San Juan County responds to public records request lawsuit

Published 8:00 am Thursday, November 12, 2015

(Editor’s note: According to the defense, an extension was granted on the deadline to file an official response due to illness of the defense attorney. The county will be filing their official response Nov. 18.)

An attorney representing San Juan County responded to a lawsuit against the county and county prosecutor Randall Gaylord concerning an alleged withholding of public records in violation with Washington State’s Public Records Act.

The county and prosecuting attorney had 20 days after being served to submit an official response to the complaint.

Their response reproduced a “full set of records” totalling 141 pages and was written by defending attorney Jeffrey S. Myers, who called into question the appropriateness of including Randy Gaylord in the complaint, and requested an explanation of why he was included, or a dismissal of Gaylord from the complaint.

“…the records request was not directed to him or to the prosecuting attorney’s office,” the response reads. “I believe that he is not a proper party defendant.”

According to Myers the documents that the lawsuit claim were pulled should never been in the code enforcement file.

Myers told the Journal, “The code enforcement file concerns investigation of a citizen’s compliance with land use regulations, including wetland requirements. A code enforcement complaint is handled by the code enforcement officer who reports to the Director of Department of Community Development. An improper governmental action or IGA is initiated by a citizen or employee. By local ordinance, such investigations are conducted by a different official, in this case the prosecuting attorney, separately from the code enforcement file. The IGA investigation is directed at the conduct of the government official, not the land use actions of the citizen. Documents provided by or to the whistleblower as part of the IGA investigation are intended to further the IGA, by statute contain confidential information, are not the code enforcement process, so they should be maintained separately from the code enforcement file.”

At this point the documents have all been provided for the public.

Myers added that “it is my understanding that all the documents that the Code Enforcement officer provided to the public records officer when she requested the paper file have now been provided. In addition, the county’s initial response already provided other documents that were not in the paper file and he failed to provide to the records officer, but which were referenced in the code enforcement file. This included the ERTS complaint form and Department of Ecology wetland report.”

Read the full statement from Myers office below:

“Prosecutor Randall K. Gaylord says he doesn’t belong in the public records lawsuit brought by Sheryl Albritton, and will ask a Skagit County judge to dismiss him from the case.

‘The lawsuit is about a file in another office – the Community Development and Planning Department — not the prosecutor’s office,’ said Mr. Jeffrey S. Myers, the attorney representing Mr. Gaylord and San Juan County.Mr. Myers said he was doing his job when he provided legal advice with respect to the records request.

The lawsuit is about a request for records made to the county’s records clerk. The request was described and understood to be for the contents of a paper file of the code enforcement officer that related to a building permit at Portland Fair. According to Mr. Myers, the code enforcement officer provided a copy of the paper file in a disorganized state and included personal documents which were determined to be not covered by the request.

‘The County did not understand her request to seek items relating to the IGA, which are different from the Code Enforcement investigation. She wants a judge to determine that the nonresponsive items in the file concerning the IGA were clearly described in the request for the enforcement file,’ said Mr. Myers. According to Myers, the public records laws don’t require that the records clerk to be a mind reader, and that the records clerk interpreted the request to mean what it said – the code enforcement file.

‘Fortunately, the County kept copies of the paper file, exactly as it was provided to the records clerk, and that complete file, as disorganized as it was, has been provided to the attorney for Ms. Albritton,’ added Mr. Myers.

Mr. Myers explained that a lawsuit is not necessary to clarify or follow up on a records request. The County Council has a procedure for people to bring disagreements over the response to a records request to the prosecutor’s office and it will then have to act on it in two business days to get the final response from the County. That did not happen in this case, where Ms. Albritton went straight to court.

‘The County’s procedure for review of responses to records requests is intended to correct mistakes and avoid the type of misunderstanding that apparently occurred here,’ added Mr. Myers.

After the records request was fulfilled, the code enforcement file was organized to separate the personal items. Mr. Myers pointed out that file organization is typically done at the direction of a department manager. It was done by Mr. Gaylord’s legal assistant, said Mr. Myers, because the file contained confidential and personal information which could be best kept confidential by having the task done in his office.

Before organizing the file, Mr. Gaylord discussed the need to organize the file with the attorney for the employee’s union. ‘No documents were destroyed and copies of the file contents were made to show that is the case,’ said Mr. Myers.

The County’s position is now that Ms. Albritton has unquestionably received the entire file, the focus of the lawsuit will shift to minimizing the financial burden for all involved.”