HomeMy WebLinkAbout042417_ra01JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
FROM: Philip Morley, County Administrator
DATE: April 24, 2017
RE: Settlement Agreement with Michael Belenski of Public Records Act Law
Suit: Belenski v. Jefferson County, Clallam County Superior Court No. 12-2-
01065-2.
STATEMENT OF ISSUE: Board approval is requested of a Settlement Agreement with
Michael Belenski regarding his 2012 law suit with Jefferson County under Washington's Public
Records Act, related to public records requests Mr. Belenski made in 2010 and 2011 for the
County's internet access logs. The County and Mr. Belenski have jointly negotiated a settlement
agreement that resolves ongoing litigation, and which allows the County to make a number of
enhancements to promote further transparency and improve public access to public records. Mr.
Belenski has signed the Settlement Agreement.
ANALYSIS: On September 27, 2010 and November 2, 2011, Mr. Belenski made requests under
Washington State's Public Records Act for copies of all of the County's internet access logs for
the dates February 1, 2010 — September 27, 2010 and January 1, 2011 — November 2, 2011,
totaling approximately 300 Million internet access log entries.
The internet access logs were computer-generated information about each contact between the
County computer system and the internet, including the addresses and dates of visits to, and
information sent from, internal and external sites contacted by each County computer's browser.
The information in the internet access logs was automatically recorded by the County's computer
system firewall program, to allow analysis in the event of an electronic security threat, but
otherwise was not used by the County. Approximately 120,000 internet access log entries
coming and going are recorded by the firewall per work day.
The County believed the internet access logs which were passively collected by the County's
firewall, did not constitute public records under the definition of the state's Public Records Act,
and informed Mr. Belenski that the County had "no responsive records."
Mr. Belenski sued in Clallam Superior Court. The case was heard by Judge George L. Wood,
and on May 15, 2013, Judge Wood ruled in the County's favor that the internet access logs were
not public records under the state's Public Records Act.
Mr. Belenski appealed Judge Wood's ruling to Division One of the Washington Court of
Appeals. On May 19, 2015, a panel of three appellate judges reversed Judge Wood's ruling, and
found that the internet access logs were public records under the Act, and that therefore the
County had an obligation to disclose them. In its ruling, the appeals court also found that Mr.
Belenski's suit on his first request should be dismissed because it was filed after the one-year
statute of limitations for filing a case in court.
Upon the Court of Appeals' decision, the County promptly provided Mr. Belenski copies of all
requested internet access logs it had that were responsive to Mr. Belenski's two requests, but
with legal redactions allowed under state law so as to not reveal the internal security structure of
the County's computer network. Shortly after that, the County turned off the firewall feature that
records the internet access logs, since they were not being used by the County.
Mr. Belenski appealed the statute of limitations ruling to the Washington State Supreme Court.
On September 1, 2016, the State Supreme Court ruled that the one-year statute of limitations
applies to the Public Records Act under all circumstances. The Supreme Court remanded the
case back to Clallam Superior Court, for the court to decide if any penalties should apply to
either records request, and also to determine when the clock for the one-year statute of
limitations should have started on the first request.
Under the Public Records Act a judge may assess a penalty for requested records that are not
timely produced by a public agency. The penalty can be from $0 to $100 per record, per day.
Given the risks of litigation and the costs of proceeding to trial in this case, and because the court
had clarified important legal principles governing the definition of a "public record" and the
statute of limitations, the parties began negotiating to establish a basis for moving forward in an
open and transparent way.
On that basis, the County and Mr. Belenski have reached tentative settlement with the following
components, once both parties have executed the Settlement Agreement:
The County will reinstate settings on its computer firewall to collect internet access logs.
The internet access logs will be subject to redaction under the Public Records Act,
including redacting network security information to protect the integrity of the County's
information technology infrastructure. The County has agreed to post the redacted
internet access logs to make them available to the public for self service via the County
website, and will do so each month, or more frequently, or other period as may be agreed
by the parties. The County will retain a rolling one-year archive of the original and
redacted internet access logs as it collects them.
• The County will hire a full time public records administrator, whose duties will include
oversight of public records management and disclosure. This position will be filled by
August 31, 2017, and will be supervised by the County's designated public records
officer and County Administrator. It was already planned in the County's adopted 2017
budget.
The County will pay Mr. Belenski and his expert witness a total of $150,000 in full
settlement of Mr. Belenski's claims in the lawsuit without any further award of attorney's
fees or costs, and the case will be permanently dismissed.
OA
The Settlement Agreement was negotiated with the assistance of Special Deputy Prosecuting
Attorney Jeff Myers of the Law, Lyman, Daniel, Kamerrer & Bogdanovich, law firm, Jefferson
County Prosecuting Attorney Michael Haas, Civil Deputy Prosecuting Attorney Philip
Hunsucker, and County Administrator Philip Morley. The Prosecutor's Office has
recommended that the Board approve the Settlement Agreement.
FISCAL IMPACT: The settlement payment of $150,000 will be paid out of the Non -
Departmental budget. A subsequent Supplemental Budget Appropriation from the General Fund
will appropriate the funds into the Risk Management portion of Non -Departmental budget.
There is no significant cost anticipated to turn on collection and then redacting and posting the
internet access logs, although storage of a rolling year's worth of internet access logs and
redacted logs may potentially accelerate the County's need to add additional data storage
capacity at a future date.
The cost of hiring a public records administrator was already proposed and included in the
adopted 2017 Jefferson County Budget.
RECOMMENDATION: Approve the proposed Settlement Agreement.
REWWED BY:
i
P clip Mor imstrator Date
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR CLALLAM COUNTY
MIKE BELENSKI,
Plaintiff,
VS.
JEFFERSON COUNTY, a Washington State
political subdivision
Defendant.
Case No.: 12-2-01065-2
SETTLEMENT AGREEMENT
WHEREAS, Plaintiff Mike Belenski ("Mr. Belenski") made Public Records Requests fc
internet access logs (IALs) to Defendant Jefferson County ("the County"), on Septembe
27, 2010 and on November 2, 2011 (collectively "the Requests"); and,
WHEREAS, Mr. Belenski asserted claims in this Lawsuit that the IALs were public record
and that therefore, County violated the Public Records Act by failing to provide responsiv
public records in a timely manner; and
WHEREAS the Court of Appeals agreed with Mr. Belenski's appeal that IALs are publi
records as defined by the Public Records Act; and,
WHEREAS in response to Mr. Belenski's further appeal, the Supreme Court clari
important issues under the Public Records Act; and,
WHEREAS, Mr. Belenski has identified certain improvements that could be made to
County's public records management system to provide increased transparency
accessibility to the public; and,
SETTLEMENT AGREEMENT - 1
LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTo1wF,YSAT JAW
2674 R. W .JOHNSON RD. PJA MAMR. WA 98512
P.O. BOX II,"O OLYMPIA. WASH/NGTON 98508-1880
(360) 754-3480 FAX (3600) 357-3511
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WHEREAS, the Parties wish to settle and resolve Mr. Belenski's claims and potel
claims arising out of, or relating to, the Requests and the Lawsuit, subject to the terms
conditions in this Agreement; and
WHEREAS, the purpose of this Agreement is to forever settle and resolve the di
claims and controversies between and among the Parties.
NOW THEREFORE, the parties, Mr. Belenski and the County by and through
signatures agree to settle this Lawsuit on the following terms:
Collection of IALs. Within 21 days of the execution of this Agreement by all the
Parties, the County agrees to reinstate settings on its computers to retain collection of
internet access logs ("IALs"). The parties agree that such IALs are subject to
redaction under the Public Records Act, including but not limited to the security
exemption under RCW 42.56.420 and that the County may redact the IALs in order t
protect such information the release of which may increase risk to the confidentiality,'
integrity, or availability of agency security, information technology infrastructure, or
assets. The County shall promptly make the redacted IALs available to the public via
the County website at the end of each month, or more frequently, or other period as
may be agreed by the parties. The County shall retain the IALs and the redacted
IALs for a period of not less than one year.
2. Public Records Administrator. The County agrees to create a position within Cou
government for a full time public records administrator, whose duties shall include
oversight of public records management and disclosure. This position shall be
supervised by the County's designated public records officer and County
Administrator. This position shall be promptly filled by the County not later than
August 31, 2017.
3. Consideration. The Parties agree as follows:
3.1. Within 10 days of execution of this agreement, the County shall pay One
Hundred and Fifty Thousand Dollars ($150,000.00) to Mr. Belenski in full
settlement of all claims in this matter, which amount includes Five Thousand
Dollars ($5,000.00) as costs for expert witness services of Thomas Thiersch.
3.2. Upon Mr. Belenski's receipt of full and final payment of the full Settlement
Amounts set forth in paragraph 3.1 above and fully executed copies of the
Agreement are exchanged between the Parties, the Parties shall promptly sign
and cause to be entered a Stipulated Order of Dismissal of all claims in this
Lawsuit with prejudice and without costs or fees.
LAW, LYMAN, DANIEL,
K
SETTLEMENT AGREEMENT - 2 AMERRER & BOGDANOVICH. P.S.
ATTORNEYS AT LAW
2674 R.W JOHNS'ONRD. TUMWATER, WA 98512
1'. O. BOX 11880 OLYMPIA. WASHINGTON 98508-1880
(360) 754-3480 PAX (360) 357-3511
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4. Release. Mr. Belenski releases all claims against the County, its employees, officers,
attorneys, and departments arising from the public records requests as well as any
other claims for damages, debts, losses, expenses, warranty, attorneys' fees, rights of
action, and causes of action, whether statutory, contractual, based in tort, and whether
at law or in equity, past, present or future, known or unknown, and in any way
concerning or arising out of, or related to, the matters set forth in this Lawsuit,
Belenski v. Jefferson County, Clallam County Superior Court No. 12-2-01065-2.
5. Representations and Warranties. The Parties represent and warrant as follows:
5.1. That Mr. Belenski expressly has the authority to execute this Agreement and
that this Agreement as so executed shall be binding upon Mr. Belenski, his
heirs, executors, administrators, agents, representatives, successors, and
assigns;
5.2. That, upon approval of the Board of County Commissioners, the County
expressly has the authority to execute this Agreement and that this Agreement
as so executed shall be binding upon the County, its agents, representatives,
successors, and assigns;
5.3. That the representations, terms, and conditions set forth herein shall endure
forever and shall survive the execution of this Agreement and the settlement
of the claims described in it;
5.4. That the Parties have read and fully understand and assent to the
representations, terms, and conditions of this Agreement; and,
5.5. That the Parties have had the opportunity to consult with legal counsel and/or
other appropriate professionals before executing this Agreement.
6. General Conditions. The parties agree to the following general conditions:
6.1 Entire Agreement. No representation or promise not expressly contained in thi;
Agreement has been made. The Parties to this Agreement further acknowledgf
that they are not entering into this Agreement on the basis of any promise of
representation, expressed or implied, which is not expressly contained in thi!
Agreement. This Agreement supersedes any prior agreement with respect t(
those subjects embraced within the Agreement. This Agreement memorialize;
the entire agreement of the Parties. The terms of this Agreement may not b(
modified or changed in any way except by an agreement in writing signed b,
all Parties to this Agreement.
LAW, LYMAN, DANIEL,
SETTLEMENT AGREEMENT - 3 KAMERRER & BOGDANOVICH, P.S.
A77ORNEY.S AT LAW
2674 RW JOHNSON RI). TUMWATER. WA 94512
P.O. BOX 11880 OLYMPIA. WASHING70N 93508-1840
(360) 754-3480 FAX (360) 357-3511
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6.2 Admission. The execution of this Agreement effects the settlement of clairr
that are disputed, contested, and denied. Each Party understands and agree
that nothing in this Agreement is intended to nor shall be deemed nor construe
to be an admission of liability by any other Party in any respect or to any extei
whatsoever.
6.3 Severability. Provided it does not result in a material change in the terms c
this Agreement, if any provision of this Agreement or the application of thi
Agreement to any person or circumstance shall be invalid, illegal, c
unenforceable to any extent, the remainder of this Agreement and th
application this Agreement shall not be affected and shall be enforceable to th
fullest extent permitted by law.
6.4 Additional Documents and Action. Each Party to this Agreement agrees tc
execute, or cause their counsel to execute on their behalf, any additiona
documents and to take any further action which may reasonably be required t(
fulfill the obligations of the Parties under this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement on the
date inserted by their respective signatures.
(SIGNATURES FOLLOW IN NEXT PAGES)
SETTLEMENT AGREEMENT - 4
LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNF_YS AT LAW
267 -IR .W JOHNSON RD. 7'UMWAMB. WA 98512
P.O. BOX 11380 OLYMPIA. WASHINGTON 98508-1880
(360) 754-3180 FAX (360) 357-3511
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MIKE BE ENSKI
1 �
Dated: I By:
STATE OF WASHINGTON )
ss
COUNTY OF P✓�U1'� )
SUBSCRIBED AND SWORN to before me this day of / ,2017 by
MIKE BELENSKI.
life
"'rJ• k,kk Notary PubliV in and for the ate of
t Y yi Washington, residing at ; f P f ig°✓Srl A eal n I I
My Commission Expires
LAW, LYMAN, DANIEL,
SETTLEMENT AGREEMENT - 5 KAMERRER & BOGDANOVICH, P.S.
A770RNETS ATLA W
2674R W JOHNSON RD. 7'11MWATER. WA 98512
P -O. BOX 11380 OLYMPIA, WASHINGTON 98508-1830
(360) 754-3480 FAX(360) 357-3511
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JEFFERSON COUNTY
Dated: By:
Kate Dean, Commissioner
Jefferson County Board of Commissioners
STATE OF WASHINGTON
) ss
COUNTY OF JEFFERSON )
SUBSCRIBED AND SWORN to before me this 24th day of April, 2017 by Kate Dean,
known to be a County Commissioner of JEFFERSON COUNTY.
SETTLEMENT AGREEMENT - 7
Carolyn Avery
Notary Public in and for the State of
Washington, residing at Jefferson County
My Commission Expires 3/29/18
LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R. W. JOHNSONRD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
(360) 754-3480 FAX' (360) 357-3511
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JEFFERSON COUNTY
Dated: By:
David Sullivan, Commissioner
Jefferson County Board of Commissioners
STATE OF WASHINGTON )
) ss
COUNTY OF JEFFERSON )
SUBSCRIBED AND SWORN to before me this 24th day of April, 2017 by David Sullivan,
known to be a County Commissioner of JEFFERSON COUNTY.
SETTLEMENT AGREEMENT - 6
Carolyn Avery
Notary Public in and for the State of
Washington, residing at Jefferson County
My Commission Expires 3/29/18
LAW, LYMAN, DANIEL,
KAMERRER & BOGDANOVICH, P.S.
ATTORNEYS AT LAW
2674 R. W. JOHNSON RD. TUMWATER, WA 98512
P.O. BOX 11880 OLYMPIA, WASHINGTON 98508-1880
(360) 754-3480 FAX- (360) 357-3511