Judge orders Miller documents released
October 25, 2010
RULING: Public’s right to know trumps privacy concerns.
By KYLE HOPKINS
FAIRBANKS — A judge ruled Saturday that the Fairbanks North Star Borough must release personnel records of U.S. Senate candidate Joe Miller.
In an unusual weekend hearing, retired Superior Court Judge Winston Burbank ruled that the public’s right to know about candidates outweighed Miller’s right to privacy.
“I hold that although Mr. Miller has a legitimate expectation of privacy in those documents, Mr. Miller’s right to privacy is indeed outweighed by the public’s significant interest in the background of a public figure who is running for the U.S. Senate,” the judge said. He noted that U.S. senator is among the highest elected offices in the nation.
Burbank ordered that nothing actually will be released until Tuesday afternoon, however, to allow for the ruling to be appealed to the Alaska Supreme Court.
The judge said that about 30 of the documents being sought would not be released. Twice that number would be redacted. The case was brought by a group of Alaska news media organizations, which have been trying since summer to see borough documents concerning Miller’s employment as a part-time borough attorney.
Miller, the Republican nominee for Senate in a tight three-way race, fought the lawsuit, arguing that any release of personnel records violated his privacy rights.
Miller’s lawyer, Thomas Van Flein, said after the ruling that he was unsure whether it would be appealed. Miller campaign spokesman Randy DeSoto said, “Joe is going to confer with his attorney to see if an appeal is even necessary.”
Alaska Dispatch lawyer John McKay, who argued for the news organizations, said he was satisfied with the ruling. Based on the judge’s remarks, he thought the documents ordered released would reveal details of Miller’s employment with the borough.
“My assumption is — even though we haven’t seen the documents — that he will be releasing pretty much anything that would be of public significance,” McKay said.
Among the documents being sought are details of Miller’s resignation from the borough job last year, and any disciplinary actions taken against him while employed.
Separate lawsuits were brought by the Alaska Dispatch and Fairbanks Daily News-Miner. The Daily News and Associated Press joined, and the suits were combined.
A former borough mayor, Jim Whitaker, has said Miller was disciplined for violating the borough’s ethics policy in his use of borough computers for political purposes.
Miller acknowledged that in an interview on CNN earlier this week, but downplayed the seriousness of the incident.
Meantime, the public records case has generated a phone-book’s worth of court filings in less than a month. Each side summarized its pitch during the more than two-hour hearing Saturday.
Miller’s lawyer, Van Flein, argued that Miller’s personnel records with the borough should not be made public because he was merely a part-time employee rather than a public official.
“It’s not correct to argue that merely by running for U.S. Senate, that somehow everything in your past: your school transcripts, your medical records, your birth certificate, or your personnel file, suddenly magically convert to public records,” Van Flein said.
Burbank rejected that argument in his ruling, saying that people who run for office expect their past will be researched and revealed.
Van Flein told the judge that a ruling against Miller would set a precedent that will discourage people from running for office.
“The public’s right to know has to be tempered. It has to be balanced,” he said. “We’re not a National Enquirer society. We don’t have a right to know everything.”
McKay, the lawyer for Alaska Dispatch, called on the judge to release the paperwork given that Miller is applying for a six-year political term but his background has never been reviewed by the public — until now.
“The voters can decide what bearing this should have on his fitness or qualifications,” McKay said of the borough records. “They have a right to decide.”
Among the arguments for release was that the state Supreme Court, in earlier cases involving access to government information, has held that candidates for office expose their private lives to public scrutiny.
Miller worked as a part-time borough attorney from 2002 to 2009, his employment ending Sept. 2, 2009, according to the court filings.
Whitaker served as borough mayor during most of that period and told reporters on Oct. 13 that Miller had used borough computers for political purposes in 2008 when he organized a failed effort to oust state Republican Party Chairman Randy Ruedrich.
Whitaker said Miller was disciplined for the violation of the borough’s ethics code but was not fired because he was part of a legal team that was in the middle of a case over how much to tax the trans-Alaska oil pipeline.
Miller acknowledged Monday on CNN that he was disciplined for violating the ethics policy. He said in an e-mail that “the incident had nothing to do with my departure from the Fairbanks North Star Borough nearly a year and a half later.”
Miller has declined to sign paperwork releasing the records, saying that the borough must first waive attorney-client privilege. He contends that information has been illegally leaked from his personnel file and sought to delay the ruling, asking for time to depose news agencies, Whitaker and others.
The judge denied the request.
The candidate’s attorneys also named Whitaker in the public records lawsuit as a third-party defendant, saying he violated the candidate’s constitutional rights and committed a misdemeanor offense by telling reporters Miller was nearly fired from the borough job, according to the News-Miner.
Saturday’s hearing drew about three dozen people to the state courthouse in downtown Fairbanks. Current borough Mayor Luke Hopkins watched from the gallery.
A congressional aide to Sen. Lisa Murkowski sat in the crowd, along with a News-Miner editor and a man who was shushed for shouting that the judge was once an appointee of Gov. Frank Murkowski.
Whitaker attended the hearing but declined to comment on the ruling.
Responding to public records requests, the borough has identified 344 public records in Miller’s personnel file, Burbank said.
Many have already been revealed. But the borough refused to release 120 of the documents, the judge said.
Burbank said that over the course of the public records case, he’s kept Miller’s personnel records with him during the day and had them locked in a courthouse safe at night to prevent leaks.
Copyright © Sun Oct 24 2010 11:07:48 GMT-0800 (AKDT)1900 The Anchorage Daily News (www.adn.com)