Lindell, Mercer Island Continue Legal Fight Over Public Records Claim

Despite , lawyers for dismissed city employee Londi Lindell and the city continued their high-priced legal fight in Federal court June 15 over claims the city violated the state Public Records Act (PRA).

Lindell is seeking approximately $1.23 million in damages, plus attorney's fees from the City of Mercer Island in a case before U.S. District Judge James L. Robart in Seattle for withholding thousands of pages of city records she requested for over two years. The city said it had believed those documents were protected under attorney-client privilege. Lindell is also seeking $1 million for her civil rights claims in settlement negotiations.

The lawsuit was brought by the former Deputy City Manager and City Attorney in 2008 after she was fired by the city earlier that year, alleging she was the victim of retaliation for her cooperation in a sexual harassment investigation of City Manager Rich Conrad. She filed a voluminous public records request in May 2008 and the city took several months to release the documents — with many eventually withheld under the assertion they were exempt under attorney-client privilege. When Lindell filed suit, a claim for unspecified damages for PRA violations was included in the case. Many of the records withheld were ordered released over two years later by Judge Robart in October 2010.

Seeking summary judgement on the PRA claims, Lindell's attorney Scott Blankenship sought to depict Lindell's lawsuit as hampered by the city's "bad faith" efforts to "stonewall" legitimate requests and asked the court to punish Mercer Island accordingly.

"The PRA is a strongly worded mandate. It's purpose is to maintain sovereignty of the people and full accountability," he said. "It's needed, especially when a city manager puts own interest over the right of public's right to know. Otherwise we'd be here all the time."

Answering on behalf of the City of Mercer Island, attorney Stephanie Alexander dismissed the claims of bad faith, explaining that the city was legally within it's rights to withhold certain documents based on the attorney-client privilege. She cited the investigation into City Manager Conrad's behavior as the type of work cities could usually expect would be protected by law.

"Privilege was attached to these investigations, and Lindell and (Former Mercer Island City Attorney Bob) Sterbank were lawyers."

Judge Robart asked few questions, but when he did it was for how he should formulate the monetary penalty for damages against Mercer Island and whether or not the city's attorneys had understood his previous rulings on documents he had ruled should be made public.

"Have I answered your question, '(Is) any document that has an attorney's name on it considered privileged?'" asked Robart.

"Yes; we don't believe that," Alexander conceded.

She also told Robart only one possible violation of the PRA should be considered, while Blankenship said the claims entail 17 categories of documents withheld and demanded a maximum penalty of $100 per day be assessed on each violation, amounting to $1,237,200. 

Robart said he would issue a written ruling on that matter on an unspecified date.

The city's case was also hampered by an earlier admission it had released documents it claimed were privileged to the . That information didn't come to light until Lindell filed an additional PRA request in August 2010 for documents relating to the case released to the Reporter. The documents were referenced in several Reporter stories in the past, titled "Working Hard, or Hardly Working? Documents indicate poor performance was cause of Mercer city attorney's dismissal" (June 4, 2008), "City records indicate performance issues with Sterbank" (June 4, 2008), "No Smoking Gun" (August 27, 2008)  and "Letter to Islanders accuse city of secrecy, misconduct" (April 21, 2009).

Contacted by telephone, Reporter Editor Mary Grady declined to comment on the public records it received pertaining to the case.

Lindell also claims the city, with one exception, still has not turned over "metadata" records for electronic documents they supplied — such as email or drafts of finished documents — that contains information such as how long the document is, who the author is, when the document was written, and a short summary of what it was about. 

Before hearing arguments in the case, Judge Robart took the unusual step of taking time to chide The Reporter for a mistaken attribution in a June 15 edition story. The paper erred in stating Mercer Island City Attorney Katie Knight said Robart had "ordered the parties not to discuss ongoing communications about the case" (The orders were issued by Senior Judge Thomas Zilly in a sealed settlement agreement — ).  

"It seems (The Reporter) has run something in the paper that is not true," Robart said. "I am quoted as saying parties are ordered to do one thing or the other. I did no such thing. That was a fiction."

At the end of the hearing, Robart demanded Knight — sitting in the courtroom gallery — explain the fictitious statement. She said the author of the story was asking about the settlement notice and assumed the order. The attribution was a carried over from an earlier version of the story online before the settlement notice was made public. The Reporter declined to respond to Robart's comments.

"The court takes a very dim view of being attributed to things that it did not do," Robart said.

(Ed. Note, 6/27/11: Due to an editing error, a declaration in support of sanctions for attorney's fees in an earlier motion in the case was misattributed to the PRA claim discussed in this story. Mercer Island Patch regrets the error.)