After a two-hour executive session, the Anchorage Assembly largely denied an appeal from one of its outspoken critics who had made a records request for copies of Assembly member emails, and found hundreds of pages of the emails fully redacted.
The Assembly also voted to seal the recordings of the executive session, with no release date.
While Assembly members say they cannot legally release the emails, the moves have fueled further outcry against the Assembly majority by its detractors, who are now accusing them of a coverup.
“I have said for many months that there is an entire political machine at work in the Muni attempting subvert the rights of Anchorage citizens on the wrong side of their politics,” Russell Biggs, who filed the requests, said in a Facebook post after the vote.
Biggs is a local anesthesiologist who led two failed attempts to recall Midtown Assembly members Felix Rivera and Meg Zaletel. He is also an administrator of the private Facebook group Save Anchorage, which has become a gathering place on social media for Assembly critics and Bronson supporters.
In April of last year, Biggs filed a public records request for emails from the accounts of all Assembly members from the time period of Jan. 1, 2020 to April 30, 2021 — any emails that referenced the Anchorage Press, a local alt-weekly newspaper; the Blue Alaskan, a left-leaning political website run by an anonymous person; the name Tom Sconce and an email address for Sconce.
The Blue Alaskan has written extensively about Biggs, Save Anchorage, Mayor Dave Bronson and the Assembly in anonymous online posts, and the Anchorage Press sometimes publishes anonymous work from the Blue Alaskan.
Assembly Vice Chair Chris Constant said that he doesn’t know who Tom Sconce is or whether he is associated with the Blue Alaskan. Constant said someone by that name contacted him by email, said they were a reporter associated with the Anchorage Press, and asked him about the Save Anchorage group. Constant said his few emails referencing Sconce were provided unredacted to Biggs in response to the records request.
The Anchorage Press did not immediately respond to an inquiry about its association with Sconce and the Blue Alaskan.
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According to a Feb. 1 letter to the Assembly from Biggs’ attorney, Sam Severin, Biggs received the emails in two batches, first in July and another later in December. Severin is a former Anchorage assistant municipal attorney who served under mayors Ethan Berkowitz and Dan Sullivan.
Biggs said that 591 pages of the records he received were redacted. In the letter, Biggs and Severin argued that the Assembly had improperly and too broadly applied the two public record exemptions it cited for the redactions: attorney-client privilege and work product privilege.
They also contended that the redactions are so excessive that in some cases they can’t determine whether an exemption was properly applied, such as redacting the names of email recipients and senders.
The Assembly on Tuesday held a vote on whether to uphold the redactions. In a 9-0 vote, the redactions were largely upheld, though the Assembly instructed municipal attorneys to un-redact some portion of the records.
It’s not yet clear exactly what portions will be released to Biggs, as that was discussed during the executive session.
Constant said the majority of the Assembly agreed to keep the records redacted, and asserted the reason is simple:
“It’s not because of any content details,” he said. “... It’s attorney-client privilege. We work with our attorneys to ensure that the laws we’re drafting are legal, and pass the test of, ‘Will this withstand the courts?’ ”
“I can ask my counsel for advice, and I can expect to have that in a privileged manner meaning not producible under records request laws. There’s nothing innovative or unusual or weird, or suspect about that. That’s normal,” he said.
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He also said the work product privilege exempts some of the records because Assembly working groups often draft legislation together.
“We have to be able, in our working groups, to share drafts in a manner that doesn’t expose our thinking. So that when we’re doing stuff, we can rub off the rough edges to get it to the point where we’re willing to stand on it when it’s published,” Constant said.
Biggs, in his appeal, argued that the work product privilege should not apply under the Alaska Supreme Court’s three requirements for why a record can be kept from the public.
“The Assembly’s arbitrary redactions of 591 responsive records and subsequent vote to seal the executive session transcripts indefinitely is completely contrary to Alaska law, and the fact that two Assembly members chose to walk out of the meeting rather than vote on the appeal language is a stunning example of the majority’s attempt to bypass the transparency required by the Alaska Constitution,” Biggs said in an email.
At the Tuesday meeting, Assembly members John Weddleton and Jamie Allard refused to vote, leaving the room to abstain. Weddleton said he left the room because the motion to keep most of the records redacted was worded in a confusing way.
“The way the motion was phrased, it was not a ‘yes’ or ‘no’ question,” he said.
Weddleton said he’s not sure what that city’s lawyers will now do with the records and Biggs’ appeal, due to the confusing nature of the motion.
In a post to his Facebook page, Reclaim Midtown, Biggs said it’s still unclear what additional records he will receive, if any.
Biggs said it is “highly likely” that he will take the fight over the redactions to state Superior Court.
“Transparency in government is the cornerstone of our democracy - our legislators do not have the right to decide what information is ‘public’ based on arbitrary criteria or political leanings,” he said by email.
According to Constant, a section of municipal code specifies that the Assembly itself hears appeals regarding public record denials from the municipal clerk’s office or ombudsman’s office concerning municipal government or utilities.
Constant said he, like Biggs, has also not seen the context or content of many of the emails of other members because they’re redacted.
“They’re just black pages to me as well,” he said.
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His own email records using Biggs’ search terms are related to the drafting of laws, he said.
Constant argued that attorney-client and work product privileges mean it’s difficult to prove that nothing nefarious exists within the redacted records.
“That’s why it’s such a good whipping post for folks in these right-wing blogs, because they could say anything. They could say it’s anything and then it can’t be controverted because that privilege exists,” Constant said.
Weddleton said that Biggs should be given as many of the records as possible, unredacted.
“I think people should be given as much information as they can when they do a FOIA request. It’s public information,” Weddleton said. “Of course, you want to protect client privilege with the attorneys — that’s also very important.”
At Tuesday’s meeting, Weddleton made a motion to keep the executive session sealed only until three months after the appeals period ends, but that failed.
Weddleton also pushed to postpone the matter to a later meeting so Biggs, who was traveling and received a 14-hour notice, could be present, but other members also voted down that motion.