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UPDATE | City loses lawsuit over council member emails

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 for 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.

Records were public

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.

Strong rebuke

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 the

Victory for residents

Dan Mallove, Paulson’s husband and the attorney who filed suit against the city, said the judge’s decision showed that she clearly understood the Public Record Act and the issues raised in the case.

“She understands the technological issues and she agreed with our legal position on every single issue that was presented to her on the Public Records Act issues,” he said.

“We’re most happy because the citizens of Bainbridge Island deserve this kind of decision. They deserve to be supported judicially by someone who believes in open and transparent government,” he said.

“She did not make a hasty decision” Mallove added. “This appeared to have been a well thought-out decision.”

The judge said that Paulson and Fortner would be awarded attorney fees. The amount of fees will be determined at a hearing July 18.

City to review decision

City Manager Doug Schulze said it was too soon to comment on the decision.

It was premature to say if the city would appeal, he said.

The decision will be talked about in a closed-door executive session oJune 9.

“We still have not had the conversation with the council and we will do that next Monday,” Schulze said.

Jessica Goldman, the attorney who represented the council members named in the lawsuit in their individual capacities, said the judge tendered a faulty decision.

“The trial court completely disregarded longstanding, governing law,” Goldman said.

She said the records were not withheld for an unreasonable amount of time, and said Bonkowski looked long and hard for any records that were requested.

“Council members Bonkowski and Ward diligently responded to [Paulson and Fortner’s] many records requests, including double- and triple-checking city and personal e-mail accounts for any possibly responsive records, and including hiring an independent forensic expert to oversee the search for e-mails on personal computers,” she said in an email to the Review.

The only records that weren’t handed over were duplicates, Goldman said.

Mallove, however, said that simply wasn’t true.

He noted that notes from Bonkowski had been requested but never delivered, and the city never gave a reason why, as well as other emails.

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