West’s computer files sought in probe

An investigator hired by the Spokane City Council is asking the city’s legal staff for Mayor Jim West’s City Hall computer files – which West claims in a recent court affidavit contain private contents that would be “highly offensive” to the public and shouldn’t be released.

In a Sept. 20 letter, attorney Mark R. Busto of Bellevue, Wash., says he needs the computer files for his “workplace investigation” of West, to determine whether Spokane’s mayor violated city policies prohibiting employees from viewing or downloading obscene or graphic materials.

In a series of stories starting May 5, The Spokesman-Review reported that West offered young men he met on a gay Internet site a series of inducements, including a City Hall internship, trips and sports memorabilia.

Subsequently, four young men have told the FBI West offered them City Hall jobs, appointments or even cash in exchange for sex. In August, the FBI seized three private computers from West’s home and has also made a cloned copy of his City Hall computer hard drive as part of its public corruption investigation.

The day the first newspaper stories were published, West admitted in an e-mail to City Hall employees that he’d visited a gay Internet chat site and dated men. He denied misusing his office. Busto’s investigation will test that assertion.

“To conduct a complete investigation, I will need to examine the user data taken from Mayor West’s computer, which the City has preserved on the three (3) CD ROMs in your possession,” Busto said in his letter.

Busto said he’s aware that city policies permit employees “limited” access to the Internet for personal use. The city policy, however, prohibits city employees from using their taxpayer-provided computers for many purposes, including accessing or transmitting obscene, pornographic, abusive or threatening information or pictures. City e-mail policy also prohibits reference to or discussion of sexual acts, sexual graphics, dates and personal relationships.

West’s claim that some of the information on his city computer is personal is “irrelevant because even private use of the City’s equipment and systems by Mayor West, or any other City employee, can still violate its policies,” Busto said.

Assistant City Attorney Milton Rowland notified West’s attorneys of Busto’s request on Tuesday. Rowland told lawyers William Etter and Carl Oreskovich he intends to hand over the computer files next Tuesday at 5 p.m. unless they seek a restraining order to try to block their release.

West’s lawyers are already fighting a similar request for the computer files from The Spokesman-Review. The newspaper’s May 6 Public Records Act request asks for a copy of West’s computer hard drive and all the files it contains. The city was preparing to release those documents last month when West’s attorneys filed court papers to block the release.

In a sworn court affidavit signed Aug. 23 opposing the newspaper’s request, West said his City Hall computer contains information “that is personal and private, would be highly offensive to a reasonable person, and is not of legitimate concern to the public.” That is the standard definition of invasion of privacy under the public records statute, according to Spokesman-Review attorney Duane Swinton.

West’s affidavit also says no personal Internet information on the disk “was accessed by Mayor West during City Hall work hours or on regular workdays.” It describes the information West seeks to keep from the public as “personal social contacts.”

The city’s policy on computers and e-mail, adopted in 2002, says the computers are for public, not personal, uses. Electronic data on the computers “should be considered information available to the public,” the policy states.

Busto’s request for West’s computer records is legally distinct from the newspaper’s request, City Council President Dennis Hession said on Wednesday.

Whether or not the West computer files are ruled in court to be a public record, the council still needs the files for its internal investigation to determine whether West violated any city policies on computer use, Hession said.

Hession said he hasn’t been provided a comprehensive description of what types of documents or images are in the files, but he’s been told the files include a list of “all the Internet sites West has visited.”

The legal battle over the West files has been assigned to visiting Superior Court Judge Richard Miller. A hearing date hasn’t been assigned, but could be held within the next few weeks.

Swinton, the Spokesman-Review’s attorney, has requested a “descriptive index” of the files West is trying to keep the public from seeing. “I need to know specifically what’s in the files. Are they pictures? Documents? That’s what an index will tell us,” Swinton said.

The city’s investigation of West has been derailed by several problems.

In early May, former City Attorney Mike Connelly seized West’s computer and appointed a five-member board to investigate West’s conduct. It dissolved, largely over conflict-of-interest questions. On Aug. 1, the City Council approved a resolution to take control of the investigation.

After Connelly announced his resignation and left City Hall on Aug. 5, West named Howard Delaney as acting city attorney. In early September, the city attorney’s office was criticized for returning West’s computer to him, allowing automatic obliteration of deleted files on his disk drive which could include e-mail, images, documents or Web site addresses. Assistant City Attorney Rowland said he wasn’t aware that continuing use of the computer by West would destroy deleted files in its unallocated space – public records sought by the newspaper. Rowland said he’d ask the FBI for a copy of West’s hard drive as it existed on May 6, the day the newspaper requested it.

The exact date of the computer’s return to West – a potentially key piece of evidence in the abuse of power investigation – wasn’t disclosed, but it happened before the City Council voted this month to spend $15,000 for its own investigation. Hession recently told the newspaper he thought West’s computer was “locked up in a cabinet in the city attorney’s office.”