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  

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



                    THE SUPREME COURT OF THE STATE OF ALASKA  



FRANK GRISWOLD,                                          )  

                                                         )        Supreme Court No. S-14809  

                            Appellant,                   )  

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

         v.                                              )  

                                                         )  

HOMER CITY COUNCIL,                                      )        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"  



                                                            -1- 


----------------------- 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.  



II.       FACTS AND PROCEEDINGS  



                   In February 2008, the Homer City Council approved a bond proposition and  



issued an election brochure entitled "Questions & Answers about Homer Town Square  

                                                                      



and the New City Hall."  Homer resident Frank Griswold filed a complaint with the  

                                                                                                   



Alaska Public Offices Commission, alleging that the brochure constituted the use of  



municipal funds to influence the outcome of a ballot measure without an appropriation  

                                                                                                       

ordinance in violation of AS 15.13.145.1  

                                                              The commission agreed with Griswold and  



fined the City $400.  



                   Griswold filed a public records request with City Manager Walt Wrede,  

                                           



requesting any documents relating to the brochure.  Griswold believed the City's initial  

                                                                           



response to his request was inadequate and he filed a second public records request in  



April 2008.   The second request sought emails sent to and from certain officials and  

                           



contractors from January 1 through April 16, 2008.  Wrede denied the request under City  



of Homer Regulation 2.07, which allowed the city manager to determine that a request  



was made for the purpose of harassment.  Griswold appealed, and the superior court  



concluded that Wrede denied Griswold's request without providing adequate notice or  



opportunity to be heard.  



          1  

                   AS 15.13.145(b) states:  



                   Money held by an entity identified in (a)(1)-(3) of this section   

                   may   be   used   to   influence   the   outcome   of   an   election  

                   concerning a ballot proposition or question, but only if the   

                    funds have been specifically appropriated for that purpose by           

                    a state law or a municipal ordinance.  



                                                             -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.  



III.      STANDARD OF REVIEW  



                    "When the superior court is acting as an intermediate court of appeal in an  

                                                                                 



administrative          matter,      we     independently   review               the     merits      of   the     agency   or  

administrative board's decision."2  

                                                     We use four standards of review when reviewing  



administrative decisions:  "the 'substantial evidence test' governs questions of fact; the  



                    

'reasonable  basis  test'  applies  to  questions  of  law  involving  agency  expertise;  the  



                         

'substitution of judgment test' governs questions of law when no expertise is involved;  



              

and   the   'reasonable   and   not   arbitrary   test'   applies   to   review   of   administrative  



                   3  

                                                                                                  

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  



          2  

                    Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630  

(Alaska 2011) (citing Hester v. State, Pub. Emps.' Ret. Bd. , 817 P.2d 472, 474 (Alaska  

 1991)).  



          3  

                                                                                                                             

                    Rubey  v.  Alaska  Comm'n  on  Postsecondary  Educ. ,  217  P.3d  413, 415  

(Alaska 2009) (citing Jager v. State , 537 P.2d 1100, 1107 n.23 (Alaska 1975)).  



          4  

                                                                                                                 

                    See Gwich'in Steering Comm. v. State, Office of the Governor, 10 P.3d 572,  

577-78  &  n.8  (Alaska  2000)  ("[The  independent  judgment]  standard  is  applied  

appropriately  to  an  administrative  decision  when  it  concerns  the  'analysis  of  legal  

relationships about which courts have specialized knowledge and experience.' " (quoting  

Kelly v. Zamarello , 486 P.2d 906, 916 (Alaska 1971))).  



                                                               -4-                                                         6822
  


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

                    5  

                                                                                                                

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



                                                   6  

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

for abuse of discretion.7  



IV.	      DISCUSSION  



                                                                 

          A.	        The Record Supports The Superior Court's Decision On Griswold's  

                    Public Records Request.  



                    As noted above, Homer City Code 1.80.060(a) required the city manager  



                                                                                                                        

to "make a good faith and reasonable effort to locate records" identified  in  a public  



records request.  On appeal, the superior court concluded that the city manager made a  



good faith effort to comply with Griswold's request.  



                    Griswold argues that the superior court's conclusion was not supported by  

                                                      



substantial evidence.  But it appears that there was substantial evidence supporting the  

                                                                               



court's decision, based on the materials originally submitted to the City Council and the  

                           



deposition transcript that was filed during the court proceedings.   



                    In his statement to the City Council, the Manager stated:  



                    The City has produced all emails in its data base [sic] for the  

                                                             

                     eight  people  listed  during  the  period  identified.    The  City  

                                          

                     expended  $500  on  recovery  software  so  that  it  could  be  

                    responsive to this request.  The IT staff spent approximately  

                                                                          



          5  

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

 1985).  



          6          Greenway v. Heathcott, 294 P.3d 1056, 1062-63 (Alaska 2013); Phillips v.  

                                                                 

State, 271 P.3d 457, 459 (Alaska App. 2012) ("On the separate issue of whether, given  

                                                             

the circumstances, reasonable people would question the judge's ability to be fair, the  

                                                                                                                         

proper  standard  of  review  is  de  novo  -  because  'reasonable  appearance  of  bias'  is  

assessed under an objective standard.").  



          7  

                                                  

                    Bobich v. Hughes , 965 P.2d 1196, 1200 (Alaska 1998) (citing Mt. Juneau  

Enters., Inc. v. Juneau Empire , 891 P.2d 829, 834 (Alaska 1995)).  



                                                                -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  

                                                                                                                        When  



                                                                                                  

we consider the record before the City Council and the foregoing deposition testimony,  



we conclude that the court's decision was not clearly erroneous.  



          B.	       Griswold Has Not Adequately Explained His Claim For Destruction Of  

                    Public Records.  



                    Griswold argues that the City unlawfully destroyed public records.  He  

bases this claim on the Alaska Public Records Act.9                                                   

                                                                             In particular, the Public Records Act  



                                                                          

ensures that "[e]very person has a right to inspect a public record in the state" except for  



          8  

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

findings for clear error).  



          9         AS 40.25.100-.350.  



                                                              -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  

                                                                                              



                                                                                                       12  

to  preserve  public  records  and  create  reasonable  retention  schedules.      This  statute  



                                                                                          

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



                                            13  

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  



                         14  

communications.              



                   Griswold did not argue any violation of the Records Management Act in  



the superior court, so the parties did not litigate the application of this statute, and the  



                                                                       

court did not address this statute in its decision.  There is, therefore, no factual basis for  



                                                                                                                         

us to determine whether there has been a violation of the Records Management Act.  We  



conclude   that   Griswold's   records   retention   claim   is   beyond   the   scope   of   this  



administrative appeal.  



          10       AS 40.25.120(a).  



          11       AS 40.25.120(b).  



          12  

                   See AS 40.21.010-150.  



          13  

                   AS 40.21.070.   



          14  

                                                      

                   See McLeod v. Parnell , 286 P.3d 509, 511 & n.3 (Alaska 2012) (explaining  

                                          

that  public  records  include  records  "appropriate  for  preservation"  under  the  Record  

Management Act).  



                                                             -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  



waived.  



          15        Matter of C.L.T. , 597 P.2d 518, 522 (Alaska 1979) (holding that absent  



plain  error,  party  may  waive  rights  arguably  encompassed  within  due  process  by  

                                                                                                         

consenting or failing to object to certain procedures).  



                                                              -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  

                                                                                                       

disclosure.16                           

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



                                                                                                       17  

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  

                                                                                        



privileges.  



                   Griswold also argues that the superior court judge should have recused  



himself because the judge indicated that he had a busy schedule and could have requested  



reassignment of the case to avoid delay.  Griswold is apparently arguing that the judge's  

                                                         



decision  to  issue  a  decision  in  the  face  of  this  schedule  created  an  appearance  of  

impropriety.18  

                      But an assigned judge has "an obligation not to disqualify himself [or  

herself], when there is no occasion to do so."19  

                                                                    And the judge in this case ultimately  



                                                                            

issued  a  timely  decision  that  we  can  review  on  the  merits.    Griswold  has  made  no  



showing that the judge's decision indicated an appearance of partiality.  



         16        Homer City Code 1.80.040(a) (2012).  



         17        See Alaska R. Evid. 503(b).  



         18        Cf. Vent v. State, 288 P.3d 752, 756-57 (Alaska App. 2012) (reversing a  



trial court decision because of an appearance of impropriety).  



         19       Amidon  v.  State ,  604  P.2d  575,  577  (Alaska  1979)  (citing In  re  Union  



Leader Corp. , 292 F.2d 381, 391 (1st Cir. 1961); Wolfson v. Palmieri, 396 F.2d 121 (2d  

                                               

Cir. 1968)).  



                                                          -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  



awarded.  



                    Any  remaining  claims  that  Griswold  raises  are  waived  for  inadequate  

briefing.21  



V.        CONCLUSION  



                                                                                                                

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



respects.  



          20  

                    Stalnaker v. Williams, 960 P.2d 590, 597-98 (Alaska 1998) (holding the     

superior court did not abuse its discretion in awarding 86% of actual fees incurred).  



          21        See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (holding claims waived  

                                                                                                               

due to inadequate briefing).  



                                                               -10-                                                             6822  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC