Judge orders review of city e-mails

Travin Pennington didn't walk out of the Bullhead City courtroom Thursday with any more e-mails than he walked in with, but both his and the city's attorneys seemed content regarding the judge's order.

Mohave County Superior Court Judge Charles W. Gurtler gave two options Thursday in the hearing over Pennington's lawsuit and continuing pursuit of city officials' e-mails: either the court could review the more than 7,000 e-mails withheld from Pennington's public records requests, or the judge could appoint a "special master" who would independently review the documents.

Because of the sheer number of e-mails, Gurtler said he had "some fairly grave concerns" in expediting the matter. He simply did not have the time to review more than 7,000 e-mails, he said.

After consulting during a short recess, both Pennington's attorneys and the city's counsel agreed on the latter option - to allow a third consultant to review the documents and determine which e-mails, if any, the city inappropriately withheld.

State law gives the courts final authority, so the special master would turn over questionable documents to the court, which would then analyze a sample before the judge made a ruling.

It is still up in the air as to which party is going to pay for the special master, who is often a retired judge.

Pennington sued after the city withheld thousands of pages of e-mails belonging to City Manager Paul Beecher and Economic Development Director Jeff Weir - both of whom are no longer employed by the city.

The documents were withheld because they were personal, confidential or personnel-related, officials said.

Since Pennington filed a claim, he's received an additional 1,132 pages of e-mails. David Bodney of Steptoe & Johnson, Pennington's counsel, used this additional release as evidence that the city did not err on the side of disclosure upon carrying out the public records requests.

Lisa Wahlin of Jones, Skelton & Hochuli said that documents the city withheld were done so appropriately; they were all personal and the request itself was the largest the city had ever seen. According to a recent state Supreme Court ruling, not all documents created on government computers are public records, e-mails included.

"The only thing that has not been released to the plaintiff are those that are 100 percent personal," Wahlin told Gurtler.

In defense of the additional release of documents, Wahlin said the city's responsibility does not stop after the records are released; it must continue to review and check for compliance, hence the release of 1,321 additional e-mails.

Bodney criticized the city and its counsel for their failure to explain why the documents were not disclosed. He said it is the city's burden to prove the documents were appropriately withheld, and he requested that a more detailed log explaining redactions and withholdings be provided.

Wahlin said that such a composition would take a significant amount of time.

Gurtler agreed that some further explanation for the non-disclosure should be provided, but he did not take any action regarding Bodney's request.

Considering the volume of the request, the city did a "reasonable job of responding," Wahlin said. While the handling of the request was "less than perfect," the city was not intentionally withholding documents, she said.

Because neither the court nor Pennington's counsel have seen the documents, it's impossible to argue that they were inappropriately withheld. The process was criticized by Bodney, but a ruling could be several months off.

The decision of who will pay for the special master will be made following the 10-day period both parties were given to submit selections for the reviewer.

The court will choose from the suggestions and then determine who will pay.

None of the city's defendants, including the two prime defendants, Beecher and Weir, were present at the hearing. City Attorney Carl Cooper and Information Services Director Joe Clos did attend, as did City Councilwoman Janet Watson and about a dozen Kingman residents.