A YouTube video posted on Jan. 29 about the San Juan County government has been viewed more than 9,000 times. The 19-minute video by conservative political activist Glen Morgan for his political committee “We the Governed” reflects upon a recent Washington State Supreme Court decision regarding public record disclosure in San Juan County.
On Dec. 12, 2019, the Supreme Court unanimously reversed the Skagit County Superior Court’s dismissal of a lawsuit against San Juan County by Lopez islander Edward Kilduff; upheld the lesser court’s dismissal of an ouster claim against county councilmember and public records officer Jamie Stephens; and remanded the cost of attorney fees back to the trial court for discussion. Skagit County Superior Court oversaw the case because San Juan County is the defendant.
San Juan County Code 2.108.130 said all administrative methods of securing public records must be exhausted before a lawsuit for failure to comply with the public records act can be made. The state Supreme Court invalidated this code in its decision noting, “public records requesters are not required to exhaust administrative remedies before filing a PRA lawsuit.”
The Supreme Court also said that Skagit County Superior Court’s decision to impose fees upon Kilduff for a frivolous lawsuit was an abuse of power.
“… Costs may not be imposed pursuant to RCW 4.84.185 unless the entire case is deemed frivolous,” the justices said in their judgment. “Consequently, even though the trial court determined Kilduff’s [claim against Stephens] was frivolous, his PRA claim was not, so the trial court abused its discretion when it granted a fee award pursuant to the statute.”
According to the Supreme Court’s decision, on May 20, 2015, Kilduff filed a two-part public records request regarding the “wetlands classification dispute and subsequent investigation into improper government action [or IGA].” The judges stated in their case background information Kilduff had requested “all documents, correspondence, memos, statements, reports, and other contents of the [San Juan County Department of Community Development] code enforcement file” and “all documents, memos, statements, reports, correspondence and other records associated with the investigation of [IGA], related to the above-referenced code enforcement file.”
The public records clerk at the time, Sally Rogers, acknowledged the request and told Kilduff he would have the response in 5-10 business days, the judges wrote.
On May 28, 2015, Kilduff said San Juan County Prosecuting Attorney Randall Gaylord called to discuss the request. According to the Supreme Court documents, Kilduff was advised by Gaylord that he had previously directed the code enforcement officer to separate the files and Kilduff agreed to accept the final, redacted IGA report in lieu of the records request.
Gaylord told the Journal in 2018 the county provided documents to Kilduff and Gaylord told him to contact the county if he wanted more information. This assertion was noted in the court documents.
Kilduff disputed that he agreed to limit his request and never received notice in writing of his acceptance of the modification, according to the Supreme Court document.
“The trial court did not make any finding as to whether Gaylord or Kilduff was more credible on this issue,” the justices wrote.
After the May 2015 call, Kilduff was provided 45 pages of documents from the code enforcement file and was told the rest of the requested information would arrive in another two weeks, the justices said. Kilduff was emailed the redacted IGA on June 12, 2015, and was told his request had been fulfilled. Kilduff stated the documents he received did not include an exemption log or indicated that additional records existed but were being withheld.
In June 2016, Kilduff filed a complaint against the county for not producing documents in accordance with the public records act, RCW 42.56, and alleged that Stephens be removed from the county council as he, “occupied two incompatible public offices.”
Kilduff’s lawyers alleged in their complaint that the county violated the state’s public record act “by failing to conduct a reasonable search for responsive records and silently withholding records without an exemption.” He was represented by attornies Nicholas Power of Friday Harbor and Michele Lynn Earl-Hubbard of Allied Law Group LLC in Seattle.
In December 2017, Skagit Superior Court Judge Brian Stiles dismissed the public records act lawsuit claiming the county’s law — now invalidated by the Supreme Court — was clear in requiring a requester exhaust all means of acquiring requested records. He also ruled that the case against Stephens was frivolous and ordered Kilduff to pay $10,000 for recovery of attorney fees.
The case was submitted to the appellate court in June 2018.