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Griswold v. Homer City Council

Supreme Court of Alaska

September 14, 2018


          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court No. 3HO-15-00009 CI Homer, Charles T. Huguelet, Judge.

          Frank Griswold, pro se, Homer, Appellant. Holly C. Wells and Katie S. Davies, Birch Horton Bittner & Cherot, Anchorage, for Appellees.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.




         Frank Griswold submitted public records requests to the City of Homer. He requested all records of communications between members of the Homer Board of Adjustment, City employees, and attorneys for the City leading up to the Board's decision in a separate case involving Griswold. He also requested attorney invoices to the City for a six-month period. Citing various privileges, the City Manager refused to provide any records of communications surrounding the Board's decision; the Manager provided some complete invoices but provided only redacted versions of some invoices and completely withheld some invoices. Griswold appealed the partial denial of his records request to the City Council; the Council affirmed, and Griswold appealed to the superior court. The superior court substantially affirmed, and Griswold now appeals to us. We affirm with respect to the communications relating to the Board's decision, but we vacate and remand the attorney invoices issue for further analysis.


         A. Griswold's Public Records Request

         In November 2014 Griswold submitted two public records requests to the City. The first request was for documents related to a separate case involving Griswold before the Board.[1] Griswold asked for "[a]ll emails, invoices, documents[, ] and other records that reveal who provided non-procedural legal advice to the Board regarding the appeal [in the prior case] and who assisted the Board in writing its June 6, 2014 Decision on Appeal." His second request was for "[a]ll invoices for legal services provided to the city between May 16, 2014 and November 11, 2014."

         These requests resulted in a considerable number of emails back and forth between Griswold, City Manager Walt Wrede, and City Clerk Jo Johnson. Wrede's ultimate response to Griswold's requests can be divided into two categories - communications relating to the Board's June 6, 2014 decision and attorney invoices. With respect to the communications, Wrede informed Griswold that attorney Holly Wells had assisted the Board in drafting the decision; Wrede did not provide any of the documents or communications involved in this process, explaining that these documents and communications were subject to the attorney-client and deliberative process privileges.[2] Wrede stated, "After the Board made its decision, it passed that decision, along with its reasons and findings, to Ms. Wells and requested that she draft the final [d]ecisional document. The communications were related to clarification of the Board's intent and making sure the decisional document accurately reflected the Board's decision."

         With respect to the invoices, Wrede provided Griswold copies of some of the requested invoices, but some of the invoices were partially redacted and others were completely withheld. The invoices were from two law firms: Wells's firm, Birch Horton Bittner & Cherot (Birch Horton), and Levesque Law Group, LLC (Levesque). Wrede provided a Birch Horton invoice dated June 18, 2014, with two lines describing services redacted and a Birch Horton invoice dated September 17, 2014, with five lines describing services and the number of hours billed for services redacted. Levesque redacted parts of 48 lines describing services from the invoice dated October 7, 2014, parts of 13 lines describing services from the invoice dated November 7, 2014, and parts of 8 lines describing services from the invoice dated December 8, 2014. Wrede provided these redacted records to Griswold. Wrede also stated, "All time entries for litigation matters are omitted due to Attorney-Client privilege."

         Griswold appealed Wrede's decisions to the Homer City Council. Griswold argued that invoices and time entries were not subject to attorney-client privilege and that Wells's communications with the Board were not subject to attorney-client privilege or deliberative process privilege because Wells was acting as a neutral advisor to the Board and not as an advocate for the Board. He also argued that Wrede's reasons for withholding records and his explanations were insufficient under the Homer City Code.

         B. City Council Proceedings

         The City Council held a hearing on Griswold's appeal. In addition to his arguments about Wrede's decisions, Griswold argued that the Homer Mayor and City Attorney had conflicts of interest and should not participate in the appeal. At the hearing, City Councilmember Bryan Zak disclosed that he received a call about the appeal about a half hour before the hearing but said that he did not discuss the appeal with the caller.

         After reviewing the documents in camera, the City Council affirmed Wrede's decisions. It stated that there was no ex parte communications issue because Zak did not participate in deliberations on the appeal. And it ruled that there were no disqualifying conflicts of interest.

         Griswold appealed the decision of the City Council to the superior court.

         C. Superior Court Proceedings

         After reviewing the invoices in camera, the superior court determined that the hours billed and names of clients on the two invoices redacted by Wrede were not protected by attorney-client privilege under Homer City Code 2.84.040 and Alaska Evidence Rule 503(b). The court ruled that the rest of the redacted material on these two invoices was protected under the Homer City Code, the Alaska Evidence Rules, and the work-product doctrine.[3] Regarding the invoices that Levesque redacted, the court incorrectly stated that Levesque had "substantially waived the attorney-client privilege by later apparently providing [Griswold] with unredacted versions." The court further ruled that Wrede's response to Griswold's public records requests complied with the Homer City Code, that Griswold was not prejudiced by any ex parte communications because Councilmember Zak did not participate in deliberations, and that the Mayor and City Attorney had no conflicts of interest. The court did not discuss the withheld invoices or the communications surrounding the Board's decision, except to say that Wrede provided an adequate justification for withholding them. The court affirmed the City Council's decision in part and remanded with instructions to "provide [Griswold] with versions of the public records he requested in November of 2014, with redactions . . . consistent with [the court's] Order."

         Griswold filed a motion for clarification and reconsideration, arguing, among other things, that the court was mistaken in believing that he had received unredacted versions of the Levesque invoices. He requested that the court order the City[4]to disclose the unredacted versions of those invoices. The City opposed the motion with one exception. It conceded that unredacted versions of the Levesque invoices had not been provided to Griswold. But the City suggested that the redacted portions of these invoices were properly withheld as privileged. The court denied the motion for clarification and reconsideration.

         Both Griswold and the City argued that they were the prevailing party for the purposes of an attorney's fees award. The court ruled that the City was the prevailing party, and the City requested attorney's fees. Griswold opposed, arguing that he was a public interest litigant, that some of the City's fees did not qualify for an attorney's fees award, and that the City's fees were excessive. The court applied the pre-2003 public interest litigant analysis and concluded that Griswold was not a public interest litigant. It awarded the City 20% of its attorney's fees.

         The superior court's order on the merits, discussed above, was issued on January 22, 2016. On April 26 Griswold filed a motion for contempt, arguing that it had been over three months since the court remanded the case to the City Council but that the Council had not held any proceedings and the City had not provided him any records. He also argued that the court's order required the City to disclose to him the previously withheld invoices. Griswold informed the court that Levesque had recently provided him unredacted copies of its invoices. The City responded by providing a less-redacted version of the September 17, 2014 Birch Horton invoice. The court ruled that "the City did not willfully disregard or disobey the court's January order" and denied Griswold's motion.

         Griswold appeals, arguing that all the redacted and withheld records should be disclosed; that he was the prevailing party; that he was a public interest litigant exempt from an attorney's fees award; that if a fee award is to be permitted, a 20% attorney's fees award is onerous; and that the City did not comply with the superior court's order. He does not appeal the superior court's rulings on Wrede's response to Griswold's public records request, Zak's ex parte communications, or the Mayor's and City Attorney's potential conflicts.


         "When the superior court is acting as an intermediate court of appeal in an administrative matter, we independently review the merits of the agency or administrative board's decision."[5] "[W]hether a privilege applies is a question of law"[6] that does not require deference to the agency or administrative board.[7] "We therefore apply our independent judgment in deciding the legal issues presented."[8]

         "We review for clear error factual findings a court makes in deciding whether to hold a respondent in contempt."[9]


         A. The Public Records Act

         Alaska's Public Records Act provides in relevant part, "Every person has a right to inspect a public record in the state, including public records in recorders' offices, except . . . records required to be kept confidential by a federal law or regulation or by state law."[10] The Public Records Act applies to all public records in the state including public records of municipalities[11] The Act codified the common law rule that "every interested person [is] entitled to the inspection of public records ... with the added intent, perhaps, of eliminating the requirement that the person seeking inspection have an interest."[12] We have explained that "[t]he legislature has expressed a bias in favor of public disclosure, "[13] and in 1990 the legislature added findings that "public access to government information is a fundamental right that operates to check and balance the actions of elected and appointed officials and to maintain citizen control of government."[14]

         1. Exceptions to the disclosure of information under the Public Records Act

         Although the Public Records Act provides a bias in favor of public disclosure, it contains multiple exceptions. "[Exceptions to the disclosure requirement should be construed narrowly to further the legislature's goal of broad public access."[15] At issue in this case is the exception for "records required to be kept confidential... by state law."[16] This provision applies both to express exceptions contained in state law and to common law exceptions, which we consider to be within "state law."[17]

         The City argues that the documents in question should be excepted from disclosure under attorney-client privilege and attorney work-product privilege. The City had previously invoked the deliberative process privilege as well, and Griswold discusses this privilege in his briefing.

         a. Deliberative process privilege

         "The deliberative process privilege is one of the judicially recognized 'state law' exceptions under [the Public Records Act]. Public officials may assert this privilege and withhold documents when public disclosure would deter the open exchange of opinions and recommendations between government officials."[18] "[T]he question is . . . whether disclosure of the communication sought would affect the quality of governmental decisionmaking."[19]

         "[T]he deliberative process privilege is a qualified privilege."[20] To withhold a communication under the deliberative process privilege, the City "must show as a threshold matter that the communication is both 'predecisional' and 'deliberative.' Once those requirements have been met, the court balances the public's ...

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