FORBES v. CITY OF GOLD BAR No. 66630-4-I.
288 P.3d 384 (2012)
Susan FORBES, Appellant, v. CITY OF GOLD BAR, Respondent.
Court of Appeals of Washington, Division 1.
November 13, 2012.
Margaret J. King, Kenyon Disend, PLLC, Issaquah, WA, for Respondent.
¶ 1 The Public Records Act (PRA), chapter 42.56 RCW, requires a public agency to promptly respond to a request for public records within five business days by providing the records, denying the request, or providing a reasonable timeframe within which to respond to the request. The act recognizes that there are situations where an agency needs additional time to respond to a request. This was the situation here. The records requests encompassed records that were stored on the personal computers of city officials necessitating the hiring of an outside consultant to retrieve records from various Internet providers. The response to the request was reasonable in light of the difficulty the city had in retrieving the information and the efforts it expended to recover the information. We affirm the trial court's summary judgment dismissal.
¶ 2 On May 17, 2010, Susan Forbes filed a summons and complaint alleging that the city failed to respond to her requests for public records. Forbes made three disclosure requests to the city. The first, dated May 20, 2009, and the second, dated November 10, 2009, requested all letters and e-mails between then-Mayor Crystal Hill and all city council members, staff, and certain select planning commissioners that mentioned Susan Forbes.
¶ 3 The first request, 2009-53, received on May 21, 2009, sought:
On May 26, the city responded with an estimated time of response of June 19, 2009. The city subsequently notified Forbes on June 19, July 10, August 12, and October 2, 2009 that it needed additional time to fulfill her request. Various reasons were given:
¶ 4 On October 2, 2009, the city noted that it was in the final stage of processing Hill's Blackberry e-mails by Bates numbers and anticipated portable document format (PDF) copies within two weeks, setting November 6, 2009 as the target for release. On that date, the city notified Forbes that 1,700 e-mails from Hill's Blackberry were unresponsive to the request, but the city could provide her with the compact disc (CD) of those e-mails if she wished. The city would continue to review the e-mails from AOL and remaining e-mails on the Blackberry anticipating a response by January 15, 2010.
The third request, 2010-22, was made on March 12, 2010, and requested:
In September 2008, the city contracted with Michael Meyers to build a server and configure a domain based network to centrally locate city related documents. New personal computers were also built to replace aging equipment, including a personal computer in the mayor's office which was inoperable. In June 2009, Meyers was hired again as a consultant to help respond to the city's ever growing requests for records. Until January 2010, the city's e-mail flowed through GoDaddy.com POP3 mail servers, and downloaded directly to users' personal computers. Because of the configuration of the city's system, e-mails had to be downloaded as personal storage table (PST) files.
¶ 6 To accomplish this task, Meyers accessed several e-mail servers, both at the city and from other private exchanges — Yahoo, AOL, MSN, Comcast — downloading them all as PST files. In January 2010, the public requests workload continued to escalate necessitating the city's move to a central e-mail database. By March 2010, the exchange server was set up permitting city employees to easily access the data and search the e-mails independently of each other.
¶ 7 The city was receiving additional requests both from Forbes and other individuals associated with her. Forbes writes a blog entitled goldbarreporter.org. In July 2009, Mayor Hill resigned and Joe Beavers was appointed mayor. At that time there were 82 record requests from Forbes and other persons aligned with her. Most of those requests were processed quickly, except for those that required extensive production and review of documents. To avoid the city from coming to a standstill, the city hired an additional employee and transferred an employee from the maintenance department to work on responding to Forbes' requests.
¶ 8 The city released records periodically to Forbes as those records became available. The city sent numerous communications to Forbes during this time keeping her apprised of the status of the requests and the city's response thereto.
¶ 9 Unsatisfied with the time it took to release the records and the failure of the city to create a log outlining each record withheld on the personal e-mails of the various past and present city officials, Forbes brought suit. The city moved for show cause to determine that it had complied with the records requests and moved for dismissal. The trial court granted the city's motion and dismissed with prejudice.
¶ 10 Forbes appeals.
¶ 11 RCW 42.56.520 requires a public agency to respond to a request for public records within five business days by providing the records, denying the request, or providing a reasonable timeframe within which to respond to the request. RCW 42.56.520 further provides that an agency may need additional time within which to respond because of the need to
Pursuant to RCW 42.56.570(2) and (3), the legislature directed the attorney general to adopt advisory model rules on public records compliance setting forth the "best practices" for compliance with the PRA.
¶ 12 RCW 42.56.550 provides:
¶ 13 The operative word is "reasonable." The trial court found the city complied within a reasonable time frame and dismissed Forbes' complaint with prejudice. The trial court also refused to conduct an in camera review of those documents that the city said were personal to the respective city officials.
¶ 14 Because city officials used their private e-mail accounts to conduct city business, the city hired an independent information technology (IT) person, Michael Meyers, to obtain the documents from the various individual's private e-mail accounts. City officials thought that Meyers was downloading just those files which concerned city business. However, Meyers downloaded their entire e-mail accounts for every city council member and then-Mayor Hill. The downloads from the personal computers were placed in three categories: "conduct of business," "not conduct of business," and "redacted."
¶ 15 The city spent 12 percent of its income responding to public records requests in 2010. Mayor Beaver's affidavit setting forth the steps the city took to comply with the public records request was extensive. Pursuant to RCW 42.56.080 an agency is permitted to make records available on a partial or installment basis as additional records are assembled to complete the request. As the trial court noted in its oral ruling, 28,290 records were made available in a total of 11 disclosures. Exhibit D, attached to Mayor Beaver's declaration, noted that the following records were made available:
On May 28, 2010, and June 23, 2010, the city released DVDs containing 13,000 and 10,000 e-mails, respectively, of all non-exempt conduct of business e-mails. On August 27, 2010, and September 16, 2010, the city released the first quarter and second quarter 2009 exempt conduct of business.
¶ 16 In Neighborhood Alliance of Spokane County v. Spokane County,
¶ 17 As stated in the 10th circuit in Trentadue v. Federal Bureau of Investigation (FBI), the focus of the judicial inquiry into a reasonable-search requirement is the agency's search process not the result of that process:
Here, the city conducted an extensive search of multiple sites where the records Forbes requested might be housed. This search was reasonably calculated to uncover all relevant documents. The personal e-mails are not responsive to Forbes' requests and, therefore, nothing was withheld and no log document needed to be created.
In Camera Review
¶ 18 Forbes argues the trial court erred by failing to conduct an in camera review of the data obtained from the personal PDA's and e-mails of the various city officials. She contends that the city failed to create a log as required by the PRA. The city argues that the e-mails not released were private e-mails garnered in the city's attempt to recover those e-mails that were work-related that existed on various city officials' personal electronic devices. Nonetheless, the city did not object to Forbes' request for an in camera
¶ 19 This court reviews the trial court's decision on whether or not to conduct an in camera review for abuse of discretion.
A public records case may be decided based on affidavits alone.
¶ 20 The purely personal e-mails of those government officials are not public records. Forbes reliance on Mechling v. City of Monroe
¶ 21 Likewise, Forbes reliance on Rental Housing Ass'n (RHA) v. City of Des Moines
¶ 22 Affirmed.
WE CONCUR: DWYER, and COX, JJ.
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