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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Block of West’s computer files challenged

A judge is being asked to reconsider his November ruling blocking the release of photographs from Gay.com found on Mayor Jim West’s government-owned computer.

Pictures and “profiles” found at Gay.com are posted by individuals who have no expectation of privacy on the Web site and, in fact, want the world to see the information, attorneys for The Spokesman-Review argue in the legal filing.

Judge Richard Miller of Adams County ruled on Nov. 17 that the contents of West’s computer are public record, but he ordered the deletion of specific Internet address information detailing which Gay.com members were viewed by West.

The information was sought by the newspaper under the state’s Open Records Act during an investigation into appointments and job offers made to individuals West met on Gay.com.

The court said disclosure of the specific addresses “may result in identification of individuals who have an expectation of privacy” due to a user agreement with Gay.com.

The court’s ruling came after Garvin Brakel, the city of Spokane’s computer chief, testified on Nov. 17 that a person who is not a member of Gay.com could not access the personal profiles of those addresses found on West’s computer.

But newspaper attorneys Duane Swinton and Tracy LeRoy said in a motion for reconsideration that Brakel gave the court incorrect information.

“Brakel’s understanding of how a person can access profiles on Gay.com is mistaken,” the attorneys said in a legal brief filed Friday.

“Any member of the public may type www.Gay.com into an Internet browser, thus causing the Gay.com home page to appear,” the brief said.

The Gay.com home page “allows any member of the public to search by Zip code for profiles of persons whose photographs and personal data have been affirmatively placed by them on the Web site,” the legal brief said.

The material that’s available to the public includes various photographs on “profile pages” of Gay.com members and “thumbnail” pictures of their buddies and “hot picks.”

“None of this activity requires a Gay.com membership, nor must a person ‘log-in’ to the site to view this material,” the legal brief said.

“The only pictures which are not visible to non-users who are viewing profiles are those designated as ‘adult,’ ” which can include close-ups of genitalia and members involved in sex acts, it said. Such material was found on West’s City Hall computer.

The legal brief said “a person who posts information on Gay.com does so without an expectation that the posted material will remain private.”

“Indeed, a person who posts information or pictures on Gay.com agrees to the (Web site’s) privacy policy which explicitly states that any information posted is accessible to the general public,” according to the brief.

The very purpose of personal profiles on Gay.com “is to meet other people through allowing those people to view the profile, including photographs,” like those found on West’s computer.

“Disclosure to the public of information posted on Gay.com does not reveal anything to the public that is not already in the public domain,” the brief said.

The motion for reconsideration also asked the court to consider the report of a private investigator, hired by the Spokane City Council, issued one day after the court ruling.

Investigator Mark Busto, a Bellevue attorney, concluded that West violated city policy by “accessing profane and pornographic information” on his city computer.

Busto’s report, paid for by taxpayers, “heightens the public interest in the records at issue,” the legal brief said. The public, it continued, has an interest in evaluating the mayor’s conduct.

The judge is expected to hear arguments on the motion for reconsideration in early January.