spokane County, the organization she led at the time, Mager sought documents that she and the Alliance hoped would bring to light the key facts about how and when the decision to hire Stephen Harris had been made. What began nearly six years ago as a pretty simple public records request has evolved into an important legal case. At its core is the raw question of whether the state’s public records act (PRA) can be successfully manipulated to reward agencies who choose to destroy embarrassing public records, rather than turn them over.

Washington’s Public Records Act was written to discourage bad faith, even extraordinary bad faith on the part of agencies. But what happens when an agency goes rogue, and destroys requested records? What do you do then?

The person who’d created the seating chart that was inadvertently left in the Building and Planning Department’s photocopier was Assistant Planning Director Pam Knutsen. And it was Knutsen who took the lead in defending Harris’s hiring, insisting to a Spokesman-Review reporter in April 2005 that the decision to hire Harris (who’d last worked in a California business involving batteries) had nothing to do with him being the commissioner’s son.

Mager and the Neighborhood Alliance didn’t buy that explanation for a second. Under Phil Harris’s leadership, Spokane County had become increasingly contemptuous of state land use laws. That put the county on a collision course with Mager and the community organizations who sought the Alliance’s help in fighting sprawling developments outside urban growth areas. One way the Alliance responded was in becoming more vigilant toward the Building and Planning Department’s activities. When the seating chart was found in the department’s copier, it quickly found its way via a whistleblower to the Alliance.

After the Alliance obtained the seating chart, Mager crafted a brief public records request. On May 16, 2005, she asked for a copy of the seating chart with the corresponding computer data that would precisely show when the chart was first created. She also asked for any documents that would fully identify (with last names) the “Ron & Steve” listed near the middle of the chart.

The county’s refusal to produce the records fueled public allegations that the county was engaged both in nepotism and in a full-bore cover-up. The county, in turn, demanded an apology and even threatened to bring a countersuit against the Alliance it if filed a “frivolous” public records suit.

For his part, Commissioner Harris insisted he and the county were “clean as a hound’s tooth” in terms of their compliance with the public records act (PRA).

In the fall of 2005, Mager left the Alliance to successfully challenge Harris for his seat on the county commission. The circumstances under which Harris’s son had been hired by the Building and Planning Department was one of the key issues in the campaign.

As scandals go, the hiring of Stephen Harris wasn’t all that complicated. Notwithstanding the denials from the commissioner and the county, the appearance was that a powerful county official had used his influence to put a third son on the county’s payroll. Moreover, the hiring process appeared to be a cynical joke–a gesture merely to provide legal cover for nepotism.

The Center for Justice filed suit on behalf of the Alliance in May 2006. Because the case involved allegations of wrongdoing against Spokane County officials, it was  eventually assigned to a Lincoln County judge, Philip W. Borst. Borst dismissed the lawsuit in May 2008.

“Maybe they [the county] shouldn’t have destroyed that computer,” Judge Borst said, referring to a computer hard drive that was “wiped” after the Alliance had filed its records request. “But they do that all the time.”

The computer Judge Borst referenced belonged to Pam Knutsen. The argument  that CFJ attorney Breean Beggs had advanced was that Knutsen’s hard drive had been deliberately “wiped” to illegally destroy records the Alliance had requested.

“I’m not saying you’re not right,” Judge Borst told Beggs. “You could be right, but from my standpoint the facts aren’t there to back it up.”

The Center appealed the case on the Alliances’s behalf, arguing among other things that the essential fact-finding in the case was stymied by the county’s refusal to make Knutsen available for a live deposition.

As a result of the now infamous hard drive “wipe,” there is no record to which the daily penalties called for under the law can attach. Without a record available to be produced, the penalty clause of the public records act is an awkward tool at best. It’s like having to rely on a Phillips screwdriver when what you really need is a very large mallet.

At the time a Division III Court of Appeals panel weighed in on the case in August 2009, it handed the Neighborhood Alliance an important partial victory. Specifically, the Division III panel found the county had broken the law and was liable for civil penalties. Simply put, the panel found that the county failed to look in the only place where the requested records could be expected to be found—the hard drive that was in Pam Knutsen’s computer at the time she created the seating chart with “Ron & Steve” typed in it.

However, the appeals court upheld Judge Borst on rulings that not only favored the county on two important issues, but seemed to undermine recent Supreme Court decisions that had clarified and strengthened the law.

First, the panel ruled that the county could not be found liable for failing to produce records identifying the “Ron & Steve” on the seating chart.

Secondly, the Court of Appeals panel upheld Judge Borst’s ruling to deny a motion to compel discovery in the case, on the grounds that the requested discovery by the Alliance was “overreaching.”

These parts of the appeals court’s ruling appeared to be squarely at odds with how a unanimous state Supreme Court had ruled in a 2004 case stemming from Camas Magazine’s investigation of Spokane’s River Park Square scandal. In that case (in which I was the plaintiff) the Supreme Court ruled that the state’s “normal civil procedures” applied to discovery in open records cases. The court also ruled that it was not necessary for a plaintiff in a records action to have forced the release of illegally withheld records in order for the agency to be held liable for withholding the records.

Although thorny legal developments like this routinely get buried in press coverage because they are hard for most journalists to understand and explain, they are riveting issues in the trenches of the fight for open government. This is why Allied Daily Newspapers of Washington, the Washington Newspaper Publisher’s Association, the Seattle Times, Tacoma News Tribune and the Tri-City Herald filed a joint amicus brief in the Neighborhood Alliance case on behalf of the Alliance.

There is one other thing. Not to put too fine a point on it, but the Court of Appeals panel’s ruling on the issue at the heart of the Neighborhood Alliance case—as to whether the county should be found liable for not producing records fully identifying “Ron & Steve”—is almost breathtakingly bizarre.

As Breean Beggs reiterated in his argument to the Supreme Court last Thursday, the Alliance had very deliberately asked the county to produce records that would fully identify the “Ron & Steve,” on the county seating chart. From the start, the county insisted that the request for these records was a request for an “explanation” of the seating chart.

It’s a distinction that matters. In fact, it matters a lot. Under the PRA, an agency only has to produce requested records. As Chief Justice Barbara Madsen reminded Beggs at oral arguments last week, an agency like Spokane County has no legal duty to explain a record, or answer questions about. It’s only obligation is to provider responsive records. (This may, to some, seem a peculiar distinction because agencies often volunteer to answer such basic questions in response to public records requests, even though they don’t have to. In this case, and for obvious reasons, the county chose not to confirm that “Steve” was Stephen Harris, because to do so would have been to squarely acknowledge the corruption that Mager, the Alliance, and others alleged.)

“Maybe they shouldn’t have destroyed that computer,” Judge Borst said from the bench in his Davenport, Washington, courtroom. “But they do that all the time.”

In frustration with the county’s refusal to turn over the requested records, CFJ attorneys offered examples of the kinds of records that “may” be responsive to the request. The examples were emails (obtained from an October 2005 request) that included the names of Stephen Harris and others in the Building and Planning Department.
The purpose for offering the emails as examples was simply to give the court a feel for the kind of records the county could have turned over in response to the 5/16/05 request, had the county chosen to cooperate instead of stonewall.

The Court of Appeals panel did not, however, accept the emails as evidence that responsive documents existed in county files. Rather, in a move that stunned the Alliance and its lawyers, the panel construed the emails as evidence that the Alliance had actually been provided responsive records before it filed suit against the county. Thus, the Court of Appeals panel reasoned, the Alliance could not be a prevailing party under the public records act for that part of its May 16, 2005 request.

It was a head-spinning line of reasoning. In effect, what the appeals court panel was saying is that the county had provided responsive records to the 5/16/05 request even though: (a) the county actually didn’t provide them in response to the 5/16/05 request, (b) the county never indicated that the emails were responsive to the 5/16/05 request, and (c) the Alliance was in no position to know if the records were actually responsive.

Not to put too fine a point on it, but the Court of Appeals panel’s ruling on the issue at the heart of the Neighborhood Alliance case—as to whether the county should be found liable for not producing records fully identifying “Ron & Steve”—is almost breathtakingly bizarre.

Chief Justice Barbara Madsen during the 1/27/11 oral arguments.

Beggs tried to make light of this strange situation at last week’s hearing. (To watch the video of the 1/27/11 oral arguments in the case, click here.)  First he had to take on the Chief Justice’s question by pointing out that the Alliance’s request was clearly for records, not for an explanation. Then he insisted that because the county never even pretended to provide documents identifying “Ron & Steve” (or anyone else) shown on Knutsen’s seating chart, Spokane County still has not provided the records sought by Mager’s 5/16/05 records request.

As to the second issue that the county prevailed upon, regarding the limitation on discovery, both Beggs for the Alliance and Michele Earl-Hubbard and Chris Roselaniec for the amici, assert that the appeals court ruling is flawed because it relies too heavily on case law from the federal Freedom of Information Act (FOIA).

Unlike FOIA, the Washington PRA has a penalty provision. Over the past decade, the Washington Supreme Court has reiterated that penalties are mandatory when violations occur. Moreover, the Supreme Court has painstakingly elaborated on how the assessment of penalties should be adjusted to the factual evidence of wrong-doing by agencies in individual cases.  Under the Washington PRA, agencies can be fined between $5 and $100 a day for wrongly withholding records, and the Supreme Court has laid out specific factors for trial courts to use in assessing what the daily penalties should be.

In the Neighborhood Alliance case, you don’t have to look very far to see the tension over discovery. The issue goes precisely to what Judge Borst said in May 2008 when he wondered, aloud, whether the county purposely “destroyed” Pam Knutsen’s computer so it couldn’t be searched. Yet, it’s also clear that Judge Borst didn’t allow the fact-finding necessary to answer that question when it was before him.

An interesting dilemma in the Neighborhood Alliance case is that it may not be resolvable where the Appeals Court left it. If the county is (as the appeals court ruled) liable for not conducting an adequate search for records on Pam Knutsen’s computer, it begs the question of how a court can assess the penalties that the county would owe to the Alliance if, as the Appeals Court found, the county violated the Public Records Act by not checking Knutsen’s hard drive before it was “wiped.” Specifically, the question is how can you assess penalties unless you can conduct sufficient discovery to determine whether the inadequate search was negligent, or purposeful, or something in between. And, yet, another part of the Appeals Court’s ruling was to reject the Alliance’s motion to compel discovery in the case.

Neighborhood Alliance v. Spokane County tests whether the state’s public records law can be used to expose embedded government corruption. It will also help answer another rather interesting question: how much is Spokane County on the hook for?

If things weren’t complicated enough, the Neighborhood Alliance case presents the court and possibly the state legislature with an even bigger dilemma.

It’s this: The PRA was written to discourage bad faith, even extraordinary bad faith on the part of agencies. But what happens when an agency goes rogue, and destroys requested records? What do you do then?

What Judge Borst overlooked in the Neighborhood Alliance case is that Spokane County never even attempted to search Pam Knutsen’s computer hard drive before “wiping” it. This is why the Court of Appeals reversed him and by finding that the county violated the PRA by failing to conduct an adequate search.

Yet, as a result of the hard drive “wipe,” there is no record to which the daily penalties called for under the law can attach. Without a record available to be produced, the penalty clause of the PRA is an awkward tool at best. It’s like having to rely on a Phillips screwdriver when what you really need is a very large mallet.

Spokane attorney Breean Beggs

Chief Justice Madsen seized on this point in her questioning of Breean Beggs. Beggs had argued that because the county broke the law by failing to even examine the hard drive in Pam Knutsen’s computer before “wiping” it, the Neighborhood Alliance is entitled to daily penalties.

Justice Madsen disagreed: “By being dragged into court,” she told Beggs, “you get your attorney fees and costs under the statute, but you don’t get the penalties.”

What Justice Madsen was clearly suggesting is that even though the county erased the hard drive, the bottom line is that no responsive record was ever found or produced. Thus, she implied, this effectively shifted the burden of proof not to the county, but to the Neighborhood Alliance.

“It does seem to me,” she said, “that at the end of the day it might be that there were no records and then you’re assessing daily penalties when there were no records that would have been responsive.”

Beggs replied that he might agree with Justice Madsen if the county had erased or destroyed the hard drive before Mager’s records request. But, he continued, the evidence indicates that the hard drive hadn’t been erased when Mager filed the request in May 2005 and that, under the PRA’s penalty provisions, the burden is on the county to show it conducted an adequate search.

“By being dragged into court,” Chief Justice Madsen told Breean Beggs, “you get your attorney fees and costs under the statute, but you don’t get the penalties.”

The surprise in the oral arguments came right at the end of Pat Riskin’s time, when the Chief Justice tried to get Riskin (the Spokane attorney hired to defend Spokane County) to support the no-penalty proposition she voiced while questioning Beggs.

In answering a question from Justice James Johnson about how he would argue the issue of penalties before a trial court, Riskin indicated he would argue that the wiping of the computer drive was due more to negligence or confusion than to bad faith. Riskin then added he would also argue that the last day penalties could be assessed would be August 8, 2005, which is when the county re-assigned the “wiped” hard drive to another employee’s computer.

That seemed to catch the Chief Justice off guard.

“Are you agreeing that daily penalties apply under the circumstances here, where no records have been found to have been denied and (sic) be responsive?” she asked.

“Not to this date,” Riskin replied.

Given another chance at the question, Riskin indicated he would have an argument against daily penalties for the trial court. (The assignment of PRA penalties is typically remanded back to the trial court in such cases.)

But his answer still left Justice Madsen perplexed.

Justice Madsen: “Well I thought the opposing party was arguing that we should find that there is a stand-alone provision [in the PRA] that if you, or whether or not you ever have documents that can be or should have been disclosed, that there are daily penalties for failing to do an adequate search.”

Pat Riskin: “Right.”

Justice Madsen: “And you’re not opposing that position?”

Pat Riskin:  “Well, I oppose that position if the daily penalties continue to run all the way through this judicial process that we’re involved in now, while Spokane County protects itself, or tries to present its side of the case. That penalty works as a punishment against Spokane County at that point, just for pursuing an appeal. That’s what I have great concern with.”

Justice Debra Stephens then interjected.

“You would cut off the penalty at the moment the county conducts a reasonable search?” she asked Riskin. “Assuming the search were determined to be unreasonable, that you’re saying at the point of time of a reasonable search is conducted and there are no documents, that cuts off the penalty?”

Pat Riskin: “That could, yes. Like I said before, that would be the outside (sic), the way I look at it today.”

This debate is hardly arcane and inconsequential. As even Judge Borst allowed, there are valid reasons to believe that, in this case, Spokane County deliberately destroyed evidence to avoid the political and legal consequences.

If it had simply withheld records, instead of destroying them, then the penalty clock would still be running. It has been approximately 2,000 days since the county first replied to Mager’s request. This means the penalty could be as high as $200,000–still not a huge sum of money given the stakes involved, but a plausible deterrent nonetheless.

But if Riskin is right—that the penalty clock should stop no later than August 2005 —then the penalties are peanuts—probably less than $10,000, at most.

To be sure, there is a genuine conundrum. It does seem reasonable to assess daily penalties on an agency for each day it refuses to conduct a “reasonable search” for a requested record. But the logic behind Riskin’s argument is that once an agency destroys a record, the clock should stop. After all, the agency can’t conduct a reasonable search for a record that no longer exists.

What’s unspoken here is that the reason the document ceased to exist is because the county destroyed it. Thus, if Riskin’s logic prevails, the message would be that the sooner an agency destroys an embarrassing record, the less exposed it will be to penalties under the PRA.

Of course, even in Riskin’s scenario (assuming the county is liable) the county would pay at least some penalties. The way Chief Justice Madsen apparently views it, the county would pay no penalties at all.

—CFJ

Leave a Reply

Your email address will not be published. Required fields are marked *

captcha

Please enter the CAPTCHA text