Former Lynnwood politicians’ records claim against city dismissed

LYNNWOOD — A Snohomish County judge has dismissed a lawsuit brought by Ted Hikel and Don Gough against the city of Lynnwood.

Hikel, a former councilman, and Gough, the former mayor and a longtime civil attorney, accused the city of violating the state Public Records Act. The lawsuit was one of several ways the pair have expressed their unhappiness with how the city is being governed since they left office.

Superior Court Judge George Appel found no violations of state records laws by Lynnwood, he wrote in a Dec. 9 decision. Hikel’s expectations were “simply unreasonable,” Appel found.

Hikel on Friday said he had not seen the judge’s decision and could not comment. Gough did not return a phone call.

Hikel filed the records request in June, seeking 18 months of emails between Councilman Loren Simmonds and council assistant Beth Morris. Simmonds recently lost re-election.

Hikel’s request amounted to 27,500 emails, “one of the largest requests the city has ever received,” according to court papers filed by Lynnwood’s attorneys.

Hikel said he was denied records. The city says it provided installments for viewing starting in August.

Hikel indicated he wanted to inspect the records before paying for specific copies, city attorneys said. That is a common in large records requests.

Lynnwood’s public records officer, Debbie Karber, was working overtime, including Labor Day weekend, to fill the request, the city said. It takes her about an hour to process 100 emails for disclosure.

On Sept. 1, Hikel stopped by City Hall and asked the front desk for his records. The receptionist didn’t know about his request and said there was nothing waiting for him. That contradicted what others had told Hikel.

There was no refusal to provide documents as alleged in the lawsuit, Appel ruled.

“It is reasonable to expect the city to prepare documents for disclosure as best as it can,” the judge wrote. “It is not reasonable to expect that there will never be a miscommunication between a public records officer and a receptionist.”

Appel declined to address additional concerns raised by Gough in court papers.

“The allegations were not connected to any failure to promptly respond or provide records,” Appel wrote.

The judge’s decision to dismiss the case also denied Hikel the $8,100 in penalties he sought from the city.

On Sept. 14, Karber was writing a letter to Hikel that another installment was ready, when Gough served her with the lawsuit.

Part of the problem was the emails Hikel wanted to review were Microsoft Outlook files, and he didn’t know how to open them at home, court papers show. Lynnwood set up a special computer at City Hall for Hikel to view the records. The city provided him some emails as PDFs, but said the conversion process was too time-consuming for that many records. Lynnwood continues to produce weekly installments, city attorneys wrote.

Like many local governments, Lynnwood faces growing demands for public records. The city has hired additional employees to keep up.

The police department is getting another clerk to assist with records requests, and the finance department is expected to hire temporary help, city spokeswoman Julie Moore said.

Between them, Hikel and Gough sent the city more than two dozen public records requests in 2014.

As of Dec. 17, Hikel has filed 15 separate public records requests with Lynnwood in 2015, Moore said.

While processing records for Hikel, the city received dozens of other requests. Those all required a response.

“Although we are relieved to hear about the judge’s decision … there is still great cost to the city,” Moore said.

The Hikel lawsuit cost the city $10,744 in October — one-fourth of its legal bills for that month. The November bill hasn’t arrived but is likely substantial, Moore said.

“Our city resources are finite and it is unfortunate when we are forced to use them in this fashion,” she said in a prepared statement. “We would much rather spend taxpayer dollars on services that benefit the greater community.”

Another Hikel lawsuit from last year, over the city’s transportation benefit district, is pending in court. In that case, Hikel and Gough accused city leaders of violating the state Open Meetings Act. The city is seeking dismissal of that lawsuit.

On that same issue, Gough has filed a complaint with state election watchdogs over how the city and the transportation benefit district promoted a tax measure that later failed to win voter approval. The complaint is awaiting review.

Rikki King: 425-339-3449; rking@heraldnet.com.

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