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City of Kodiak v. Kodiak Public Broadcasting Corp.

Supreme Court of Alaska

September 14, 2018

CITY OF KODIAK, Appellant,
v.
KODIAK PUBLIC BROADCASTING CORPORATION, Appellee.

          Appeal from the Superior Court No. 3KO-15-00277 CI of the State of Alaska, Third Judicial District, Kodiak, Steve W. Cole, Judge.

          Holly C. Wells and Katie S. Davies, Birch Horton Bittner & Cherot, and Brooks W. Chandler, Boyd, Chandler & Falconer, LLP, Anchorage, for Appellant.

          Steven P. Gray, Law Office of Steven P. Gray, A.P.C., Kodiak, for Appellee.

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

          OPINION

          STOWERS, CHIEF JUSTICE

         I. INTRODUCTION

         After prevailing against the City of Kodiak on a Public Records Act claim, Kodiak Public Broadcasting Corporation (known by the call letters of its radio station, KMXT) was awarded full attorney's fees under AS 09.60.010(c)(1), which provides for attorney's fees to a claimant who prevails in asserting, protecting, or enforcing a constitutional right. The City appeals that fee award, arguing that KMXT's claim was statutory rather than constitutional, that the award included fees which were not necessarily and reasonably incurred, and that the award erroneously included municipal sales tax on attorney's fees. We agree that the court erred in granting KMXT full attorney's fees as a constitutional claimant. We therefore reverse the superior court's award of attorney's fees and remand for a fee award pursuant to Alaska Civil Rule 82 instead. We also agree that it was error to include sales tax in the fee award, and direct the superior court on remand to exclude sales tax from its revised fee award. On remand, the superior court should also address the City's objections to particular billing entries and must exclude fees incurred for any legal work that the court finds was duplicative, unnecessary, or not reasonably related to the litigation.

         II. FACTS AND PROCEEDINGS

         A. The Public Records Request

         This case arises from the aftermath of a September 2015 incident in which the Kodiak Police Department responded to a report of attempted theft from a vehicle. During that incident an officer used pepper spray in the course of detaining the suspect. No arrest was made and no charges were filed against the suspect. The incident garnered significant attention in the local community and media as reports suggested the suspect - who apparently is autistic - was detained with excessive force. The City initiated an internal investigation of the incident.

         A few days after the incident, KMXT wrote to the City asking for the release of "all public records . . . generated in connection with [the incident]" pursuant to the Alaska Public Records Act.[1] The City responded that it was processing the request and asked that KMXT fill out a formal request form, which KMXT did. The City denied the request in early October, asserting that the records were exempt from disclosure under Kodiak City Code 2.36.060(e)[2] because they "constitute[d] law enforcement records regarding a pending investigation" and because disclosure would "result in an invasion of privacy rights." However, the City also stated that it expected most of the requested records would be subject to disclosure upon the completion of the City's internal investigation. KMXT then requested a target date for production of the records; in late October the City again replied that the records would be released when the investigation was complete, which it anticipated could take up to 60 days.

         B. Initial Superior Court Proceedings

         In November KMXT filed a complaint seeking injunctive relief pursuant to AS 40.25.125, [3] as well as costs and attorney's fees. KMXT sought to compel the City to (1) provide a list of withheld records and the claimed exception for each; (2) explain for each withheld record how its disclosure would impede the City's investigation or invade someone's privacy rights; (3) file the disputed records in camera for the court to review the City's claimed exemptions; and (4) release all requested records that were not exempt from disclosure. The City's answer asserted the enforcement-proceeding and privacy exemptions as affirmative defenses.

         Before the City filed its answer, KMXT filed a "Motion to Require Immediate Compliance with Public Records Act" seeking to compel the City to immediately produce three chest camera videos the City had identified in a privilege log on the grounds that the City had failed to articulate any factual basis for its claimed exemptions. The City opposed the motion, arguing that disclosure would violate the privacy of the individuals involved, interfere with the due process rights of the KPD officers under investigation, and undermine the integrity of its "ongoing investigation and enforcement action." KMXT's reply argued that the City had not met the burden of proof to support its claimed exemptions because it failed to produce supporting affidavits or other evidence, in camera or otherwise; that there was no merit to the City's invasion-of-privacy argument because the identity of the suspect was already public knowledge; and that the claimed law enforcement exemption was without merit because the City was not conducting a criminal investigation and had not identified how disclosure would interfere with the City's internal investigation.

         On December 22 the superior court issued an order granting KMXT's compliance motion because the City had failed to make the required showing to establish either of its asserted exemptions. The court ordered the City to "immediately, but by absolutely no later than December 31, 2015, release to KMXT the three chest-cam videos." The City issued a press release on December 29 announcing its intention to release the chest camera videos by December 31. The press release also announced that the City would release all requested police reports, audio recordings, and videos related to the September incident because they had all been withheld on the basis of the same exemptions the superior court had rejected. On December 31 the City released all public records requested by KMXT and others relating to the incident.

         On the day after the City's press release, and the day before its release of the records, KMXT filed a motion for order to show cause, arguing that the City's decision to release the requested videos on December 31 rather than sooner violated the court's order to release the videos "immediately," and requesting a contempt hearing. The City argued in response that it fully complied with the order when it released the videos by the order's December 31 deadline. The court denied the motion, reasoning that "while the court told the City to release the items 'immediately,' it also said 'by absolutely no later than Dec[ember] 31, 2015,' and the City met that deadline."

         C. Continuing Litigation

         In March 2016 the City sought to dismiss the case, arguing that KMXT had received the relief sought in the complaint and that no issues remained to be litigated. The parties litigated this issue through motion practice for more than two months.[4] After a trial scheduling conference in June, the parties reached a consensus that all that remained in the case was for KMXT to seek a declaratory judgment and attorney's fees. The City and KMXT stipulated to an entry of declaratory judgment in KMXT's favor. The court issued a judgment incorporating by reference its December 22, 2015 order without further explanation, named KMXT the prevailing party, and ordered that any request for attorney's fees should be submitted within ten days.

         KMXT filed a timely request for $24, 312.50 in attorney's fees incurred through June 2016, "at least $625" for additional fees incurred in preparing the attorney's fees motion, and $315 in City of Kodiak sales tax.[5] KMXT claimed that because Alaska case law has characterized a citizen's access to public records as a fundamental right, KMXT was entitled to full reasonable attorney's fees under AS 09.60.010(c)(1) for prevailing in an action enforcing a constitutional right. The City opposed the request; it conceded that KMXT was entitled under Rule 82 to 20% of fees reasonably and necessarily incurred, but it objected to granting full fees under AS 09.60.010(c)(1) on the grounds that KMXT's claims were statutory, not constitutional. The City also argued that because KMXT effectively "won" its case when the court rejected the City's claimed exemption on December 22, 2015, the majority of fees and costs incurred after that date were not necessary.

         KMXT maintained in its reply that all the fees incurred and requested were reasonable and necessary, and it reasserted its claim for full attorney's fees as the prevailing party in an action concerning a constitutional right. In the alternative, KMXT argued that equitable factors, including the significance of the matter and the City's alleged bad-faith litigation, warranted deviating from Rule 82's standard 20% rate.

         The court granted KMXT's motion without elaboration, awarding KMXT "full attorney's fees of $24, 627.50" pursuant to AS 09.60.010, explicitly including $315 in sales tax.[6] The court did not craft an alternative award under Rule 82 as KMXT requested. The City appeals only the amount of the fee award, and does not appeal either the declaratory judgment or the superior court's prevailing-party determination.

         III.STANDARD OF ...


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