More than three months and at least three status hearings after a Kingman resident filed a lawsuit against the city for the release of thousands of pages of several employees' e-mails, Travin Pennington is ready to end his legal battle for public records.
Pennington's attorney, David Bodney of Steptoe & Johnson, is preparing the paperwork needed to file for attorney's fees, an entitlement he believes is due because of the city's belated release of more than 1,200 pages of e-mail originally requested.
Last week, Bodney said he considered the city's post-lawsuit release a violation of the state's public records law: "Since filing our special action, the city has found and released 1,146 pages of e-mail records that it previously had withheld in violation of the Arizona Public Records Law," Bodney had said.
Before the lawsuit was filed, the city had released approximately 5,800 pages of city e-mail. Another 8,300 were not disclosed.
To date, the city has produced a total of 1,236 e-mail documents since Pennington filed the suit in June.
On Monday, after a status hearing with Mohave County Superior Court Judge Charles W. Gurtler, Pennington's attorney explained his basis for seeking attorneys' fees: "By statute, a party who 'substantially prevails' in a public records action may recover his reasonable attorneys' fees," Bodney wrote via e-mail. "Mr. Pennington's action caused the city to comply with its duties under the Arizona Public Records Law, belatedly producing well over 1,200 pages of e-mail messages that the city tried to withhold.
"Many of those records relate directly to public business, and there was simply no good-faith basis for the city to block the request and compel a citizen to sue for access. The city should not be rewarded for such behavior."
Several attempts since Thursday to contact and seek comment from Lisa Wahlin of Jones, Skelton & Hochuli, the city's legal counsel, were not successful.
City Attorney Carl Cooper wrote Tuesday, "I think Mr. Bodney is incorrect in his assertion that the city has admitted wrong-doing. We had a large public records request and we are learning. I have great faith in Ms. Wahlin and that she will do her best to argue that awarding attorneys' fees to the plaintiff is unwarranted. I have not read the special master's findings as of yet."
Most ruled personal
Gurtler had appointed Rebecca A. Albrecht as "special master" to review and evaluate the thousands of pages of e-mail. Albrecht, a retired Superior Court judge who served 24 years in the Arizona court system, had agreed with the city and its legal counsel that the majority of the e-mail pages were personal
It had been the city's stance when the suit was filed that the e-mail messages sent between city employees were private, confidential or personnel-related.
After filing and after the first release of about 1,100 pages, the justification for nondisclosure changed. When both parties went before Gurtler in August, all of the e-mail messages being withheld were categorized as personal in nature.
The majority of the 8,300 pages of e-mail did indeed fit the legal category of not being public, but Albrecht had questions about a stack of 160 or so pages.
The city released 90 of those pages, but in the last few weeks, the city's attorney, Wahlin, had been arguing that several of those questionable pages should remain in the city's possession. The argument wasn't that they were personal, but that it was in the city's best interest to keep from the public's view.
Some of these e-mail messages were from a city consultant to department heads discussing the advantages and disadvantages of selling versus leasing about 170 acres of city-owned land in the area commonly known as Kingman Crossing. (These documents are pertinent because a measure on the Nov. 6 ballot is asking voters to give the city the authority to sell that same land.)
A status hearing was scheduled Thursday for the parties to discuss the nature of these e-mail messages, and Albrecht was prepared to issue a report on the documents about which she had questions.
But just days earlier, the city had re-released approximately 5,800 pages that Pennington already received following his initial public records request. These documents were handed over prior to Pennington filing the suit for the remaining 8,300 that weren't turned over.
This box, Pennington said, contained at least a hundred pages of e-mail he had never seen; among them the Kingman Crossing sale-versus-lease e-mails - the same documents to be discussed during the status hearing.
According to Pennington, he informed the special master and the city's attorneys that they accidentally had provided these documents, as well as others that were released but in redacted form.
Because of that, Albrecht's report on the questionable records became moot, as Pennington had the documents in his possession.
Another hearing was held Friday, and Gurtler informed the parties that he had not yet received the special master's final report. He is giving the parties several weeks to review that report, and another hearing will be scheduled sometime in November, Pennington said.
The majority of the e-mail pages over which Pennington sued were from the computers of Paul Beecher and Jeff Weir, two city officials who, since Pennington took legal action, have been relieved of their duties as the city manager and the economic development director, respectively.