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HomeMy WebLinkAbout074 07 CC', p(1 ~h IOf - I (ecQ STATE OF WASHINGTON County of Jefferson In The Matter Of Agreeing To Hold Harmless, defend and Indemnify a Firm known as E.D. Hovee and its agents, employees or directors against any claim that might arise from the disclosure pursuant to a Public Records Act request for the questionnaires relating to the Jefferson County Business Needs Questionnaire Summary Report of May 2007 } } } } } } } } } } } RESOLUTION NO. 74-07 WHEREAS, Jefferson County as a local government and a political subdivision of the State of Washington is subject to-the Public Records Act codified at Ch. 42.56 RCW; and WHEREAS, a reasonable reading of the applicable state law regarding public records leads the County Commission to the conclusion that the individual responses provided by businesses to the private firm ofE.D. Hovee for the purposes of allowing E.D. Hovee to summarize the results in the Jefferson County Business Needs Questionnaire Summary Report, or "the Report," were and remain public records subject to disclosure to an individual or person who requests same; and WHEREAS, the County Commission, concludes that the responses for the Report were and are subject to disclosure under the Public Records Act despite the written promise on the blank questionnaire form that the responses of the businesses would remain anonymous and thus not subject to scrutiny by a citizen; and WHEREAS, a citizen has made a Public Records request for the responses of the individual businesses to the questionnaire; and WHEREAS, the decision of the County to release those individual responses (with identifying information redacted) has caused E.D. Hovee concern that release of the statements made by individual businesses on the survey response forms could lead to civil liability against E.D. Hovee and/or the County; and WHEREAS, the County would be protected from lawsuits arising from allegations of wrongful disclosure of the survey responses by RCW 42.56.060 if the Resolution No. 74-07 re: E.n. Hovee Hold Harmless Page: 2 disclosure of the disputed documents was made in "good faith" but E.D. Hovee would not be so protected, NOW, THEREFORE, BE IT RESOL VED by the Board of Commissioners in and for the County of Jefferson as follows: Jefferson County agrees that it shall indemnify, defend, and hold harmless E.D. Hovee & Company, and its directors, officers, employees, agents and representatives, from and against any and all claims arising from the release of completed questionnaires (survey responses) collected for and summarized in the Jefferson County Business Needs Questionnaire Summary Report, dated May 31,2007, together with all costs, expenses and liabilities incurred or in connection with each such claim, action, proceeding or appeal, including, without limitation, all attorneys fees and expenses. APPROVED and adopted this 6th day of August, 2007. JEFFERSON COUNTY BOARD OF COMMISSIONERS ~; ~! . P.,. ,'"... ~ i 1/ " , . .', ;) ~ (f.' f. ~ '" ,r wI', ~'-;:;;:;;;;;;J ~ i " ". .'.- ......... ... ~ , :., '\ '"\ ~ . -: . , ATTEST: ~M~~t~ Deputy Clerk of the Board Page 1 of 1 Leslie Locke From: David Alvarez Sent: Friday, July 20,20074:15 PM To: John Fischbach; Lorna Delaney; Juelie Dalzell Cc: Leslie Locke; Erin Lundgren; Julie Matthes Subject: Agenda Item for ED Hovee Attachments: Consent Agenda-ED HOVEE Use this version 07 20 07.doc Colleagues: Please take the necessary steps to put this on the Consent Agenda for August 6th. It involves the County providing a hold harmless for E.D. Hovee, because they are worried about what might happen once the survey responses (to the economic development survey) are released to a citizen who asked for them under Public Records. Those responses are more than arguably public records. I return on July 30th from a week's vacation if anything with this Consent Agenda request goes south. David Alvarez. Ext. 219 7/20/2007 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of Commissioners FROM: David Alvarez, Chief Civil DP A DATE: August 6,2007 Consent Agenda (prepared July 20, 2007) SUBJECT: Hold Harmless for E.D. Hovee ST A TEMENT OF ISSUE: A business questionnaire was prepared by a private firm known as E.D. Hovee (on behalf of the County, the City, the Port, the EDC and Diversified Resources) and sent to businesses in this County. The questionnaire was intended to survey the county's business owners on the strengths and weaknesses present here that were aiding or hindering economic development in this County The firms or persons responding were promised on the form that their responses would be confidential, a promise that, in retrospect, was overly generous. The promise was overly generous (in the opinion of the undersigned) because of Ch. 42.56 RCW known as the Public Records Act which makes all "public records" subject to disclosure if requested by a citizen unless specifically exempt. Since the results of the survey (and perhaps the comments provided in the survey responses) were arguably prepared, owned, used or retained by the county government or its agents, the survey responses may be public records as that term of art is defined in RCW 4217.020(41). This would have been purely a hypothetical discussion if there had not been a Public Records request for the survey responses. After much discussion between the undersigned and the attorney for E.D. Hovee, the attorneys could agree that the survey responses would be released BUT information that would readily identify the name or business of the responding person on a particular survey could be lawfully redacted pursuant to exemptions found in the Public Records Act. However, the attorney for E.D. Hovee has asked that the County hold harmless and indemnify that firm in writing against the slim chance that a firm or person who responded to the survey is aggrieved or injured by release through the Public Records Act of his or her survey response. . . ANALYSIS: There exists in the Public Records Act at RCW 42.56.060 a disclaimer for liability that state that a local government such as our will not be liable for harm occurring from a release of public records made in good faith. The survey responses appear to be public records subject to disclosure in accordance with Yacobellis v. Bellingham, 55 Wn. App. 706 (1989) and thus I believe that the disclaimer found at RCW 42.56.060 would protect the county from liability but wouldn't apply to E.D Hovee since they did not release the materials and they are not a public entity. Because the disclaimer does not apply to them, E.D. Hovee wants protection for the slim chance that release of the materials somehow defamed a business or person OR interfered somehow in the business expectations of a firm or person. FISCAL IMPACT: None anticipated, since the disclaimer at RCW 42.56.060 is in place and the chances that an allegation against B.D. Hovee would succeed appear to be slim. RECOMMENDATION: Approve and execute the attached proposed Resolution holding E.D. Hovee harmless and providing them with indemnification and a defense should a lawsuit against them arise. REVIEWED BY: ge Q. f).;..QU County ministrator Date 7/24107 I