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July/August, 2016
A primer on the Public Records Act
by Andrew Bergh

Need a refresher course on the Public Records Act, which is codified at chapter 42.56 RCW? An excellent place to start is White v. City of Lakewood, _ Wn. App. _ (2016), which was decided three months ago by the Washington Court of Appeals (Division Two).

White arises from a criminal investigation that took place in Pierce County a little over four years ago.

In mid-May 2012, Officer Noble of the Lakewood Police Department used information from a confidential informant to obtain a search warrant for an apartment in Lakewood. The search warrant was executed on May 18, 2012, resulting in the seizure of three grams of marijuana, a few pipes, and some cash. No arrests were made; no further investigation was conducted; and Officer Noble left the police department for unknown reasons in August 2012.

Thereafter, James White, a criminal defense lawyer in Tacoma, was contacted by a potential client wanting to know if he/she had a civil rights claim arising from the execution of the search warrant. Over the course of the next three months, White served three different public records requests on the City of Lakewood.

The first PRA request was served on June 26, 2012. It was worded generally, asking for “any documents” relating to the execution of the search warrant at the apartment in question, including “any lists or inventory of items recovered.” The City responded one week later on July 3, 2012, claiming the criminal investigation was still “active” – and that the requested documents were therefore exempt from disclosure under the so-called “effective law enforcement” exemption contained in RCW 42.56.240(1).

Twenty four days later on July 27, 2012, White served a second PRA request on the City that was essentially identical to the first one. The only difference was that it sought not only “any documents” but also any “emails/communications/reports.” The City responded almost seven weeks later on Sept. 5, 2012. This time, records were produced but with the following proviso:

We have released the portions of the record which are not exempt from disclosure by [chapter 42.56 RCW] and/or other statutes.. . . .

Your request for public records will be considered closed unless you respond to the contrary by October 5, 2012.

According to a paralegal employed by the City, she put the documents produced in the City’s outgoing mailbox on Sept. 5, 2012. (This date is relevant to the statute of limitations defense later asserted by the City.)

White served his third PRA request on the City 19 days later on Sept. 24, 2012. A variation on the same theme, this request sought all “search warrants/information/documents” supplied to the Superior Court judge who had issued the search warrant for the apartment in question. The request was forwarded to a lieutenant at the Lakewood Police Department, who concluded that the sought documents were part of an “active investigation.” Consequently, in its response eight days later on Oct. 2, 2012, the City claimed they were exempt from disclosure under the effective law enforcement exemption.

Fast forward almost one year later to Sept. 5, 2013, which is when White hired counsel to assist with an enforcement action against the City under the PRA. The lawsuit was filed in Pierce County Superior Court the very next day on Sept. 6, 2013 – i.e., exactly 366 days after the City had served its response to the second PRA request. Seventeen days later on Sept. 23, 2013 – exactly 356 days after its initial response to the third PRA – the City provided the requested search warrant and affidavits.

It’s unclear what events took place during the next 14 months. What’s known, though, is that in early November 2014, White filed a motion to show cause for PRA penalties, and the City included a cross-motion for dismissal – presumably on statute of limitations grounds – in its response.

White didn’t fare so well in Round One.

With regard to the first and second PRA requests, the trial court ruled that the plaintiff’s claims were time-barred by the one-year limitation period set forth in RCW 42.56.550(6). As for the third PRA request, which is the one where the City didn’t produce responsive documents for 356 days, the trial court found the City had mishandled the request and imposed a $10 per day penalty for its violation.

White timely appealed.

At the outset of its analysis, the Court of Appeals identified the principles applicable generally to the PRA:

As a “strongly worded mandate for broad disclosure of public records,” the disclosure provisions of the PRA are broadly construed while its exemptions are narrowly construed.

The responding agency has the burden of proof that refusal to permit public inspection and copying, whether in whole or in part, is authorized by statute.

Unless the requested record falls within a specific exemption of the PRA (or other relevant statute), the agency must produce the record.

A person who prevails in an action brought under the PRA shall be awarded all costs, including reasonable attorney fees. In addition, the trial court has discretion to award up to $100 for each day such person was denied the right to inspect or copy the public record.

As mentioned above, two of White’s PRA requests were dismissed on statute of limitations grounds. Under RCW 42.56.550(6), PRA actions against an agency must be filed within one year of either the agency’s “claim of exemption” or “the last production of a record.” As shown by Division Two’s review of two recent Washington Supreme Court decisions, however, the one-year limitation period is only triggered when a valid claim of exemption is made.

The first case discussed by the Court of Appeals was Rental Housing Ass’n of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). There, the agency’s response to the PRA request had failed to describe the withheld records with any particularity – specifically, by stating the type of record withheld, its date, the number of pages, and the author/recipient. Moreover, the response didn’t explain, either specifically or generally, which statutory exemption(s) applied to the withheld records. Under these circumstances, said our high court, the agency’s reply “was insufficient to constitute a proper claim of exemption” – and therefore didn’t trigger the one-year limitation period.

The second case covered by Division Two was Sanders v. State, 169 Wn.2d 827 (2010). There, the Attorney General’s office responded to a PRA request with 1,000 pages of material and an index of all records in its possession, including those withheld. Although the index asserted the attorney-client and work product privileges as to the documents withheld, it nowhere provided any facts about how the exemptions applied. Rejecting the State’s argument that its index was sufficient to satisfy the PRA, the Sanders court held that claimed exemptions “cannot be vetted for validity if they are unexplained.” The justices also provided the following definitions:

A record is either “disclosed” or “not disclosed.” To be disclosed, its existence must be revealed to the requesting party.

Disclosed records are either “produced” or “withheld.” Withholding a nonexempt document is a “wrongful withholding” that violates the PRA.

A document can never be exempt from disclosure; it can only be exempt from production. If a claimed exemption doesn’t actually cover the withheld document, it isn’t “valid.”

Since the City had specifically invoked the effective law enforcement exemption, however, the Court of Appeals had to discuss yet another decision by our high court, Newman v. King County, 133 Wn.2d 565 (1997). There, a journalist had made a PRA request for access to the police file of an unsolved murder dating back to 1969. The county provided the initial incident report but nothing else, claiming a categorical exemption under the effective law enforcement exemption without disclosing any details whatsoever regarding the withheld records. In addition, the county presented evidence to establish that the case had not been closed and was still being investigated. Given these circumstances, the Newman court held that a categorical exemption is proper in the case of “an open and active police investigation file because it is essential for effective law enforcement.”

There is a certain tension between Rental Housing and Sanders, supra, which require a sufficient disclosure in order for an exemption claim to be valid, and Newman, which says a categorical exemption – without any disclosure at all – suffices when the effective law enforcement exemption is claimed. Division Two reconciled these cases by noting how “an open and active police investigation is a unique public service requiring unique safeguards from premature disclosure.” On the other hand, the Court of Appeals further recognized:

[T]he agency asserting a categorical exemption from disclosure based on the effective law enforcement exemption statute, does so at its own risk because the exemption only covers investigations that are “open and active.” [Citation.] Thus, if the investigation is in fact not open and active, then the agency asserting that it is an open and active investigation is potentially liable for failing to disclose or produce the requested documents and the statute of limitations under RCW 42.56.550(6) is not triggered because the agency’s claimed exception is invalid.

Against this background, Division Two proceeded to conduct a de novo review of the trial court’s rulings on a request-by-request basis. Having laboriously set forth most of the ground rules, its discussion was fairly straightforward.

With regard to White’s first PRA request, the City had asserted a categorical exemption as allowed by Newman, supra. As the City conceded at oral argument, however, the underlying investigation was no longer open and active when the first PRA request was served in late June 2012. Since this meant the City’s claim of exemption was invalid and insufficient to trigger the statute of limitations, the Court of Appeals held that the trial court had erred by dismissing White’s claim on the ground it was time-barred.

In its response to the second PRA request, the City had not specifically cited the effective law enforcement exemption, instead referencing the PRA (“and other statutes”) in only a general way. Cutting the City some slack, Division Two said this verbiage was sufficient to constitute an “implied claim” of exemption. Whether express or implied, however, the fact remained there was no open and active investigation when the claim was asserted – so once again, there was no valid claim and the statute of limitations wasn’t then triggered. But what did start the clock running, said the Court of Appeals, was the “last production” by the City. Since the production date was Sept. 5, 2012 and White’s lawsuit wasn’t filed until 366 days later on Sept. 6, 2013, Division Two ultimately agreed that White’s claim arising from his second PRA request had been properly dismissed as time-barred.

With regard to his third PRA request, White had only argued that the trial court had abused its discretion by imposing a mere $10 per day penalty. As the Court of Appeals observed, when considering the proper penalty award, trial courts must consider the seven mitigating and nine aggravating factors outlined in Yousoufian v. Office of Ron Sims, King County Executive, 168 Wn.2d 444 (2010). In light of its holding that White’s claim arising from the first PRA request had been improperly dismissed, Division Two declined to reach the merits of his argument, vacated the prior award, and remanded the matter with instructions for the trial court to reconsider the properly penalty amount using the Yousoufian factors. As the prevailing party on the claim arising from his first PRA request, White was also authorized to petition for his reasonable attorney fees.

If you have little or no familiarity with public records requests, the PRA can be mildly daunting, if not intimidating. At the end of the day, however, the PRA can be an invaluable discovery tool if public records have any relevance in a given case. While litigants commonly (and improperly) play hide-the-ball during discovery, a public agency doesn’t have that same option. And if an agency is less than forthcoming in response to a PRA request, between the liberal construction of the PRA in favor of broad disclosure and the rights and remedies afforded by it, requesting parties have considerable leverage to make sure the agency doesn’t shirk its statutory responsibilities.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.