SJC Public Records Ordinance declared invalid
— from Nicholas Power, Attorney —
On December 12, 2019, in a rare unanimous opinion, San Juan County lost at the Washington State Supreme Court in a case brought by Edward Kilduff for the violations of the Public Records Act.
In May 2016, Mr. Kilduff sued San Juan County for illegally withholding public records. Specifically, Mr. Kilduff alleged that San Juan County Prosecutor Randall Gaylord sanitized a code enforcement file and orchestrated the illegal withholding of public documents that concealed County Manager Mike Thomas’ interference with code-enforcement investigation. Mr. Kilduff also objected to another Councilman serving as the County “Public Records Officer” by Mr. Thomas, since a sitting Councilman could not compatibly be both the superior of Mr. who was appointed by Thomas and a subordinate to Mr. Thomas as Public Records Officer.
As widely reported in the local press on two previous occasions, the lower court dismissed Mr. Kilduff’s suit because Mr. Kilduff failed to exhaust San Juan County’s self-prescribed administrative appeals process. In addition, the lower court sanctioned Mr. Kilduff and his attorneys $10,000 for bringing a “frivolous” action. To have obtained “administrative exhaustion” under the now-illegal County ordinance, Mr. Kilduff would have had to receive a determination of “final action” from Mr. Gaylord himself in order to obtain the right to sue Mr. Gaylord and the County.
The Supreme Court struck down San Juan County’s attempt to use these “administrative procedures” to tie the hands of public records requestors. The Court reasoned a local ordinance cannot trump the public’s right to sue an agency under the Public Records Act and the County’s ordinance violated the Act. The Court also reversed the sanctions on Mr. Kilduff and his attorneys calling the lower court’s imposition of sanctions “an abuse of discretion.”
Nicholas Power, who represented Mr. Kilduff at all stages of the proceedings said, “it was a great day for transparency and accountability, this case will have enormous state-wide ramifications since many municipalities – in an unwise attempt to frustrate the public – have adopted near identical versions of San Juan County’s illegal administrative procedures. There are a lot of municipal codes throughout the State that are now illegal – it is going to take some time to fix.”
Mr. Kilduff was pleased with the news, “I always felt this was a case involving not just transparency, but a deliberate effort by the County to chill public records requests and requesters and to keep things secret from the public. I believe County was trying to make an example out of me. I am glad my attorneys saw the merits and importance of this case when so many others didn’t.”
The case will be remanded to the trial court for further proceedings.
A copy of the Court’s decision is available HERE. And a video of the proceedings may be found HERE.
Please direct inquiries to Nicholas Power nickedpower@gmail.com or 360.298.0464
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This is just the latest example of Randy Gaylord’s bad lawyering on behalf of the residents of the county. In particular, his mishandling of the laws that provide the public access to government records and meetings should be of considerable concern to county residents. One has to venture pretty far afield for the state’s highest court to unanimously toss one of your attempts to subvert a state law.
Nick Power has provided an important service in protection of the public’s ability to access records of government activities and decisions.
How does Mr. Gaylord still have a job? Time and time again he has been on the wrong side of issues costing taxpayers millions.
Someone needs to file a Public Records request to determine what the County’s litigative misadventure cost us taxpayers.