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Grant County loses public records lawsuit

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Posted: Tuesday, September 13, 2011 9:00 am

EPHRATA - Grant County lost a public records lawsuit after a judge ruled it withheld records from a former employee.

Chelan County Superior Court Judge John E. Bridges ruled the county withheld two police reports from former prosecutor's office Administrative Assistant Cathy Neils.

Judy Endejan, an attorney representing the county, stated the county is considering appealing the decision.

The case revolves around a July 2009 public records request Neils made for "any reports from law enforcement involving Cathleen D. Neils ... beginning Jan. 1, 2009 to the present date," according to the complaint.

Public Records Officer Missy McKnight responded to the request, stating it would be delayed because she was having surgery. Since she was working part-time, the request wouldn't be processed until Sept. 29, 2009, according to court records.

The county had one of the reports at the point when Neils requested it, stated Endejan and Steven Lacy, Neils' attorney.

Lacy stated the response was inadequate. The county could have provided the 16-page police report or denied the request by the time McKnight responded.

"Apparently, the delay was brought on by Ms. McKnight's surgery and recovery," he wrote. "It does not appear that Grant County has any contingency plan in place to address situations when its public records officer is unavailable or limited in her abilities due to a health condition."

He claims the lack of planning shows the county doesn't care about the public records act.

When McKnight processed the request, she contacted the prosecutor's office, which denied the request. The office responded the reports were part of an open investigation, Endejan stated.

"Ms. McKnight wrote Ms. Neils and told her that, and said that she was closing her public records request, which is also allowed by the (public records act). Ms. McKnight told Ms. Neils that she could submit a new public records request later, which Ms. Neils never did," Endejan stated. "At that time the (prosecutor's) office routinely responded to public records requests for police reports sent to the (office) in exactly the same way, when the police reports had not been evaluated and no charging decision had been made. Ms. Neils' public records request was treated exactly the same way."

When the county responded to the request, the prosecutor's office had the second police report, according to court records.

"The county's actions do not support any finding that it acted in good faith," Lacy wrote. "Its claim that the records were 'part and parcel of an open and ongoing investigation' was disingenuous."

Neils' attorney pointed out the prosecutor's office had the first report on June 3, and waited until Sept. 14, 2009, to send it to the state attorney general's office. The attorney general's office declined to do anything with it.

"The theft investigation was received by the prosecuting attorney's office on Sept. 21, 2009. Mr. (Angus) Lee cannot show how the investigation was 'ongoing.' His declaration ... indicates a lack of action on any investigation of Ms. Neils after the receipt of the Ephrata Police Department reports," Lacy wrote.

Lacy argued the requests were denied because Neils made them, pointing out the federal lawsuit Neils filed after she was fired.

"No action was taken in these 'investigations' during the 15 months after the request was made and until the disclosure of public records," he stated. "It is unreasonable to claim that the nondisclosure of the police reports was essential to effective law enforcement."

The county did give Neils the records in October 2010, roughly a year and a half after she requested them, according to court records. Lacy said they are seeking a $26,880 penalty against the county. The amount is equal to $60 for each day Neils didn't receive the records.

Endejan pointed out Neils already received both reports through other means. She received one from Ephrata police on Aug. 27, 2009. She received the second in April 2010.

"So having both the records she originally requested in hand she sued Grant County for violating the public records exemption," Endejan stated. "(Neils) claimed that the exemption ... did not apply. The county argued that it did apply, claiming that they remained exempt until a charging decision was made and one had not been made as of September 29, 2009. The county believed it was complying with the law."

The attorneys will argue how much of a penalty the county should pay on Tuesday, The county is seriously considering an appeal, especially if a high penalty is imposed, Endejan stated.

"(The county) believes that prosecutor's have the legal right to not disclose records in their files if the prosecutor is acting consistent with his duties, which in this case, involved a charging decision regarding a former disgruntled employee," she stated. "Further, under a court of appeals decision the (public records act) does not provide a remedy for requesters who do not have to sue to get the records because they obtain them through other government sources."

Lacy was not available for additional comments.

Commissioner Carolann Swartz declined to comment.

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