City of Kenai v. Kenai Peninsula Newspapers, Inc., s. 4954
| Decision Date | 26 March 1982 |
| Docket Number | Nos. 4954,5433,s. 4954 |
| Citation | 642 P.2d 1316 |
| Parties | CITY OF KENAI, Charles A. Brown, Acting City Manager, Sue C. Peters, City Clerk, and all current members of the council of the City of Kenai, Vincent O'Reilly, Edward Ambarian, Ronald A. Malston, Betty Glick, Phillip Aber, Charles Bailie and Michael Seaman, Appellants, v. KENAI PENINSULA NEWSPAPERS, INC., Appellee. The MUNICIPALITY OF ANCHORAGE, George M. Sullivan, Mayor, Ruby Smith, MunicipalClerk, Jane Angvik, Paul Baer, Fred Chiei, Ben Marsh, Carol Maser, RickMystrom, Gerry O'Connor, Dave Rose, Lydia Selkregg, Don Smith, and Dave Walsh,all currentmembers of the Anchorage Municipal Assembly, Appellants, v. ANCHORAGE DAILY NEWS, INC., Appellee. |
| Court | Alaska Supreme Court |
Richard W. Garnett, III, Garnett, Klinkner & Bendell, Anchorage, for appellant, City of Kenai.
Steven H. Morrissett, Julie A. Garfield, Asst. Municipal Attys., Theodore D. Berns, Municipal Atty., Anchorage, for appellants, Municipality of Anchorage.
C. R. Baldwin, Kenai, for appellee, Kenai Peninsula Newspapers.
A. Robert Hahn, Jr., Kevin F. McCoy, Hahn, Jewell & Stanfill, Anchorage, for appellee, Anchorage Daily News.
Before RABINOWITZ, C. J., CONNOR and MATTHEWS, JJ., and VAN HOOMISSEN and TAYLOR, Superior Court Judges. *
These consolidated cases have as their common issue the question whether our public records disclosure statute, AS 09.25.110-.120, applies to municipalities. In both cases the superior court ruled that the statute does apply and, for the reasons expressed below, we agree. Each case also raises issues not present in the other, and these will be separately discussed.
During June of 1979, the City of Kenai began soliciting applications for city manager. Subsequently, the City Council met, without notice to the public and without keeping minutes, to review applications and interview applicants. Max Swearingen, the publisher of the Peninsula Clarion, a daily publication of Kenai Peninsula Newspapers, Inc., asked the City to release a list of names and a summary of credentials of the applicants. This request was considered by the City Council on August 2, 1979, and rejected. In a letter written to Swearingen, the mayor voiced a concern that such disclosures would jeopardize the applicants' personal privacy, deter future applications from qualified people concerned about public exposure, and compromise the council's moral obligation to respect the privacy interests of individual applicants.
Kenai Peninsula Newspapers filed suit to require the City to allow inspection of the applications and to enjoin the City Council from further review and action upon the applications except at a public meeting. The superior court issued a temporary restraining order enjoining "further deliberations toward the appointment of a City Manager for the City of Kenai from which the public is excluded...." After briefing and a second hearing, the superior court entered a decision which concluded that the applications were public records and that the deliberations of the city council concerning appointment of a city manager must be held in public meetings. The court thereupon ordered the city to permit the inspection and copying of the applications and to refrain from any closed deliberations concerning the selection of the new city manager.
The superior court stayed, pending appeal, that portion of its order requiring the immediate release of the applications for employment. The parties then stipulated that the order should be considered a final judgment and that the city would "deliver over to the Plaintiff copies of all resumes and applications of all applicants for city manager who do not choose to withdraw their application upon being notified of the (city's) agreement to release the same." The agreed upon release was made without prejudice to the city's right to appeal the order requiring it. Ten of the thirty-two applicants for the position withdrew their applications upon learning of the possibility of disclosure. Kenai Peninsula Newspapers subsequently moved for disclosure of the names and information concerning the withdrawn applicants. This motion was denied.
In February of 1980, the Municipality of Anchorage began soliciting applications for police chief. The nationwide search was conducted through written advertisements which promised that applications would be held in confidence.
From June 1, 1980, through July 8, 1980, Don G. Hunter, a reporter for the Anchorage Daily News, sought access to the names and qualifications of the applicants. The Municipality refused to honor these requests on the grounds that disclosure was prohibited by municipal ordinance, and because confidentiality had been promised to all applicants. The Anchorage Daily News filed suit on July 9, 1980 alleging that the applications and resumes were public documents subject to disclosure and requesting injunctive relief and a temporary restraining order restraining the Municipality from appointing a police chief until a hearing on the merits. Mayor Sullivan appointed a new police chief the next day before the hearing on the temporary restraining order. After the hearing, the court ordered the Municipality to refrain from any action confirming the appointment until a hearing on the merits. The appointee subsequently declined the appointment after disclosures reflecting adversely on his qualifications were made.
The Daily News then learned that Mayor Sullivan had appointed a review committee to assist in evaluating the eighty-nine applications received by the Municipality. The review committee was comprised of local citizens and several municipal employees. The Daily News amended its complaint to allege that the selection process was in violation of Alaska's open meeting law, AS 44.62.310-. 312. Following a hearing, the court entered an order for preliminary injunction, supported by findings of fact and conclusions of law, requiring the Municipality to provide the Daily News with the applicants' names and resumes.
Subsequently, the preliminary injunction was modified by stipulation of the parties to provide that the Municipality would contact all applicants to determine whether they wished to withdraw their applications rather than have them made public. The names and information concerning those applicants choosing to withdraw their applications would remain confidential. The parties also stipulated that the preliminary injunction would be considered as a final judgment so that an appeal could be taken to this court. Of the 89 original applicants, 8 withdrew their names. An additional 19 could not be reached within the time frame prescribed by the stipulation and their names were also considered to have been withdrawn.
The first question is whether the provisions of AS 09.25.110 1 and AS 09.25.120 2 are applicable to municipalities.
A. The parties' arguments focus on the terms of the statute without regard to its historical context. That historical context is illuminating.
At common law, every interested person was entitled to the inspection of public records, including those of municipal corporations. Mushet v. Department of Public Service of City of Los Angeles, 35 Cal.App. 630, 170 P. 653 (1917); Clement v. Graham, 78 Vt. 290, 63 A. 146, 153 (1906); State ex rel. Wellford v. Williams, 110 Tenn. 549, 75 S.W. 948 (1903); State ex rel. Colescott v. King, 154 Ind. 62, 57 N.E. 535 (1900).
The history of §§ .110 and .120 demonstrates that the coverage of the common law has consistently been accepted by the legislators of this state. The operative language of § .120 was first enacted by Congress for the District of Alaska as section 1039 of the Act of June 6, 1900, 31 Stat. 321. It read:
Every person has a right to inspect any public writing or record in said district, and every public officer having the custody thereof is bound to permit such inspection, and to give on demand and on payment of the legal fees therefor, a certified copy of such writing or record, and such copy shall in all cases be evidence of the original. 3
The language of this section was similar to two sections in the laws of Oregon 4 which in turn had counterparts in the laws of California, 5 Montana, 6 Utah, 7 and Idaho. 8 Decisions in these jurisdictions construing their acts indicate that it has never been doubted that such acts cover municipal as well as state officials. 9
Enactment of § 1039 seems to have been meant as a codification of the common law rule with the added intent, perhaps, of eliminating the requirement that the person seeking inspection have an interest. When Congress imposed a statutory duty of disclosure in § 1039 on "every public officer" it clearly intended to encompass both district and municipal officials; any contention that municipal officials were meant to be relieved of their pre-statutory disclosure duties would plainly be frivolous in view of this language.
Section 1039 continued in effect until 1962, unchanged except for two additions. In 1955 the reference to public writings in recorders' offices was added, 10 followed in 1957 by the addition of the exceptions relating to medical records, those of juveniles, and those records required to be kept confidential by federal or territorial law. 11
By 1931 the District of Alaska had become an organized territory. In that year the territorial legislature enacted the forerunner of § .110. This enactment, Ch. 107, § 2 SLA 1931, 12 provided:
The books, records, papers, files, accounts and transactions of every officer, board or institution in the territory are public records, and subject to such reasonable rules as the officer in charge may prescribe, shall be open to inspection by the public during all the time the respective offices shall be open for business.
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