City of Shoreline Seeks to End Six-Year Old O’Neill v. City of Shoreline Case

Editor's note: This following is a press release from the city of Shoreline. Patch has sought comment from Michelle Earl-Hubbard, the O'Neill's attorney.

In an effort to save Shoreline taxpayers from ongoing costs associated with the O’Neill v. City of Shoreline lawsuit, the City is making a unilateral offer of judgment. The case has been in active litigation since 2006, having reached the Washington State Supreme Court and then remanded back to Superior Court. The City has been unsuccessful in settling the case and the plaintiffs have not responded to the City’s request to mediate penalties, costs and attorneys’ fees. Therefore, to protect Shoreline taxpayers from any future accrued costs, the City will serve a unilateral offer of judgment on the plaintiffs.

O’Neill v. City of Shoreline is a complex case that began in 2006. The main issue in the case has revolved around whether the City provided sufficient email metadata in response to Shoreline resident Beth O’Neill’s Public Records Act (PRA) request in September 2006. Email metadata are the bits of electronic information, created by computer programs, that tells how and where an email was sent. It includes the information we see, such as the “To:” and “From:” items, but also what we can’t see, such as the electronic path an email took to get to the recipient.

The original request was for an email received by then Deputy Mayor Maggie Fimia on her personal computer. Fimia had been forwarded the email as part of a string of emails. Before producing the email, Fimia deleted the forwarding header information to protect the identity of the forwarder. O’Neill indicated she wanted the complete forwarding string and Fimia produced the full email with the original forwarder’s information.

                To comply with O'Neill's request, Fimia forwarded the complete electronic version of the original email to the City Attorney. After forwarding, Fimia deleted the email from her personal computer as allowed by the Secretary of State’s guidelines at that time..

                Soon after the complete email was provided to O’Neill, she requested the metadata associated with the email. Because Fimia had deleted the electronic version of the email, the metadata for her copy of the email was no longer available. However, the City was able to produce the metadata for two copies of the same email.. The computer automatically altered the metadata (but not the substance of the email) when the email was forwarded to the City Attorney..

                Before O’Neill’s request for metadata, the City had never received a request for metadata and there was no case law in the United States dealing with metadata and public records requests. Neither the Washington State Attorney General’s Model Rules for public records nor the Washington State Secretary of State’s records retention guidelines mentioned metadata.

                Unsatisfied with the metadata provided in response to her records requests, Beth O’Neill and her husband filed a lawsuit against the City in King County Superior Court. The Superior Court found in favor of the City determining that the City had produced all responsive records. The O’Neills appealed. The Court of Appeals found that the City did not comply with Beth O’Neill’s request for the metadata associated with the email sent to Fimia. The City appealed to the Washington State Supreme Court.

                In a groundbreaking 5-4 decision, the Supreme Court found that metadata is a public record subject to disclosure and that the metadata the City did provide “may” not have been sufficient to meet O’Neill’s request. It remanded the case back to Superior Court to determine whether the metadata provided was identical to Fimia’s deleted metadata.

                The Supreme Court’s decision was one of the first of its kind in the nation and is now cited in almost all cases and treatises related to public disclosure requests and metadata. Prior to this decision, the State's direction, which the City followed at the time of the original request, was to print and retain hard copies of emails allowing deletion of the electronic copy.

                No substantive information from the email or the metadata was withheld from O’Neill. The entire, unedited email was provided within five business days of the request for the email. Although the City was unable to provide Fimia’s version of the metadata, the only difference between her copy and the two copies of metadata provided consists of computer generated technical information, such as which Comcast server the email went through to arrive in Fimia’s inbox.

                On remand, the Superior Court found that the City conducted an inadequate search of Fimia’s personal computer’s hard drive because it did not complete a forensic search, resulting in the permanent loss of Fimia’s copy of the metadata. A forensic search of Fimia’s computer in response to a PRA request would have been unheard of in 2006. The City did not have the capabilities of carrying out such a search without calling in a forensics expert at significant expense.

                The Superior Court awarded the O’Neills attorney’s fees, costs and penalties for the City’s failure to produce the metadata, with the amount to be determined at a later date. The Superior Court also ordered a new trial for June 13, 2013, on “any remaining issues.”

Ordering a new trial on “any remaining issues” was unanticipated since it allows the O’Neills to expand the case beyond the one issue that has been litigated for the last five years – metadata. The City believes the Court’s granting of a new trial is in direct conflict with the Court of Appeals and the Supreme Court decisions, which remanded on the metadata issue, but affirmed the original trial court’s summary dismissal of the O’Neills’ other claims.  

In addition, the Superior Court’s ruling that the City should have conducted a forensic search of Fimia’s hard drive is not required by the PRA or the Supreme Court in this case. The PRA only requires agencies to conduct reasonable searches. It does not mandate that agencies take the extraordinary (and extremely expensive) step of purchasing additional resources to conduct a forensic search of the unallocated space on hard drives. The Supreme Court allowed an additional search of Fimia's computer and did not find a violation or award attorney fees for the search of Fimia's computer that had been performed. Due to these conflicts and other errors by the trial court, the City will appeal the Court’s finding of an inadequate search and the Court’s order of a new trial.

                However, in order to avoid any future burden on City resources and to protect the taxpayers from increased costs that additional appeals may bring, the City has made it clear to the O’Neills that it wants to settle the amount of penalties and attorneys’ fees accrued to date. Thus far, this overture has been ignored.

                The City has attempted to settle this case on several different occasions, but the O’Neills have been unwilling. The City also requested the O’Neills enter into mediation regarding penalties and attorneys fees The O’Neills did not respond to the City’s request.

                The City cannot force the O’Neills to settle or enter into mediation, but it can use an offer of judgment process provided in state law to remove the incentive for the O'Neills to extend the clock on penalties and perform more attorney hours to build a larger award. If the O’Neills reject the offer and ultimately receive less in final judgment, then the City will owe none of the costs or fees accrued after the date that the offer of judgment is made.

                The cost in government staff time and resources associated with Washington State’s extremely broad PRA law has led many cities to request the State Legislature review the 1972 Act. O’Neill v. City of Shorelinespeaks to the reach of the PRA and the level of resources Washington State agencies must devote to records retention. A key concern is the PRA’s penalty and attorney fee structure that creates incentives for abusing the underlying intent of the law, which is to protect citizens from government misconduct. If nothing else, the PRA needs to be updated to reflect the enormous changes in technology that were never even imagined in 1972 when the law was created. The City of Shoreline will work closely with the Association of Washington Cities (AWC) to ensure that the public has access to government records, while at the same time ensuring that PRA requests do not overly burden governments that are already facing significant budget constraints.

                Since 2006, the City has changed its email retention practices. The City purchased software that allows for centralized storage of emails and centralized searches for emails. This is a significant change from the City’s practice in 2006, and the practice of any other city surveyed at that time. Policies have been adopted requiring all City electronic communication be linked to this archive system, even those received by Councilmembers on personal computers or private email addresses. The central archiving automatically saves each email sent or received in the City email system making it impossible for any employee or official to delete an email.

                The City of Shoreline is committed to being a transparent organization and is continually looking for ways to share more records online for easy access and to make most PRA requests unnecessary. City Council Goal #4 is: Enhance openness and opportunities for community engagement. The City understands that an informed community is an effective community.