Opinion Information Sheet
| Docket Number: | 38254-7 |
| Title of Case: | Building Industry Assoc. Of Wa, App./cross-res. V. Pat Mccarthy, Et Al., Res./cross-apps. |
| File Date: | 10/13/2009 |
| Appeal from Thurston Superior Court | |
| Docket No: | 07-2-01058-8 |
| Judgment or order under review | |
| Date filed: | 12/14/2007 |
| Judge signing: | Honorable Anne Hirsch |
| Authored by | Joel Penoyar |
| Concurring: | David H. Armstrong |
| Elaine Houghton |
Counsel for Appellant(s) | |
| Greg Overstreet | |
| Allied Law Group, LLC | |
| 1110 Capitol Way S Ste 225 | |
| Olympia, WA, 98501-2251 | |
| Andrew C Cook | |
| Hamilton Consulting Group | |
| 10 E Doty St | |
| Ste 500 | |
| Madison, WI, 53703-3397 | |
| Michele Lynn Earl-Hubbard | |
| Allied Law Group LLC | |
| 2200 6th Ave Ste 770 | |
| Seattle, WA, 98121-1855 | |
Counsel for Respondent(s) | |
| Daniel Ray Hamilton | |
| Attorney at Law | |
| 955 Tacoma Ave S Ste 301 | |
| Tacoma, WA, 98402-2160 | |
Amicus Curiae on behalf of Washington State Association of Broadcasters | |
| Katherine George | |
| Harrison Benis & Spence LLP | |
| 2101 4th Ave Ste 1900 | |
| Seattle, WA, 98121-2315 | |
Amicus Curiae on behalf of Washington Newspaper Publishers Assoc | |
| Katherine George | |
| Harrison Benis & Spence LLP | |
| 2101 4th Ave Ste 1900 | |
| Seattle, WA, 98121-2315 | |
Amicus Curiae on behalf of Allied Daily Newspapers of Washington | |
| Katherine George | |
| Harrison Benis & Spence LLP | |
| 2101 4th Ave Ste 1900 | |
| Seattle, WA, 98121-2315 | |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BUILDING INDUSTRY ASSOCIATION OF No. 38254-7-II
WASHINGTON,
Appellant/Cross-Respondent,
PUBLISHED OPINION
v.
PAT MCCARTHY; PIERCE COUNTY
AUDITOR; PIERCE COUNTY,
WASHINGTON
Respondents/Cross Appellants.
Penoyar, J. ? The Building Industry Association of Washington (BIAW) appeals the
summary judgment dismissal of its suit against Pierce County alleging that the County violated the
Public Records Act (PRA), chapter 42.56 RCW. BIAW contends that the trial court erred by: (1)
granting the County?s summary judgment motion, (2) dismissing the county auditor as a
defendant, (3) striking an inadvertently disclosed email communication from defense counsel to
his client, and (4) denying BIAW?s motion for CR 11 sanctions. The County cross-appeals the
trial court?s dismissal of its cross-claim. The County contends that the trial court erred by: (1)
denying its cross-claim for sanctions for BIAW?s frivolous suit, and (2) denying its motion to seal
the inadvertently disclosed attorney/client email communication. We affirm the trial court.
38254-7-II
FACTS
On October 12, 2006, Pierce County Auditor Pat McCarthy and her election manager Lori
Augino reported by telephone to State Assistant Elections Director Pam Floyd that they had
observed problems with voter registration forms submitted by a political group identified as the
Association of Community Organizations for Reform Now (ACORN). Having heard similar
concerns from two other counties, Floyd sent a ?global informational email? announcement to all
county auditors informing them of these reports. Clerk?s Papers (CP) at 1161. Floyd later
explained she had done so ?to inform those who had not yet reported such concerns of this issue
and to solicit from them information if similar issues had risen in those offices.? CP at 1162.
Based on information her office had received from Pierce and other reporting counties, Floyd later
that day sent a second global email bulletin to every auditor describing how they too could
identify ACORN registrations.
Though Pierce County?s auditor already was aware of the issue because she had reported
it, copies of the emails were sent to her because it was ?easier to send a global email to all
auditors.? CP at 1162. In compliance with applicable retention policies, McCarthy read these
informational emails and ?more probably than not? deleted them the same month she received
them. CP at 64-65.
Over five months later, on March 23, 2007, McCarthy received a public records request
from BIAW seeking ?all records relating to or referencing . . . ACORN registration cards
submitted to your office? and ?all records relating to the cases referred to the prosecutor? from
?this batch of registration cards.? CP at 28. Within five days the auditor had identified 615
responsive documents and informed BIAW that they were available for inspection, copying, or
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mailing.1 On April 18, 2007, however, BIAW wrote claiming it had ?proof that Pierce County is
withholding documents responsive to the original public records request? because the hundreds of
documents the auditor previously provided included neither the global informational ?email from
the Washington Secretary of State?s office to Pat McCarthy? that BIAW had obtained prior to
making its PRA request, nor any documentation of a telephone call county election official ?Lori?
supposedly had concerning ?ACORN registration cards with King County elections staff.? CP at
34. BIAW threatened that if McCarthy?s office ?fails to provide the documents requested, BIAW
will sue Pierce County to obtain the requested records.? CP at 34.
Within a week McCarthy replied that despite a further exhaustive search, neither she nor
her staff had discovered the email mentioned because her office did not keep the same emails as
the secretary of state?s office and that any alleged telephone conversation with King County had
not been documented because the auditor?s office does not generate records of every meeting and
conversation. She also explained that both the staff and working space for the Pierce County
Auditor?s Office is small, which allows most communications between the auditor and her staff to
be ?face to face? so that they ?do not generate large numbers of emails unless [someone] is out of
the office.? CP at 60. This second search, however, did reveal that one additional responsive
email in the office?s electronic in-box had been overlooked as well as had all those in the auditor?s
sent boxes of email (because the sent boxes mistakenly had not been checked previously) and
therefore 38 pages of additional emails were immediately provided to BIAW.
On May 2, 2007, BIAW again wrote asserting that the County had ?failed to provide all of
1 The 615 records were produced after a search of the auditor?s email, electronic files and hard
copy files.
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the public records it requested,? describing it as ?astonishing? that the auditor?s office did not
keep duplicates of secretary of state email bulletins and arguing ?your office surely had in its
possession e-mails and other public records pertaining to the ACORN voter registration forms
prior to February, 2007? because ?Pierce County knew there were problems with the ACORN
registration forms prior to February, 2007.? CP at 42. BIAW again threatened suit if the
auditor?s office did not produce the requested records, and warned that ?[u]nlawful destruction of
such records can be a crime.? CP at 43. The auditor referred the matter to the Pierce County
Prosecutor?s Office, which confirmed to BIAW in a letter and a telephone conversation that the
auditor?s office had previously provided BIAW all records related to or referencing voter
registration cards submitted by ACORN, other than original voter registration records protected
by RCW 29A.08.710, and that the emails from the Washington Secretary of State?s Office were
not retained because they do not fall within the retention schedules set for local governments.
On May 25, 2007, BIAW filed a ?Complaint For Violations of Public Records Act, RCW
42.56 and RCW 40.14,? naming as defendants McCarthy ?in her official capacity as Pierce
County Auditor? and Pierce County. CP at 6. The complaint alleged that McCarthy and the
County ?violated RCW 42.56.550 by failing to provide all public records requested by BIAW? or
?violated the Public Records Act and the Preservation and Destruction of Public Records Act,
RCW 40.14 et seq., by failing to retain emails under the retention schedules set forth . . . under
the act.? CP at 10.
In their answer, defendants denied these claims and asserted a counterclaim under RCW
4.84.185 contending that BIAW?s suit was frivolous. BIAW conducted no discovery during the
ensuing 4 months of litigation.
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On June 21, 2007, McCarthy and the County moved for summary judgment based on
sworn declarations from the auditor, her election manager, the records management coordinator,
and a county computer expert, which confirmed that: (1) repeated searches revealed no requested
document had been withheld from BIAW, (2) the only records not retained were the two
informational emails from the secretary of state that had been disposed of pursuant to the state
approved destruction authorization, and (3) no other undisclosed responsive emails would have
existed because the small auditor?s office does not often use electronic messages for internal
communication. BIAW did not offer evidence disputing this testimony or seek a continuance
under CR 56(f) to facilitate discovery of some opposing evidence; it instead asserted that
defendants? unrefuted evidence was ?extremely unlikely? and that it raised a fact question about
whether the County had failed to properly retain and disclose records responsive to BIAW?s
request. CP at 92. BIAW contended that the County?s affidavits provided ?grounds for
discovery.? CP at 93. Without seeking a continuance to conduct discovery,2 BIAW?s brief
opposing summary judgment asked the court to dismiss the County?s summary judgment motion
and ?instead . . . compel Pierce County to show any cause why it hasn?t violated the PRA.? CP at
103.
On July 20, 2007, the trial court ruled there was no ?action in this case under [chapter]
42.56 [RCW]? for withholding documents. Report of Proceedings (RP) (July 20, 2007) at 27.
The court explained that:
[T]he only facts in the record are from Pierce County, their sworn declarations
from the [C]ounty auditor and certain of her staff, including somebody from the IT
department . . . And I don?t think there?s any showing that Pierce County has these
documents in their possession, that they have not disclosed. . . . There?s no
2 BIAW?s brief opposing summary judgment did not mention CR 56(f).
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showing that they existed and I?m going to grant summary judgment on that
respect.
RP (July 20, 2007) at 27-28. The court dismissed the auditor as a separate defendant, granted
summary judgment to the County ?as to RCW 42.56,? and further ruled that ?any claim under
RCW 40.14 et seq.? against the County for deletion of records was ?continued for further
briefing.? CP at 198.
On July 30, 2007, BIAW moved for reconsideration of its dismissed PRA claim.
Recognizing BIAW still had made ?no showing that Pierce County improperly deleted or
destroyed any record in violation of the Act, despite the plaintiff?s attempt to characterize the
record in that way,? the trial court on September 7, 2007, denied reconsideration and dismissed
all of BIAW?s claims. RP (Sept. 7, 2007) at 35.
On October 5, 2007, defendants moved for summary judgment on their counterclaim. In
response, BIAW filed a CR 11 motion for sanctions calling defendants? counterclaim ?a false legal
position? that was ?not normal? and ?very odd behavior,? and describing defense counsel as
?emotionally invested,? ?out-of-control,? ?over the top,? a ?very angry lawyer who has lost his
professional judgment? and ?lost control of himself.? CP at 963-64, 966 n.1, 969, 973-74.
Accompanying its motion, BIAW filed an email communication (dated September 7, 2007)
between defense counsel and the auditor that BIAW had obtained as part of a later PRA request
to the auditor?s office.3 This inadvertently disclosed attorney/client communication reported to
3 BIAW submitted a new PRA request to the auditor?s office on September 25, 2007, seeking all
documents regarding the auditor?s business trips since January 1, 2007, and all documents
referencing voter registration cards submitted by ACORN from April 18, 2007, until receipt of the
request letter. The September 7, 2007, email in question was inadvertently provided as part of
that request.
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clients and superiors on courtroom events and future litigation matters. The County moved to
strike the September 7 email, arguing that it was irrelevant, a privileged communication, and
attorney work product.4
On November 9, 2007, the trial court heard argument regarding the parties? motions to
strike, the summary judgment motion on the County?s counterclaim, and BIAW?s CR 11 motion.
The trial court ordered the September 7 email stricken as attorney work product and privileged.5
As to the County?s counterclaim, the court ruled that although BIAW lost its suit, its claim was
not frivolous, and thus the court declined to award the County any fees or costs under RCW
4.84.185. The court also declined to award either party CR 11 sanctions.6 The trial court
observed that while open, vigorous, and free debate were to be supported, personal attacks were
inappropriate. The trial court commented (but declined to find) that both counsel had ?unclean
hands? in this regard, and it chided counsel to ?work on the issues and not on the personalities.?
RP (Nov. 9, 2007) at 30.
On or about December 7, 2007, the County filed a motion to seal and return the
previously stricken September 7 attorney/client email communication. On December 14, 2007,
4 Both sides submitted motions to strike various documents (e.g. newspaper articles, declarations,
etc.) submitted by the parties relevant to the County?s counterclaim and BIAW?s opposition to
same. The trial court?s rulings on those matters are not challenged other than as described above.
5 At the September 7, 2007, hearing the trial judge had disclosed her spouse?s previous
employment by plaintiff?s new counsel, prompting the attorney/client email that informed
defendants of that courtroom disclosure and confirmed the intent to proceed with the County?s
counterclaim for fees and sanctions.
6 Overlooking CR 54(e), neither party obtained a timely order reflecting dismissal of BIAW?s CR
11 claim. That omission was rectified by the trial court?s subsequent March 14, 2008, order
denying BIAW?s motion for CR 11 sanctions, which was entered with the Supreme Court?s
permission following BIAW?s filing of its petition for direct review.
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the trial court heard argument on the motion to seal, took that matter under advisement, and later
issued a letter ruling denying the motion.7 In the letter ruling, the court determined that the
September 7 email was ?at best, innocuous and at worst, embarrassing? and thus did not warrant
sealing. CP at 1066.
On January 11, 2008, BIAW filed a notice of appeal, and on January 15, 2008, defendants
cross-appealed. BIAW sought direct review, but our Supreme Court transferred the case to us.
We subsequently granted a motion to file an amicus brief that was submitted by several media
concerns.8 Less than a week before oral argument, BIAW filed a statement of additional authority
and a motion to substitute Jan Shabro, who was McCarthy?s successor. The County opposed the
substitution and moved to strike BIAW?s statement of additional authority. BIAW responded to
the County?s motion with its own contingent motion to strike the County?s previously filed
statement of additional authorities in the event we granted the County?s motion to strike. All
motions filed in this time period were passed to the merits. We now consider BIAW?s appeal and
the County?s cross-appeal.
ANALYSIS
I. Summary Judgment on BIAW?s PRA Claim
BIAW contends that the trial court erred in granting the County summary judgment on
BIAW?s PRA claim. We disagree.
7 At the December 14 hearing, the trial court also ruled that the County was the prevailing party in
the overall suit, even though it had lost its counterclaim. The court issued a final order awarding
the County $200 in statutory costs as the prevailing party.
8 Amici include Allied Daily Newspapers of Washington, Washington Newspaper Publishers
Association, Washington State Association of Broadcasters, and Society of Environmental
Journalists. These amici had previously filed a brief supporting BIAW?s petition for direct review.
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The County concedes that two emails sent from the secretary of state?s office were not
retained and were permanently deleted. BIAW claims that failure to retain these emails was
unlawful and offers various theories to support the idea that other emails have been destroyed or
are not being disclosed.
A. Review in Public Record Act Cases
We review all agency actions challenged under the public records act de novo.
Progressive Animal Welfare Soc?y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994).
Because this case was decided on summary judgment, we examine whether disputed issues of
material fact exist and whether the County was entitled to judgment as a matter of law. Smith v.
Okanogan County, 100 Wn. App. 7, 11, 994 P.2d 857 (2000). Our review is limited, however, to
the evidence and issues presented to the trial court. RAP 9.12; Sourakli v. Kyriakos, Inc., 144
Wn. App. 501, 509, 182 P.3d 985 (2008), review denied, 165 Wn.2d 1017 (2009).
The purpose of the act is to provide ?full access to information concerning the conduct of
government on every level . . . as a fundamental and necessary precondition to the sound
governance of a free society.? RCW 42.17.010(11). The public records portion of the act, RCW
42.56.001-.902, requires all state and local agencies to disclose any public record upon request,
unless it falls within certain specific enumerated exemptions. Sperr v. City of Spokane, 123 Wn.
App. 132, 136, 96 P.3d 1012 (2004); King County v. Sheehan, 114 Wn. App. 325, 335, 57 P.3d
307 (2002); RCW 42.56.070(1). The requested record must be made available ?for public
inspection and copying.? RCW 42.56.070(1). The Pierce County Auditor?s Office is an ?agency?
subject to the act?s provisions. RCW 42.56.010(1). RCW 42.17.020(2). See also former RCW
42.56.010 (2005) (referencing RCW 42.17.020) (Laws of 2005, ch. 274, § 101); and former
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RCW 42.17.020(2) (2005) (defining agency to include any county office) (Laws of 2005, ch. 445,
§ 6).
Public records subject to inspection under the act include (1) any writings (2) that contain
information related to the ?conduct of government or the performance of any governmental or
proprietary function? and (3) that are ?prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.? RCW 42.56.010(2); RCW 42.17.020(42).
However, an agency has ?no duty to create or produce a record that is nonexistent.? Sperr, 123
Wn. App. at 136-37 (citing Smith, 100 Wn. App. at 13-14). Moreover, just as the act ?does not
provide ?a right to citizens to indiscriminately sift through an agency?s files in search of records or
information which cannot be reasonably identified or described to the agency,?? Sperr, 123 Wn.
App. at 137 (quoting Limstrom v. Ladenburg, 136 Wn.2d 595, 605 n.3, 963 P.2d 869 (1998)),
the act ?does not authorize indiscriminate sifting through an agency?s files by citizens searching
for records that have been demonstrated not to exist.? Sperr, 123 Wn. App. at 137 (emphasis
added).
B. Review of Summary Judgment Orders
When reviewing an order of summary judgment, we perform the same inquiry as the trial
court. Ames v. City of Fircrest, 71 Wn. App. 284, 289, 857 P.2d 1083 (1993) (citing Simpson
Tacoma Kraft Co. v. Dep?t of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992)). We
consider the facts and reasonable inferences in the light most favorable to the nonmoving party.
Ames, 71 Wn. App. at 289. ?The moving party is entitled to summary judgment only if the
submissions to the court ?show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.?? Ames, 71 Wn. App. at 289 (quoting
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CR 56(c)). A material fact is a fact upon which the outcome of the action depends. Ames, 71
Wn. App. at 289. The moving party bears the initial burden of showing the absence of an issue of
material fact. Ames, 71 Wn. App. at 289-90 (quoting Young v. Key Pharm., Inc., 112 Wn.2d
216, 225, 770 P.2d 182 (1989)). If a defendant movant meets this burden, the plaintiff must
respond by making a prima facie showing of the essential elements of its case. Ames, 71 Wn.
App. at 290; Young, 112 Wn.2d at 225-26. The plaintiff cannot rely on allegations in the
pleadings or assertions, but must present competent evidence by affidavit or otherwise. Ames, 71
Wn. App. at 290 (citing Young, 112 Wn.2d at 225-27). If the plaintiff fails to make such a
showing, there is no genuine issue of fact as to the essential element in question and the trial court
should grant the defendant?s motion for summary judgment. Ames, 71 Wn. App. at 290; Young,
112 Wn.2d at 225. Absent proof of an essential element of the plaintiff?s case, all other facts are
immaterial. Ames, 71 Wn. App. at 290; Young, 112 Wn.2d at 225.
BIAW contends that by bringing a summary judgment motion, the County improperly
shifted the burden to BIAW. BIAW urged the trial court to deny the County?s summary
judgment motion and instead proceed to a show cause hearing at which the County would bear
the burden of proof as to why it failed to disclose any requested documents. However, there was
no improper burden shifting here. See Spokane Research & Defense Fund v. City of Spokane,
155 Wn.2d 89, 106, 117 P.3d 1117 (2005) (summary judgment is an appropriate procedure in
PDA cases, and trial court may conduct a hearing based solely on affidavits or in camera review
of documents).
BIAW contends that the presence of several material fact questions concerning whether
and how the auditor?s office uses emails render summary judgment improper. However, the
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County?s affidavits answer those questions (i.e. they describe office practices, when and how
emails are used or not used, and what happened in this particular circumstance) and those
affidavits are unrefuted. As the trial court correctly ruled, to avoid summary judgment, in answer
to the County?s affidavits, BIAW had to present the court with ?facts . . . not just mere
speculation, not wishes, not thoughts, but facts that would be admissible at trial.? RP (July 20,
2007) at 26-27. See Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744
(1992) (where summary judgment movant has met its initial burden, in order to avoid summary
judgment nonmoving party may not rely on the allegations in the pleadings but must set forth
specific facts by affidavit or otherwise that show a genuine issue exists). Because BIAW did not
do so, summary judgment was proper.
C. Proof the Records Were Unlawfully Destroyed
Throughout its brief, BIAW characterizes the destruction of emails in this case as
unlawful. But there is simply no evidence in the record of any unlawful destruction of emails.
BIAW cites attorney general guidelines that agencies should not delete ?all e-mails after a short
period of time (such as thirty days).? Br. of Appellant at 17 (citing WAC 44-14-03005).
However, those guidelines do not ?bind any agency,? WAC 44-14-00003; the auditor did not
delete all emails; BIAW?s request came almost half a year?not thirty days?after the only emails
identified had been received, and the two emails actually deleted here were done so lawfully
pursuant to state guidelines and applicable retention schedules. See RCW 40.14.060-.070.
Pam Floyd, the assistant elections director who sent the emails from the secretary of
state?s office, declared that she neither intended these bulletins to reflect a transaction of business
between the agencies nor that they be ?retained by county auditors as evidence of such.? CP at
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1162. In this context, when the County received copies of these two global emails, the emails
likely would have been read and deleted as the secretary of state?s own guidelines and state
approved destruction authorizations recommend. RCW 40.14.060-.070 (destruction of public
records authorized when pursuant to state approved schedule). If no special request was made,
the emails then would have been kept on computer backup until later overwritten after a set
retention period.
These procedures comport with applicable retention policies. See CP at 479, 511
(Secretary of State?s ?Records Management Guidelines? provide that when documents are
?transmitted to multiple recipients . . . [e]ach recipient need not retain the document beyond his or
her immediate need for the information it contains? because ?responsibility for retaining and
disposing of these documents as public records logically rests with the office from which it was
issued? and ?[p]rompt deletion of duplicate copies of e-mail messages . . . makes the system much
easier to manage and reduces disk space consumed by redundant information.?) (Emphasis
deleted.)). See also CP at 509 (because ?content and not the medium determine the treatment of
the message? the ?types of messages sent by e-mail that typically have no retention value? include
?[i]nformation-only copies . . . distributed for convenience of reference? and ?[c]opies of inter- or
intra-agency memoranda, bulletins or directions of a general information and non-continuing
nature?) (capitalization altered, emphasis deleted). State approved ?Public Records Retention
Schedule [and] Destruction Authorization? criteria provide likewise. See CP at 1159 (?E-Mail
messages that are not public records? include ?information only copies . . . distributed for
reference or convenience, such as announcements or bulletins? and may be ?[d]elete[d] . . .
immediately upon review?); CP at 290, 295 (?general records retention schedule? noting ?E-Mail
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messages which are usually administrative materials with no retention value? include ?information-
only copies?) (capitalization altered); CP 576-77 (?County Auditor?s General Records Retention
Schedule? lists as ?having no public record retention value and may be disposed of as soon as they
have served their purpose: . . . informational copies? of materials such as ?correspondence . . .
prepared for reference and informational distribution?) (capitalization altered).9
BIAW also contends that because the auditor?s office appears to destroy emails, such
destruction might violate the federal Voting Rights Act, 42 U.S.C. § 1974. This mere allegation
is speculative and insufficient to avoid summary judgment. In any event, BIAW first mentioned
the federal provision in its motion for reconsideration. For that reason alone, we need not
consider it. See Wesche v. Martin, 64 Wn. App. 1, 6-7, 822 P.2d 812 (1992) (issues first raised in
motion for reconsideration need not be considered on appeal).
D. Proof That the Records Have Not Been Disclosed
Here, the only evidence presented at the summary judgment hearing indicated that the
auditor?s office had provided all the records that it had concerning BIAW?s request. Sperr
addresses this circumstance. Division Three of this court affirmed summary dismissal of the
requestor?s PRA suit, which alleged that he was denied his right to inspect or copy his police file.
Sperr, 123 Wn. App. at 135. In response to a records request, the manager of the city?s police
9 We note that in its motion for reconsideration, BIAW argued to the trial court that the correct
retention guidelines were those attached to state archivist, Jerry Handfield?s, declaration rather
than the guidelines that the County provided. In rendering its decision on BIAW?s motion for
reconsideration and clarifying its earlier ruling, the trial court correctly noted that both retention
policies provided that informational copies qualified as administrative materials with no retention
value and, thus, could be disposed of as soon as they had served their purpose. See RP (Sept. 7,
2007) at 40-41; CP at 184, 295 (guidelines designating email messages that are informational
copies as administrative materials with no retention value).
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records unit sent the requestor every file that included the requestor?s name and the results of all
computer searches for his name on various databases. Although the computer databases
contained no additional references to the requestor, he sought access to the police department?s
computer files so he could search for any information regarding his alleged criminal activity.
Sperr, 123 Wn. App. at 133-34, 137.
Division Three held that the city did not deny the requestor an opportunity to inspect or
copy a public record because the public record he sought ?did not exist? and, consequently, there
was no agency action to review under the Act. Sperr, 123 Wn. App. at 137. Accordingly, Sperr
held that the trial court did not err in granting summary judgment dismissal of the requestor?s
PRA suit. Sperr, 123 Wn. App. at 137 (citing Smith, 100 Wn. App. at 11). The same is true
here.
Sperr answers BIAW?s similar contention that it should be permitted to have a forensic
computer expert comb the auditor?s computers for any further emails regarding ACORN. That
contention is contrary to Sperr because the only evidence presented at the summary judgment
hearing indicated that any other emails referencing ACORN do not exist. See Sperr, 123 Wn.
App. at 137.
BIAW alternatively relies on Prison Legal News, Inc., v. Dep?t of Corr., 154 Wn.2d 628,
635, 115 P.3d 316 (2005), and Progressive Animal Welfare Soc?y, 125 Wn.2d at 250, for the
general proposition that records should be disclosed unless they fall within an exception.
However, neither of these cases concerns records that did not exist at the time of a request.
Moreover, the PRA?s requirement that an agency provide a specific exemption when denying a
request for public documents applies to ?the situation where the agency has the records but says,
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?we are not going to give them to you? . . . [rather than where the agency says] ?we do not have
these records.?? Daines v. Spokane County, 111 Wn. App. 342, 348, 44 P.3d 909 (2002). See
also Smith, 100 Wn. App. at 13-14 (agency has no duty to create a record in response to a
request; only existing records must be provided).
Notably, the only PRA provision that actually regulates destruction of records provides:
?If a public record request is made at a time when such record exists but is scheduled for
destruction in the near future, the agency . . . may not destroy or erase the record until the request
is resolved.? RCW 42.56.100 (emphasis added). That provision was not triggered under the
facts of this case.10 The same is true for the PRA?s show cause provision. RCW 42.56.550(1)
authorizes only those ?having been denied an opportunity to inspect or copy a public record by an
agency? to ?require the responsible agency to show cause why it has refused to allow inspection
or copying of a specific public record or class of records.? Accordingly, there is ?no agency
action to review under the Act? where the agency did not deny the requestor an opportunity to
inspect or copy a public record, because the public record he sought ?did not exist.? Sperr, 123
Wn. App. at 137. See also Kleven v. City of Des Moines, 111 Wn. App. 284, 294, 44 P.3d 887
10 Yacobellis v. City of Bellingham, 55 Wn. App. 706, 780 P.2d 272 (1989), on which BIAW
relies, does not require a different result. There, the request for public records was made
repeatedly over nearly a one year period. Yacobellis, 55 Wn. App. at 708. At the end of that
period, the agency informed the requester that the records had been discarded. The Yacobellis
court noted that it was ?unknown? when the records were actually discarded. 55 Wn. App. at
708. Nevertheless, the court noted that when the requester first asked for the questionnaires at
issue, the city ?refused to provide copies of the completed questionnaires on the ground that all
complete data was in the survey,? which the city did provide. Yacobellis, 55 Wn. App. at 708.
Notably, the stated reason for the city?s refusal to give the requester the documents when he first
asked for them was not because the city did not have the documents. Thus, Yacobellis does not
appear to be a case where destruction of documents occurred before a request was made.
Accordingly, the facts of Yacobellis fall within the prohibitions of RCW 42.56.100 as discussed
above. However, that is not the circumstance presented in this case.
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(2002) (no violation of the public disclosure act because the agency had ?made available all that it
could find?); Smith, 100 Wn. App. at 22 (when county had nothing to disclose, its failure to do so
was proper). See also Hangartner v. City of Seattle, 151 Wn.2d 439, 447-48, 90 P.3d 26 (2004)
(public disclosure act requires agencies to produce only identifiable public records).
E. Interplay of the Public Records Act and the Records Retention Act
BIAW argues that unless the courts require public agencies to comply with the Records
Retention Act, chapter 40.14 RCW, agencies may easily circumvent the PRA, chapter 42.56
RCW, by improperly destroying records. While the logic of this argument is compelling, no
improper destruction of record under the records retention act has been shown here so we are
presented with no opportunity to determine if the law supports that logic.
We observe that BIAW?s argument evolved substantially between the summary judgment
hearing and the hearing on its motion for reconsideration. At summary judgment, BIAW
contended that the County violated the PRA by failing to produce the two emails sent from the
secretary of state?s office, and that the prior destruction of these emails was unlawful (i.e. violated
retention schedules). The trial court granted the County?s summary judgment motion dismissing
BIAW?s PRA claim, but it ordered more briefing on the alleged violation of the retention act,
chapter 40.14 RCW, including whether BIAW had standing to pursue any alleged violation of the
retention act.
BIAW moved for reconsideration (with new counsel) and the County filed a renewed
motion for summary judgment. At the ensuing hearing on both motions, BIAW?s new counsel
argued that the two emails sent from the secretary of state?s office were not themselves material
(BIAW?s counsel stated he would not bring a PRA claim for documents that his client already
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had), but the existence of the two emails suggested that ?[t]here might be more [emails].? RP
(Sept. 7, 2007) at 10. The parties also agreed that there was no private right of action under
chapter 40.14 RCW. The trial court noted such agreement, and found that the two emails in
question were informational copies under the retention schedules provided by either party and
thus they were not unlawfully deleted and were not subject to required disclosure under the PRA.
There was also no evidence that the County had deleted other emails as BIAW alleged. The court
denied reconsideration and dismissed BIAW?s suit.
Notably, the trial court did not reach whether violation of the retention act could form a
basis for a PRA violation because the court concluded that the two emails at issue had been
properly deleted. Although BIAW attempted on reconsideration to broaden or recharacterize the
issue before the court as whether an agency could avoid a PRA violation by unlawfully deleting
emails, the trial court did not reach that issue under the facts presented.
On appeal, BIAW again argues that unlawful destruction of records (i.e. noncompliance
with the retention act) should be a violation of the PRA. This record provides no basis for such
argument.
F. Discovery and Continuance Issues
BIAW next contends that it argued to the trial court that it should be able to conduct
discovery, but that no discovery was allowed. However, the record shows that in the four months
of litigation preceding the dismissal of its claim, BIAW never made a single discovery request,
never moved under CR 56(f) for a continuance in order to conduct any discovery, and never made
the showing required to delay summary judgment for purposes of discovery.
A trial court may continue a summary judgment hearing if the nonmoving party shows a
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need for additional time to obtain additional affidavits, take depositions, or conduct discovery.
CR 56(f); Winston v. Dep?t. of Corr., 130 Wn. App. 61, 64-65, 121 P.3d 1201 (2005). ?The trial
court may deny a motion for a continuance when (1) the requesting party does not have a good
reason for the delay in obtaining the evidence, (2) the requesting party does not indicate what
evidence would be established by further discovery, or (3) the new evidence would not raise a
genuine issue of fact.? Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003) (citing Tellevik
v. Real Prop. Known as 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d
1325 (1992)). We review a trial court?s decision on a request to continue the summary judgment
for abuse of discretion. Colwell v. Holy Family Hosp., 104 Wn. App. 606, 615, 15 P.3d 210
(2001). A trial court abuses its discretion if it bases its decision on untenable or unreasonable
grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
As noted, BIAW did not move for a continuance. Where a continuance is not clearly
requested, the trial court does not err in deciding a summary judgment motion based on the
evidence before it. See Colwell, 104 Wn. App. at 615; Turner v. Kohler, 54 Wn. App. 688, 695,
775 P.2d 474 (1989) (trial court acted properly in hearing the motion on the basis of the showing
before it). Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 24-25, 851 P.2d 689 (1993) (if
plaintiff ?needed additional time, the proper remedy would have been to request another
continuance from the trial court? and ?[b]ecause she failed to do this, . . . she is precluded from
raising this issue on appeal? since to ?hold otherwise would constitute an unwarranted
encroachment on the trial court?s discretion to dismiss cases which fail to raise genuine issues for
trial?). In light of BIAW?s failure to clearly move for a continuance, we hold that the trial court
did not err in deciding the County?s summary judgment motion based on the evidence before the
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court.
II. Dismissal of Auditor; Motion to Substitute Parties
BIAW contends that the trial court erred in dismissing McCarthy as a named defendant
and asks us to address the fact that a new auditor has been sworn in. As we affirm dismissal, we
need not address these issues. Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 165-66, 795
P.2d 1143 (1990) (reviewing court need not decide all issues the parties raise, but only those that
are determinative).
III. Motion to Strike
BIAW contends that the trial court erred in granting the County?s motion to strike the
September 7, 2007, email attached to BIAW?s CR 11 motion, which BIAW had filed in response
to the County?s counterclaim. We review the trial court?s determination for abuse of discretion.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999) (trial
court?s evidentiary rulings are reviewed for abuse of discretion).
As noted, the trial court granted the motion to strike, ruling that the attorney/client email
communication was work product or privileged. BIAW argues that the email was neither
privileged nor work product. Even if that is so, the trial court did not abuse its discretion in
striking the email because the email was simply not relevant. We may affirm a trial court on any
basis the record and the law support. State v. Kelley, 64 Wn. App. 755, 764, 828 P.2d 1106
(1992). Here, the tone of the email may have been embarrassing for the prosecutor, but the
information that it contained was already known to both parties. The email reported that the
County had prevailed at the hearing held earlier that day, it described a disclosure the trial judge
made in open court, and it noted that the County?s counterclaim for sanctions was still pending.
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All of these matters were public record. It was irrelevant to BIAW?s CR 11 claim (despite
BIAW?s contentions otherwise) and had no value except for the possible embarrassment that the
tone of some comments might cause defense counsel. As the trial court later noted, the email was
?at best, innocuous and at worst, embarrassing.? CP at 1066. Accordingly, we hold that the trial
court did not abuse its discretion in striking the irrelevant September 7, 2007, email.
IV. Sanctions
As noted, in response to BIAW?s suit, the County filed a counterclaim seeking fees and
sanctions under RCW 4.84.185 and CR 11. BIAW responded by filing a motion for CR 11
sanctions. The trial court denied both parties? claims noting that the case presented at least some
debatable issues and that the court was troubled by the level of discourse and the conduct of
counsel for both sides. Both parties challenge the denial of their claims for sanctions.
We review a trial court?s decision to impose or deny CR 11 sanctions under the abuse of
discretion standard. Brin v. Stutzman, 89 Wn. App. 809, 827, 951 P.2d 291 (1998). An abuse of
discretion occurs only when no reasonable person would take the view that the trial court
adopted. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
The purpose of CR 11 is to deter baseless filings and curb abuses of the judicial system.
Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707 (2004) (citing Biggs v. Vail, 124 Wn.2d
193, 197, 876 P.2d 448 (1994)). A filing is baseless if it is not well grounded in fact, or not
warranted by existing law or a good faith argument for altering existing law. Skimming, 119 Wn.
App. at 754. ?The burden is on the movant to justify the request for sanctions.? Biggs, 124
Wn.2d at 202. Because CR 11 sanctions have a potential chilling effect, the trial court should
impose sanctions ?only when it is patently clear that a claim has absolutely no chance of success.?
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Skimming, 119 Wn. App. 755 (citing In re Cooke, 93 Wn. App. 526, 529, 969 P.2d 127 (1999)).
The fact that a complaint does not prevail on its merits is not enough. Bryant v. Joseph Tree,
Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
Similarly, RCW 4.84.185 authorizes the trial court to award the prevailing party
reasonable expenses, including attorney fees, incurred in opposing a frivolous action. Koch v.
Mut. of Enumclaw Ins. Co., 108 Wn. App. 500, 510, 31 P.3d 698 (2001). Such an award is
available only when the action as a whole can be deemed frivolous. Koch, 108 Wn. App. at 510.
?An appeal is frivolous only ?if no debatable issues are presented upon which reasonable minds
might differ, and it is so devoid of merit that no reasonable possibility of reversal exists.?? Goad
v. Hambridge, 85 Wn. App. 98, 105, 931 P.2d 200 (1997) (quoting Chapman v. Perera, 41 Wn.
App. 444, 455-56, 704 P.2d 1224 (1985)). We review a trial court?s award under RCW 4.84.185
for an abuse of discretion. Koch, 108 Wn. App. at 510.
Here, the trial court asked for additional briefing regarding the interplay between chapter
40.14 RCW and chapter 42.56 RCW, and also permitted additional oral argument when
addressing the motion for reconsideration. This alone indicates that?at least in the trial court?s
mind?the case before it was not frivolous. Moreover, the County?s contention that BIAW
clearly had no legal basis for including McCarthy as a defendant was at least debatable given that
PRA suits have been brought against other state officers in their official capacity. See e.g.
Evergreen Freedom Found. v. Locke, 127 Wn. App. 243, 110 P.3d 858 (2005). Also, the trial
court rejected the County?s initial contention that the two emails sent from the secretary of state?s
office were not public records because the County did not prepare, own, or use the emails.
Although the court ultimately concluded that these two emails were informational copies only,
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and thus not subject to disclosure under the PRA, the record demonstrates that the County did
not prevail on every issue. In light of these circumstances and the trial court?s justified
displeasure with the conduct of both counsel, we hold that the trial court did not abuse its
discretion in denying the parties? claims for sanctions.11
V. Motion to Seal
The County contends that the trial court erred in denying its motion to seal and return the
inadvertently disclosed September 7, 2007, attorney/client email communication. We disagree.
The County filed the motion to seal some six weeks after the email appeared in the court
file as an attachment to a BIAW filing. The trial court heard oral argument on the matter on
December 14, 2007, and denied the motion in a subsequent letter ruling.
The legal standard for sealing or unsealing court records is a question of law we review de
novo. Rufer v. Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005). We review a trial
court?s decision to seal or unseal records for abuse of discretion, but if that decision is based on
an improper legal rule, we will remand the case to the trial court to apply the correct rule. Rufer,
154 Wn.2d at 540.
Trial proceedings and records attached to dispositive motions filed in civil cases are
presumptively open absent some overriding interest. Rufer, 154 Wn.2d at 541-42; Dreiling v.
Jain, 151 Wn.2d 900, 910, 93 P.3d 861 (2004). When addressing requests to seal court
documents, in order to balance the public?s constitutional right to open administration of justice
11 Additionally, BIAW?s opening brief refers us to its trial brief for argument supporting its CR 11
motion. This is improper and a sufficient basis for us to disregard the issue. Issues relying on
incorporated trial court briefing are considered abandoned. Holland v. City of Tacoma, 90 Wn.
App. 533, 538, 954 P.2d 290 (1998); McNeil v. Powers, 123 Wn. App. 577, 591, 97 P.3d 760
(2004).
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against potentially conflicting rights, courts are required to apply the five factors noted in Seattle
Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982); Rufer, 154 Wn.2d at 544.
Those factors are: (1) The proponent of closure and/or sealing must make some showing of the
need therefor. (2) Anyone present when the closure and/or sealing motion is made must be given
an opportunity to object to the suggested restriction. (3) The court, the proponents, and the
objectors should carefully analyze whether the requested method for curtailing access would be
both the least restrictive means available and effective in protecting the interests threatened. (4)
The court must weigh the competing interests of the parties and the public. And finally, (5) the
closure or sealing order must be no broader in its application or duration than necessary to serve
its purpose. See Dreiling, 151 Wn.2d at 913-15 (quoting Ishikawa, 97 Wn.2d at 37-39).
Here, the trial court applied the Ishikawa factors when considering the County?s motion to
seal and correctly found that the County could not make the required showing. For instance, the
County simply cannot show that sealing is needed (first Ishikawa factor). As previously noted,
while the tone of the September 7 email may have been embarrassing for the prosecutor, the
information that it contained was already known to both parties and was a matter of public
record. The trial court correctly determined that the email ?is, at best, innocuous and at worst,
embarrassing: these are not the types of interests allowed to be protected by the court under
these circumstances.? CP at 1066-67.
The County?s interest in sealing from public view the content of an innocuous email does
not outweigh the public?s right to open access to court proceedings. Rufer, 154 Wn.2d at 541-
42. Accordingly, we hold that the trial court applied the correct legal standard, and did not abuse
its discretion in declining to seal the September 7 email under the circumstances of this case.
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VI. Amicus Brief and Motions Passed To The Merits
The brief of amici contends that the parties and the trial court were wrong in agreeing that
if destruction of public records comports with the records retention act, chapter 40.14 RCW, such
destruction does not violate the PRA, chapter 42.56 RCW. Amici argue that the destruction of
the two emails from the secretary of state?s office violated the PRA regardless of whether their
destruction complied with chapter 40.14 RCW and applicable retention and destruction schedules.
Amici urge us to clarify that the PRA trumps the records retention act. Further, amici suggest a
new rule. Assuming that the County violated the PRA when it did not provide a record that had
long since been destroyed prior to any PRA request for that record, amici suggest that any fines
imposed under the PRA for the agency?s non-production of the previously destroyed record be
limited to one year. These are new issues argued only by amici, and for that reason we decline to
address them. See State v. Gonzalez, 110 Wn.2d 738, 752 n.2, 757 P.2d 925 (1988) (arguments
raised only by amici curiae need not be considered). See also RAP 9.12 (when reviewing an order
granting or denying summary judgment the appellate court will consider only evidence and issues
called to the trial court?s attention).12
12 ?[T]he case must be made by the parties litigant, and its course and the issues involved cannot
be changed or added to by friends of the court.? Long v. Odell, 60 Wn.2d 151, 154, 372 P.2d
548 (1962) (internal quotation marks and citation omitted). This is a long established practice of
Washington courts to which we adhere. See e.g. Walker v. Wiley, 177 Wash. 483, 491, 32 P.2d
1062 (1934); Gonzalez, 110 Wn.2d at 752 n.2 (citing cases); Port of Seattle v. Pollution Control
Hearings Bd., 151 Wn.2d 568, 629 n.30, 90 P.3d 659 (2004). As noted, amici?s issues are their
own and do not appear in the parties? briefing to this court. Accordingly, even had the parties
raised these issues to the trial court, but failed to continue to press those arguments on appeal,
relying instead on amici to so argue, we would consider the arguments abandoned and not address
them. See Walker, 177 Wash. at 491. In this case, the arguments of amici were never presented
to the trial court and thus court rule directs us not to consider them when reviewing the summary
judgment decision. See RAP 9.12. See also Sourakli, 144 Wn. App. at 509 (citing RAP 9.12 as
basis for declining to consider argument not made to the trial court); Coronado v. Orona, 137
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As for the motions passed to the merits, we deny BIAW?s motion to substitute as a party
McCarthy?s successor to the auditor?s office. Given our disposition of this case?affirming the
trial court?s dismissal of BIAW?s PRA claim and the court?s dismissal of the County?s
counterclaim?the substitution issue is moot. We also deny BIAW?s and the County?s respective
motions to strike each other?s statements of additional authorities.13 Moreover, we have reviewed
the cases contained in those statements and determined that they provide no basis for altering our
decision.
Wn. App. 308, 318, 153 P.3d 217 (2007) (RAP 9.12 limits our review to issues brought to the
trial court?s attention).
13 The County?s statement cites Fisk v. City of Kirkland, 164 Wn.2d 891, 194 P.3d 984 (2008),
and Ameriquest Mortgage Co. v. State Attorney Gen., 148 Wn. App. 145, 199 P.3d 468 (2009).
BIAW?s statement cites State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm?rs., 120
Ohio St.3d 372, 899 N.E.2d 961 (2008).
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VII. Attorney Fees
Both parties seek attorney fees. BIAW requests reasonable attorney fees and costs on
appeal, citing RCW 42.56.550(4), as the authority for such award. The statute provides in
pertinent part that ?[a]ny person who prevails against an agency in any action in the courts
seeking the right to inspect or copy any public record . . . shall be awarded all costs, including
reasonable attorney fees, incurred in connection with such legal action.? RCW 42.56.550(4). By
its terms, the statute only provides for fees to the prevailing party. BIAW did not prevail below.
The trial court awarded statutory fees of $200 to the County as the prevailing party. Nor has
BIAW prevailed on appeal. Accordingly, we deny BIAW?s request for fees.
The County contends that ?CR 11 authorizes an award of fees and costs to defendants
both below and now on appeal.? Br. of Resp?t/Cross-App. at 46. However, the trial court
awarded no CR 11 sanctions, and the rule is intended for use in superior court, not in the
appellate court. While CR 11 sanctions were formerly available on appeal under RAP 18.7, a
1994 amendment to RAP 18.7 and 18.9 eliminated the reference to CR 11 in RAP 18.7 and
provided for sanctions on appeal only under RAP 18.9. See 3 Karl B. Tegland, Washington
Practice: Rules Practice, RAP 18.7 author?s cmts. at 445 (6th ed. 2004). Moreover, Washington
follows the ?American rule,? which provides that fees and expenses are not recoverable absent
specific statutory authority, contractual provision, or recognized grounds in equity. Wagner v.
Foote, 128 Wn.2d 408, 416, 908 P.2d 884 (1996). Because the County has not identified an
applicable basis for awarding it fees, we deny the County?s fee request.
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We affirm the trial court, deny BIAW?s motion to substitute a party, deny both parties?
motions to strike the other?s statement of additional authorities, and deny both parties? requests
for fees on appeal.
Penoyar, A.C.J.
We concur:
Houghton, J.
Armstrong, J.
28