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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griswold v. Homer City Council (9/14/2018) sp-7297

Griswold v. Homer City Council (9/14/2018) sp-7297

           Notice:   This opinion is subject to correction before publication in the P                           ACIFIC  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@akcourts.us.  



                         THE SUPREME COURT OF THE STATE OF ALASKA                                           



FRANK  GRISWOLD,                                                     )  

                                                                     )           Supreme  Court  No.  S-16236  

                                  Appellant,                         )  

                                                                     )           Superior  Court  No.  3HO-15-00009  CI   

           v.                                                        )  

                                                                     )          O P I N I O N  

                                                                                                      

HOMER CITY COUNCIL and                                               )  

                                                 

WALT WREDE,                                                          )          No. 7297 -  September 14, 2018  

              

                                                                                                                               

                                                                     )  

                                  Appellees.                         )  

                                                                     )  



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

                                                                                                                      

                                     

                       Judicial District, Homer, Charles T. Huguelet, Judge.  

                                                                                                        



                       Appearances:               Frank  Griswold,  pro  se,  Homer,  Appellant.  

                                                                                                                                

                       Holly C. Wells and Katie S. Davies, Birch Horton Bittner &  

                                                                                                                            

                       Cherot, Anchorage, for Appellees.  

                                                                 



                       Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                                                                                  

                       and Carney, Justices.  

                                              



                       STOWERS, Chief Justice.  

                                                         



I.          INTRODUCTION  



                       Frank Griswold submitted public records requests to the City of Homer. He  

                                                                                                                                                  



requested  all  records  of  communications  between  members  of  the  Homer  Board  of  

                                                                                                                                                  



Adjustment, City employees, and attorneys for the City leading up to the Board's decision  

                                                                                                                                        



in a separate case involving Griswold. He also requested attorney invoices to the City for  

                                                                                                                                                 



a six-month period.  Citing various privileges, the City Manager refused to provide any  

                                                                                                                             


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

records   of   communications   surrounding   the   Board's   decision;   the   Manager   provided  



some   complete   invoices   but   provided   only   redacted   versions   of   some   invoices   and  



completely withheld some invoices.                                                                               Griswold appealed the partial denial of his records                                                                                   



request to the City Council; the Council affirmed, and Griswold appealed to the superior                                                                                                                                                             



court.   The superior court substantially affirmed, and Griswold now appeals to us.                                                                                                                                                                              We  



affirm with respect to the communications relating to the Board's decision, but we vacate                                                                                                                                                                  



and remand the attorney invoices issue for further analysis.                                                                                                



II.                  FACTS AND PROCEEDINGS                         



                     A.                   Griswold's Public Records Request                                                         



                                          In November 2014 Griswold submitted two public records requests to the                                                                                                                                                    



City.   The first request was for documents related to a separate case involving Griswold                                                                                                                                                        

before the Board.                                      1  

                                                                                                                                                                                                                                                              

                                                              Griswold asked for "[a]ll emails, invoices, documents[,] and other  



                                                                                                                                                                                                                                                                     

records that reveal who provided non-procedural legal advice to the Board regarding the  



                                                                                                                                                                                                                                                   

appeal [in the prior case] and who assisted the Board in writing its June 6, 2014 Decision  



                                                                                                                                                                                                                                                                    

on Appeal."  His second request was for "[a]ll invoices for legal services provided to the  



                                                                                                                                                  

city between May 16, 2014 and November 11, 2014."  



                                                                                                                                                                                                                                                               

                                          These requests resulted in a considerable number of emails back and forth  



                                                                                                                                                                                                                                                 

between Griswold, City  Manager Walt Wrede, and City Clerk Jo Johnson.   Wrede's  



                                                                                                                                                                                                                                                                    

ultimate  response  to  Griswold's  requests  can  be  divided  into  two  categories  -  



                                                                                                                                                                                                                                                                                 

communications  relating to the Board's June 6, 2014 decision and attorney invoices.  



                                                                                                                                                                                                                                                             

With respect to the communications, Wrede informed Griswold that attorney Holly Wells  



                                                                                                                                                                                                                                                                   

had  assisted  the  Board  in  drafting  the  decision;  Wrede  did  not  provide  any  of  the  



                                                                                                                                                                                                                                             

documents or communications involved in this process, explaining that these documents  



                     1                    This case is currently on appeal before us and will be addressed in a separate                                                                                                                           



decision.    See Griswold v. Homer Bd. of Adjustment                                                                                                                   , No. 3HO-15-00021 CI (Alaska                                                 

Super., Jan. 17, 2017),                                                appeal docketed                                     , No. S-16660 (Alaska Mar. 24, 2017).                                                              



                                                                                                                                   -2-                                                                                                                         7297
  


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

and   communications   were   subject   to   the   attorney-client   and   deliberative   process  



                      2  

privileges.                                                                                                                                                     

                          Wrede stated, "After the Board made its decision, it passed that decision,  



                                                                                                                                                                        

along with its reasons and findings, to Ms. Wells and requested that she draft the final  



                                                                                                                                                                  

[d]ecisional document.  The communications were related to clarification of the Board's  



                                                                                                                                                                 

intent  and  making  sure  the  decisional  document  accurately  reflected  the  Board's  



                       

decision."  



                                                                                                                                                                              

                           With respect to the invoices, Wrede provided Griswold copies of some of  



                                                                                                                                                                        

the requested invoices, but some of the invoices were partially redacted and others were  



                                                                                                                                                                    

completely withheld. The invoices were from two law firms: Wells's firm, Birch Horton  



                                                                                                                                                                    

Bittner & Cherot (Birch Horton), and Levesque Law Group, LLC (Levesque).  Wrede  



                                                                                                                                                                  

provided a Birch Horton invoice dated June 18, 2014, with two lines describing services  



                                                                                                                                                             

redacted and a Birch Horton invoice dated September 17, 2014, with five lines describing  



                                                                                                                                                                        

services and the number of hours billed for services redacted.  Levesque redacted parts  



                                                                                                                                                                        

of 48 lines describing services from the invoice dated October 7, 2014, parts of 13 lines  



                                                                                                                                                                        

describing  services  from  the  invoice  dated  November  7,  2014,  and  parts  of  8  lines  



                                                                                                                                                                       

describing services from the invoice dated December 8, 2014.   Wrede provided these  



                                                                                                                                                                   

redacted records to Griswold.  Wrede also stated, "All time entries for litigation matters  



                                                                        

are omitted due to Attorney-Client privilege."  



              2            Attorney-client privilege allows a client "to refuse to disclose and to prevent                                                         



any other person from disclosing confidential communications between the client and the                                                                                     

attorney."   Privilege , B                      LACK 'S LAW   DICTIONARY   (10th ed. 2014);                                               see also          Alaska R.   

Evid. 503.   



                           Deliberative    process    privilege    allows    public    officials    to    "withhold  

documents   when   public   disclosure   would   deter   the   open   exchange   of   opinions   and  

recommendations between government officials."                                                           Gwich'in Steering Comm. v. State,                            

Office of the Governor                         , 10 P.3d 572, 578 (Alaska 2000).                       



                                                                                      -3-                                                                              7297
  


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

                                                                  Griswold appealed Wrede's decisions to the Homer City Council. Griswold                                                                                                                                                                                                                                                 



argued that invoices and time entries were not subject to attorney-client privilege and that                                                                                                                                                                                                                                                                                                                          



Wells's communications with the Board were not subject to attorney-client privilege or                                                                                                                                                                                                                                                                                         



deliberative process privilege because Wells was acting as a neutral advisor to the Board                                                                                                                                                                                                                                                                                                                 



and   not   as   an   advocate   for   the   Board.     He   also   argued   that   Wrede's   reasons   for  



withholding records and his explanations were insufficient under the Homer City Code.                                                                                                                                                                                                                                                                                                                     



                                 B.                               City Council Proceedings                                           



                                                                  The City Council held a hearing on Griswold's appeal.                                                                                                                                                                                                                         In addition to his                                                       



arguments about Wrede's decisions, Griswold argued that the Homer Mayor and City                                                                                                                                                                                                                                                                                                                                 



Attorney had conflicts of interest and should not participate in the appeal.                                                                                                                                                                                                                                                                                   At the hearing,                   



City Councilmember Bryan Zak disclosed that he received a call about the appeal about                                                                                                                                                                                                                                                                                                                        



a half hour before the hearing but said that he did not discuss the appeal with the caller.                                                                                                                                                                                                                                                                                                                                                 



                                                                 After   reviewing   the   documents   in   camera,   the   City   Council   affirmed  



Wrede's decisions.                                                                             It stated that there was no ex parte communications issue because                                                                                                                                                                                                                                



Zak did not participate in deliberations on the appeal.                                                                                                                                                                                                                    And it ruled that there were no                                                                                                                 



disqualifying conflicts of interest.                                                                                         



                                                                  Griswold appealed the decision of the City Council to the superior court.                                                                                                                                                                                                                                                            



                                 C.                               Superior Court Proceedings                                                        



                                                                 After reviewing the invoices in camera, the superior court determined that                                                                                                                                                                                                                                                                          



the hours billed and names of clients on the two invoices redacted by Wrede were not                                                                                                                                                                                                                                                                                                                                   



protected   by   attorney-client   privilege   under   Homer   City   Code   2.84.040   and   Alaska  



Evidence Rule 503(b).                                                                                          The court ruled that the rest of the redacted material on these two                                                                                                                                                                                                                                   



invoices was protected under the Homer City Code, the Alaska Evidence Rules, and the                                                                                                                                                                                                                                                                                                                                     



                                                                                                                   3  

work-product   doctrine.                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                  Regarding  the  invoices  that  Levesque  redacted,  the  court  



                                 3  

                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                  The  work-product  doctrine  "provid[es]  for  qualified  immunity  of  an  

                                                                                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                                                              -4-                                                                                                                                                                                                                     7297  


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

 incorrectly stated that Levesque had "substantially waived the attorney-client privilege                                                                                                                                                                                                     



by later apparently providing [Griswold] with unredacted versions."                                                                                                                                                                                          The court further                        



ruled that Wrede's response to Griswold's public records requests complied with the                                                                                                                                                                                                                               



Homer City Code, that Griswold was not prejudiced by any ex parte communications                                                                                                                                                                                 



because Councilmember Zak did not participate in deliberations, and that the Mayor and                                                                                                                                                                                                                            



 City Attorney had no conflicts of interest. The court did not discuss the withheld invoices                                                                                                                                                                                                     



 or   the   communications   surrounding   the   Board's   decision,   except   to   say   that   Wrede  



provided an adequate justification for withholding them.                                                                                                                                                            The court affirmed the City                                                               



 Council's decision in part and remanded with instructions to "provide [Griswold] with                                                                                                                                                                                                                        



versions of the public records he requested in November of 2014, with redactions . . .                                                                                                                                                                                                                                



 consistent with [the court's] Order."                                                                   



                                                  Griswold   filed   a   motion   for   clarification   and   reconsideration,   arguing,  



 among   other   things,   that   the   court   was   mistaken   in   believing   that   he   had   received  

unredacted versions of the Levesque invoices. He requested that the court order the City                                                                                                                                                                                                                                     4  



                                                                                                                                                                                                                                                                                                               

to disclose the unredacted versions of those invoices.  The City opposed the motion with  



                                                                                                                                                                                                                                                                                                                   

 one exception.  It conceded that unredacted versions of the Levesque invoices had not  



                                                                                                                                                                                                                                                                                                            

been provided to Griswold.  But the City suggested that the redacted portions of these  



                         3(...continued)  



 attorney's work product from discovery or other compelled disclosure.  The exemption  

                                                                                                                                                                                                                                                                                        

was primarily established to protect an attorney's litigation strategy."                                                                                                                                                                                                    Work-Product  

                                                                                                                                                                                                                                                                        

Rule , B 

                            LACK'S  LAW  DICTIONARY  (10th ed. 2014) (first citing Fed. R. Civ. P. 26(b)(3);                                                                                                                                                                                  

then citing                             Hickman v. Taylor                                                   , 329 U.S. 495 (1947));                                                            see also                       Alaska R. Civ. P. 26(b)(3);                                     

Langdon v. Champion                                                              , 752 P.2d 999, 1004-05 (Alaska 1988). The work-product doctrine                                                                                                                                                

 is   also   called   the   work-product   rule   or   work-product   privilege.     Work-Product   Rule,  

BLACK'S  LAW  DICTIONARY  (10th ed. 2014).                                                                                                



                         4                       We will refer to Wrede and the City Council collectively as "the City."  

                                                                                                                                                                                                                                                                                               



                                                                                                                                                           -5-                                                                                                                                               7297
  


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

invoices  were  properly  withheld  as  privileged.                                The  court  denied  the  motion  for  

                                                                                                                                     



clarification and reconsideration.  

                            



                     Both Griswold and the City argued that they were the prevailing party for  

                                                                                                                                      



the purposes of an attorney's fees award.  The court ruled that the City was the prevailing  

                                                                                                                           



party, and the City requested attorney's fees.  Griswold opposed, arguing that he was a  

                                                                                                                                         



public interest litigant, that some of the City's fees did not qualify for an attorney's fees  

                                                                                                                                     



award, and that the City's fees were excessive.  The court applied the pre-2003 public  

                                                                                                                                 



interest litigant analysis and concluded that Griswold was not a public interest litigant.  

                                                                                                                                            



It awarded the City 20% of its attorney's fees.  

                                                                   



                     The superior court's order on the merits, discussed above, was issued on  

                                                                                                                                       



January 22, 2016.  On April 26 Griswold filed a motion for contempt, arguing that it had  

                                                                                                                                     



been over three months since the court remanded the case to the City Council but that the  

                                                                                                                                      



Council had not held any proceedings and the City had not provided him any records.  He  

                                                                                                                                       



also argued  that the court's order required the City  to disclose to him the previously  

                                                                                                                          



withheld invoices. Griswold informed the court that Levesque had recently provided him  

                                                                                                                                     



unredacted  copies  of  its  invoices.                    The  City  responded  by  providing  a  less-redacted  

                                                                                                                      



version of the September 17, 2014 Birch Horton invoice.  The court ruled that "the City  

                                                                                                                                    



did not willfully disregard or disobey the court's January order" and denied Griswold's  

                                                                   



motion.  



                     Griswold appeals, arguing that all the redacted and withheld records should  

                                                                                                                                 



be disclosed; that he was the prevailing party; that he was a public interest litigant exempt  

                                                                                                                                



from an attorney's fees award; that if a fee award is to be permitted, a 20% attorney's fees  

                                                                                                                                     



award is onerous; and that the City did not comply with the superior court's order.  He  

                                                                                                                                      



does not appeal the superior court's rulings on Wrede's response to Griswold's public  

                                                                                                                                 



records request, Zak's ex parte communications, or the Mayor's and City  Attorney's  

                                                                                                                         



potential conflicts.  

                



                                                                   -6-                                                            7297
  


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

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                                                                



                                      5                                                                                                                6  

board's decision."                                                                                                                                                             

                                           "[W]hether a privilege applies is a question of law"                                                           that does not  



                                                                                                                          7  

                                                                                                                                                                              

require  deference  to  the  agency  or  administrative  board.                                                                 "We  therefore  apply  our  



                                                                                                                                 8  

                                                                                                          

independent judgment in deciding the legal issues presented." 



                                                                                                                                                                   

                            "We  review  for  clear  error  factual  findings  a  court  makes  in  deciding  



                                                                                          9  

                                                                    

whether to hold a respondent in contempt." 



IV.           DISCUSSION  



                                                                          

              A.            The Public Records Act  



                                                                                                                                                                               

                            Alaska's Public Records Act provides in relevant part, "Every person has  



                                                                                                                                                                

a  right  to  inspect  a  public  record  in  the  state,  including  public  records  in  recorders'  



                                                                                                                                                                 

offices, except . . . records required to be kept confidential by a federal law or regulation  



              5             Griswold v. Homer City Council                                    , 310 P.3d 938, 940 (Alaska 2013) (quoting                             



Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                                      , 267 P.3d 624, 630 (Alaska 2011)).                       



              6             Capital Info. Grp. v. State, Office of the Governor, 923  P.2d 29, 33 n.2  

                                                                                                                                                                               

(Alaska 1996).  

                  



              7             Gwich'in  Steering  Comm.,   10  P.3d  at  577-78.  



              8             Id.  



              9             Anchorage  Police   &  Fire  Ret.  Sys.   v.   Gallion,   65  P.3d   876,   890   (Alaska  



2003)   (citing  Matanuska  Elec.  Ass'n   v.  Rewire   the  Bd. ,   36   P.3d   685,   700-01   (Alaska  

2001));  see  also  Czaja  v.  Czaja, 537 S.E.2d 908, 917  (W.  Va.  2000)  ("In  reviewing  the  

findings  of  facts a   nd  conclusions  of  law  of  a  circuit c   ourt  supporting a  civil contempt  

order,  we   apply   a  three-pronged standard   of  review.   We  review  the   contempt   order  

under  an  abuse of discretion  standard;  the  underlying  factual  findings  are reviewed  under  

a   clearly   erroneous   standard;   and   questions   of   law   and   statutory   interpretations are  

subject  to  a  de  novo  review.").  



                                                                                        -7-                                                                                7297
  


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

                              10  

or by       state   law."          The   Public   Records Act applies to                          all public        records in the            state  



                                                                         11  

including public records of municipalities.                                                                                                     

                                                                             The Act codified the common law rule that  



                                                                                                                                             

"every interested person [is] entitled to the inspection of public records . . . with the added  



                                                                                                                                                   

intent, perhaps, of eliminating the requirement that the person seeking inspection have an  

interest."12  

                                                                                                                                                   

                     We have explained that "[t]he legislature has expressed a bias in favor of  



                                 13  

                                                                                                                                                   

public disclosure,"                  and in 1990 the legislature added findings that "public access to  



                                                                                                                                                 

government information is a fundamental right that operates to check and balance the  



                                                                                                                                                 

actions   of   elected   and   appointed   officials   and   to   maintain   citizen   control   of  

government."14  



                                                                                                                                          

                       1.	         Exceptions  to  the  disclosure  of  information  under  the  Public  

                                                    

                                   Records Act  



                                                                                                                                           

                       Although  the  Public  Records  Act  provides  a  bias  in  favor  of  public  



                                                                                                                                  

disclosure, it contains multiple exceptions.  "[E]xceptions to the disclosure requirement  



                                                                                                                                                   15  

                                                                                                                                                        

should be construed narrowly to further the legislature's goal of broad public access." 



                                                                                                                                                  

At issue in this case is the exception for "records required to be kept confidential . . . by  



            10	        AS 40.25.120(a)(4).   



            11  

                                                                                                                                         

                       City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316, 1318-23  

                

(Alaska 1982).  



            12  

                                                                                                                                             

                       Id.  at 1319-20; see  also  Municipality  of Anchorage  v. Anchorage  Daily  

                                                                                                                                                  

News , 794 P.2d 584, 589 (Alaska 1990) ("Alaska's public records statutes . . . codify the  

                                                                                                                                           

common law right of the public to access to government records." (citing City of Kenai,  

                      

642 P.2d at 1320-21)).  



            13  

                                                                      

                       City of Kenai, 642 P.2d at 1323.  



            14  

                                                                                                                                         

                       Capital Info. Grp. v. State, Office of the Governor, 923 P.2d 29, 33 (Alaska  

                                                           

 1996) (quoting ch. 200,  1, SLA 1990).  



            15	        Id.  



                                                                         -8-	                                                                7297
  


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

                          16  

state law."                     This provision applies both to express exceptions contained in state law and                                                                                                   

to common law exceptions, which we consider to be within "state law."                                                                                                             17  



                                                                                                                                                                                                            

                                 The City argues that the documents in question should be excepted from  



                                                                                                                                                                                                              

disclosure under attorney-client privilege and attorney work-product privilege.  The City  



                                                                                                                                                                                                 

had previously invoked the deliberative process privilege as well, and Griswold discusses  



                                                  

this privilege in his briefing.  



                                                                                                                          

                                                  a.              Deliberative process privilege  



                                 "Thedeliberativeprocess privilegeis oneofthejudicially recognized 'state                                                                                                  



law' exceptions under [the Public Records Act]. Public officials may assert this privilege                                                                                                        



and withhold documents when public disclosure would deter the open exchange of                                                                                                                                    

                                                                                                                                                             18   "[T]he question is . . .  

opinions and recommendations between government officials."                                                                                                                                                          



whether   disclosure  of   the   communication   sought   would   affect   the  quality   of  

                                                                                                                                                                                                                

governmental decisionmaking."19  

                                    

                                 "[T]he  deliberative  process  privilege  is  a  qualified  privilege."20                                                                                                       To  

                                                                                                                                                                                                              



withhold a communication under the deliberative process privilege, the City "must show  

                                                                                                                                                                                                           



as a threshold matter that the communication is both 'predecisional' and 'deliberative.'  

                                                                                                                                                                                                                          



                 16              AS 40.25.120(a)(4).   



                 17  

                                                                                                                                                                                              

                                 See Fuller v. City of Homer, 75 P.3d 1059, 1063 (Alaska 2003) ("Alaska's  

                                                                                                                                                                                                                  

statutory definition of 'state law' encompasses common law as well as positive law . . . ."  

                                                                                                                                                                                                              

(citing  Gwich'in  Steering  Comm.  v.  State,  Office  of  the  Governor,  10  P.3d  572,  578  

                     

(Alaska 2000)).  



                 18  

                                                                                                                                                                                                              

                                  Gwich'in Steering Comm., 10 P.3d at 578 (citing Capital Info. Grp., 923  

                   

P.2d at 33).  



                 19  

                                                

                                 Id.  at 579.  



                 20  

                                                                                                                                                                                                              

                                  Capital Info. Grp., 923 P.2d at 36 (quoting Russell L. Weaver & James T.R.  

                                                                                                                   

Jones, The Deliberative Process Privilege, 54 MO. L. R                                                                                    EV. 279, 315 (1989)).            



                                                                                                         -9-                                                                                                7297
  


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

Once those requirements have been met, the court balances the public's interest in                                                       

disclosure against the agency's interest in confidentiality."                                            21  



                        "To qualify as predecisional, acommunication musthavebeenmadebefore  

                                                                                                                                                 



the   deliberative  process   was   completed.                                       The   privilege   protects   predecisional  

                                                                                                                                  



communications   because   the   quality   of   the   communications   received   by   the  

                                                                                                                                                     

decisionmaker                 clearly         affects         the      quality         of      the      decisionmaking                  process."22  

                                                                                                                                                              



"Postdecisional                 communications                   are      not       protected;            however,            a     predecisional  

                                                                                                                                  



communication does not automatically lose the privilege after the decision has been  

                                                                                                                                                    



made,  for  fear  that  even  disclosure  of  past  communications  could  harm  future  

                                                                                                                                                

deliberations.  Each case must be considered independently and on its own merits."23  

                                                                                                                                         



                        To qualify as deliberative a communication "must reflect a 'give-and-take'  

                                                                                                                                



of the decisionmaking process and contain opinions, recommendation, or advice about  

                                                                                                                                                  

agency policies."24  "Concomitant with this requirement, purely factual material is not  

                                                                         



protected, and must bedisclosed unless 'the manner of selecting or presenting those facts  

                                                                                                                                                    



would reveal the deliberative process, or if the facts are "inextricably intertwined" with  

                                                                                                                                                     

the policymaking process.' "25  

                                                   



            21          Gwich'in  Steering  Comm.,   10  P.3d  at  579  (citation  omitted).  



            22          Id.  (citation  omitted).  



            23          Capital  Info.  Grp.,  923  P.2d  at  35-36  (citation  omitted).  



            24          Gwich'in  Steering  Comm.,   10  P.3d  at  579.  



            25          Capital  Info.   Grp.,  923  P.2d  at  36  (quoting  Paisley  v.   CIA,  712  F.2d  686,  



699  (D.C.  Cir.   1983)).  



                                                                          -10-                                                                     7297
  


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

                            "Ifacommunication is not shown to be                                            bothpredecisional                      and deliberative,  



                                                                                                                                                                          26  

then the public records statute applies and the document will likely be disclosed."                                                                                            "If  



                                                                                                                                                                                

the  privilege  attaches,  however,  instead  of  there  being  a  presumption  in  favor  of  



                                                                                                                                                                                  

disclosure, with doubtful cases being resolved by permitting public inspection, there is  



                                                                                                                                                                 

a presumption in favor of nondisclosure and the party seeking access to the document  

                                                                         27     "[I]n balancing the interests . . . the scales must  

                                                                                                                                                                            

must overcome that presumption." 



reflect  the  fundamental  right  of  a  citizen  to  have  access  to  the  public  records  as  

                                                                                                                                                                                



contrasted  with  the  incidental  right  of  the  agency  to  be  free  from  unreasonable  

                                                                                                                                                         

interference."28  



                            The balancing of interests under the deliberative process privilege is closely                                                              



related to the balancing test that we apply in cases where there is no assertion of a specific                                                                        

privilege.29  

                                                                                                                                                                               

                          In those cases we "balance the interest of the citizen in knowing what the  



                                                                                                                                                                   

servants of government are doing and the citizen's proprietary interest in public property,  



                                                                                                                                                                                

against  the  interest  of  the  public  in  having  the  business  of  government  carried  on  



                                                                                          30  

                                                                                                                                                                        

efficiently and without undue interference."                                                   "The deliberative process privilege affects  



                                                                                                                                                             

th[is] balance . . . primarily by identifying more specifically what interest the government  



                                                                                                                                                                               

may have in maintaining confidentiality, in the form of the threshold showing that the  



              26            Id.  



              27            Id.  at  37  (citation  omitted).  



              28            Gwich'in   Steering   Comm.,   10   P.3d   at   579   (ellipsis   in   original)   (quoting  



Capitol  Info.  Grp.,  923  P.2d  at  37).  



              29            Capital  Info.  Grp.,  923  P.2d  at  36-37.  



              30            Id. at 36  (quoting  City of Kenai v. Kenai Peninsula Newspapers,  Inc. , 642  



P.2d   1316,   1323  (Alaska   1982)).  



                                                                                       -11-                                                                                7297
  


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

 communication is predecisional and deliberative.                                                                                                                    It also outlines fairly rigid procedural                                                 

requirements that the government must meet in order to claim the privilege."                                                                                                                                                                                    31  



                                                                                                                                                                                                                                                     

                                                                   b.                    Attorney-client privilege and work-product privilege  



                                                                                                                                                                                                                                                  

                                             We  have  never  addressed  how  the  attorney-client  and  work-product  



                                                                                                                                                                                                                                                              

privileges interact with the Public Records Act. But the common law has long recognized  



                                                                                                                                                                                                                                                                                             32  

                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                             

the privileged nature of attorney-client communications and attorney  work-product. 



                                                                                                                                                                                                                                                                         

And it is clearly in the public interest for a governmental agency to be able to receive  



                                                                                                                                           33  

                                                                                                                                                                                                                                                                                  

 confidential   advice   from   its   attorneys.                                                                                                           We   hold   that   the   attorney-client   and  



                                                                                                                                                                                                                                                                   

work-product privileges constitute state law exceptions to the Public Records Act.  



                       31                    Id.  at 37.   



                       32                    See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) ("The attorney- 

                                                                                                                                                                                                                                                                    

 client privilege is the oldest of the privileges for confidential communications known to  

                                                                                                                                                                                                                                                                                           

the  common  law."  (citing  8  J.  WIGMORE,   EVIDENCE      2290   (McNaughton   rev.   ed.  

                                                                                                            

 1961)));  Hickman v. Taylor                                                             , 329 U.S. 495 (1947) (recognizing the work-product privilege                                                                                                              

 for litigation);                              Langdon v. Champion                                                        , 752 P.2d 999, 1004 (Alaska 1988) (explaining that                                                                                                         

 "[t]he 'work product doctrine,' first recognized [in                                                                                                                      Hickman], is part of Alaska's Civil                                                                   

Rule 26(b)(3)." (footnote omitted));                                                                                  United Servs. Auto. Ass'n v. Werley                                                                                , 526 P.2d 28, 31-                            

 33 (Alaska 1974) (applying common law attorney-client privilege);                                                                                                                                                                  Killington, Ltd. v.                                    

Lash ,   572   A.2d   1368,   1376-80   (Vt.   1990)   (applying   the   common   law   work-product  

privilege to the Vermont Access to Public Records Act,                                                                                                                                  Vt. Stat. Ann. tit. 1,  317(b)(4)                                    

 (1989)).  



                       33                    See   Gwich'in   Steering   Comm.,   10   P.3d   at   578   (recognizing   that   certain  



 disclosures "would deter the open exchange of opinions and recommendations" and that                                                                                                                                                                                                

 certain privileges are necessary "to protect the executive's decisionmaking process, its                                                                                                                                                                                                

 consultative functions, and the quality of its decisions");                                                                                                                              City of Kenai                                , 642 P.2d at 1323                        

 (recognizing "the interest of the public in having the business of government carried on                                                                                                                                                                                                

 efficiently and without undue interference" (quoting                                                                                                                           MacEwan v. Holm                                                , 359 P.2d 413,                     

421 (Or. 1961) (en banc)));                                                                 City of Orlando v. Desjardins                                                                        , 493 So. 2d 1027, 1029 (Fla.                                                    

 1986) (noting "the imbalanced posture and the disadvantaged status of public entities"                                                                                                                                                                               

without the benefit of attorney-client privilege);                                                                                                           Killington , 572 A.2d at 1379 (stating that                                                                              

not recognizing work-product privilege "would produce an anomalous and unfair result").                                                                                                                                                            



                                                                                                                                          -12-                                                                                                                                    7297
  


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

                                  In  In re Mendel                         we discussed "the appropriate procedure for the superior                                                                     



court to follow" when determining whether attorney billing records are subject to the                                                                                                                                



work-product privilege:                                         the court should conduct an in camera review                                                                               of the billing     



records, and   



                                  in conducting its in camera review[,] [t]he trial judge should
                                                                         

                                  redact              the          attorney's                    mental                impressions,                        conclusions,
  

                                  opinions or legal theories . . . .                                       The court should then give the
                                          

                                  attorney the opportunity to examine the redacted records and
                                                                                   

                                  make any arguments as to why any of the unredacted material
                                                                         

                                  is subject to the [work-product privilege].                                                                Only at this point
   

                                  should the relevant, unprivileged information be produced.                                                                                         [34]
  



                                                                                                                                                                                                                    

This is the procedure the City Council and the superior court should have followed in this
  



                                                                                                                                                                                                              

case.  As with all exceptions to the Public Records Act, the attorney-client and work-
 



                                                                                                                                                                                                               

product privileges should be "construed narrowly to further the legislature's goal of broad
  



                                      35  

                  

public access." 



                 34               897 P.2 68, 75 (Alaska 1995).                               



                 35  

                                                                                                                                                                                                               

                                  Capital Info. Grp., 923 P.2d at 33.  In Cool Homes, Inc. v. Fairbanks North  

                                                                                                                                                                                                                       

Star  Borough  we  commented  on  the  application  of  the  attorney-client  privilege  to  

                                                                                                                                                                                                           

Alaska's Open Meetings Act, AS 44.62.310, saying, "The privilege should not be applied  

                                                                                                                                                                                      

blindly. . . .  Rather, the rationale for the confidentiality of the specific communication  

                                                                                                                                                                                                                  

at issue must be one which the confidentiality doctrine seeks to protect . . . ."  860 P.2d  

                                                                                                                                                                                                                        

 1248, 1262 (Alaska 1993).  Griswold argues that Cool Homes makes the exceptions to  

                                                                                                                                                                                                                  

the Open Meetings Act for attorney-client and work-product privilege narrower than their  

                                                                                                                                                                                                            

litigation counterparts - Alaska Evidence Rule 503 for attorney-client privilege; Alaska  

                                                                                                                                                                                                     

Civil  Rule  26(b)(3)  for  work-product  privilege  -  and  he  argues  that  this  narrower  

                                                                                                                                                                                                                 

privilege  should  be  used  for  the  exceptions  to  the  Public  Records  Act.                                                                                                                    The  City  

                                                                                                                                       

disagrees.  It argues that Cool Homes does not apply to the Public Records Act and that  

                                                                                                                                                                                                                    

if Cool Homes does apply, it does not require any further disclosure of the invoices.  We  

                                                                                                                                                                                                                    

need not decide the degree to which Cool Homes applies to the Public Records Act, and  

                                                                                                                                                                                                                               

we need not address the scope of Cool Homes other than in the attorney invoices context.  

                                                                                                                                                                                                                     

Assuming  without  deciding  that  Cool  Homes  applies  to  the  Public  Records  Act,  we  

                                                                                                                                                                                           (continued...)  



                                                                                                         -13-                                                                                                   7297
  


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

                           2.            Communications relating to the Board's decision                                         



                           Griswold argues that Holly Wells's communications regarding the Board's                                                              



June 2014 decision are not privileged because Wells was acting as a neutral advisor to the                                                                                



Board.   We disagree.   



                                                                                                                                                                36  

                           Thedeliberativeprocess privilegeapplies                                            to thesecommunications.                                 They  



occurred before the decision was issued and contain give-and-take on the wording of the                                                                                   



decision.    They   therefore   qualify   as   predecisional   and   deliberative,   establishing   a  



              35(...continued)  



conclude  that  it  requires  no  further  disclosure  of  invoices  than  would  otherwise  be  

                                                                                                                                                                           

required.  In re Mendel provides the proper standard for the disclosure of invoices under  

                                                                                                                                                                     

the  Public  Records  Act,  with  the  privileges  "construed  narrowly   to   further  the  

                                                                                                                                                                        

legislature's goal of broad public access."  

                                                                     



              36  

                                                                                                                                                                            

                           The City does not argue here that deliberative process privilege applies to  

                                                                                                                                                                          

the communications.  But the City does argue that the communications fall within the  

                                                                                                                                                                         

state law exception to the Public Records Act.  This exception includes the balancing test  

                                                                                                                                                                       

that we apply if we determine that no more specific exception applies.  See Capital Info.  

                                                                                                                                                                             

Grp.,  923  P.2d  at  36-37.  As  explained  above,  the  deliberative  process  privilege  is  a  

                                                                                                                                                                          

specific  application  of  this  balancing  test  and  "affects  the  balance  .  .  .  primarily  by  

                                                                                                                                                       

identifying  more  specifically  what  interest  the  government  may  have  in  maintaining  

                                                                                                                                                                           

confidentiality,  in  the  form  of  the  threshold  showing  that  the  communication  is  

                                                                                                                                                        

predecisional   and   deliberative,"   as   well   as   "outlin[ing]   fairly   rigid   procedural  

                                                                                                                                                                                  

requirements that the government must meet in order to claim the privilege."  Id.  at 37.  

                                                                                                                                                                         

Because the communications relating to the Board's decision fall squarely within the  

                                                                                                                                                               

ambit  of  the  deliberative  process  privilege,  we  choose  to  apply  the  more  specific  

                                                                                                                                                                   

deliberative process privilege framework rather than the catch-all balancing test.  Doing  

                                                                                                                                                                     

so  does  not  prejudice  Griswold  because  the  deliberative  process  privilege  is  a  more  

                                                                                                                                                       

specific  application  of  the  balancing  test,  because  Wrede  identified  the  deliberative  

                                                                                                                                                                           

process  privilege  as  a  ground  for withholding  these  communications  in  his denial of  

                                                                                                                                                                 

Griswold's public records request, and because Griswold briefed the deliberative process  

                                                                                               

privilege in his opening brief on appeal in this court.  



                                                                                    -14-                                                                              7297
  


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

                                                                37  

presumption of nondisclosure.                                        And balancing supports nondisclosure.  As Griswold     



notes, Wells was acting as a neutral advisor to the Board sitting as a quasi-judicial body.                                                                                            



Her role in drafting the Board's decision was analogous to that of a staff attorney for a                                                                                           



 court.   A body making factual and legal determinations must be able to discuss freely its                                                                                      



thoughts on a case.                       Disclosure of predecisional communications between members of                                                                          



judicial   or   quasi-judicial   bodies   and   their   supporting   staff   could   undermine   public  



 confidence                in       the       judicial            process            and         "affect           the        quality           of       governmental  



                                     38  

 decisionmaking."                                                                                                                                                          

                                         Further, disclosure of the documents Griswold requested would serve  



                                                                                                                                                                                  39  

                                                                                                                                                                                       

 little public purpose.   The Board issued its decision and that decision was appealed. 



                                                                                                                                                                          

Making public previous drafts of the decision or communications discussing those drafts  



                                                                                                                     

would not change the decision or the appellate process.  



                                                                                                                                                                                  

                            We affirm the superior court's decision that the communications relating to  



                                                                                                   

the Board's decision are protected from public disclosure.  



                                                                

                            3.            Attorney invoices  



                                                                                                                                                                     

                            Griswold  argues  that  none  of  the  requested  attorney  invoices  contain  



                                                                                                                                                                                 

privileged information and that they should be fully disclosed.  The City responds that all  



                                                                                                                                                                          

the invoices that were not disclosed, either initially by City Manager Wrede or by either  



                                                                                                                                                        

the City or Levesque after the superior court's order, are privileged under attorney-client  



                                                                                                                                                           

 and work-product privileges and that the City should not have to disclose them.  



                                                                                                                                                                        

                            The superior court's decision addressed only the two invoices that Wrede  



                                                                                                                                                                                  

redacted.   The  City  also  submitted  for in  camera  review  22  pages  of  invoices  that it  



              37            See  id.  at  36.  



              38             Gwich'in  Steering  Comm.,   10  P.3d  at  579.  



              39            See G       riswold v   .  Homer  Bd. o  f A                      djustment, N               o. 3   HO-15-00021 C                     I  (Alaska  



 Super.,  Jan.   17,  2017),  appeal  docketed,  No.  S-16660  (Alaska  Mar.  24,  2017).  



                                                                                       -15-                                                                                7297
  


----------------------- Page 16-----------------------

withheld from Griswold.                                   The court's decision did not address these withheld invoices.                                                                               



And   in   addressing   the   two   redactions   that   Wrede   made, it is                                                                    not   clear   that   the   court  



applied the procedure we set out in                                            In re Mendel                  or the narrow construction of attorney-                            



client privilege and work-product privilege that the Public Records Act requires.                                                                                                           We  



therefore vacate the order of the superior court with respect to the attorney invoices and                                                                                                   



remand for the court to review                                           all attorney invoices in light of our discussion in this                                                           



opinion.  



                               On remand the superior court should follow the procedure set out in In re  

                                                                                                                                                                                                



Mendel :                it  should  review  the  invoices  in  camera  and  redact  the  attorneys'  mental  

                                                                                                                                                                                    



impressions, conclusions, opinions, or legal theories; it should then give the attorneys for  

                                                                                                                                                                                              



the City the opportunity to examine the redacted records and make any arguments why  

                                                                                                                                                                                           



any  of the unredacted material is subject to either the attorney-client privilege or the  

                                                                                                                                                                                             

work-product privilege as it applies to the Public Records Act.40  

                                                                                                                                                                           

                                                                                                                                                   The court should then  



                                                                                                                                                                                                 41  

                                                                                                                                                                                                      

make its final decision, and the relevant, unprivileged information should be produced. 



                                                                                                                                                                               

When reviewing the attorney invoices, the superior court should construe the privileges  

narrowly.42  



                                                             

               B.             Homer City Code  



                                                                                                                                                                                               

                               Griswold  also  argues  that  provisions  of  the  Homer  City  Code  (HCC  or  



                                                                                                                                                                                  

Code) require disclosure of the records he requested.  The Code, like the Public Records  



                                                                                                                                                    43  

                                                                                                                                                                                       

Act, provides for the disclosure of records with a list of exceptions.                                                                                    Because the Public  



               40             In re Mendel                  , 897 P.2d at 75.             



               41             Id.  



               42  

                                                                                                     

                               Capital Info. Grp., 923 P.2d at 33.  



               43             HCC 2.84.030, .040 (2017).  

                                                                              



                                                                                              -16-                                                                                       7297
  


----------------------- Page 17-----------------------

                                                                             44  

Records Act applies to municipalities,                                           the Code applies only to the extent it narrows the                                           



exceptions to disclosure and requires that more records be disclosed.                                                                          The question then           



is whether the Code requires the disclosure of any information that could be withheld                                                                             



under the Public Records Act.                                    We conclude the Code does not require any additional                                          



disclosure.  



                            Homer City Code 2.84.030 provides that "[e]xcept as provided by HCC  

                                                                                                                                                                         



2.84.040, or by  other provisions  of City, State, or Federal law, all nonexempt public  

                                                                                                                                                                       



records shall be open to inspection by any person during business hours, subject to any  

                                                                                                                                                                             



applicable regulations that may be adopted by the City Manager."   Homer City Code  

                                                                                                                                                                         



2.84.040 lists the following exceptions relevant to this case:  

                                                                                                                  



                                          a.  Communications between an attorney for the City  

                                                                                                                                                

                            and        the        City,         or      any         agency,            officer,           employee,                 or  

                                                                                                                                                  

                            representative of the City, that are made confidentially in the  

                                                                                                                                                  

                            rendition  of legal services  to  the  City  or to  a  City  agency,  

                                                                                                                                        

                            officer, or employee;  

                                                  



                                         b.  Records prepared by any attorney for the City in the  

                                                                                                                                                   

                            rendition of legal services or legal advice to the City or any  

                                                                                                                                                 

                            agency, officer, employee or representative of the City . . . ;  

                                                                                                                                                     



                                          c.  The work product of an attorney for the City . . . ;  

                                                                                                                                                   



                                          . . . .  

                                                 



                                         n.  Records that are required or authorized to be kept  

                                                                                                                                                

                            confidential  by  a  privilege,  exemption  or  other  principle  

                                                                                                                                     

                            recognized by law or the courts; [and]  

                                                                                                



                                          . . . .  

                                                 



                                         r.       Records  concerning  deliberations  and  drafts  of  

                                                                                                                                                   

                            decisions in quasi-judicial proceedings conducted by the City  

                                                                                                                                                

                            or any City agency.  

                                                     



              44            City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316, 1318-23  

                                                                                                                                                                   

(Alaska 1982).  

                  



                                                                                      -17-                                                                                7297  


----------------------- Page 18-----------------------

The   plain   language   of   HCC   2.84.040   excepts   from   disclosure   the   communications  



surrounding the Board's decision and those portions of the attorney invoices subject to                                                                                                                                                                                                                                       



the attorney-client and                                                                 work-product privileges.                                                                          The Code thus does not require the                                                                                             



disclosure of any records that the Public Records Act excepts from disclosure.                                                                                                                                                                              



                         C.                       Attorney's Fees And Contempt                                                        



                                                  The superior court found that the City was the prevailing party and awarded                                                                                                                                                                          



it 20% of its attorney's fees under Alaska Appellate Rule 508(e)(4). Griswold argues that                                                                                                                                                                                                                               



the superior court erred in awarding the City 20% of its attorney's fees because he, and                                                                                                                                                                                                                                



not the City, was the prevailing party on appeal in superior court; because he was a public                                                                                                                                                                                                                 



interest litigant; and because the award would deter similarly situated litigants.                                                                                                                                                                                                                   Because  



we   vacate   part   of   the   superior   court's   decision,   we   also   vacate   its   prevailing   party  



decision and its attorney's fees award.                                                                                                               We remind the superior court that the Alaska                                                                                                         



Legislature abrogated and replaced the common law public interest litigant doctrine with                                                                                                                                                                                                                              

a constitutional claimant provision in AS 09.60.010.                                                                                                                                                45  



                                                                                                                                                                                                                                                                                                            

                                                  Griswold also argues that the City did not comply with the superior court's  



                                                                                                                                                                                                                                                                                                                        

order when the City disclosed only one part of one redacted invoice.  We construe this  



                                                                                                                                                                                                                                                                                                                   

as an appeal of the court's denial of Griswold's motion for contempt.  "In order for there  



                                                                                                                                                                                                                                                                                                                              

to be contempt it must appear that there has been a willful disregard or disobedience of  



                                                                                                                                      46  

                                                                                                            

the authority or orders of the court."                                                                                                                                                                                                                                                                                  

                                                                                                                                                The court's order directly addressed only the two  



                                                                                                                                                                                                                                                                                                             

redacted Birch Horton invoices, ruling that the hours billed and names of clients should  



                                                                                                                                                                                                                                                                                                                          

not have been redacted but that the other items were properly redacted.  In response, the  



                                                                                                                                                                                                                                                                                                                            

City provided Griswold a new, less-redacted copy of the one Birch Horton invoice on  



                         45                       Alaska Conservation Found. v. Pebble Ltd. P'ship                                                                                                                                              , 350 P.3d 273, 280-81                                     



(Alaska 2015).   



                         46                        Taylor v. District Court, 434 P.2d 679, 681 (Alaska 1967).  

                                                                                                                                                                                                                                                      



                                                                                                                                                            -18-                                                                                                                                                    7297
  


----------------------- Page 19-----------------------

which  hours  billed  and  names  of  City  employees  had  been  redacted.                                         This  was  a  

                                                                                                                                    



reasonable response to the court's order.  The court did not clearly err in finding that the  

                                                                                                                                  



City did not willfully disregard or disobey its order.  

                                                                        



V.        CONCLUSION  



                     We  AFFIRM  that  portion  of  the  superior  court's  order  that  held  the  

                                                                                                                                 



communications relating to the Homer Board of Adjustment's June 2014 decision were  

                                                                                                                                



excepted from disclosure under the Public Records Act and the Homer City Code.  We  

                                                                                                                                  



also  AFFIRM  the  superior  court's  denial  of  Griswold's  motion  to  hold  the  City  in  

                                                                                                                                   



contempt.  We VACATE that portion of the court's order that held the attorney invoices  

                                                                                                                          



Griswold requested were exempt from disclosure under the Public Records Act and the  

                                                                                                                                  



Homer City Code, and we VACATE the court's prevailing party determination and its  

                                                                                                                                   



attorney's  fees  award.               We  REMAND  for  further  proceedings  consistent  with  this  

                                                                                                                                 



opinion.  We do not retain jurisdiction.  

                                          



                                                                -19-                                                           7297
  

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