[No. 60723-5-I. Division One. July 21, 2008.]
Arthur West, pro se.
Bernard H. Friedman; Philip A. Talmadge and Emmelyn Hart-Biberfeld (of Talmadge Law Group, PLLC); and William J. Crittenden, for appellants.
Carolyn A. Lake (of Goodstein Law Group, PLLC); Eric J. Camm (of The Otto Law Group, PLLC); and Matthew R. Hansen and Jeffrey A. Beaver (of Graham & Dunn, PC), for respondents.
Michele L. Hubbard, Leslie J. Olson, and Michael J. Reitz, amici curiae.
Written by: Grosse, J.
Concurred by: Dwyer, A.C.J., ¶1 GROSSE, J. -- This case involves three separate public disclosure requests for documents from the Port of Olympia (Port) regarding its lease negotiations with Weyerhaeuser Company. Because the Port had already executed the lease with Weyerhaeuser at the time of this request, the Port's reliance upon that exemption to withhold records was improper. Once an agency implements a policy or recommendation, records pertaining to that policy or recommendation no longer fall within the ambit of the deliberative process exemption of the Public Records Act (PRA). FACTS ¶2 Walter Jorgensen and Eve Johnson ¶3 West requested the Port provide him with all relevant records, including "[a]n index to, and all Port records concerning, the recent repaving project and other developments required in the Port's recent contract with Weyerhaeuser, including all correspondence, written or electronic." West also requested any records relating to the Port's compliance with the State Environmental Policy Act (SEPA). ¶4 Dissatisfied with the Port's response, West filed a pro se complaint in Thurston County Superior Court contending the Port had wrongfully withheld records in violation of the PRA. West made several further demands for disclosure from the Port and served it with a show cause order setting a hearing date for January 27, 2006. The Port disclosed some additional records and provided West with a privilege log (and later a second privilege log) for those documents it believed exempt from disclosure. The show cause hearing was rescheduled to February 17, 2006, and Weyerhaeuser intervened later that month. ¶5 Meanwhile, on January 6, 2006, Jorgensen also requested records from the Port relating to the Weyerhaeuser lease. On January 11, the Port responded, requesting additional time to review and prepare the records. The Port subsequently disclosed a number of records on January 17 and 23, 2006. On January 24, Jorgensen filed a complaint in the trial court alleging the Port violated the PRA. Jorgensen also filed a motion to show cause and the Port produced privilege logs on January 25 and 27, 2006. ¶6 On February 7, 2006, the Port presented the court with 2,409 pages of sealed documents that it claimed were exempt from disclosure along with related privilege logs and requested in camera review for both the Jorgensen and West actions. The trial court ruled that the Port had failed to respond to Jorgensen's records request in a timely manner and continued the show cause hearing. The court also awarded Jorgensen costs and reasonable attorney fees to that date. Weyerhaeuser then intervened in the Jorgensen action. ¶7 The Jorgensen and West actions were consolidated on March 3, 2006. That same day, the Port disclosed a number of other documents. Weyerhaeuser filed a brief arguing that specific documents were exempt from disclosure as proprietary, private, and confidential. ¶8 After its in camera review of the 2,409 pages, the trial court issued a 51-page memorandum decision. While the court found a number of documents to be disclosable in their entirety or with redactions, it found that most of the documents fell within the deliberative process and research data exemptions to the PRA. The vast majority of the documents found exempt appear to pertain to the lease negotiations and included earlier versions of the final lease signed on August 22, 2005. The trial court found a number of documents exempt as attorney-client communications. Additionally, the court found some documents exempt as trade secrets. ¶9 On April 13, 2006, the Port produced 217 pages of documents ordered released by the court. West, joined by Jorgensen, moved to have documents disclosed that the Port had failed to release as ordered. The Port conceded that it had overlooked some records and released them. ¶10 Jorgensen, West, and the Port all moved for reconsideration. Apart from ordering the disclosure of a few additional documents, the trial court generally denied the parties' claims on reconsideration. West then moved to have the remaining records released under SEPA, which the court denied. ¶11 Meanwhile, back on January 17, 2006, David Koenig submitted his own public records request to the Port, also seeking records related to the Weyerhaeuser lease. The Port responded on January 19 and subsequently sent Koenig a series of privilege logs that appeared to be identical to those filed in the Jorgensen/West litigation. In April 2006, Koenig filed a complaint in the trial court and Weyerhaeuser again intervened. The parties stipulated to the entry of orders and rulings on disclosure identical to those made in the Jorgensen/West action. Judgment was entered for Koenig for $ 9,360 in attorney fees and costs and $ 6,960 in penalties (116 days at $ 60 per day). ¶12 The parties filed separate notices of appeal with the Washington Supreme Court. West's and Jorgensen's suits were automatically consolidated on appeal because they were consolidated at the trial court. ANALYSIS [1, 2] ¶13 The PRA "'is a strongly worded mandate for broad disclosure of public records.'" Deliberative Process Exemption [3-7] ¶14 The trial court found many of the documents exempt from disclosure under the PRA's deliberative process exemption. RCW 42.56.280 Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action. The purpose of this exemption is to permit "frank and uninhibited discussion during the decision-making process." the records contain predecision opinions or recommendations expressed as part of the deliberative process, and disclosure would be harmful to the deliberative or consultative function of the process, and disclosure would interfere with the flow of recommendations, observations, and opinions, and the records reflect policy recommendations and opinions and are not simply the raw factual data underlying a decision. Records which contain subjective evaluations are not exempt if they are treated as raw data and are not the subject of further deliberation and consideration. ¶15 In upholding the Port's nondisclosure of records, the trial court relied extensively on this court's decision in American Civil Liberties Union of Washington v. City of Seattle (ACLU). ¶16 Here, the trial court extended ACLU's reasoning to the Port because the Port was constantly involved in the process of negotiating leases with different tenants. The trial court reasoned that although the Port's negotiations with Weyerhaeuser for this particular lease were complete, public disclosure of certain documents might adversely impact the Port's ability to get the "best deal" in future negotiations. For instance, the Port could be disadvantaged in future lease negotiations if the other party knew what terms or provisions the Port may be willing to deviate from in its standard lease. ¶17 But the ACLU decision did not go so far. There the court stated: This ongoing process involves negotiators and City officials in what is the essence of the deliberative process. Until the results of this policy-making process are presented to the city council for adoption, politicization and media comments will by definition inhibit the delicate balance--the give-and-take of the City's positions on issues concerning the police department. Thus, the ACLU court impliedly held that the exemption applied only until the results of the policy-making process were presented to the city council for adoption. Here, the Port has already executed the lease. As noted in Progressive Animal Welfare Society v. University of Washington (PAWS), "[o]nce the policies or recommendations are implemented, the records cease to be protected under this exemption." Other Exemptions ¶18 The trial court found a number of records nondisclosable as attorney-client communications and trade secrets. The PRA does not require disclosure of records either exempt or prohibited from disclosure under other statutes. [8] ¶19 In addition to the deliberative process exemption, the Port also claimed several documents equally exempt under the research data exemption. ¶20 However, the record before us indicates that the trial court did not necessarily consider other exemptions claimed by the Port once it found the deliberative process exemption applied. In its March 29, 2006 order, the trial court noted: [T]his court did not address every reason why an exemption might be claimed in every case unless it was necessary to rule out a claim. Once an exemption was determined it was not necessary for the court to engage in any further analysis that achieved the same result. Sometimes the court did address all the arguments when the exemption could have been claimed on more than one basis but this was to offer future guidance of a general nature for subsequent rulings herein and not considered necessary in every instance. As a result, these issues will have to be addressed on remand should the parties pursue them. [9, 10] ¶21 Weyerhaeuser also asserted several items exempt as trade secrets. "Trade secrets" are defined under the Uniform Trade Secrets Act (UTSA), chapter 19.108 RCW. To fall within the ambit of the trade secret exemption such information must be "'novel' in the sense that the information must not be readily ascertainable from another source." SEPA [11] ¶22 West argues that SEPA ¶23 West fails to cite any specific provisions of SEPA that mandate unlimited disclosure. Indeed, the Department of Ecology's own regulations require it to comply with the PRA. SEPA is not applicable here and does not provide for more disclosure than the PRA. Penalty [12-14] ¶24 Jorgensen and West contend the trial court erred when it failed to assess a daily penalty for each individual record withheld. Koenig disagrees but requests he be treated equally in the event Jorgensen and West prevail on this claim. RCW 42.56.550(4) provides that in addition to attorney fees and costs, "[i]t shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day" a record is improperly withheld. The court in Yousoufian v. Office of King County Executive held that under the PRA, "penalties need not be assessed per record, and that trial courts must assess a per day penalty for each day a record is wrongfully withheld." [15, 16] ¶25 We review a trial court's award of statutory public disclosure penalties for an abuse of discretion. Attorney Fees [17, 18] ¶26 While the award of attorney fees under the PRA is not discretionary, the amount awarded is. ¶27 Here, the trial court awarded fees in an amount less than the request, both for the hours spent and for the hourly charge. Jorgensen does not dispute the trial court's ruling on the number of hours for which fees should be awarded, only the hourly fee restriction imposed. ¶28 Jorgensen requested an attorney fee award of $ 300 per hour for Freidman and Talmadge and $ 225 per hour for Hart-Biberfeld. The Port's attorneys were billing $ 200 per hour pursuant to a retainer agreement. The court limited attorney fees to $ 250 per hour for all attorneys. ¶29 Jorgensen argues that the trial court's restriction on attorney fee amounts to those charged by Olympia-based attorneys might deter lawyers in larger markets from bringing PRA cases as suits of this nature will almost inevitably be brought in Thurston County. But the trial court did not make its award solely on that basis. ¶30 The trial court made the following findings of fact with regard to the attorney fees: 12. Washington courts have adopted the lodestar method to assess reasonable attorney fees in public records cases. This methodology is a guiding light and not an anchor. It requires the Court to determine what a reasonable hourly rate is in the community for work of this nature, taking into account the uniqueness of the question, the novelty of the issues, the experience of the attorneys , and the venue in which the parties find themselves. A lodestar award is arrived at by multiplying a reasonable hourly rate by the number of hours reasonably worked. 13. Bernard Friedman's rate of $ 300 per hour is not reasonable for a case of this nature. Although Philip Talmadge can bill $ 300 per hour for work that requires his special expertise, that rate is unreasonable in a case of this type. $ 250 per hour for Emmelyn Hart-Biberfeld is a reasonable hourly rate given that she performed the majority of the work on the motion. The court therefore finds that the reasonable hourly rate for all attorneys is $ 250.00 14. The next step in the lodestar calculation is to determine the reasonable number of hours expended by counsel. The Court is not required to accept unquestioningly fee affidavits from counsel. From the Court's previous experience in this case and in private practice, the Court finds that 6 hours per day for two working weeks, or a total of 60 hours of attorney time, is reasonable for the work of the Talmadge Law Group. 15. The reasonable number of hours for Mr. Friedman to have expended in this case, from start to finish, is 150 hours. [19] ¶31 Clearly, the trial court considered the various factors enumerated in Mahler. Hence, we cannot say that the limitation imposed on attorney fees was an abuse of discretion. [20] ¶32 Jorgensen and Koenig request an award of attorney fees on appeal. As the prevailing parties they are entitled to attorney fees and costs pursuant to RAP 18.1. ¶33 We affirm the trial court's ruling in part and reverse and remand this cause for further proceedings consistent with this opinion. DWYER, A.C.J., and LAU, J., concur.