Appeals Court rules for Neighborhood Alliance in Harris Records Case.
A three judge panel of the Washington Court of Appeals ruled Tuesday that Spokane County violated the state’s public records act in 2005 when it deliberately failed to search for a crucial public record. The record, an electronic data log for a seating chart prepared for the county’s Building and Planning department, was sought by the Alliance when it was trying to investigate whether and how county officials may have violated the law in hiring Stephen Harris, the son of then-County Commissioner Phil Harris. Steve Harris was the third of Harris’s sons to be hired by the county during Harris’s tenure.
The court’s ruling sends the case back to a trial court with instructions for the court
to assign penalties, costs, and attorney fees to be paid to the Alliance and its attorneys.
“It get us what our clients wanted,” said Center for Justice Chief Catalyst Breean Beggs, “penalities and their attorneys fees covered, and vindication. Beggs learned of the decision late Tuesday afternoon. In arguments before the appeals court last spring, the Center’s Bonne Beavers insisted that discovery in the case showed, conclusively, that the county deliberately chose not to conduct an adequate search for the records the Alliance sought. With respect to one of the pivotal records sought–an original electronic data file for an employee seating chart–the appeals court agreed.
“The vindication,” Beggs said, “is that the county did not search the one place where they knew they could find the accurate records that would have been damning to them. And the court recognized that. You can tell by the way the judges recounted the facts that they are not at all happy with what the county did. They granted the maximum relief that they could to the Alliance.”
Barring a successful appeal by the county to the Washington Supreme Court, today’s decisions ends an often contentious, three-year-long cat and mouse game between the Alliance and the County over Harris’s hiring.
The case involved a prolonged battle over discovery and a vivid dispute over what kinds of questions a requesting party like the Alliance can pose in discovery when litigating a public records case. Although the appeals court panel sided with the county regarding the proper scope of discovery in the case and, in a second
instance, a dispute over whether the county was responsive in providing other records, the bottom line is that the appeals court found the county violated the public records act.
What certainly added to the interest in the case is that the original records request was made by Bonnie Mager, the Alliance’s executive director. Mager is now a sitting county commissioner having taken Harris’s former seat by defeating him in a tightly contested 2006 election in which the allegations of nepotism and public corruption were clearly a major factor.
Mager decided to file the public records request on the county after a county whistleblower found a paper copy of the seating chart in a copier in the county’s Building and Planning Department. The chart displayed desk assignments for two Steve’s and one Ron. To the whistleblower and other employees, the discovery was striking because, at the time, there was only one Steve in the department. The suspicion was that the second “Steve” was the commissioner’s son who was not obviously well-qualified to work for the department. More importantly, the county had yet to even advertise for the position that Stephen Harris would be chosen for two months later.
In response to Mager’s records request, the county did produce an identical chart that was created on the computer of Pam Knutsen, the department’s assistant director. But while the original paper copy had been discovered in February–weeks before the job announcement was posted–the electronic data field on the copy produced in response to records request indicated that the document had been created in late April, even though it also indicated the document had been modified two months before it had been created. That didn’t make sense.
Discovery in the case revealed that the county had “wiped” Knutsen’s old computer hard drive (sought to erase it) and given her a replacement computer in April, perhaps only days before the Alliance’s records request. The old computer and its “wiped” hard drive were then rebuilt and assigned to another employee.
But the Alliance, in May of 2005, was unequivocally seeking the original data fields for the seating chart, to try to establish that the second “Steve” had been assigned a desk before the job announcement for the position.
Writing for the three judges, Acting chief Judge Teresa Kulik noted: “The County admitted that it did not know the date Ms. Knutsen’s hard drive on her old computer was wiped and that there was no record that it was wiped prior to the May 16, 2005 request for records from that computer’s hard drive. The County’s response indicates that it made no efforts to confirm whether Ms. Knutsen’s old computer retained any record of the seating chart.”
Moreover, Judge Kulik noted, the county admitted that the only place it searched for the record was on Knutsen’s new computer, not the computer on which county officials knew the smoking gun of a seating chart was actually created.
“[T]he evidence shows that Ms. Knutsen’s computer was rebuilt and given to another employee in August 2005–almost three months after the Alliance’s request,” wrote Judge Kulik for the panel. “Contrary to [a county data system's manager's] affidavit, the County admitted it does not know whether the wipe occurred in April 2005. Not only does the County admit it does not know whether the wipe occurred and has no records showing when the hard drive in Ms. Knutsen’s old computer was wiped, or who performed the work, the County admits it made no effort to find out in response to the Alliance’s May 16, 2005 request.”
And that, the court found, was the violation:
“The County failed to conduct an adequate search for the complete electronic information log showing the date the seating chart was created. It did not search the computer Ms. Knutsen was using when the seating chart was created. On de novo review, the record indicates that the search was deficient and summary judgment for the County [by the trial court] was not proper.”
The state’s public records law requires daily penalties for non-compliance. Thus, one obvious question that remains is how the trial court judge will determine how many days to penalize the county for a public record that it has yet to search for, and may have destroyed, perhaps purposefully, sometime in the spring of 2005. Under state law, records violations are sanctioned at between $5 and $100 per day, depending on the evidence of bad faith, negligence, or indifference.
–CFJ
