The city of Langley is facing a lawsuit for trying to charge a fee in violation of the state Public Records Act, according to a complaint sent to the city last week.
In a letter accompanying a proposed lawsuit, Seattle attorney Peter Cogan, who is representing D. Ellsworth, outlines two alleged violations of the open government law and offers to settle for $35,000, which would include penalties and attorney fees.
The attorney wrote that Ellsworth submitted a public records request a year ago for a letter referenced in a news article titled “South Whidbey public records advocate blasts cities’ incomplete, litigious responses.” The article was a South Whidbey Record story republished in The Everett Herald.
The city received the 79-page letter in question, which was written by attorney William Crittenden in an email. Crittenden represents Eric Hood, who is suing the city for other alleged violations of the Public Records Act.
Cogan claimed that the responding city employee violated the law in the initial response to the request. Under the Public Records Act, a city must respond within five business days with an estimate of the time it would take to provide the documents. Ellsworth received a response that acknowledged receipt and said the city “will contact you within the next 30 business days or before regarding responsive records related to your request.” Cogan claimed this was a non-response.
In addition, Cogan outlined a series of back-and-forth communications between Ellsworth and a city employee who tried to charge a fee for the electronic file. The employee first demanded 10 cents per scanned page. After Ellsworth pointed out that the file was a single electronic file that didn’t need to be scanned, the employee countered that the actual cost is 5 cents per page. Six days later, the employee sent an email saying that the cost was actually 5 cents for every four pages.
Cogan wrote that the city cannot legally charge per page when the document is a single electronic file. As he explained, the city’s fee schedule states that the city may charge 5 cents for every four electronic files.
“By conditioning release of public records upon payment of unlawful fees, Langley effectively denied access to the requested record in violation of the PRA,” Cogan wrote.
It’s unclear if the city code meets the requirements of the Public Records Act. Under state law, the city can either charge the “actual cost” of producing records — which requires the city to do a study to determine the costs — or it can adopt the state’s default records production fees.
Langley’s online city code states that the city will charge the actual cost for records, but it’s unclear if a study was ever done. The city’s fee schedule contains the state’s default records fees, but it’s unclear whether the city ever formally adopted this method of charging for records.
Mayor Scott Chaplin wrote in an email that the city currently doesn’t charge for public records but is in the process of analyzing the mechanism for charging fees under the Public Records Act. He wrote that he guessed the city would settle on the default fees set up by the state, which is what most local government bodies have done.