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Judge orders Joe Miller's Fairbanks borough personnel records to be released

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Posted: Saturday, October 23, 2010 8:58 pm | Updated: 1:28 pm, Wed Dec 26, 2012.

• Joe Miller/FNSB document library

FAIRBANKS - A Superior Court judge ruled on Saturday that most of the Fairbanks North Star Borough personnel documents of U.S. Senate candidate Joe Miller should be released to the public.

Judge Winston Burbank said that the majority of Miller’s borough personnel records are of public interest. Miller, the Republican nominee in the Senate race, worked as a part-time borough attorney from 2002-09.

The Fairbanks Daily News-Miner and Alaska Dispatch website filed lawsuits on Oct. 11 asking for a more thorough release of Miller’s records, and were subsequently joined by the Anchorage Daily News and Associated Press. Miller had argued against those documents being released to the public, saying that such a move would violate his privacy rights.

The records being sought include those related to his resignation from the borough in 2009 and any disciplinary actions taken against him by the borough administration. Burbank said the public has a legitimate public interest in such cases.

“The public’s need to know is more compelling than Mr. Miller’s right to privacy, since he is now a candidate for U.S. Senate,” he said.

Burbank said the documents will be ready for release at 4 p.m. Tuesday, leaving time for attorneys to appeal his decision to the Alaska Supreme Court. Miller attorney Thomas Van Flein said immediately after the decision that it was too early to say whether he’ll file an appeal.

“We’re going to look closely at the documents to be released and decide whether we want to take it to the Supreme Court,” he said. “There may be no objection.”

If an appeal is filed, the courts seem ready to move quickly. Burbank said an appeals clerk would be available over the weekend if needed.

The fight to see more of Miller’s personnel file comes amid mounting questions about his tenure with the borough.

Former borough mayor Jim Whitaker said last week that Miller violated the borough ethics policy by using its computers for partisan political purposes, and may have been involved in illegal activity. Whitaker said he was unsure exactly what happened, but that the move was apparently part of an effort to oust state GOP chairman Randy Ruedrich before the 2008 Alaska Republican convention.

Whitaker said the borough would have fired Miller if he weren’t in the middle of a complex lawsuit between the borough and the owners of the trans-Alaska pipeline.

Miller admitted during an interview with CNN on Monday that he had violated the borough ethics policy in 2008, but didn’t offer any specific details about the incident.

Burbank said it’s valid for the press to seek information about a candidate in Miller’s high-profile position, even though the records being sought are from a period before he was pursuing an elected seat.

“Individuals who run for office expect that their past will be researched and revealed,” Burbank said, citing his decision to release additional documents.

Public records requests have been made from a variety of media outlets since June requesting Miller’s borough employment records. The borough had previously withheld about 120 documents from Miller’s file, while releasing many others that were heavily redacted.

Burbank offered a much narrower interpretation of what should stay private, saying that 28 documents could remain unavailable due to privacy reasons, attorney-client privilege, medical information or other reasons. Many of those include “somewhat redundant” information that can be found elsewhere, he said. About 60 more documents should be partially redacted, Burbank ruled.

Media attorney John McKay said he doesn’t anticipate a challenge to make additional documents publicly available.

“I think the judge did a fair job here,” McKay said.

Before the decision, Van Flein warned that the scant case law on the subject meant Burbank should proceed with caution. Too broad a ruling could push the state toward a “National Enquirer society” where privacy rights are trampled, he said.

“I think you’re being asked to go into uncharted territory here,” Van Flein told Burbank. “It’s very dicey for you.”

Burbank agreed that there isn’t much case history on personnel document disclosure in Alaska, but said the existing law supports disclosure of the documents, particularly for public officials. Even so, he said the issue is “not exactly clear” and could benefit from an Alaska Supreme Court ruling.

Van Flein declined to say whether Burbank had made an appropriate decision, but said the judge had been thorough and fair.

“It’s a challenging legal issue, and I think he did the best he could,” he said.

Contact staff writer Jeff Richardson at 459-7518.

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