November 16, 2005 in City

West says downloads ‘automatic’

By The Spokesman-Review
 

Spokane Mayor Jim West, fighting to keep the public from seeing the sexually explicit contents of his City Hall computer, is buttressing his legal case with an affidavit from the city’s director of information technology.

Garv Brakel, who manages computer services for the city and works directly for West, performed a test to determine what trace material is left behind when a computer is directed to visit Gay.com on the Internet.

In a court affidavit, Brakel said he performed the test at the direction of Mark Busto, a Bellevue attorney hired by the Spokane City Council to investigate West.

The independent investigator is attempting to determine if West violated his oath of office, city policies or ethics by using his computer to visit gay Web sites and offering city jobs and appointments to young men he met online.

Brakel’s affidavit, filed in court late Monday, said 451 files “were automatically downloaded” onto a city computer when he became a member of Gay.com and visited the Web site for the test.

While there, Brakel said he performed a search for men between 18 and 50 living in Spokane and clicked on some of the individual profiles that appeared. The profiles included “thumbnail” pictures of “buddies” and “hot picks” of each Gay.com member.

“All of the thumbnail pictures from the member profiles that I viewed had been automatically downloaded to the Internet cache folder,” Brakel said in his affidavit.

The affidavit, filed by West’s attorneys, seeks to bolster the mayor’s argument that he did not deliberately download or copy material while visiting Gay.com with his city computer.

Busto initially declined comment Tuesday when asked if he directed a city employee who works for West to become involved in the investigation.

Busto’s law firm is being paid $20,000 by the City Council for the independent investigation. A portion of a two-part report from Busto could be delivered to the council before the Dec. 6 recall election.

Later Tuesday, Busto read the affidavit before confirming he directed Brakel to conduct the computer analysis. But Busto said he “had no idea” it would be used by West as a court affidavit in the mayor’s legal battle to keep the contents of his computer from the public.

As the city’s computer supervisor, Brakel initially took possession of West’s computer on May 6 – a day after the first in a series of news stories accusing West of abusing positions of public trust over the past quarter-century.

Busto said he found it “most cost-effective” to use Brakel as part of the City Council’s investigation.

“This whole situation has been costly enough to the taxpayers without the higher expense of me hiring a forensic computer expert,” Busto said.

Council President Dennis Hession, who spearheaded the effort to hire Busto, said he knew the investigator was consulting with the city’s computer manager and didn’t question that decision.

But Hession said it was Tuesday afternoon before he learned West had encased Brakel’s test results in a court affidavit.

Hession said the fact that West used his city computer to view pornographic material on Gay.com ultimately may be more significant than how the Web site data got onto the laptop.

“In my view, it’s the fact that it’s on his computer that makes it public,” Hession said.

City Councilwoman Cherie Rodgers said it was a “conflict of interest” for the City Council’s hired investigator to use a senior city manager who answers to West.

“It’s like sleeping with the enemy, to me,” said Rodgers, a West critic. “All these department heads, including the city attorney and the city computer manager, all answer to the mayor. Where’s the ‘independence?’ ”

Three weeks from the historic recall election, West remains engaged in a court battle to keep the public from seeing the contents of his city-owned laptop.

West admits he used his computer to visit Gay.com, but says he didn’t deliberately download any material from the site.

The public should not be able to see the temporary Internet files left behind on West’s computer because the photos and related material would be “highly offensive to a reasonable person,” the mayor’s attorneys have argued.

Using the state’s Open Public Records Act, The Spokesman-Review filed a request in early May to obtain a copy of the complete hard drive of West’s computer and its existing contents.

With West’s consent, the city attorney’s office released one compact disk in October. The disk shows that West deliberately and repeatedly visited Gay.com and accessed “adult” material, including pictures of men involved in sex acts with other men.

West also used his city computer to look at Gay.com profiles of more than 100 gay men who live in Washington, D.C., and Philadelphia before traveling to those cities on city business last spring.

In court last month, West’s attorneys asked Superior Court Judge Richard Miller to block the release of the remaining computer files.

The Adams County judge is scheduled to hold another hearing Thursday and may render his ruling at that time.

Josiah P. Roloff, a forensics computer expert working for The Spokesman-Review’s attorneys, filed an affidavit in the legal battle earlier this month.

In the affidavit, Roloff said the hundreds of documents and photos on West’s computer are there because he deliberately searched gay Web sites.

On Tuesday, Roloff disputed the conclusions reached by Garv Brakel, the city’s computer manager.

“Mr. Brakel’s affidavit is mistaken and misses the point,” Roloff said.

“While it is true that images and Web pages visited are saved in temporary Internet file folders without the users necessarily purposefully deciding to save them, the images on Mr. West’s city computer are, nevertheless, there because of a purposeful decision on the user’s part to go to Gay.com and view individual profiles,” Roloff said.

“These profiles and their accompanying images did not magically ‘open up’ simply because the user went to Gay.com,” Roloff said, “and that point was plainly made in my affidavit.”

Duane Swinton, an attorney for the newspaper, said Brakel’s affidavit does not contradict Roloff’s conclusion that West “voluntarily and affirmatively” used his city computer to access Gay.com.

“While certain general information, such as advertising, may appear on a computer hard drive by merely accessing the Gay.com Web site, profiles may be accessed only by the computer user voluntarily clicking on to the Web page containing the profile,” Swinton said.

Steven A. Smith, editor of The Spokesman-Review, said the newspaper is attempting to gain public access to the mayor’s computer files “because their release is in the best interests of citizens who have a right to know what their mayor has been doing on the public’s computers and on the public’s time.

“The mayor is doing all he can to delay release of these files until after the recall election,” Smith said. “That is not service to citizens; that is political self-interest. The Spokesman-Review will continue its legal fight for the release of information that belongs to citizens, not politicians.”

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