by Meredith M. Griffith
This week the county settled another public records-related lawsuit to the tune of $17,000. Ed Kilduff, the plaintiff, had requested two months of emails by county land bank director Lincoln Bormann.
Gaylord said that after establishing initial communication about the request, public records clerk Sally Rogers and Kilduff both “dropped the ball.”
“The request fell between the cracks, and surfaced a few months later when Mr. Kilduff filed suit against us,” said Gaylord. The county has since produced the requested records, but it took 300 days to do so. Gaylord said the court was posed to rule favorably toward the county because Kilduff had not followed the required protocol before bringing legal action against the county.
“Essentially the rulings said, if you’re gonna bring an action to recover penalties and attorney fees, the county must first deny you the records, and second, you must complete an administrative process by asking the prosecuting attorney to review the denial before you file suit,” said Gaylord. “That should cut down on future lawsuits.”
But Kilduff promised to appeal the ruling, and Gaylord said there was a risk the county could be hit with very large penalties if the ruling was overturned on appeal.
Because the county had taken such a long time to comply with the records request, they offered Kilduff $7,000 in penalties and $10,000 for his attorney fees.
According to Gaylord, there have been three public records lawsuits against the county settled in the past year. The plaintiffs were Sheryl Albritton, John Geniuch and Ed Kilduff.
In the Albritton case, concluded in January 2016, the total judgment awarded by the court was $53,444, mainly to Albritton’s attorneys: $980 was awarded to Albritton; $24,085 to Allied Law Group of Seattle; and $27,379 to attorney Nick Power. The county’s attorney Jeff Myers’ fees were covered by the Washington Counties Risk Pool (per the county’s contract with them) and a $10,000 payment by the county, similar to an insurance co-pay.
Earlier this month, the county settled a public records lawsuit brought by former building official John Geniuch by offering $85,000 plus $5,814 in attorney’s fees.
“So what’s the root of the problem?” we asked Gaylord. He said it’s a combination of county systems, county philosophy and how people “deal” with records requests.
“I think that we are understaffed,” he said. “We need a full-time public records officer. We need a management level person providing leadership when questions come up on public records requests.”
In recent months county council member Jamie Stephens and prosecutor Amy Vera have been providing management support to handle public records requests.
As of April 25, the county website says 207 public records requests have been submitted to the county in 2016. Of those requests, 68 were made by former county code enforcement officer Christopher Laws; 27 by Geniuch; 12 by Katie D. Fairchild and 7 by Michael Durland.
In part due to the volume of requests, San Juan County has been recently began displaying public records requests on its official website at http://sanjuanco.com/1056/Year-to-Date-Public-Records-Requests.
“229 public record requests is a huge amount of requests,” commented county council member Rick Hughes. “San Juan County is a small county with limited resources and some people may see potential for financial gain… I have no idea why people are submitting so many requests.
The main difficulty with public records requests is that the county cannot simply gather and disseminate the requested documents. Much of the information is legally protected and cannot be released – especially when personnel files are involved. So someone with intimate knowledge of the law must go through each batch of information, page by page, and redact the protected details.
“That is hugely time consuming,” explained Gaylord. “That’s why there’s a staffing issue.
We are getting records requests for categories of records instead of the records themselves. For example, we got a request for all communications between employees and their assistants over a two-year period.”
He said the county regularly produces 3,000 and 4,000 pages at a time to meet a single public records request, and by state law the county cannot charge for the work of collecting and delivering that data.
“Any public record can be requested so long as it is identifiable, [including by category],” added Gaylord, “That’s just an enormous process to find them, collect them, look for redactions and so on.”
Vera has just spent the past two months providing training to all county departments, giving guidance on the correct way to respond to public records requests to encourage consistency across all departments. The county has also recently initiated a new system for handling public records requests.
“The county has improved its public records procedure and purchased new Public Records software,” said county council member Hughes. “Chair Stephens is now the public records officer; we increased the FTE of the records manager; the Prosecuting Attorney’s office and county manager meet with Stephens twice a week to go over all outstanding public records; and the full council sees each public record request.”
He added, “We hope to have made enough changes to be able to complete all record request in a timely basis and prevent legal challenges.”
According to the Washington State Attorney General, “All records maintained by state and local agencies are available for public inspection unless law specifically exempts them … These “exemptions” are listed in the Public Records Act (RCW 42.56).”
The act is 53 pages long, and clear as mud. For example, section 42.56.210: “Certain personal and other records exempt” states, “(1) Except for information described in *RCW 42.56.230(3)(a) and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons. (2) Inspection or copying of any specific records exempt under the provisions of this chapter may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual’s right of privacy or any vital governmental function.”
While the act includes a disclaimer of public liability stating that public agencies, officials and custodians are not liable for the release of public information if the person “acted in good faith in attempting to comply with the provisions of this chapter,” it’s not too hard to imagine the county getting sued if a worker mistakenly releases sensitive details within a former employee’s personnel records.
“We need to respond quickly; there’s no question about that,” said Gaylord. “We need communication back and forth between the requestor and the county. And citizens need to be smart about their requests; it’s appropriate for them to be inquiring. But if they ask for a huge number of documents it’s going to take time, and it’s going to be disruptive; that’s not an excuse, but it’s part of our business.”
Added Hughes, “Over two days in February or March, two people made around 63 public record requests. Each request takes literally hours to days to complete. It’s hard to see how this will be sustainable over time if the volume continues.”