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 ...