Superior court judge says Bainbridge council members will have to release emails from private email accounts

A Kitsap County Superior Court judge has ruled that three Bainbridge Island city council members will have to hand over emails from their personal accounts.

Bainbridge Island residents Althea Paulson and Robert Fortner filed a lawsuit against the city of Bainbridge Island in September that claimed the city and council members Steve Bonkowski, David Ward and Debbi Lester failed to turn over public records that had been requested under the state's Public Records Act.

The lawsuit was launched two months after Paulson and Fortner made a request for a large batch of emails that were sent and received by city council members. Some of those emails showed that council members had been using their personal email accounts to talk about city business and issues before the council, and Paulson and Fortner filed suit after realizing that Bonkowski, Ward and Lester had withheld emails that should have been released under the state's Open Records Act.

At a hearing in late September, an attorney representing Paulson and Fortner asked the court to order council members to turn over their computer hard drives so the public records could be gathered by city officials and released.

In a decision Friday, Superior Court Judge Jeanette Dalton said the disputed emails would have to be released.

A conference between the two sides in the lawsuit will be held sometime in the next month to talk about how to have the records released, which may include the three council members handing over the hard drives of their personal computers for inspection.

Dalton said the council members should not have expected to keep their emails about city business shielded from public view.

"Government employees and public officials who conduct business on private computers cannot reasonably expect those records to be classified as private," Dalton said in her decision.

"Business conducted in the employees' or public officials' official capacities is not the personal property of that employee and is not subject to protections afforded to private property," she continued.

"Furthermore, theses public records do not contain intimate details of a private and personal nature," the judge continued. "By conducting city business on a personal computer or from a personal email account — thereby creating records that are subject to the Public Records Act, a 'strongly worded mandate for broad disclosure of public records' — defendants have impliedly consented to the inspection of their personal computers and/or personal email accounts, regardless of whether such inspection would be appropriate or legal under other circumstances."

Council members have official email accounts set up by the city, and city policy dictates that council members use only their city accounts for city business. Emails released earlier this year by the city, however, show that council members Bonkowski, Ward, Lester and Blossom have long been using their private email accounts to correspond with the public and get advice on issues before the council.

Paulson welcomed the judge's decision Monday.

"It's great news," she said.

Paulson said if the decision had gone the other way, and the judge upheld the privacy claims presented by attorneys for the three council members, "it would have completely undermined a large portion of the Public Records Act."

"We don't want a situation where publicly elected officials can hide doing city business simply by conducting business on their private email," Paulson said. "The judge has affirmed that public records must be produced even if they are from personal emails."

In the Nov. 1 decision, Dalton also dismissed the three council members as named individuals in the lawsuit.

Dan Mallove, Paulson and Fortner’s attorney, said Dalton's dismissal of the council members as individuals was not surprising, given the narrow language of the Public Records Act itself.

"Her ruling nevertheless validates the right of my clients, as members of the public, to have access to these public records.” Mallove said.


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