Judge orders release of Miller's records

Posted: Sunday, October 24, 2010

FAIRBANKS - A judge ruled Saturday that the Fairbanks North Star Borough must release personnel records of Senate candidate Joe Miller.

In an unusual Saturday hearing, retired Superior Court Judge Winston Burbank ruled that the public's right to know about candidates outweighed Miller's right to privacy.

"I hold that although Mr. Miller has a legitimate expectation of privacy in those documents, Mr. Miller's right to privacy is indeed outweighed by the public's significant interest in the background of a public figure who is running for the U.S. Senate," the judge said.

A U.S. senator, he noted, is among the highest elected offices in the nation. Burbank ordered that nothing actually will be released until Tuesday afternoon, however, to allow for the ruling to be appealed to the Alaska Supreme Court.

The judge said a handful of documents being sought would not be released, and some would be redacted.

The case was brought by a group of Alaska news media organizations, who have been trying since summer to see borough documents concerning Miller's employment as a part-time borough attorney.

Miller, the Republican nominee for Senate in a tight three-way race, fought the lawsuit, arguing that any release of personnel records violated his privacy rights.

Miller's lawyer, Thomas Van Flein, said after the ruling that he was unsure whether it would be appealed. Miller campaign spokesman Randy DeSoto said, "Joe's attorney is going to confer with Joe to review the decision and see if an appeal is even necessary."

Among the documents being sought are details of Miller's resignation from the borough job last year, and any disciplinary actions taken against him while employed. Separate lawsuits were brought by the Alaska Dispatch and Fairbanks Daily News-Miner. The Anchorage Daily News and The Associated Press joined, and the suits were combined.

A former borough mayor, Jim Whitaker, has said Miller was disciplined for violating the borough's ethics policy in his use of borough computers for political purposes. Miller acknowledged that in an interview on CNN earlier this week, but downplayed the seriousness of the incident. Meantime the public records case has generated a phone-book's worth of court filings in the two weeks since it was filed. Each side summarized their pitch during the more than two-hour hearing.

Miller's lawyer, Van Flein, argued that Miller's personnel records with the borough should not be made public because he was merely a part-time employee rather than a public official.

"It's not correct to argue that merely by running for U.S. Senate, that somehow everything in your past - your school transcripts, your medical records, your birth certificate, or your personnel file - suddenly magically convert to public records," Van Flein said.

Burbank rejected that argument in his ruling, saying that people who run for office expect their past will be researched and revealed. Van Flein told the judge that a ruling against Miller would set a precedent that discouraged people from running for office. "The public's right to know has to be tempered. It has to be balanced," he said. "We're not a National Enquirer society. We don't have a right to know everything."

John McKay, the lawyer for Alaska Dispatch, called on the judge to release the paperwork given that Miller is applying for the political office with the longest term - six years - in the state. The candidate's background has never been reviewed by the public until now, McKay said.

"The voters can decide what bearing this should have on his fitness or qualifications," McKay said of the borough records. "They have a right to decide."

Fairbanks Daily News-Miner lawyer John Burns argued that just because something is in a personnel file doesn't automatically make it private under public records rules. "There cannot be any expectation of privacy to the extent that there have been ethical violations or criminal violations that impact directly on the public," he said.

Among the arguments for release was that the state Supreme Court, in earlier cases involving access to government information, has held that candidates for office expose their private lives to public scrutiny.

McKay said he was satisfied with the ruling and said he thought the documents ordered released would get at questions about Miller's employment with the borough.

The hearing drew about three dozen people to the otherwise empty state courthouse in Downtown Fairbanks. Current borough Mayor Luke Hopkins watched from the gallery. A legislative aide to Sen. Lisa Murkowski sat in the crowd, along with a News-Miner editor and a man who was shushed for shouting that the judge was an old appointee of Gov. Frank Murkowski.

Whitaker attended the hearing but declined to comment on the ruling.

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