A new lawsuit asks a judge to impose penalties on city government for failing to immediately provide a document in response to a public records request.
The city manager said staff inadvertently omitted the record but provided it as soon as it was discovered, and he doubts penalties would be allowed under state law.
Attorneys representing the group Business United, filed the lawsuit on Feb. 1 in Whatcom County Superior Court. The group was started by Blaine businessmen Tom Bridge and Dale Schrader, who both opposed the state Department of Transportation’s project to install roundabouts at the Interstate 5 ramps at D Street.
On March 24, 2010, the group sent a records request asking for all city records related to the roundabout project “and the City’s consideration of any permit of such work.” On March 30, city staff responded that “we do not have any permit documents for the State’s project … we have not processed an application for a Land Disturbance Permit,” according to the lawsuit.
Relying on that, the group filed a complaint and motion in Superior Court seeking an injunction to block the project until permits were obtained, the lawsuit states. A judge ultimately declined to halt the project. The roundabouts opened in May 2010.
After the lawsuit and motion for injunction were filed, the city on April 20 provided the documents the group had requested, the lawsuit alleges.
“After they realized that that was a mistake, miraculously, permits appeared,” Bridge said. “By then we were already started down a legal path.”
The documents pulled the rug out of most of Business United’s legal case, he said.
“We wouldn’t have pursued that angle on the lawsuit if they have given us the documents,” he said.
The lawsuit says the group incurred damages of nearly $16,000 in attorneys’ fees. It asks the court to award attorneys’ fees, as well as impose fines on the city. Under state law, a judge may impose fines of up to $100 per day for each day a record is wrongly withheld.
City Manager Gary Tomsic said staff mistakenly left out one document, a letter from the DOT describing what the state was going to do and asking that the city agree to it. But it wasn’t a permit, he said, and, because of that, it was at first overlooked. No city permits were required for the project, he said.
“We thought we have provided him with all of the information that he had requested, and then, subsequently, found out that there was one document that we ran into that was not sent to him,” Tomsic said, “and as soon as that document was discovered, our attorney advised us to get it to him as quickly as possible, which we did.”
Sometimes documents slip through when dealing with large volumes of information. As an example, Tomsic said, a second request from Bridge related to roundabouts required staff to read 9,000 emails. “You can almost bet (documents will be left out) when you’re dealing with volumes of information of that magnitude,” Tomsic said.
The request that’s subject of the lawsuit required staff comb through a much smaller volume of records because it was more specific, he said.
Attorneys’ fees and penalties paid by the city would come from general fund dollars, which are tax dollars that can be used for various expenses.
“With our budget being as tight as it is, $16,000 makes a difference, it really does,” he said.
I talked with open-government attorney Greg Overstreet today and mentioned the above story. He said it would be a perfect candidate for something he and attorney Ramsey Ramerman are doing called co-mediation. He admits that he has a financial interest in this, because he and Ramerman will be charging local governments and records requesters as they get together and mediate a records dispute, but the costs will be much less that fighting it out in court.
Click here to see more on their new website. His blog points to a King 5 story that found that, in 2011, state government paid out $1.7 million to records requesters. Click here to read the article. The article gets Attorney-General Rob McKenna’s take on it too.
What do you think?