[No. 62171-8-I. Division One. June 22, 2009.]
Richard A. Poulin (of SCOPE Law Firm, PLLC), for appellants. Thomas A. Carr, City Attorney, Mary F. Perry, Assistant, for respondent. Authored by Susan Agid. Concurring: Stephen J Dwyer, Mary Kay Becker. ¶1 AGID, J. -- While meeting with the city of Seattle's (City) Fleets and Facilities Department (FFD) director, members of the public orally requested information about the City's plans to mitigate environmental damage caused during construction of its Joint Training Facility (JTF). Although the City ultimately responded to a later written records request, the plaintiffs filed suit claiming that the City did not respond to their oral request within five business days as required by the Public Records Act (PRA), chapter 42.56 RCW. The trial court granted the City's motion for summary judgment, holding that the plaintiffs did not request public records at the meeting. Because the request was unclear and did not ask for public records, we affirm. FACTS ¶2 FFD "oversaw the construction of the Joint Training Facility for City of Seattle police and firefighters in White Center. During construction of the JTF, John Beal, who ran I'M A PAL, an organization concerned about the Hamm Creek watershed, reported to the Army Corps of Engineers that the City had not obtained a necessary permit for construction." The Corps issued a stop work order and threatened enforcement action. The Seattle City Council approved a settlement agreement with the Corps on November 20, 2006. The Duwamish River Cleanup Coalition (DRCC) objected to the mitigation provisions of the settlement. To that end, DRCC representatives and other interested persons, including appellants Lana Beal, BJ Cummings, James Rasmussen, and Greg Wingard (Citizens), met with Brenda Bauer, FFD's director, on December 12, 2006, to discuss DRCC's concerns. ¶3 On January 24, 2007, Citizens met with Bauer again to discuss FFD's response to DRCC's suggested mitigation plan improvements. Bauer explained that FFD could not implement DRCC's suggestions. In response, Cummings asked Bauer to provide documentation supporting her asserted inability to implement our suggestions or any of the alternatives to their proposal. I specifically asked Director Bauer to provide all documentation of the mitigation alternatives that had been considered by [FFD]; all existing information [FFD] believed supported its position that the mitigation alternatives [Citizens] proposed at the JTF site were not feasible; and records containing specific information about the characteristics of the site that the Coalition's experts would need to provide meaningful input to the ongoing design of mitigation projects, including the Department's records containing information about the stormwater volumes generated on the site, the relevant water table levels, and groundwater infiltration into the pond. Cummings "did not reference the Public Records Act and likely used the word 'information' rather than 'records,' but [ ] was certain Director Bauer understood that [Cummings] had asked her to show us copies of written documentation and reports we both knew existed." ¶4 Wingard "thought it was obvious and understood by all present [at the January 24, 2007 meeting] that we had asked the Department to produce the written information in its files that the Director held up as supporting its position. I did not hear the Department's Director or staff ask for clarification, or say anything indicating that they didn't understand what we wanted them to give us for future use." ¶5 Bauer "did not hear anyone ask for public records during the January 24 meeting." Emelie East, the director of Council Relations/Senior Advisor to the Mayor of the City of Seattle, was at the January 24 meeting and also "did not hear anyone ask for public records." ¶6 On February 3, 2007, Cummings e-mailed East, asking her to resend any e-mails she had attempted to send Cummings regarding the JTF discussions with the City because Cummings had experienced e-mail problems. Cummings did not mention a public records request. East replied on February 7, 2007, with a request that Citizens proceed by putting their mitigation suggestions in writing so the City's engineers could review the feasibility of implementing those suggestions. Cummings replied to East the same day, stating that [i]t was our understanding that the next step was for the Fleets and Facilities [Department] to provide a written response to our previous list of suggestions, including any data relevant to considerations of feasibility, e.g., stormwater volumes generated on site, water table levels, groundwater infiltration into the pond, etc. This information was not provided by the City during our last meeting, and would serve as the basis for more detailed recommendations from our consultant. In the absence of this data, I can ask our consultant to prepare a generalized description of her recommended approach to integrating habitat into the stormwater pond, but it will not be specific to the site conditions and engineering considerations until these are provided by the city. On February 9, 2007, Bauer e-mailed Cummings, affirming that I did say I would look into providing you with additional information, and this is what I have discovered. We have some records from the original design team related to water table and the stormwater pond from the original design that I can provide to you. . . . [T]he records developed since then were developed as attorney work product in anticipation of litigation. We still have claims related to the design issues on this project, and the City Attorney hired a number of consultants to prepare for potential claims settlement or litigation. The City Attorney won't release this information, or have these firms consult with you, as it would jeopardize the City's legal position. ¶7 On February 11, 2007, Wingard responded to Bauer's February 9 e-mail, interpreting it as improper denial of pubic records under the PRA. In her February 13, 2007 reply, Bauer wrote, "If you are seeking records under RCW 42.17 [sic], ¶8 On September 13, 2007, Citizens filed an amended complaint alleging that the City failed to promptly respond to their records request, wrongfully refused to make the records promptly available, failed to provide a reasonable estimate of time required to respond, and wrongfully denied them an opportunity to inspect or copy public records. The City moved for summary judgment, and the trial court heard oral argument on the motion. Before the trial court issued its July 14, 2008 order granting the City's motion, Citizens submitted a declaration from Sara Nelson, who was present at the January 24, 2007 meeting, stating that during the course of the meeting Ms. Cummings asked to see the written documents containing the specifications about the JTF Site compiled by the Department's engineers - specifically, information regarding the hydrology of the site, the retention pond, and whether or not the pond could fulfill the dual purpose of wildlife habitat and storm/surface water drainage. "The meeting concluded with Ms. Cummings, Mr. Rasmussen and Mr. Wingard requesting written documents containing detailed information about several technical issues, including the hydrology of the pond ('how high is the water table' is one specific question [Nelson] remember[s]) and how engineering could salvage the dual purpose of the pond." Citizens also submitted a supplemental declaration from Cummings following the summary judgment hearing, in which she indentified the specific documentation she remembered requesting at the January 24, 2007 meeting. ¶9 Ruling on the City's motion for summary judgment, the trial court found that Citizens "did not make a valid public records request at the January 24, 2007 meeting" and concluded that the "City did not violate the Public Records Act in responding to [Citizen's] request." Citizens moved for reconsideration, which the trial court denied after considering their supplemental declarations. Citizens appealed but abandoned their arguments that the trial court erred by dismissing their unreasonable time estimate claim and by denying their motion for reconsideration. Thus, the only issue remaining on appeal is the trial court's dismissal of the Citizen's claim that DFF violated the PRA by failing to respond to their request within five days. DISCUSSION [1, 2] ¶10 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. [3, 4] ¶11 Under the prompt response provision of the PRA, an agency must respond to a request for public records within five business days of receipt by either "(1) providing the record; (2) acknowledging that the agency . . . has received the request and providing a reasonable estimate of the time the agency . . . will require to respond to the request; or (3) denying the public record request." ¶12 Citizens argue that they made an oral request for public records at the January 24, 2007 meeting, making DFF's February 15, 2007 response untimely. The City counters that the Citizen's declarations at most show that Citizens requested information, not public records. And the City argues that Citizens did not communicate their request clearly enough to put the City on notice that they were requesting public records, meaning that the trial court properly decided as a matter of law that Citizens did not make a records request at the January 24 meeting. ¶13 In Wood v. Lowe, an agency employee wrote a letter to her boss, the agency's director, requesting her personnel file and any other information and documentation related to her employment. ¶14 In Bonamy, a city of Seattle employee sent an e-mail asking about the extent to which information is available to employees who have had internal complaints filed against them. [5] ¶15 Conceding that individuals may make oral requests for public records, the City also cites to the attorney general's comments under the PRA model rules for the proposition that oral requests are "problematic." [6-8] ¶16 Here, the evidence submitted by Citizens is not sufficient, as a matter of law, to show that Citizens made an unambiguous request for identifiable public records. The parties called the January 24 meeting to discuss FFD's response to DRCC's suggested mitigation plan improvements. With the purpose of the meeting in mind, Cummings' response to Bauer's refusal to adopt the mitigation suggestions shows that Citizens wanted to know why Bauer refused and what information Bauer relied on in coming to her decision. Citizens' demand that the City "prove it" did not amount to a clear request for public records. All Citizens' declarations establish is that they wanted Bauer to compile the information supporting her position or create a document explaining why Citizens' suggestions were not feasible. Because new documents or a synthesis of existing documents is not subject to the PRA, ¶17 The evidence also shows that Citizens wanted DRCC to produce data that their consultant could use to formulate a site-specific mitigation plan. Cummings' second February 3 e-mail underscores the ambiguous nature of Citizens' January 24 request. In it, Cummings refers to "the next step" as the Department's "written response" to their suggestions and data relevant to improving those suggestions. As discussed above, Citizens cannot compel an agency to create a new document, in this case a written response to DRCC about FFD's mitigation plan decision, under the PRA. ¶18 Nelson asserts that Cummings also asked for the documents containing the desired information, but Nelson's declaration does not demonstrate that Citizens unambiguously asked for the public records, as opposed to requesting the information contained in those records. Nothing in the evidence before the trial court establishes that Citizens put FFD on notice that they were requesting identifiable public records under the provisions of the PRA. As was the case in Lowe, the City could have responded to Citizens' request without producing any records under the PRA. ¶19 The PRA does not require written requests, but it does require that requests be recognizable as PRA requests. [9] ¶20 Citizens request attorney fees on appeal. Attorney fees on appeal are recoverable under the PRA for prevailing parties. ¶21 We affirm. DWYER, A.C.J., and BECKER, J., concur.