Public records access lawsuit filed

October 21, 2005

DARRELL L. BREESE\Frontiersman reporter

WASILLA - Penny Nixon has followed through on his threat to take his battle with the Mat-Su Borough to court.

His threats began after borough officials informed Nixon that his June 14 request for access to e-mails from Borough Manager John Duffy, Mayor Tim Anderson and 11 department heads would require a $5,000 deposit to cover the cost of hiring a computer technician to retrieve the e-mails from the borough's archives.

Nixon filed his lawsuit Oct. 3 in Palmer Superior Court, alleging that Duffy and the borough's clerk, Michelle McGehee, denied him free access to public information - access granted by borough code and state and federal laws.

&#8220The borough is required by local, state and federal law to provide access to the requested public documents,” Nixon said. &#8220And they have specifically denied the public access to records clearly permitted by law. I didn't have any smoking gun when I made the request. The request was just a routine concern that the mayor had expressed his intention to veto an ordinance in e-mail correspondence and that influenced the action of a couple of assembly members. I thought that there might be something questionable going on in the borough when I made the request, now I wonder what they are trying to hide.”

Nixon requested copies of e-mails from borough officials between May 9-June 14. Borough officials estimate there might be nearly 18,000 e-mails that would need to be retrieved to fulfill his request. Additionally, each e-mail would need to be reviewed to ensure that any confidential borough information is not released.

Duffy told Nixon the deposit would be used to cover the cost of a computer technician to recover the masses of e-mails from the archive.

&#8220I don't mind paying a nominal fee for the records,” Nixon said. &#8220But they are making it so expensive for the public to access information. I'm willing to sit in the clerk's office and review the records I requested, but they won't even allow me to do that.”

Borough officials said they could not respond to questions about the issue, now that a lawsuit has been filed. However, in a letter written responding to Nixon's threat of a lawsuit back in August, Duffy wrote &#8220that at no time has the Borough denied access to the records being requested.”

He also indicated that state law - Alaska Statute 40.25.110, specifically - allows the borough to charge for records retrieval if the request would take more than five hours to compile. The law also states that the borough is allowed to charge the fee up front.

Nixon disagreed and expressed concerns that borough officials are up to no good.

&#8220It's clear to me that the borough does not want to release the records,” Nixon said. &#8220Even if I were to pay the fee, I doubt they would release the records. This is a regular request for information. I have made countless similar requests over the last four years and none have been denied in the past. Why am I being denied access now?”

A court date has not yet been set for the case and Nixon doesn't expect anything to happen soon.

&#8220When I filed a case against the borough about the tax cap, it took several months before a hearing was scheduled,” Nixon said. &#8220I wouldn't be surprised if it takes five to six months to go before a judge on this issue. With the holidays coming, it might be even longer.”

Contact Darrell Breese at at 352-2267 or darrell.breese@ frontiersman.com.