City of Bainbridge Island loses lawsuit over council member emails, judge rules officials violated Public Records Act

The city of Bainbridge Island violated the state's Public Records Act by failing to turn over emails that city council members had sent and received on their personal email accounts, a Superior Court judge ruled Friday.

Kitsap County Superior Court Judge Jeanette Dalton ordered the city to search the hard drives of the computers of councilmen Steve Bonkowski and David Ward, and also said the pair who had sued the city over the missing public records should be awarded attorney fees.

The ruling was a complete victory the two "good government" advocates who filed the lawsuit against the city and councilman Steve Bonkowski, David Ward and former councilwoman Debbi Lester last year.

Althea Paulson, a Bainbridge Island blogger who writes about city politics, and Bob Fortner, a leader in the successful 2009 campaign to change the city's form of government, filed the lawsuit after the city failed to release emails that showed the council members were discussing city business on their personal email accounts.

"This decision leaves no doubt that these council members put themselves above the law, and they put their personal agendas over their responsibilities to the public," Paulson said after the ruling was tendered.

"This is a strong reminder to government officials all over the state that government must be ethical in all their dealings and transparent and accountable to the public," she said. "It's a victory for all of us."

In their lawsuit, Paulson and Fortner repeatedly pointed out that city policy forbids council members from using their personal emails for city business, and the pair said that Bonkowski and Ward refused to release emails that should have been disclosed after Paulson and Fortner requested the documents. Bonkowski had also admitted deleting emails from his account that may have been public records.

Attorneys for the city had argued that the city had already conducted extensive searches for records, and an inspection of the council members' computers and email accounts would be an invasion of privacy.

In her decision Friday, Judge Dalton said the emails on the council member's personal email accounts were indeed public records, and that the deletion of the emails violated the city's public records retention policy and the state's Public Records Act.

She said the city did not perform an adequate search for the records.

Dalton ordered Ward and Bonkowski to turn over the hard drives of their computers and other electronic information that can show how emails were created and sent, known as metadata, that was included in the emails.

Her decision also included a strong rebuke of Bonkowski and Ward, and she criticized the pair for destroying emails that were public records and for ignoring city policies that preserve public records.

"As elected officials, Mr. Bonkowski and Mr. Ward owed a duty of candor to the public," Dalton wrote in her 32-page decision.

"Elected representatives for the community owe a heightened duty of care when carrying out their legal obligations," Dalton wrote.

She said there was "sufficient proof" that the pair had violated the Public Records Act, "and should be subject to a court order requiring them to hand over their personal hard drives to the [city] for inspection."

Dalton criticized Bonkowski for deleting emails because he thought the city did not have a retention policy that covered his emails.

The judge called Bonkowski's reasoning "flawed," and said council members knew they were required to turn over emails on city business that were sent to their personal accounts based on the requirements of the city's governance manual.

"The council members knew well what the Governance Manual requires, and any hesitation by them in turning over such responsive emails is a grave concern for the people of Bainbridge Island," the judge wrote.

Dalton said the city's search for records came up short because that search centered on looking for records on the city's e-mail server, even though officials knew that council members were using their personal email accounts to send and receive emails on city business.

"Mr. Ward also never checked his deleted email folder on his personal computer, not attempted to contact his webmail provider, Comcast, nor the city manager, city attorney, or the IT staff, to ask if his deleted items may be responsive [to the records request made by Paulson and Fortner]," Dalton continued.

When the city finally asked for the emails from Ward and Bonkowski, "it was too late," the judge wrote.

Dalton said the emails sought were clearly public records.

She also noted that Ward and Bonkowski had both used their personal email accounts to talk about city business, and despite being told by the city that it was improper, "the council members unabashedly continued their practice."

The judge said that Paulson and Fortner would be awarded attorney fees. The amount of fees will be determined at a later hearing.

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