A Superior Court judge in Ritzville will review an inch-thick packet of “highly offensive” pictures and correspondence from gay Internet sites, captured on Spokane Mayor Jim West’s computer.
At the conclusion of a 90-minute hearing Wednesday, Judge Richard Miller of Adams County said it would be late next week at the earliest before he enters his decision on whether the material captured on West’s seized computer should be released under the state’s public records law. West doesn’t want the public to see the contents.
As a separate action, the judge signed a “protective order” that allows an investigator hired for $15,000 by the City Council to immediately examine in secret the West computer material as part of a “workplace misconduct” probe.
Attorney Mark Busto’s examination of the computer files is part of his effort to determine if West violated city computer or ethics policies, or inappropriately offered City Hall jobs and appointments to young gay men he met online.
When Busto’s report is delivered to the City Council, its members will be gagged by the protective order for 10 days – giving West time to file a lawsuit in an attempt to permanently keep the investigative report from the public.
Assistant City Attorney Milt Rowland, an at-will employee who works for the mayor, told the court that his office was prepared to release the material on West’s computer after it was seized in May.
West’s private attorneys, Susan Troppmann and Bill Etter, filed suit in Spokane County, asking the court to block public release of the material. When Spokane judges excused themselves, the public access case was assigned to the visiting judge from Adams County.
Using the state’s public records law, The Spokesman-Review filed formal requests in early May to obtain material from West’s computer. After five months of various delays, the judge on Wednesday allowed the newspaper to formally intervene in the case and argue that the material should be made public.
Troppmann told the court that West visited gay Web sites on the city computer, but he didn’t deliberately download the material to its hard drive.
“These are Internet cache files – information on your computer you didn’t put there,” Troppmann told the court. “There are hundreds of people’s identities at stake here,” Troppmann said. “There are pictures of people … some of them are local.”
“Mr. West has admitted he accessed Gay.com with his city-owned computer,” his attorney said. “What else does the public need to know?”
Substantially more, responded attorney Duane Swinton, representing the newspaper with attorney Tracy LeRoy. “If ever there was a case where ‘legitimate public concern’ is involved, this is the case,” Swinton said.
West “is attempting to tell the public, ‘This is what I want you to know and this is what I don’t want you to know,’ ” Swinton told the court. State law doesn’t give public officials the right to determine what’s public record, he said.
“It’s an affront to the public records statute for a mayor to come into court and make these assertions,” said Swinton.
The computer records at issue, Swinton argued, are at the heart of an FBI criminal investigation into whether West violated federal public corruption laws by offering money, perks, jobs and appointments to young men he met on the Internet. The public’s interest fueled a record-setting signature-collection campaign, triggering a mayoral recall election set for Dec. 6.
“These records related to a voluntary decision by the mayor to engage in this conduct,” Swinton said. The public access question involves a publicly elected official, the leader of a municipal government in the second largest city in the state, he added.
Swinton said West and his attorneys have failed to show that release of the computer files would result in “substantial, irreparable damage” and “not be in the public interest” – the two-part legal test required by previous Supreme Court rulings on public records.
Etter responded, arguing that some of the material on West’s computer isn’t public record.
The mayor used his city laptop to visit an Internet site “used by people who are gay or lesbian for social contact,” Etter told the judge. In the process of using his city computer to visit those sites, material was “dumped on his computer” through no willful act by West, Etter said.
The issue before the court is the contents of the mayor’s computer, not whether he took deliberate acts to save certain material, Swinton said.
In a sworn affidavit previously submitted to the court, West said he didn’t want the public to see the material because it was “personal social contact” information, and he thought he had a right of privacy while using his government computer.
“Mayor West didn’t assert under oath that this stuff mysteriously appeared on his computer” as his attorney now contends, Swinton responded.
“There’s not one piece of information (in the court file) from Mr. West that says, ‘I’m confused how this information got on my computer,’ ” Swinton said. “There’s a legitimate public interest in the contents of the mayor’s computer.”
After the hearing, Etter said it was “prudent” for the judge to take time to review the computer files the mayor is trying to keep private.
Asked to elaborate on the contents of the images, Etter said they contain “hundreds to thousands” of photos from the gay Web site. “They are young men, older men – a typical gamut of men who visit Gay.com,” Etter said.
The judge dismissed the newspaper’s objection to the protective order between West’s attorneys and Busto.
Under that agreement, Busto will be allowed to secretly examine the contents of the mayor’s city-owned computer, but not publicly discuss the findings. West will have 10 days to take legal action to block public release of the investigator’s final report after it’s delivered to the City Council. If West does not intervene within the 10 days, the council is free to release the information.
Etter said he was glad the judge approved the protective order, allowing the city’s investigator to move forward with his investigation of whether West violated computer and hiring practices at City Hall. “We think that’s appropriate,” Etter said.
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