Judge orders borough to release U.S. Senate candidate Miller's records

Jill Burke

Joe Miller, Randy Ruedrich and Sarah Palin

An Alaska judge has ordered the Fairbanks North Star Borough to release personnel records of U.S. Senate candidate Joe Miller.

Retired Superior Court Judge Winston Burbank made the ruling Saturday afternoon. The decision comes after Alaska Dispatch filed a lawsuit for the release of Miller's records at the borough. Other media organizations later joined the suit.

But the records won't be released until at least Tuesday afternoon. Burbank has given Miller until then to decide whether to appeal the decision to the Alaska Supreme Court.

"Individuals who run for office expect that their past will be researched and revealed, and therefore, lose their previously held expectations of privacy," Burbank said.

Miller, a Republican, has been questioned about his 2009 departure from the Fairbanks North Star Borough since late June. Alaska Dispatch was the first to report that Miller had wrongly used borough computers in a failed attempt to oust the head of the Alaska Republican Party, Randy Ruedrich.

In an interview with CNN on Monday, Miller admitted he was disciplined in 2008 for misusing computers during his work at the Fairbanks North Star Borough.

In the CNN interview, Miller admitted he was disciplined for misusing borough computers but called it "petty" and added "it was during my lunch hour."

One day before Miller's admission on national television, Tony Hopfinger, the co-founder and editor of Alaska Dispatch, was handcuffed by Miller's private security detail at an Anchorage town hall meeting Oct. 17 after he tried to question Miller about whether he had been politicking on borough time.

The Dispatch has sought the release of records pertaining to two distinct issues: Miller's violation of the borough's ethics policy in March 2008 and the circumstances leading up to his departure from the borough in September 2009. Details of Miller's use of colleagues' computers to try to oust Ruedrich -- the head of the Alaska GOP -- in March 2008 remain sketchy, as does what consequences Miller suffered as a result of getting caught.

At the Alaska Republican Party's annual convention in March of 2008, Miller and the state's newly installed governor, Sarah Palin, tried but failed to get rid of party chair Ruedrich. Palin, a onetime AOGCC commissioner, exposed Ruedrich's ethical lapses in conducting Republican business out of his office at work and then used her reputation as a corruption fighter to bootstrap her way into the governor's office.

For Miller, he could have been fired for using employees' computers for political business, but his job was spared because his legal expertise was too valuable to a case involving the trans-Alaska oil pipeline, said former borough mayor Jim Whitaker. Whitaker came forward after Miller repeatedly refused to publicly discuss the circumstances of the incident. Questions also remain about whether Miller was close to being forced out or fired had he not chosen to leave voluntarily in 2009; Whitaker has stated the borough was about to dismiss Miller.

Miller wants the borough to waive its attorney client privilege in order to speak freely about his time with the borough and any disputes between him and borough staff. Thomas Van Flein, Miller's lawyer, further stated Saturday that Whitaker isn't telling the full story. Whitaker rejected advice offered by Miller while he was a borough lawyer, which is part of the "full story" Alaskans need to know, Van Flein alleged. Whitaker has said that he is simply obligated to tell the truth about Miller's time at the borough.

In any event, the borough has stated Miller is free to talk about all but a fraction of the materials in his file. The material that he isn't allowed to discuss appears related to the pipeline case.

Of the 344 documents in Miller's personnel file, 26 will continue to be kept secret either because of attorney-client privilege, deliberative process or medical privacy. Forty-four documents will undergo redactions to protect employee identities or medical conditions that may be mentioned in e-mails and other correspondence. The rest of Miller's are available to the public, the judge ruled.

Not all of the documents regarding the investigation into the March 2008 ethics breach will be released. Web logs pulled on four unnamed employees' computers will remain confidential, as will written statements from three employees. But the written statement of "employee 3" is to be handed over, along with memos and handwritten notes from the same time period, including an e-mail sent from Miller's private law firm address to one of his supervisors the same day he appears to have gone on leave for several days.

The judge privately reviewed every document in the file, he said, in determining what to release and what to shield from the public.

"The public's need to know is more compelling than Mr. Miller's right to privacy since he is now a candidate for the U.S. Senate. Therefore, the documents should be released," Burbank ruled.

Before the ruling, Van Flein -- who also monitored ballot counts after the primary for Miller and has worked for the Palin family -- urged the judge to consider the implications of a ruling in favor of the media, which Van Flein believes broke the law.

"They are asking you ‘Do the right thing. Help us out here.' But they have not done the right thing. They have already violated the law," he argued. "On what basis can they come in here after violating the law, soliciting confidential information, publishing confidential information, and then ask you to bless it? That's not the way the system works."

Van Flein also argued that the rushed process was created solely by the media's delay in pursuing its case sooner. He reiterated that it was a stunt on the eve of the Nov. 2 designed to generate news stories leading up to election day. There's no excuse for the Dispatch or the other media outlets for waiting that long, he said, particularly when the first records were released four months ago.

Van Flein also argued that a political figure's private life prior to entering the public eye should to an extent be off limits, at least with respect to the intrusion into an employee's personnel file. Running for office doesn't open up the flood gates, he said, adding that doing so is not an automatic waiver to the privacy rights private citizens enjoy.

"We are not a National Enquirer society," he argued. "We don't have a right to every intimate detail of a person's life," added Van Flein.

But D. John McKay - Alaska Dispatch's attorney -- argued Alaskans have a legitimate right to inquire Miller's conduct on borough time and how significant those actions may or may not be in weighing his fitness for one of the most powerful political jobs in the nation.

"They have a right to decide. There couldn't be anything more important than the public's right to know in this case," McKay said.

Before listening to the attorneys' arguments, Judge Burbank reiterated the public's stake in vetting its chosen leaders. "Equity needs to favor the public's interest in becoming fully informed," he said.

Burbank accelerated the case in an attempt to reach a resolution before election day. In keeping with that goal, he'd already made arrangements for the recording of the court proceedings to be transcribed Monday morning, anticipating the need for the state's Supreme Court justices to review it promptly.

After the hearing, Van Flein was noncommittal about whether Miller would take the case that far. "We're going to look closely at the documents released," he said. "There may be no reason to do that."

In interviews after the hearing, both sides indicated they felt it was a good ruling.

"The judge was very careful in applying what I think is new legal territory," Van Flein said. "He did the best he could with the law that exists."

"There's every indication he [the judge] did what the law and the Supreme Court rulings require, which is balancing the public's interest in having access to public records and Miller's interest in keeping them secret, and coming to a fair result recognizing the presumption that the public is entitled to know," McKay said.


Contact Jill Burke at jill(at)alaskadispatch.com.