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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fuller v. City of Homer (06/03/2005) sp-5902

Fuller v. City of Homer (06/03/2005) sp-5902

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


ABIGAIL FULLER,               	)
                              		)    Supreme Court No. S-11105
             Appellant,            	)
                              		)     Superior Court No.  3HO-02-78CI
     v.                       		)
                              		)    O P I N I O N
CITY OF HOMER,           	)
                              		)    [No. 5902 - June 3, 2005]
             Appellee.             	)
                              		)



          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Charles K. Cranston, Judge.

          Appearances:   Brooks  W.  Chandler,   Hicks,
          Boyd,  Chandler  & Falconer, LLP,  Anchorage,
          for Appellant.  Gordon J. Tans, Perkins Coie,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

          When   Abigail  Fuller  asked  to  see  City  of  Homer

documents  concerning a disputed annexation  proposal,  the  city

required  her  to pay a fee for a search that included  the  city

managers  privilege  review of the documents.   Fuller  filed  an

action for declaratory and injunctive relief, contending that she

could  not  be  charged for the privilege review.   The  superior

court rejected her contention and granted summary judgment to the

city.    We   conclude  that  the  statute  and  code  provisions

authorizing assessment of a search fee did not permit the city to

charge  for  time spent conducting a privilege review  of  public

documents.  We therefore reverse and remand for deduction of  the

time  the  city manager spent reviewing documents for  privileged

information.

II.  FACTS AND PROCEEDINGS

          The  City  of  Homer  attempted to annex  approximately

twenty-five  square miles of land adjacent to the city.   Abigail

Fuller  opposed annexation and occasionally requested  access  to

city  records bearing on annexation.  We discussed  some  of  the

facts  relevant here in Fullers prior appeal, Fuller v.  City  of

Homer.1

          In 2000 Fuller wrote to Homer City Manager Ron Drathman

asking  to  inspect various records related to  the  annexation.2

Drathman  made  some  of  the requested documents  available  but

withheld  others,  invoking the deliberative process  privilege.3

Fuller appealed to the city council, which upheld Drathmans claim

of  privilege without reviewing the requested documents.4  Fuller

appealed  to the superior court, which remanded the case  to  the

city council, directing it to review the documents.5  The council

conducted  the  review and reaffirmed its prior  decision.6   The

superior  court upheld the city councils decision, but in  August

2003  in Fuller v. City of Homer we reversed the superior  courts

decision, holding that the deliberative process privilege did not

protect the documents from disclosure.7

          While Fuller was on appeal to us, Fuller, by request of

October 11, 2001, asked to see, among other records, the contents

of  boxes CM01-03 and CM01-04 in inactive records storage,  along

[with]  any  other  boxes containing annexation related  material

from  1998, 1999, 2000.  Drathman responded that Fullers  October

request does not provide a reasonable or adequate description  of

the  records  sought.  A general request to view the contents  of

boxes (or file cabinets, drawers, desks, offices, or departments)

does  not  describe the records with sufficient detail to  enable

the  city  to  locate and identify the records sought.   Drathman

          also wrote that Fullers request cannot be approved or processed

until  Ms. Fuller provides a more specific description .  .  .  .

Apparently after receiving Drathmans response, Fuller, by  letter

of November 6, followed up her October 11 request with a somewhat

more  specific request.  Drathmans letter in response stated,  in

part:

          [B]efore  any  substantive  response  can  be
          given   to  her  request,  either  the   City
          Attorney  or  I,  or  both,  will   have   to
          personally review each document in every file
          to determine whether it is privileged . . . .
          
          This alone will take a considerable amount of
          time,  which I currently estimate to  be  not
          less than 8-9 hours for review.
          
               . . . .

               If  the time necessary to respond to her
          request  exceeds  five  hours,  she  will  be
          required  to  pay  fees  for  producing   the
          records; in this case, my hourly salary  plus
          benefits.
          
Drathman then personally reviewed the two boxes, CM01-03 and CM01-

04,  and  removed privileged documents.  His review time  totaled

7.25 hours.

          Fuller  later wrote to Drathman and objected to  paying

your salary.  She stated that

          its  your  choice to go through  those  files
          yourself rather than have a clerk check them,
          if  they  need checking at all.  The research
          fee is intended to cover time spent searching
          for   information,  not  time  spent  sifting
          through  old  papers to make sure  you  arent
          compromising national security,  or  whatever
          it is you are worried about.
          
          Apparently  before receiving this letter  from  Fuller,

the  city attorney wrote Fullers attorney stating that the  boxes

of files were ready for Fullers review, and that before she could

review  the  documents she had to pay the city $354.59  for  7.25

hours  of  search  time  valued at $48.91  per  hour.   The  city

attorneys  letter also stated that [t]here will be an  additional

charge for the salary and benefits of the clerks office personnel

who assist Ms. Fuller in the searching and copying tasks.  It  is

estimated  that  the  time involved will be  approximately  seven

hours  .  .  .  .   Fuller received this letter  in  mid-January.

Fuller refused to pay for the documents.

          Fuller then filed a superior court complaint seeking an

order  declaring  her rights to inspect the  documents  to  which

access  has  been denied by the city and an injunction  requiring

that  Homer comply with applicable state and local law  and  make

the  Records  available for review . . . .   During  the  ensuing

proceedings  Fuller served discovery requests seeking  production

of  the documents listed in her October 11 request, as amended by

her  November  6 request, but the city objected and  produced  no

documents  in  addition  to  those it  had  previously  produced.

Fuller moved to compel production.

          The superior court granted summary judgment to the city

and  dismissed Fullers complaint.  The city contends in its brief

that after judgment was entered, Fuller paid the $354.59 and  was

granted  access to the documents.  Fuller does not  dispute  this

contention.

          Fuller  appeals.  She contends that the superior  court

erred  in  (1) determining that as a matter of law, the  City  of

Homer  was  entitled  to  charge  a  privilege  review  fee;  (2)

determining  that  there was no genuine issue  of  material  fact

relating to the time spent and the amount charged for the City of

Homers  privilege review; and (3) denying [her] motion to  compel

production.

III. DISCUSSION

     A.   Standard of Review

          We independently review the grant or denial of a motion

for summary judgment.8  In reviewing a grant of summary judgment,

we  must draw all reasonable inferences in favor of the nonmoving

party  and may [uphold] summary judgment only if no genuine issue

of  material  fact  exists and the moving party  is  entitled  to

judgment as a matter of law. 9

          Courts  typically  review discovery  orders  under  the

abuse  of discretion standard.10  We review an interpretation  of

the Civil Rules under the independent judgment standard.11

          We  review findings of fact under the clearly erroneous

standard.12   A finding is clearly erroneous if a review  of  the

entire  record  leaves  the  court  with  a  definite  and   firm

conviction that a mistake has been made.13  In reviewing  factual

findings, we view the evidence in the light most favorable to the

prevailing party below.14

     B.   The  City Was Not Authorized To Charge Fuller  for  Its
          Privilege Review of City Records.
          
          The  superior court required Fuller to pay for the time

Drathman  spent reviewing the files she requested, including  the

time  he  spent  reviewing the records for privileged  documents.

Although  she  implies that public records  should  generally  be

available  without charge, Fullers main contention  is  that  the

city  may  not charge for a privilege review of public documents.

We hold that Homer could appropriately charge for the ministerial

aspects  of record production but that the city was not  entitled

to  charge  for the time Drathman spent conducting the  privilege

review.   We  turn first to the relevant state statute  and  city

code provisions and regulations.

          1.   The  state statute, city code provisions, and city
               regulations
               
          We  must first consider what provisions of law control.

Fuller  seems to contend that the Homer City Code (HCC)  sections

dealing with access to city documents, particularly HCC 01.80.010

and HCC 01.80.050(a), are inconsistent with the city regulations,

Homer  Regulation (HR) 01.03 and HR 01.05, that  actually  impose

the  fees.  The  city responds that the fee requirements  in  its

regulations  are consistent with its code and the relevant  state

statute, AS 40.25.110.

          Alaska  Statute  40.25.110  governs  access  to  public

records  and provides for payment of fees for searching  for  and

copying public records in response to a request.15  We have  held

          that it applies to municipalities.16  This statute does not

expressly or impliedly prevent the city from charging a  fee  for

searching  for  and copying public documents  in  response  to  a

document request.

          Homer  City Code 01.80.010 (1995) describes  the  citys

general approach to requests for public records:

          It  is  the intention of the City to  provide
          full  and  free  access  of  the  public   to
          municipal records and information so that the
          people  of  the City may be well informed  at
          all times as to municipal business.  With the
          exception  of  the  specific  exemptions  set
          forth under Section 1.80.040, all information
          and   records   in   the   control   of   the
          municipality shall be made available  to  the
          public upon request.
          
          Homer  City Code 01.80.050 (1995) authorizes  the  city

manager  to  adopt regulations that impose a fee  for  inspecting

public records:

          The  City Manager shall adopt regulations  as

          to  the time, place, and manner of inspection

          of  public  records held by the municipality.

          Such  regulations may also provide:a. That  a

          fee  may  be  required.  The  fee  shall  not

          exceed the actual cost to the agency.  No fee

          shall   be  charged  when  a  person   simply

          requests access to the information.   In  the

          event  the  person  is  unable  to  pay   any

          requested fee, and signs an affidavit to  the

          effect that he or she is indigent, there will

          be no cost to the above described person.

          In  a  seeming exercise of that authorization, the city

promulgated  regulations requiring a requester to  pay  a  search

fee.   Homer Regulation 01.03 (2003) discusses payment of  search

fees for time spent searching for and copying records:

          If   the   production  of  records  for   one

          requestor  in a calendar month exceeds  five-

          person hours [sic], the requestor must pay  a

          search fee.  The fee for city staff to search

          the  citys  records  will  be  the  employees

          actual salary plus benefit costs for the time

          to  search and copy the records.  The  search

          fee  will  be  in  addition to  the  standard

          copying fee.

Homer Regulation 01.05 (2003) also discusses imposition of search

fees for production of records for inspection:

          There  will  be  no copying  fee  for  simple
          inspection  of  records,  except   when   the
          production  of the records for inspection  by
          one  requestor  in a calendar  month  exceeds
          five   person-hours.   In   that   case   the
          requestor will be required to pay the  search
          fee as described in the preceding paragraphs.
          
          Alaska  Statute 40.25.110 and HR 01.03 and  01.05  thus

allow  the  city to require a records requester to pay fees  when

the  production time for a response exceeds five hours  a  month.

Drathmans  total  time  exceeded five hours;  therefore,  per  AS

40.25.110  and  HR  01.03  and 01.05, the  city  was  potentially

entitled to charge Fuller a search fee.17

          Fuller  does not seriously contend here that  the  city

had  no  authority to assess some fee for producing the documents

she  requested.   But she points to HCC 01.80.010,  which  states

that  [i]t is the intention of the City to provide full and  free

access of the public to municipal records and information . . . .

Fuller also cites HCC 01.80.050(a)s statement that [n]o fee shall

be   charged  when  a  person  simply  requests  access  to   the

information.    She  therefore  cursorily  implies   that   these

provisions  required  the  city to make the  documents  available

without charge.

          Fuller  argues that HR 01.05 is inconsistent  with  HCC

01.80.050(a)   and   that  HR  01.05  renders   superfluous   HCC

01.80.050(a)s  phrase  [n]o fee shall be charged  when  a  person

simply  requests access to the information.  She argues  that  to

give  meaning  to  each sentence, the [n]o fee shall  be  charged

          language in HCC 01.80.050(a) should be applied to situations in

which a fee otherwise would have been charged, i.e., instances in

which  more  than five hours were spent searching  for  requested

records.

          The city contends that its regulations are a reasonable

result  of  reconciling the city code with mandatory  state  law.

The  city  argues that reading HCC 01.80.050(a) to  require  free

production of documents requiring more than five hours to produce

would  conflict  with, and be preempted by, AS 40.25.110(c).   It

contends  that just as the full access discussed in HCC 01.80.050

is subject to the numerous exceptions listed in HCC 01.80.040 and

01.80.060(a), both of which discuss documents that  need  not  be

disclosed,  free  access is subject to a reasonable  fee  not  to

exceed the citys cost.

          As  the  issues are presented to us here, there  is  no

conflict  between  the  statute, the city  code,  and  the  citys

regulations.   The statute authorizes imposition  of  a  fee  for

searching  for and copying records, the code authorizes  adoption

of  regulations  charging  a fee, and the  regulations  impose  a

search  fee.   The tasks for which the regulation imposes  a  fee

searching  for and copying requested records  are the same  tasks

the   statute  describes.18   The  regulations  five  person-hour

threshold is consistent with the statutes threshold.19

          We  therefore reject any contention that HCC  01.80.010

and HCC 01.80.050(a) altogether precluded the city from assessing

any  fee  here.   HCC 01.80.050(a) deals with access  to  .  .  .

information,  while  HR  01.03  and  01.05  deal  with  producing

records.  Fuller  did not simply seek access to records  in  city

files  readily  available for inspection at  city  offices.   Her

request included specified records that she recognized were at  a

storage  facility.   Therefore  HCC  01.80.010  and  01.80.050(a)

cannot  reasonably  be read to foreclose a  fee  for  time  spent

producing records in response to Fullers request.

          There  is  a  practical  difference  between  accessing

          information and asking a public employee to find and gather

records for inspection; the former might mean viewing on ones own

time  documents readily retrievable at city hall, and the  latter

might  entail requiring city employees to search for  and  gather

particular documents.  The first task potentially costs the  city

much  less than the second because less staff time is needed  for

the former.  This differentiates between the activities addressed

by  HCC 01.80.050(a) and the activities addressed by HR 01.03 and

01.05.

          Finally,   it   could   heavily  burden   a   political

subdivision  to be required to comply with every search  request,

no  matter  how onerous, without charging some fee.  We therefore

conclude  that  HR  01.03  and 01.05  permissibly  interpret  HCC

01.80.050(a) and that HCC 01.80.050(a) does not conflict with  AS

40.25.110.

          Fuller also observes that we have held that there is  a

presumption  in  favor  of  public access  to  records  and  that

exceptions should be narrowly construed.20  She contends that  it

therefore  follows  that  provisions of law  allowing  access  to

public  documents  without  payment of  fees  should  be  broadly

construed  in  favor  of  free or inexpensive  access  to  public

records.

          The  city argues that per AS 40.25.110(c), it correctly

charged  Fuller  for  the  time  Drathman  spent  reviewing   the

documents;  state  policy did not require  the  city  to  provide

unlimited  documents  free  of  charge.   It  asserts   that   by

promulgating  HR  01.03 and 01.05, the city has  interpreted  HCC

01.80.050(a) to waive a fee only when the request is to  look  at

documents that are readily available to public access, and  which

require  neither a time-consuming effort to produce nor  copying.

Therefore,  the city argues that its regulations are a reasonable

interpretation   of  HCC  01.80.050(a)  and  conform   with   the

requirements of AS 40.25.110(c).

          We  agree with Fuller that there is a strong commitment

          in Alaska to ensuring broad public access to government records.21

There   is  a  presumption  in  favor  of  disclosure  of  public

documents.22  But this presumption does not resolve the questions

before us here.  By statute, reasonable fees are appropriate when

the  search and copying time in one month exceeds five hours  per

requester.23  Fuller does not claim that the statute is  invalid.

The  city  is  not  attempting here to  withhold  documents  from

Fuller;  it  seeks to have Fuller pay the costs  it  incurred  in

carrying out the search she requested.

          In short, any contention that the city could not charge

any   fee   for   producing  the  records  Fuller  requested   is

inconsistent  with AS 40.25.110, HR 01.03, and HR 01.05,  all  of

which allow the city to assess fees.   We therefore conclude that

the city was not obliged to produce these records for free.

          2.   Privilege review

          Fuller argues that a search fee imposable for access to

information  should be for time spent searching for records,  not

reviewing retrieved records for privilege.  She argues that there

is  no  indication  the  State  of  Alaska  interprets  6  Alaska

Administrative  Code (AAC) 96.360(b) (2003) or  AS  40.25.110  to

allow fees for time spent reviewing documents for privilege.

          The   city   responds   that  reviewing   records   for

disclosability  is  part  of  a  search.   It  reasons  that  the

terminology of AS 40.25.110(c)  which speaks of production rather

than  copying  or  duplication and refers to search  and  copying

tasks  implies that searching is broader than copying.  The  city

argues  that  an  agency is required by law to remove  privileged

materials   before  production,24  and  that   the   removal   of

confidential  information should not be treated  as  an  activity

separate from the search.  The city contends that cases elsewhere

are  not  helpful because their outcome depends on the underlying

statute, and each states statutes differ.

          We  agree  with  the  city that  case  law  from  other

jurisdictions  is not particularly helpful.  Determining  whether

          the holder of information may charge for a privilege review

depends  largely  on the applicable statute or regulation.25   We

therefore rely on our interpretation of the pertinent statute and

city regulations.

          Production  is  defined  as  the  act  or  process   of

producing,  bringing  forth,  or making[,]  .  .  .  the  act  of

exhibiting.26   As used in AS 40.25.110 and HR 01.03  and  01.05,

production  does not seem to include anything other than  routine

ministerial  efforts  in  looking for and  making  available  the

requested  documents.   The statute repeatedly  uses  the  phrase

search  and copying tasks. Read literally, these words  refer  to

the  processes  of  looking  for27  and  duplicating28  requested

documents.   A  task  is  a  specific piece  or  amount  of  work

usu[ally]  assigned by another and often required or expected  to

be  finished  within  a  certain  time.29   In  the  statute  and

regulations,  tasks is plural.  This suggests that searching  and

copying are distinct and different processes, and that the entire

phrase  is  not  meant to broadly encompass other processes.   It

also  implies  a  clerical, ministerial function rather  than  an

executive   function  implicating  professional   expertise   and

judgment.    This   suggests  that  production   is   essentially

administrative and clerical.  It also suggests that  a  privilege

review  is  not production because it is not part of  the  search

task  or the copying task.  A privilege review is not an inherent

or  necessary  part  of a document search.  Indeed,  a  privilege

review would seem conceptually to require that the search already

have  been  conducted  and the requested documents  identified.30

Likewise,  because  it  seems likely only unprivileged  documents

would  be  copied  and  produced,  a  privilege  review  is   not

inherently part of the copying task.

          Homer Regulation 01.03 similarly discusses  search[ing]

and  copy[ing]  the records.  The references to copying  fee  for

simple inspection of records and production of the records in  HR

01.05  imply  that this regulation covers copying, and  does  not

          cover deciding whether documents are privileged.

          We  therefore conclude that production in AS  40.25.110

and  HR  01.03  and  01.05 does not include a  privilege  review,

contrary to the ruling of the superior court.   Privilege  review

time consequently cannot be charged to Fuller.

          The  effect of this error is not clear.  The  city  did

not  reveal  exactly how much time Drathman spent conducting  his

privilege  review, although it claimed that he spent  7.25  hours

responding  to  Fullers request.  If there were  some  reason  to

think  the  privilege review took very little  time,  perhaps  it

could  be  said that the prejudice was de minimis.  But the  city

raises no such contention.  Moreover, the five-hour thresholds in

the applicable statute and regulations make the time spent on the

privilege  review  particularly relevant.  If Drathman  spent  at

least  2.25  hours  conducting the privilege review,  the  actual

production  time  must  not have exceeded  five  hours.   If  the

production time did not exceed five hours in one month,  no  fees

could  have been imposed on Fuller.  We therefore remand  to  the

superior court the issue of how much time Drathman spent  on  the

privilege review.

          The  city also argues that it is relevant that Drathman

conducted  his  review before we issued our decision  in  Fuller.

But  because the regulation did not authorize the city to  charge

Fuller  for  the  privilege review, it is not  relevant  when  he

conducted that review.

     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Failing To Grant Fullers Motion To Compel Discovery.
          
          After Fuller commenced the present litigation by asking

the  superior court for declaratory and injunctive relief, Fuller

served  the  city with a request for production for discovery  of

the  documents  she had sought in her request of October  11,  as

amended  by  her  November 6 letter.  The city  objected  to  the

request  for production.  Fuller moved to compel production,  but

the superior court did not grant her motion.

          Fuller  argues  that her request for production  sought

documents  that  were  at  the heart  of  the  dispute  over  the

privilege   review  fee.   She  asserts  that  her  request   was

calculated  to lead to admissible evidence regarding whether  the

privilege review . . . could have been completed in five hours or

less.31   She  contends that reviewing the records  to  determine

whether  Drathman had spent too much time reviewing the documents

would have been a relevant exercise.  She contends that obtaining

the records was necessary for this determination.

          Alaska Civil Rule 26(b)(1) permits parties to

          obtain  discovery regarding any  matter,  not
          privileged  which is relevant to the  subject
          matter   involved  in  the  pending   action,
          whether it relates to the claim or defense of
          the  party seeking discovery or to the  claim
          or  defense of any other party, including the
          existence,   description,  nature,   custody,
          condition   and   location  of   any   books,
          documents, or other tangible things  and  the
          identity  and  location  of  persons   having
          knowledge  of any discoverable  matter.   The
          information sought need not be admissible  at
          the  trial if the information sought  appears
          reasonably   calculated  to   lead   to   the
          discovery of admissible evidence.
          
But  here the object of discovery and the goal of Fullers lawsuit

were  the same.  Two federal cases have dealt directly with  this

issue.32   In  Local 3, International Brotherhood  of  Electrical

Workers  v. National Labor Relations Board, the plaintiff brought

suit to compel disclosure of intra-agency memoranda and a list of

employees  names and addresses.33  During discovery the plaintiff

requested  various  documents, but the trial  court  denied  this

motion  to  compel.34   The Second Circuit  upheld  this  ruling,

stating that [d]iscovery here would essentially grant Local 3 the

substantive relief it requests: disclosure of documents that  the

NLRB  claims  are  exempt.  Thus, Local  3  is  not  entitled  to

discovery of documents claimed to be exempt.35  The plaintiff  in

Giza  v.  Secretary of Health, Education and Welfare  brought  an

action to compel the appearance of an expert, Dr. Finkel, to give

deposition testimony for use in a state lawsuit.36  On appeal the

First Circuit stated that [w]e also agree with the district court

that  the  attempt  to depose Dr. Finkel was  improper  discovery

because securing her testimony was an object of the Gizas suit.37

          We  similarly conclude that the superior court did  not

err in denying Fullers motion to compel discovery.

     D.   Fullers Other Arguments

          Fuller  advances  various  arguments  challenging   the

amount  of  time  Drathman  spent  conducting  his  review.   She

contends  that  it  is  undisputed that in mid-November  Drathman

reviewed  all  of  the file boxes responsive to  her  October  11

request  even though she had narrowed her request on November  6.

She  contends that the facts permit an inference that if Drathman

had  limited his review to the files specified in her November  6

request, it is quite likely the five hour free search time  would

not  have  been exceeded.  Relatedly, she argues that  after  the

city  denied her October request as too broad, Drathman  reviewed

the  documents she requested in October despite her more specific

November request, creat[ing] an inference that the review was not

undertaken  as efficiently as possible in good faith.   She  also

asserts  that  the citys past poor treatment of  her  permits  an

inference  that Drathman did not act with reasonable  efficiency.

Finally,  she   argues that Drathman failed to  follow  the  city

regulation that requires payment of estimated charges before  the

search  is  undertaken.  Had he done so, she contends, she  might

have  discovered  that  he  intended  to  review  the  boxes  she

originally requested, even though she later narrowed her request.

          However,  only if there were good reason to think  that

the  city was intentionally inefficient in retaining or producing

the  disputed  documents  would  the  superior  court  have  been

compelled to reduce the time spent in production.  For  the  same

reason,  we need not discuss Fullers argument that the  city  did

not  comply  with  HCC 02.08.010(f), which states  that  whenever

possible  only one copy of documents shall be retained, and  with

HCC  02.08.010(j), which, she argues, anticipates that restricted

or  confidential documents will be segregated from  other  stored

documents.   And  of  course Fuller is not  responsible  for  the

privilege review time, whether it was spent efficiently or not.

          Fuller also contends that no records of Drathmans  time

were  preserved  and  that  no witness could  verify  his  review

because   it   occurred  on  a  weekend.   Lack  of   independent

verification  does  not  mean that appropriate  production  costs

should  not  be  recovered.  It is for a fact  finder  to  decide

whether the amount charged was incurred appropriately.  The  lack

of independent corroboration does not justify reversal here.

          Having  concluded above that the city could not recover

privilege review  costs from Fuller, it is unnecessary for us  to

consider  Fullers arguments challenging the time or cost  of  the

privilege  review.   We therefore also do not  need  to  consider

whether  Drathman  had  expertise  in  reviewing  documents   for

privilege.   We likewise need not consider Fullers argument  that

the citys actions

          indicate  a  pattern of behavior that  easily
          allows an inference to be drawn that the city
          manager would do whatever he could to  hinder
          access   to   public  records  by  annexation
          opponents  including making sure a  privilege
          review  was conducted at a leisurely pace  so
          as to exceed the five free hours standard.[38]
          
IV.  CONCLUSION

          For  these  reasons, we REVERSE the  grant  of  summary

judgment and REMAND for a determination of how much time Drathman

spent  conducting the privilege review.  If he spent any part  of

the 7.25 hours on a privilege review, the city must repay some or

all of the fees it charged and collected from Fuller.

_______________________________
     1    Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003).

     2    Id. at 1061.

     3    Id.  The deliberative process privilege is an exception
to  the  public  records act intended to protect  []  the  mental
processes  of  governmental  decision-makers  from  interference.
Gwichin Steering Comm. v. State, Office of the Governor, 10  P.3d
572, 578 (Alaska 2000).  Officials may invoke this privilege when
public  disclosure would deter the open exchange of opinions  and
recommendations between governmental officials.  Id.

     4    Fuller, 75 P.3d at 1061.

     5    Id.

     6    Id.

     7    Id. at 1065.

     8     Froines v. Valdez Fisheries Dev. Assn, Inc.,  75  P.3d
83, 86 (Alaska 2003).

     9     Waage v. Cutter Biological Div. of Miles Labs.,  Inc.,
926  P.2d  1145,  1148  n.4  (Alaska 1996)  (quoting  Russell  v.
Municipality  of  Anchorage, 743 P.2d 372,  375-76  n.11  (Alaska
1987)).

     10    Municipality of Anchorage v. Anchorage Daily News, 794
P.2d 584, 594 n.19 (Alaska 1990).

     11    Brandon v. Corr. Corp. of Am., 28 P.3d 269, 273 (Alaska
2001).

     12    Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004).

     13    Id. (quoting Demoski v. New, 737 P.2d 780, 784 (Alaska
1987)).

     14    Voss v. Brooks, 907 P.2d 465, 467 (Alaska 1995) (citing
Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991)).

     15    AS 40.25.110 provides in part:

          (a)   Unless specifically provided otherwise,
          the public records of all public agencies are
          open   to  inspection  by  the  public  under
          reasonable rules during regular office hours.
          The  public  officer having  the  custody  of
          public  records  shall give  on  request  and
          payment  of  the fee established  under  this
          section  or AS 40.25.115 a certified copy  of
          the public record.
          (b)   Except  as otherwise provided  in  this
          section,  the fee for copying public  records
          may  not  exceed the standard  unit  cost  of
          duplication established by the public agency.
          (c)   If  the production of records  for  one
          requester  in  a calendar month exceeds  five
          person-hours, the public agency shall require
          the  requester  to  pay the  personnel  costs
          required  during  the month to  complete  the
          search  and  copying  tasks.   The  personnel
          costs  may  not exceed the actual salary  and
          benefit costs for the personnel time required
          to  perform the search and copying tasks. The
          requester  shall  pay  the  fee  before   the
          records are disclosed, and the public  agency
          may require payment in advance of the search.
          (d)   A  public agency may reduce or waive  a
          fee  when  the public agency determines  that
          the  reduction  or waiver is  in  the  public
          interest.   Fee reductions and waivers  shall
          be  uniformly applied among persons  who  are
          similarly  situated.   A  public  agency  may
          waive a fee of $5 or less if the fee is  less
          than the cost to the public agency to arrange
          for payment. . . .
          
     16    Anchorage Daily News, 794 P.2d at 589.

     17     No party asserts that the regulations promulgated  in
2003 do not apply to the dispute now on appeal.

     18    Compare HR 01.03 with AS 40.25.110(c).

     19    Compare HR 01.03 and 01.05 with AS 40.25.110(c).

     20    See, e.g., Fuller v. City of Homer, 75 P.3d 1059, 1061-
62 (Alaska 2003).

     21     Id.  at  1061; Jones v. Jennings, 788 P.2d  732,  735
(Alaska 1990).

     22     Fuller, 75 P.3d at 1061-62; Municipality of Anchorage
v. Anchorage Daily News, 794 P.2d 584, 589 (Alaska 1990).

     23    AS 40.25.110(c).

     24    See, e.g., 6 AAC 96.330(a).

     25     See, e.g., Demers v. City of Minneapolis, 468  N.W.2d
71, 75 (Minn. 1991) (stating holder of information may not charge
for  photocopies made simply to separate public from  not  public
data,  because statute stated that responsible authority may  not
charge for separating public from not public data).

     26     Websters  Third  New  International  Dictionary  1810
(1961).

     27     To  search  is  to  look into or  over  carefully  or
thoroughly  in an effort to find or discover[,] . . .  to  peruse
thoroughly  and  usu[ally] with a particular objective.   Id.  at
2048.

     28    To copy is to duplicate, reproduce, transcribe.  Id. at
501.

     29    Id. at 2342.

     30    Cf. AS 40.25.110.

     31     See,  e.g., Carstens v. Carstens, 867 P.2d  805,  809
(Alaska 1994).

     32     Local 3, Intl Bhd. of Elec. Workers v. NLRB, 845 F.2d
1177 (2d Cir. 1988); Giza v. Secy of Health, Educ. & Welfare, 628
F.2d 748 (1st Cir. 1980).

     33    Local 3, 845 F.2d at 1178.

     34    Id. at 1179.

     35    Id.

     36    Giza, 628 F.2d at 749.

     37    Id. at 751 n.6.

     38    Fuller does not contend on appeal that the hourly rate
for Drathmans time was excessive or that search and copying tasks
should have been billed at rates more likely to approach the cost
of clerical employees.