Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. Homer City Council (9/13/2013) sp-6822

Griswold v. Homer City Council (9/13/2013) sp-6822

         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  



FRANK GRISWOLD,                                          )  

                                                         )        Supreme Court No. S-14809  

                            Appellant,                   )  

                                                         )        Superior Court No. 3AN-10-12485 CI  

         v.                                              )  


HOMER CITY COUNCIL,                                      )        O P I N I O N  


                            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"  


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

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.  


                   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  

                                                              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.  


                   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.  

                                                             -2-                                                       6822

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

                    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  


                                                               -3-                                                          6822

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

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.  


                    "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."   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  


                    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  




                    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)).  



                    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))).  

                                                               -4-                                                         6822

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



fact findings.   We independently review a request for disqualification of a judge based  


on the appearance of impropriety.   And we generally review an award of attorney's fees  

for abuse of discretion.7  



          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  



                     City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 876 (Alaska                       


          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.").  



                    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)).  

                                                                -5-	                                                         6822

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


                    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  



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  


                    See Catholic Bishop, 707 P.2d at 876 (reviewing superior court's factual                

findings for clear error).  

          9         AS 40.25.100-.350.  

                                                              -6-                                                            6822  

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

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.      This  statute  


requires municipalities to follow the program established for the management of state  


records  "as  far  as  practical."                                                     

                                                  But  we  have  construed  this  statute  to  permit  the  

destruction   of   "non-record"   email,   which   is   primarily   generated   for   informal  



                   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).  


                   See AS 40.21.010-150.  


                   AS 40.21.070.   



                   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).  

                                                             -7-                                                      6822

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

          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  


          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).  

                                                              -8-                                                           6822  

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

         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  



                   Likewise, the rules of evidence provide a general lawyer-client privilege  


that protects confidential communications between a client and its lawyer.                                   


                   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  



                   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  


                      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)).  

                                                          -9-                                                    6822

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

                    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  


                    Any  remaining  claims  that  Griswold  raises  are  waived  for  inadequate  


V.        CONCLUSION  


                    For the foregoing reasons, we AFFIRM the superior court's decision in all  



                    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).  

                                                               -10-                                                             6822  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights