Griswold v. Homer City Council , 2013 Alas. LEXIS 121 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK GRISWOLD, )
) Supreme Court No. S-14809
Appellant, )
) Superior Court No. 3AN-10-12485 CI
v. )
)
HOMER CITY COUNCIL, ) OPINION
)
Appellee. ) No. 6822 – September 13, 2013
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Frank Griswold, pro se, Homer, Appellant.
Thomas F. Klinkner, Birch Horton Bittner & Cherot,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
Frank Griswold made a public records request for emails related to a public
bond proposition. The City of Homer eventually produced all of the emails requested,
except for privileged emails and deleted emails that could not be recovered without
expensive software. We conclude that there was sufficient record support for the
superior court’s decision that the city manager used “good faith and reasonable effort”
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to comply with the request. And although Griswold complained that the Homer City
Council failed to hold a hearing on this issue, the superior court allowed the parties to
supplement the record, and thus, all parties had a meaningful opportunity to be heard.
II. FACTS AND PROCEEDINGS
In February 2008, the Homer City Council approved a bond proposition and
issued an election brochure entitled “Questions & Answers about Homer Town Square
and the New City Hall.” Homer resident Frank Griswold filed a complaint with the
Alaska Public Offices Commission, alleging that the brochure constituted the use of
municipal funds to influence the outcome of a ballot measure without an appropriation
ordinance in violation of AS 15.13.145.1 The commission agreed with Griswold and
fined the City $400.
Griswold filed a public records request with City Manager Walt Wrede,
requesting any documents relating to the brochure. Griswold believed the City’s initial
response to his request was inadequate and he filed a second public records request in
April 2008. The second request sought emails sent to and from certain officials and
contractors from January 1 through April 16, 2008. Wrede denied the request under City
of Homer Regulation 2.07, which allowed the city manager to determine that a request
was made for the purpose of harassment. Griswold appealed, and the superior court
concluded that Wrede denied Griswold’s request without providing adequate notice or
opportunity to be heard.
1
AS 15.13.145(b) states:
Money held by an entity identified in (a)(1)-(3) of this section
may be used to influence the outcome of an election
concerning a ballot proposition or question, but only if the
funds have been specifically appropriated for that purpose by
a state law or a municipal ordinance.
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Neither party took any action for months after the superior court reversed
the manager’s decision. In November 2009 Griswold moved to hold the City in
contempt, and the superior court denied the motion, explaining that Griswold must either
file a new request or renew his old request. In March 2010 Griswold notified Wrede that
he wanted to renew his April 2008 records request. When Wrede responded, he noted
that some emails were missing because, during the relevant time period, the City did not
back up all incoming and outgoing emails. In a subsequent letter, Wrede informed
Griswold that the City had retrieved all available emails that were responsive to
Griswold’s request.
In August 2010 Griswold appealed to the City Council, claiming that the
manager had not fully complied with his request, that the email search was inadequate,
and that the City had unlawfully failed to preserve public records. The Council
performed an in camera review of emails that Wrede withheld as privileged and
concluded that seven of those emails should have been produced. The Council also
found that Wrede had otherwise made a “good faith and reasonable effort” to locate all
of the requested emails.
Griswold appealed to the superior court. Griswold argued that he should
have been allowed to present additional evidence before the Council, so the superior
court allowed the parties to supplement the record and stated that it would hold an
evidentiary hearing if necessary. The City Council deposed the City’s Computer System
Manager, Steven Bambakidis, and submitted the transcript to the court, but Griswold did
not submit any supplemental material.
The superior court agreed with the City Council that the City had complied
with Homer City Code section 1.80.060(a), which required the city manager to “make
a good faith and reasonable effort to locate records” that are identified in a public records
request. The court explained that “Wrede purchased and used state of the art record
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retrieval software to more fully comply with Griswold’s request. Wrede and other City
officials expended City time (nearly six months) and taxpayer money working on
complying with the records request.” The superior court affirmed the City Council’s
decision, and awarded attorney’s fees to the City Council. Griswold now appeals.
III. STANDARD OF REVIEW
“When the superior court is acting as an intermediate court of appeal in an
administrative matter, we independently review the merits of the agency or
administrative board’s decision.”2 We use four standards of review when reviewing
administrative decisions: “the ‘substantial evidence test’ governs questions of fact; the
‘reasonable basis test’ applies to questions of law involving agency expertise; the
‘substitution of judgment test’ governs questions of law when no expertise is involved;
and the ‘reasonable and not arbitrary test’ applies to review of administrative
regulations.”3 In particular, the application of legal privilege is a question of law that we
review de novo.4
“[W]hen a [superior] court is the fact finder for an otherwise administrative
proceeding, the traditional ‘clearly erroneous’ standard of review applies” to the court’s
2
Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630
(Alaska 2011) (citing Hester v. State, Pub. Emps.’ Ret. Bd., 817 P.2d 472, 474 (Alaska
1991)).
3
Rubey v. Alaska Comm’n on Postsecondary Educ., 217 P.3d 413, 415
(Alaska 2009) (citing Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska 1975)).
4
See Gwich’in Steering Comm. v. State, Office of the Governor, 10 P.3d 572,
577-78 & n.8 (Alaska 2000) (“[The independent judgment] standard is applied
appropriately to an administrative decision when it concerns the ‘analysis of legal
relationships about which courts have specialized knowledge and experience.’ ” (quoting
Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971))).
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fact findings.5 We independently review a request for disqualification of a judge based
on the appearance of impropriety.6 And we generally review an award of attorney’s fees
for abuse of discretion.7
IV. DISCUSSION
A. The Record Supports The Superior Court’s Decision On Griswold’s
Public Records Request.
As noted above, Homer City Code 1.80.060(a) required the city manager
to “make a good faith and reasonable effort to locate records” identified in a public
records request. On appeal, the superior court concluded that the city manager made a
good faith effort to comply with Griswold’s request.
Griswold argues that the superior court’s conclusion was not supported by
substantial evidence. But it appears that there was substantial evidence supporting the
court’s decision, based on the materials originally submitted to the City Council and the
deposition transcript that was filed during the court proceedings.
In his statement to the City Council, the Manager stated:
The City has produced all emails in its data base [sic] for the
eight people listed during the period identified. The City
expended $500 on recovery software so that it could be
responsive to this request. The IT staff spent approximately
5
City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 876 (Alaska
1985).
6
Greenway v. Heathcott, 294 P.3d 1056, 1062-63 (Alaska 2013); Phillips v.
State, 271 P.3d 457, 459 (Alaska App. 2012) (“On the separate issue of whether, given
the circumstances, reasonable people would question the judge’s ability to be fair, the
proper standard of review is de novo — because ‘reasonable appearance of bias’ is
assessed under an objective standard.”).
7
Bobich v. Hughes, 965 P.2d 1196, 1200 (Alaska 1998) (citing Mt. Juneau
Enters., Inc. v. Juneau Empire, 891 P.2d 829, 834 (Alaska 1995)).
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20 hours locating old tapes and disks, recovering old back up
files, and moving them to newer disks from which they can
be accessed. The staff has spent another 30 hours reviewing,
numbering, and copying the recovered documents so Mr.
Griswold could review them. All of this was done at no cost
to Mr. Griswold. In the end, over 600 emails were produced.
In his deposition, the City’s Computer System Manager, Steven
Bambakidis, explained that he spent 40-50 hours searching for the email records that
were responsive to Griswold’s request. He stated that he searched the backup system and
computer hard drives, and he explained that he used state-of-the-art retrieval software.
Bambakidis also testified that the search did not obtain all responsive records, but the
procedures necessary to obtain the remaining records would have required five to ten
thousand dollars of additional forensic software and several additional weeks of work.
The superior court allowed a partial trial de novo and made factual findings
on the issue of whether the city manager “made a good faith and reasonable effort to
locate records”; therefore we review the court’s factual findings for clear error.8 When
we consider the record before the City Council and the foregoing deposition testimony,
we conclude that the court’s decision was not clearly erroneous.
B. Griswold Has Not Adequately Explained His Claim For Destruction Of
Public Records.
Griswold argues that the City unlawfully destroyed public records. He
bases this claim on the Alaska Public Records Act.9 In particular, the Public Records Act
ensures that “[e]very person has a right to inspect a public record in the state” except for
8
See Catholic Bishop, 707 P.2d at 876 (reviewing superior court’s factual
findings for clear error).
9
AS 40.25.100-.350.
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certain listed exceptions not applicable here,10 and “[e]very public officer having the
custody of records not included in the exception shall permit the inspection” and provide
a copy of the record on request.11 But Griswold never explains how these provisions
forbid the routine deletion of email correspondence from public offices. In response, the
City Council argues that this appeal should be decided under the Homer public records
ordinances, and that the deletion of emails is beyond the scope of this case.
It appears that Griswold could have alleged a claim for the destruction of
these emails under the Alaska Records Management Act, which requires state agencies
to preserve public records and create reasonable retention schedules.12 This statute
requires municipalities to follow the program established for the management of state
records “as far as practical.”13 But we have construed this statute to permit the
destruction of “non-record” email, which is primarily generated for informal
communications.14
Griswold did not argue any violation of the Records Management Act in
the superior court, so the parties did not litigate the application of this statute, and the
court did not address this statute in its decision. There is, therefore, no factual basis for
us to determine whether there has been a violation of the Records Management Act. We
conclude that Griswold’s records retention claim is beyond the scope of this
administrative appeal.
10
AS 40.25.120(a).
11
AS 40.25.120(b).
12
See AS 40.21.010-150.
13
AS 40.21.070.
14
See McLeod v. Parnell, 286 P.3d 509, 511 & n.3 (Alaska 2012) (explaining
that public records include records “appropriate for preservation” under the Record
Management Act).
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C. The Superior Court Did Not Violate Griswold’s Right To A Hearing.
Griswold also argues that he did not have an opportunity to present
witnesses or present any evidence on his claim. It is true that the City Council decided
Griswold’s appeal without taking any additional evidence regarding his records request.
But later, at the conclusion of the oral argument in the superior court, Griswold asked for
the opportunity to submit additional evidence. The court asked the parties to submit
interrogatories, depositions, and any other evidence so that the court could determine
whether an evidentiary hearing was necessary. In response, the City Council deposed the
City’s Computer System Manager, and Griswold cross examined this witness at the
deposition. The City Council filed a transcript of the deposition, but Griswold did not
submit any additional evidence.
Later at a status hearing, Griswold indicated that he thought the court would
hold an evidentiary hearing. But Griswold did not object when the superior court
indicated that it would decide whether a hearing was necessary based on the documents
that had already been filed. The superior court then made a decision based on the records
submitted to the City Council and the deposition testimony.
Absent plain error, a party may waive due process objections by
“consenting to certain procedures or by failing to object to others.”15 In this case, the
superior court gave Griswold considerable opportunities to submit any additional
evidence to show that there was a material factual dispute that would require a hearing.
We conclude that Griswold had an adequate opportunity to submit additional evidence,
but he chose not to do so. Any argument that he was denied due process is therefore
waived.
15
Matter of C.L.T., 597 P.2d 518, 522 (Alaska 1979) (holding that absent
plain error, party may waive rights arguably encompassed within due process by
consenting or failing to object to certain procedures).
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D. Other Issues
Griswold also argues that the City improperly withheld some emails on the
basis of the attorney-client privilege. The Homer City Code provides that certain
attorney-client communications “made confidentially in the rendition of legal services
to the city or to a city agency, officer, or employee” are confidential and exempt from
disclosure.16 Likewise, the rules of evidence provide a general lawyer-client privilege
that protects confidential communications between a client and its lawyer.17
The City Council reviewed all of the emails that were withheld by the city
manager and decided to disclose seven additional emails. We have reviewed all of the
emails that were ultimately withheld, and they all appear to fall within the scope of these
privileges.
Griswold also argues that the superior court judge should have recused
himself because the judge indicated that he had a busy schedule and could have requested
reassignment of the case to avoid delay. Griswold is apparently arguing that the judge’s
decision to issue a decision in the face of this schedule created an appearance of
impropriety.18 But an assigned judge has “an obligation not to disqualify himself [or
herself], when there is no occasion to do so.”19 And the judge in this case ultimately
issued a timely decision that we can review on the merits. Griswold has made no
showing that the judge’s decision indicated an appearance of partiality.
16
Homer City Code 1.80.040(a) (2012).
17
See Alaska R. Evid. 503(b).
18
Cf. Vent v. State, 288 P.3d 752, 756-57 (Alaska App. 2012) (reversing a
trial court decision because of an appearance of impropriety).
19
Amidon v. State, 604 P.2d 575, 577 (Alaska 1979) (citing In re Union
Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961); Wolfson v. Palmieri, 396 F.2d 121 (2d
Cir. 1968)).
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Griswold also argues that the award of attorney’s fees to the City Council
was an abuse of discretion. The superior court ordered Griswold to pay the City Council
$11,891, representing about 55% of the fees actually incurred.
Under Alaska Appellate Rule 508(e), “Attorney’s fees may be allowed in
an amount to be determined by the court.” There is no question that the City Council
was the prevailing party for purposes of this rule. But Griswold argues that the City
Council should be limited to the 20% award that would apply under Alaska Civil
Rule 82(b). We have allowed the superior court to use Rule 82(b)(2) as a guideline in
an administrative appeal, but we have also stated that this rule does not limit the amount
of fees that may be awarded.20 And despite Griswold’s argument to the contrary, his
superior court appeal did not involve any significant constitutional claims, which could
require the application of AS 09.60.010(c)(2). We conclude that the superior court did
not commit an abuse of discretion when it fixed the amount of attorney fees to be
awarded.
Any remaining claims that Griswold raises are waived for inadequate
briefing.21
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court’s decision in all
respects.
20
Stalnaker v. Williams, 960 P.2d 590, 597-98 (Alaska 1998) (holding the
superior court did not abuse its discretion in awarding 86% of actual fees incurred).
21
See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (holding claims waived
due to inadequate briefing).
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