By John Gillie from The News Tribune
A three-year fight over public access to government-related emails stored in a former Puyallup city councilman’s private email account might be appealed to the U.S. Supreme Court.
Puyallup City Manager Kevin Yamamoto told the Puyallup City Council late Tuesday that the case, which the city has lost in two separate forums, involves a major constitutional question and should be resolved by the nation’s highest court.
Arthur West, an Olympia open-government advocate and plaintiff in the case, told the council that he too wants to see the city appeal the state courts’ decision.
“I think you guys should go to the Supreme Court, not because you have any chance — you have like a 2 percent chance of getting review accepted. The longer you delay this and the more unreasonably you fight, the worse it’s going to be for you,” he said.
“As your opponent, I urge you to continue to make mistakes. Without your unreasonable withholding of records, I’m out of a job.”
State law gives judges the authority to award fines of up to $100 a day for every record illegally withheld.
West filed suit in 2014 seeking emails concerning council business that Councilman Steve Vermillion created and stored in his private email account. Unlike other council members, Vermillion used his private account to field and answer questions from constituents, fellow council members and city officials.
The city had advised him to handle city business on city email accounts the city had created for elected officials. Vermillion declined.
West, a nonlawyer who has built a reputation for seeking public records from Washington governments and challenging them in court when they refuse, sought the council-related emails on Vermillion’s account. When the city refused to provide them, West sued under state open records statutes.
A Pierce County Superior Court judge and the state Court of Appeals sided with West. The city asked the Washington Supreme Court to review the case, but that court declined earlier this month.
The city has spent $133,000 for outside legal help on the Vermillion suit and a related case.
Yamamoto said the First Amendment to the U.S. Constitution protects Vermillion’s emails. The constitutional protection overrides the state open records statute, he said.
The city manager, himself an attorney, said the city’s legal team sees “a giant problem” with West’s request for Vermillion’s emails. The city did not prepare, own, use or retain records on Vermillion’s private email account, he said. Puyallup city government did not know that Vermillion had that private account and didn’t know until others told them that Vermillion was using the account for communication on government matters.
If the decision in West’s case is upheld, the city manager told the council, the revelation of those records could have a chilling effect on citizens’ right to petition their elected officials, would breach their privacy and subject them to undue influence or harassment. They would lose their right to free speech and the right to associate freely, he said.
In any case, said Yamamoto, appealing the case would help answer once and for all open questions about the limits of public disclosure of records.
West said that if the Supreme Court accepted review and endorsed the city’s viewpoint, that decision would wreak havoc on open government.
“My view of the First Amendment is that it’s there to protect citizens from the government, not government from the citizens,” he said. “In the million-to-one chance that the Public Records Act is ruled unconstitutional, government could be conducted secretly. There would be secret communications. A developer could speak secretly with a council member. There would be no way to find out if your council member was prejudiced.
“The appearance of fairness doctrine would go right out the window because there would be no way to enforce it. The Open Public Meetings Act could be violated with impunity. Basically, it would be a wholesale restructuring of all the open government laws for the worse,” he said.
In any case, the city manager told the council, the city’s participation in the case will have to continue as the Superior Court determines if the city should pay attorney fees, filing costs and penalties under the Public Records Act.
The council met in closed session to discuss the status of the case after Yamamoto’s briefing. The city manager said no decision has yet been reached about whether to file an appeal.