Langley man calls foul over shredded records

Langley is facing another lawsuit over alleged state Public Records Act violations.

Documents filed in Island County Superior Court last week by Langley resident John Norby include a slew of complaints that center on former mayor Fred McCarthy and a pocket notebook he had destroyed following a records request. Norby claims the city acted illegally, denying him what he says were public documents and then purposely shredding them.

“I’m an advocate of openness and transparency in government,” Norby said. “I have simply made three records requests in my entire life and the city of Langley denied them all.”

Norby, who’s been a vocal critic of McCarthy in the past, declined to comment on what he was hoping to learn from the records.

In an interview Wednesday morning, McCarthy claims the notebook contained private information and “personal reflections” that did not pertain to city business. He added that it was destroyed only after the city’s attorney issued an opinion that said it was exempt from state disclosure laws.

The lawsuit names McCarthy, Mayor Tim Callison and Debbie Mahler, clerk and treasurer. Callison and Mahler were served but both declined to comment.

According to court documents, Norby alleged the city did not supply him with the fullest assistance, failed to respond to his Public Record Act requests, silently withheld records and failed to properly redact records. He also claims the city failed to provide an exemption log for withheld records, conducted an unreasonable search, failed to choose redaction rather than withholding requested records and failed to protect public records from damage after they had been requested.

On Dec. 10, 2015, Norby requested McCarthy’s small pocket notebooks, journals, diaries, notebooks and daily calendars. After reviewing the request, Lighthouse Law Group, the city’s attorney at the time, determined that McCarthy’s private notes were not considered public records subject to disclosure.

The “possibly responsive” documents were destroyed using a shredder following Norby’s Dec. 10 request, McCarthy said. McCarthy said his personal diaries that he wrote in during city meetings were used to reflect on “things that were going on.” He was reluctant to hand them over as they included personal information such as banking account numbers and passwords, and “all sorts of things that were very personal.”

“Lots of people keep personal diaries, but I don’t think they keep them with the intent that they’re going to become a public record of the city or some kind of municipality,” McCarthy said. “…The distinguishing factor is that those were my personal notes and not city notes. That’s what makes them different.”

Mahler informed Norby via email on Dec. 15, 2015 that six boxes of manilla file folders, binders of miscellaneous notes for each year of McCarthy’s term, and 48 other binders chronicling “his notes and city business” were available for his examination at City Hall.

Though Mahler declined to discuss the case in detail, she did say McCarthy refused her request to see if any city business had been recorded in his diaries.

“Fred told me that they were his personal diaries and that they weren’t public record,” Mahler said. “That was the advice he had gotten from the city attorney.”

“It’s not like I can tackle my boss and take his stuff away,” she added.

Norby claimed that state law required the city to redact the records rather than withhold them, and prohibited it from destroying requested public records. He also claimed that he was entitled to a list of any exemption to any non-disclosed records.

In a Dec. 16, 2015 Public Record Act request, Norby reiterated his previous request and also asked for attorney invoices showing time spent reviewing records requested and the time frame upon which the attorney viewed the request to the date a determination was made. Mahler did not provide an estimated date of disclosure.

A response was not made until July 21, 2016, according to court documents. Mahler informed Norby on July 7, 2016 that McCarthy had destroyed some of the records requested on Dec. 10, 2015.

The state Public Records Act requires governments to respond to a request within five days, either providing the documents, denying the request with a cited RCW of why the documents are exempt from disclosure, or finally providing a timeframe for which the records will be provided.

On July 8, Norby repeated his previous requests while also asking for records regarding Callison’s knowledge of McCarthy’s destruction of Norby’s requested public records and any correspondence between Callison and McCarthy.

Mahler responded on July 21 with an exemption claim for attorney work product/attorney client privilege.

McCarthy and Norby’s relationship is one that is strained. The pair got into a public squabble over old, decaying tires on city property in 2015. Norby complained the city had not taken his concerns from a year beforehand seriously. In a climactic moment, Norby rolled in one of the tires to a city council meeting. The city later removed them, though Norby had already removed some himself.

This is the third public records lawsuit leveled at Langley in the past two years; Clinton resident Eric Hood filed two claims, one of which was settled out of court in April of 2015 — the city paid Hood $1,000 — and the second remains ongoing.

Norby is asking for an award of attorney’s fees and costs pursuant to judicial review of agency actions.

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