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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McLeod v. Parnell (10/12/2012) sp-6716

McLeod v. Parnell (10/12/2012) sp-6716

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



ANDREE McLEOD,                                      ) 

                                                    )    Supreme Court No. S-13861 

                        Appellant,                   ) 

                                                    )    Superior Court No. 3AN-08-10869 CI 

        v.                                          ) 

                                                    )    O P I N I O N 

SEAN PARNELL, in his official capacity ) 

as Governor, and STATE OF ALASKA,                    )   No. 6716 - October 12, 2012 

OFFICE OF THE GOVERNOR,                              ) 

                                                    ) 

                        Appellees.                   ) 

                                                    ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Patrick J. McKay, Judge. 



                Appearances:         Donald     Craig    Mitchell,    Anchorage,      for 

                Appellant.        Laura     Fox,    Assistant     Attorney     General, 

                Anchorage,       and   Daniel    S.   Sullivan,    Attorney    General, 

                Juneau, for Appellees. 



                Before: Carpeneti, Chief Justice, Fabe and Winfree, Justices. 

                [Christen and Stowers, Justices, not participating.] 



                CARPENETI, Chief Justice. 


----------------------- Page 2-----------------------

I.      INTRODUCTION 



                We   are   asked   to   consider   two   narrow   legal   questions   arising   from   the 

Alaska Records Management Act1  and the Alaska Public Records Act:2                    (1) when state 



employees use private email accounts to send and receive email regarding state business, 



are the emails "public records" under the Public Records Act, and (2) is the use of a 



private   email   account   to   send   and   receive   email   regarding   state   business   a   per   se 



violation of the Public Records Act's prohibition against obstruction of public access to 



"public records"?      Our answers are:      (1) private emails regarding state business are no 



different    from    any   other   records   -    those   records   preserved     or  appropriate     for 



preservation under the Records Management Act are "public records" under the Public 



Records Act; and (2) the use of private email accounts to conduct state business, alone, 



is not per se obstruction of access to "public records" under the Public Records Act. 



II.     FACTS AND PROCEEDINGS 



                State   of   Alaska   employees   are   issued   government   email   accounts   for 



conducting   state   business.     All   emails   sent   or   received   through   government   email 



addresses pass through the state's computer servers and are captured and reviewed for 

archiving according to the Records Management Act.3 



        1       AS 40.21.010-.150. 



        2       AS 40.25.100-.350. 



        3       The Records Management Act creates the framework and procedures for 



the state archivist and chief executive officers of state agencies to acquire and preserve 

public   records.    See   AS   40.21.010-.150.   Although   the   Act   does   not   define   "public 

record," "record" is broadly defined, in relevant part, as: 



                [A]ny   document,   paper,   book,   letter,   drawing,   map,   plat, 

                photo,   photographic      file,   motion   picture  film,   microfilm, 

                microphotograph, exhibit, magnetic or paper tape, punched 

                                                                                        (continued...) 



                                                  -2-                                             6716
 


----------------------- Page 3-----------------------

                In September 2008 it became generally known that then-Governor Sarah 



Palin   and   other   Office   of   the   Governor   employees   used   personal   email   accounts   to 



conduct state business. Later, 24 of the 141 Governor's Office employees "indicated that 



to some extent, they . . . [had] used private [email] accounts to send or receive [emails] 



that in some way relate to or touch on state business."   The use of private email accounts 



varied - many used private email accounts "primarily to send materials from office to 



home or home to office," while others, including Governor Palin, used private email 



        3	      (...continued) 



                card,    electronic   record,   or  other   document      of  any   other 

                material,     regardless    of   physical    form    or  characteristic, 

                developed or received under law or in connection with the 

                transaction of official business and preserved or appropriate 

                for preservation by an agency or a political subdivision, as 

                evidence of the organization, function, policies, decisions, 

                procedures,   operations,   or   other   activities   of   the   state  or 

                political subdivision or because of the informational value in 

                them[.] 



AS 40.21.150(6). 



                The Act instructs chief executive officers of state agencies to "preserve 

public   records   containing   adequate   and   proper   documentation   of   the   organization, 

functions, policies, decisions, procedures, and essential transactions of the agency, and 

designed to furnish the information necessary to protect the legal and financial rights of 

the state and of persons directly affected by the agency's activities."             AS 40.21.060(1). 

These officers must also create retention schedules outlining how long each record must 

be maintained based on standards set forth by the state archivist.   AS 40.21.030(b)(10), 

.060(3).     Record      retention   schedules    follow    the  General     Administrative     Records 

Retention   Schedule   (GARRS)   created   by   the   state   archivist   based   on   the   Records 

Management Act's preservation requirements.               See AS 40.21.030, .060. 



                Relevant to this case, the 2005 GARRS defines non-record email, which 

may be destroyed immediately, as "transitory [email] which is primarily generated for 

informal      communication       of   information     that   does   not   perpetuate     or   formalize 

knowledge." 



                                                   -3-	                                            6716
 


----------------------- Page 4-----------------------

accounts for "[g]eneral communication [regarding] state business."                  Email sent solely 



between private email accounts does not pass through the state's capturing system and 



is not reviewed for archiving in the normal course of business. 



                On   October   1,   2008,   Andree   McLeod   submitted   a   Public   Records   Act 



request to the Governor's Office seeking, among other things, (1) copies of "[e]very 



email that . . . was sent to or from" Governor Palin and her husband Todd Palin's private 



email accounts since December 4, 2006, "if the subject of the email involves, or is in any 



way related to, the conduct of official business of the State of Alaska," and (2) any and 



all   public   records   relating   to   the   collection   or   preservation   of public   records   by   the 

Governor's Office, including the preservation of the requested email.4                  The same day 



McLeod filed a complaint in superior court alleging violations of the Public Records 

Act.5  She sought a declaratory judgment that each requested email was a "public record" 



        4       The   Public   Records   Act   states,   in   relevant   part,   "[u]nless   specifically 



provided otherwise, the public records of all public agencies are open to inspection by 

the public."    AS 40.25.110(a). 



                In 1990 the legislature added an express definition of "public records": 



                [B]ooks, papers, files, accounts, writings, including drafts and 

                memorializations         of   conversations,       and    other    items, 

                regardless     of  format    or  physical   characteristics,    that  are 

                developed or received by a public agency, or by a private 

                contractor for a public agency, and that are preserved for 

                their informational value or as evidence of the organization 

                or operation of the public agency; "public records" does not 

                include proprietary software programs. 



AS 40.25.220(3) (emphasis added); see Ch. 200,  8, SLA 1990. 



        5       McLeod's allegations included:  (1) Governor Palin and other members of 



the Governor's Office's use of private email accounts to conduct state business "has 

compromised the ability of the State of Alaska to comply with" the Public Records Act; 

                                                                                         (continued...) 



                                                   -4-                                             6716
 


----------------------- Page 5-----------------------

and an injunction compelling Governor Palin and the Governor's Office to: (1) preserve 



all requested email consistent with the Records Management Act; (2) stop using private 



email accounts to conduct official business; and (3) retrieve requested email manually 

or automatically deleted from those accounts.6            McLeod amended her   complaint on 



October 8, 2008, to also allege Records Management Act violations. 



                On October 10, 2008, the superior court issued a temporary restraining 



order and preliminary injunction requiring Governor Palin and the Governor's Office to 



(1) "preserve all emails (including attachments thereto) sent . . . to or from Governor 



Palin on any and all of Governor Palin's private email accounts whose content relates in 



any    way   to  the  conduct   of   official   business";   (2)  "preserve   all   emails  (including 



attachments thereto) sent . . . to or from the private email accounts of every employee of 



the Office of the Governor whose content relates in any way to the conduct of official 



business"; and (3) attempt to retrieve email relating to official business sent to or from 



Governor Palin's or Governor's Office employees' private email accounts that were 



intentionally or automatically deleted by internet companies. 



        5       (...continued) 



(2) Todd Palin "has routinely attempted to influence the conduct of official business of 

the State of Alaska by [using private email accounts to email Governor Palin] thereby 

circumventing   the   Public   Records   Act";   (3)   Governor   Palin's   use   of   private   email 

accounts to conduct state business "threatens the integrity and preservation of public 

records" through routine deletions; and (4) Governor Palin and other employees of the 

Governor's Office intentionally used private email to conduct state business to protect 

the communications from disclosure under the Public Records Act. 



        6       The    Public   Records    Act   contains   an  enforcement   provision      allowing 



members of the public to seek injunctive relief against "[a] person having custody or 

control of a public record who denies, obstructs, or attempts to obstruct . . . the inspection 

of a public record."     AS 40.25.125. 



                                                 -5-                                            6716
 


----------------------- Page 6-----------------------

                In response to court orders, the Governor's Office filed reports regarding 



private email usage by Governor Palin and other Governor's Office employees.  The 



Governor's Office also described the steps taken to preserve all of Governor Palin's (and 



others') still-existing email from the private email accounts used for state business.  The 



Governor's Office represented that the recovered email would be reviewed and that 



email relating to state business would be collected and made available for public record 



requests. 



                Each party filed a motion for summary judgment.            McLeod's motion was 



denied in August 2009.   The superior court granted the State's motion in January 2010, 



which   it   clarified   in  a   March   2010   "denial"   of   McLeod's   reconsideration   motion. 



Although the denial upheld the summary judgment award against McLeod, she gained 



an important clarification of the law that favored her position.             The court ultimately 



concluded that based on its interpretation of the Public Record and Records Management 



Acts, McLeod was not entitled to the declaratory and injunctive relief she sought.  The 



court terminated the preliminary injunction that it had granted earlier and later dismissed 



the lawsuit. 



                McLeod appeals the grant of summary judgment in favor of the State. 



III.    STANDARD OF REVIEW 

                We review a grant of summary judgment de novo.7             The decision "will be 



affirmed if there are no genuine issues of material fact and if the moving party is entitled 

to judgment as a matter of law."8        We apply our independent judgment in matters of 



        7      Hageland Aviation Servs., Inc. v. Harms , 210 P.3d 444, 447 (Alaska 2009). 



        8       Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142 (Alaska 2007). 



                                                 -6-                                             6716 


----------------------- Page 7-----------------------

statutory interpretation.9    We "interpret the statute in question by looking to the meaning 



of the statute's language, its legislative history, and its purpose."10 



IV.     DISCUSSION 



        A.      Issues Remaining On Appeal 



                McLeod succinctly described to the superior court the primary thrust of her 



lawsuit: 



                        Plaintiff    McLeod      filed  this  action  for  two   narrow 

                purposes.      First,   to  establish   that  an   email   that  a  state 

                employee       sends   or  receives   on   his  or  her  private   email 

                account   (rather   than   on   his   or   her   State   of   Alaska   email 

                account)     and   whose     content   involves    the   transaction    of 

                official state business is a "public record" for the purposes of 

                the Public Records Act and a public "record" for the purposes 

                of the Records Management Act.             And second, to establish 

                that   using   private   email    accounts    to  create  .  .  .  "public 

                records" is a per se violation of [the Public Records Act], 

                which   prohibits   the   "obstruction"   of   the   public's   right   to 

                inspect "public records." 



                In its January 2010 summary judgment order, the superior court ruled: 



(1) not every email referring to state business is necessarily a "public record"; (2) there 

is no duty to preserve "non-record" email under the Records Management Act11 and 



there is "an element of discretion" in deciding which emails to preserve; (3) records, 



including email, that have been preserved are "public records"; (4) using private email 



accounts to conduct state business is not per se obstruction of access to "public records"; 



        9       Hageland Aviation Servs., Inc. , 210 P.3d at 448. 



        10      State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive 



Cas. Ins. Co., 165 P.3d 624, 628 (Alaska 2007). 



        11      See supra note 3. 



                                                   -7-                                             6716
 


----------------------- Page 8-----------------------

and    (5)  state  employees     who    deliberately    do  not   preserve   records    that   should  be 



preserved under the Records Management Act might violate the law. 



                McLeod moved for reconsideration, arguing the court's order "gut[ted] . . . 



the entire Public Records and Records Management Acts" by allowing an agency to 



decide whether to "preserve" a record for public inspection (emphasis omitted).  McLeod 



maintained that a record appropriate for preservation under the Records Management Act 



should also be considered a public record under the Public Records Act.  McLeod noted 



that   the   State   was   "continuing   to   process"   McLeod's   public   records   request,   thus 



demonstrating that the State considered at least some of the email in question to be public 



records. 



                In March 2010 the superior court denied McLeod's reconsideration motion. 



But in its denial, the superior court expressed agreement with McLeod's position that 



documents appropriate for preservation are public records under the Public Records Act. 



In addition, the court strengthened its language concerning deliberate non-preservation, 



stating: 



                Any state employee who deliberately hides such emails is 

                violating state law, but that may be the subject of another 

                dispute as this issue was not raised in the limited scope of 

                McLeod's        amended      complaint     and    the  Court     has   no 

                admissible evidence of such abuses before it.[12] 



We interpret the superior court's March 2010 denial of McLeod's reconsideration motion 



as a clarification of its January 2010 order in direct response to McLeod's critique of that 



order, even though summary judgment in favor of the State remained in place rejecting 



McLeod's claim that all emails touching on state business are public records. 



        12      McLeod   did   not   move   for   reconsideration   of   this   aspect   of   the   court's 



March 2, 2010 order, nor did she seek to amend her complaint to expand her allegations. 



                                                   -8-                                               6716 


----------------------- Page 9-----------------------

                On March 12, 2010, the defendants moved for entry of final judgment and 



for attorney's fees. McLeod opposed the attorney's fees motion as premature and sought 



to stay it pending entry of a final judgment and a potential decision on appeal, but did not 



contest the entry of final judgment.          McLeod conceded that if she did not appeal the 



merits of the superior court's decision, or if she appealed and lost, the defendants would 



be the prevailing party for an award of attorney's fees.   On April 15, 2010, the superior 



court entered an attorney's fee award in the State's favor and final judgment against 



McLeod. 



                McLeod raises two points on appeal, generally mirroring the narrow issues 



resolved in the superior court summary judgment proceedings. First, she asserts that the 



superior court erred in its January 2010 order by interpreting the Public Records Act to 



limit "public records" to those records that have been preserved; the tenor of her brief 



implies   she   believes   the   superior   court's   March   2010   denial   of   her   reconsideration 



motion left the January 2010 order in place and unclarified.   Second, she asserts that the 



superior court erred in interpreting the Public Records Act as not prohibiting the use of 



private   email   accounts   to   conduct   state   business.   But   McLeod   does   not   otherwise 



challenge the superior court's termination of the preliminary injunction, its entry of final 



judgment after the summary judgment ruling, its determination that the State was the 



prevailing party for an award of attorney's fees, or its attorney's fees award. 



        B.	     For   The   Purposes   Of   The   Public   Records  Act,   The   Term   "Public 

                Records" Includes Those Records "Appropriate For Preservation." 



                The Public Records Act defines "public records," in relevant part, as those 



"preserved for their informational value or as evidence of the organization or operation 

of the public agency."13       McLeod argues that a literal interpretation of this definition 



        13      AS 40.25.220(3). 



                                                   -9-	                                              6716 


----------------------- Page 10-----------------------

leads to an absurd result because "it grants 'elected and appointed officials' authority to 



. . . simply, and quite privately, decid[e] not to 'preserve' a record that, for whatever 



reason - including avoiding political embarrassment or because the record is evidence 



of mis or malfeasance - they do not want the public to see."  McLeod further contends 



that a literal reading "produces a result in which an . . . item is a 'record' for the purposes 



of the Records Management Act because its content is 'appropriate for preservation,' but 



the item is not a 'public record' for the purposes of the Public Records Act" because no 

public agency has decided to "preserve" it.14     McLeod concludes that this "anomaly" is 



best eliminated by interpreting the Public Records Act to require agencies to preserve 



documents that are appropriate for preservation, the same approach the superior court 



adopted in its March 2010 reconsideration denial. 



               When interpreting a statute, we look "to the legislature's intent, with due 

regard for the meaning the statutory language conveys to others."15       "[W]here the literal 



interpretation of a statute would lead to absurd results, courts can interpret the words of 

the statute to agree with the intention of the legislature."16  Here the literal interpretation 



of the Public Records Act's text suggests the legislature intended "preservation" to be 



an additional step for a document to become a public record.  In a colloquy with Senator 



Al Adams concerning the scope of the proposed changes, Representative Kay Brown, 



the 1990 amendment's sponsor, indicated that "you can't save every scrap of paper.  At 



       14      Compare id. (defining "public record"), with AS 40.21.150(6) (defining 



"record"). 



       15      Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 



(Alaska 1987) (citing State v. Alex, 646 P.2d 203, 208 & n.4 (Alaska 1982)). 



       16      Brooks Range Exploration Co. v. Gordon , 46 P.3d 942, 945-46 (Alaska 



2002). 



                                             -10-                                         6716
 


----------------------- Page 11-----------------------

some point, [judgment] is exercised as to what is proper and needs to be preserved."17 



Allowing agency employees to choose not to preserve a document is not absurd because, 



as the State notes, "each state agency has the best understanding of the preservation value 



of its own documents." 



                But we agree with the superior court's conclusion in its denial of McLeod's 



motion for reconsideration: Records "that should be preserved are also public records, 

notwithstanding   the   fact   that   they   may   be   difficult   or   impossible   to   access."18 As 



McLeod       argued    to  the  superior   court   and  argues   on   appeal,   this  interpretation    is 



necessary to avoid an inconsistency with the Record Management Act's definition of 



"records," under which a document appropriate for preservation could be a record - 



thereby requiring its preservation - but not a "public record" under the Public Records 



Act. 



                We therefore affirm the superior court's ultimate interpretation of  "public 



record":    State   agency   records   preserved   or   appropriate   for   preservation   under   the 



Records Management Act are public records subject to review under the Public Records 



Act.    But   not   every   record   a   state   employee   creates,   and   certainly   not   every   state 



employee       email,   is  necessarily     appropriate    for   preservation     under    the  Records 



Management Act. 



        17      Minutes, Sen. State Affairs Comm. Hearing on H.B. 405, 16th Leg., 2d 



Sess. (Apr. 18, 1990). 



        18      McLeod argues that this conclusion is inconsistent with the superior court's 



earlier   January   2010   statement   that   "[t]here   is   an   element   of   discretion,   and   if   the 

Governor and her staff chose not to preserve certain emails - for whatever reason and 

regardless of intention - those emails are not public records." Perhaps the court's titling 

of the March 2010 order as a "denial" of McLeod's reconsideration motion led her to 

conclude that the unclarified January 2010 order controlled.  As noted earlier, the denial 

of McLeod's reconsideration motion substantially modified the January 2010 decision. 



                                                  -11-                                             6716
 


----------------------- Page 12-----------------------

        C.	      Use Of Private Email Accounts To Conduct State Business Is Not A 

                 Per Se Violation Of The Public Records Act. 



                 The Public Records Act states that "[a] person having custody or control 



of a public record who . . . obstructs, or attempts to obstruct . . . the inspection of a public 

record subject to inspection under [the Act] may be enjoined by the superior court."19 



McLeod assumes that some privately sent emails are public records and contends that the 



superior court erred in holding "there is simply no current statute that forbids the use of 



private    email    accounts    to   conduct    state   business."     McLeod       argues    that  a  state 



employee's   use   of   private   email   accounts   to   conduct   official   business   is   "a  per   se 



'obstruction' of the right to public inspection," because conducting official business in 



this   way   prevents   the   public   from   discovering   that   the   emails   exist.   (Emphasis   in 



original.) 



                 We agree with the State that using private email accounts is no more an 



obstruction of access to public records than communicating through paper letters. As the 



superior court noted, the law requires a state employee to retain records; whether the 



record   exists   in   paper   or   electronic   form   does   not   change   the   analysis. Thus   using 



private   email   accounts   for   conducting   state   business,   alone,   does   not   constitute   an 



"obstruction" of access to public records under the Public Records Act. 



                 We therefore affirm the superior court's interpretation of the Public Records 



Act - the use of private email accounts to conduct state business is not a per se violation 



of the Act's proscription against obstructing public records inspection.                  We emphasize 



the narrowness of the legal issue decided by the superior court and affirmed here:  This 



appeal   does   not   present   questions   that   might   arise   from   a   determination   that   state 



employees used private email accounts to conduct state business outside of the state's 



        19       AS 40.25.125. 



                                                   -12-	                                                6716 


----------------------- Page 13-----------------------

record   preservation   system   and   deliberately   failed   to   preserve   email   appropriate   for 



preservation for public record review. McLeod did not pursue answers to such questions 

in the superior court and did not raise such questions in her appeal.20 



        D.       McLeod Was Entitled To Partial Summary Judgment. 



                 "We will affirm a grant of summary judgment if there are no genuine issues 



of material fact and the prevailing party was entitled to judgment as a matter of law."21 



McLeod   first   sought   a   declaration   that   "[e]very  email"   from   the   governor's   office 



accounts and "[e]very email" from the Palins' private accounts that "in any way" related 



to   state  business    was    a  public   record.   (Emphasis      added.)    Second,     she   sought    a 



declaration   that   using   private   email   accounts   to   create   "public   records"   is   a   per   se 



violation of the Public Records Act.   The State, for its part, adopted a similarly extreme 



position in the opposite direction:   It suggested that, under the applicable definition, the 



mere failure of the State to preserve a given record established that it was not a state 



record.   At first, the superior court accepted the State's extreme position.                It concluded 



that "[t]here is an element of discretion, and if the Governor and her staff chose not to 



preserve certain emails - for whatever reason and regardless of intention - those 



emails are not public records, and are not available for [public] inspection." 



        20       We note that as of oral argument before us McLeod still had an active 



Public Records Act request for the Governor's Office emails at issue in this appeal.  The 

State represented that it has gathered all obtainable emails from Governor Palin's and 

others' private email accounts relating to the conduct of state business, and that it was 

processing those emails to respond to McLeod's request to review any public records 

among those emails. It subsequently released thousands of emails. Any further disputes 

between McLeod and the State regarding her Public Records Act request may be taken 

up in different proceedings. 



        21       Cragle   v.   Gray,   206   P.3d   446,   449   (Alaska   2009)   (citing Rockstad   v. 



Erikson , 113 P.3d 1215, 1219 (Alaska 2005)). 



                                                   -13-                                              6716
 


----------------------- Page 14-----------------------

                Upon reconsideration, however, the superior court significantly withdrew 



from its earlier position and instead concluded that "if a state employee deliberately does 



not   preserve   a   document   that   is   'appropriate   for   preservation'   .   .   .   that   employee   is 



breaking the law."      In doing so, the court handed McLeod an important and substantial 



victory, rebutting the State's contentions that any records it failed to preserve were not 



"public     records"    because    records    "appropriate     for  preservation,"     whether     or  not 



originally preserved by the State, were also incorporated in the court's definition of 



"public records."      Thus, the State was not entitled to summary judgment on that issue 



because McLeod established that the duty to preserve emails exists as to both official 



accounts and private accounts, and that the duty cannot be extinguished by a public 



official's unreviewable decision simply not to preserve them.   McLeod did not seek this 



limited relief, she sought a much broader declaration; however, a grant of summary 



judgment is not an all or nothing proposition. 22 



                 The    court's   revised   interpretation    effects  a  substantive    change    in  the 



interpretation     of   the   statute   and  demonstrates   that   McLeod   achieved       a   substantial 



measure of success:   In fact the State had to gather all obtainable emails from Governor 



Palin's and others' private email accounts relating to the transaction of state business and 



process them to respond to McLeod's request to review any public records among those 



emails.    Consequently, McLeod was entitled to a grant of partial summary judgment. 



        E.	      The Issue Of Attorney's Fees Must Be Remanded To The Superior 

                 Court. 



        22       See,   e.g.,  Alliance   of  Concerned      Taxpayers,     Inc.  v.  Kenai    Peninsula 



Borough ,   273   P.3d   1123   (Alaska   2012)   (affirming   superior   court's   grant   of   partial 

summary judgment to each party and decision not to designate a prevailing party). 



                                                   -14-	                                              6716 


----------------------- Page 15-----------------------

                On March 12, 2010, the State moved for attorney's fees, claiming that the 



superior court's denial of McLeod's motion for reconsideration effectively terminated 



the litigation and left the State as the prevailing party.  The State cited Bowman v. Blair23 



to support its "prevailing party" status, noting that "[t]he 'prevailing party' is the party 



who is successful with regard to the main issues in the action, even if the other party 



receives some affirmative recovery."24         The State asserted that it prevailed by 



                refuting    [McLeod's]      arguments     for  expansive    injunctive 

                relief in October-November 2008, defeating her motion for 

                summary judgment in January-February 2009 and her motion 

                for reconsideration of the court's order denying her motion 

                for   summary      judgment    in  September      2009,   successfully 

                moving      for  summary      judgment    in  November-December 

                2009,   and   defeating   her   motion   for   reconsideration   of   the 

                order granting [the State's] motion for summary judgment in 

                February 2010. 



Accordingly, it asked the court to award Alaska Civil Rule 82 attorney's fees in the 



amount of $6,645. 



                McLeod opposed the attorney's fees motion as premature and sought to stay 



it pending entry of a final judgment and a potential decision on appeal.               McLeod also 



argued that even if the State was entitled to Rule 82 fees, two factors in subsection (b)(3) 



applied in this case and warranted varying or completely eliminating an award of fees 



against her. McLeod identified the two relevant factors from Rule 82(b)(3) as "the extent 



to which a given fee award may be so onerous to the non-prevailing party that it would 



        23      889 P.2d 1069 (Alaska 1995). 



        24      Id . at 1075 (citing Alaska Placer Co. v. Lee , 553 P.2d 54, 63 (Alaska 1976); 



Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973)); see also Day v. Moore, 771 

P.2d 436, 437 (Alaska 1989) ("One who defeats a claim of great potential liability may 

be the prevailing party even though the other side receives an affirmative recovery."). 



                                                 -15-                                            6716
 


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deter similarly situated litigants from the voluntary use of the courts," a section meant 



to   shield   public   interest   litigants   from   punitive   fee   awards   after   a   separate   statutory 



exception was eliminated in 2003, and "other equitable factors deemed relevant." 



                On April 15, 2010, the superior court entered an attorney's fee award for 



the full amount requested by the State. 



                In order to determine which party was "successful with regard to the main 



issues in the action," it is necessary to look at what relief each party sought below.25 



Because we have reversed that portion of the superior court's judgment granting full 



summary judgment to the state and have concluded that McLeod was entitled to partial 



summary judgment, we remand the issue of attorney's fees to the superior court for a 



redetermination of attorney's fees consistent with this ruling.26 



V.      CONCLUSION 



                We AFFIRM the judgment of the superior court that use of private email 



accounts to conduct state business is not a per se violation of the Public Records Act, but 



we partially REVERSE the superior court's grant of summary judgment to the State, 



holding     that  its  conclusion    that  the  term   "public   records"    includes   those   records 



"appropriate for preservation" entitles McLeod to partial summary judgment.  Thus, we 



REMAND for the trial court to redetermine the prevailing party and attorney's fees. 



        25      Bowman , 889 P.2d at 1075. 



        26      See Tobeluk v. Lind, 589 P.2d 873, 877 (Alaska 1979)   ("Although the 



prevailing party is the party who prevails on the suit as a whole, where each party has 

prevailed on a main issue the court retains discretion to refrain from characterizing either 

as   the   prevailing   party,   and   a   denial   of   attorney   costs   and   fees   in   such   instances   is 

appropriate." (citing Fairbanks Builders, Inc. v. Sandstrom Plumbing & Heating , Inc ., 

555 P.2d 964, 967 (Alaska 1976); City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 

(Alaska 1974))). 



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