595342MAJ
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59534-2 - I - Doug & Beth O'neill, Appellants V. City Of Shoreline & Deputy Mayor Maggie Fimia, Respondents File Date 07/21/2008
Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 59534-2
Title of Case: Doug & Beth O'neill, Appellants V. City Of Shoreline & Deputy Mayor Maggie Fimia, Respondents
File Date: 07/21/2008

SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
Docket No: 06-2-36983-1
Judgment or order under review
Date filed: 01/09/2007
Judge signing: Honorable Bruce W Hilyer

JUDGES
------
Authored byRonald Cox
Concurring:Linda Lau
Marlin Appelwick

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
 Michele Lynn Earl-Hubbard  
 Allied Law Group, LLC
 12354 30th Ave Ne
 Seattle, WA, 98125-5406

 Michael G Brannan  
 Law Ofc of Michael G Brannan
 2033 6th Ave Ste 800
 Seattle, WA, 98121-2567

Counsel for Respondent(s)
 Flannary Pasieka Collins  
 City of Shoreline
 17544 Midvale Ave N
 Shoreline, WA, 98133-4921

 Ramsey E Ramerman  
 Foster Pepper PLLC
 1111 3rd Ave Ste 3400
 Seattle, WA, 98101-3299
			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

BETH and DOUG O?NEILL, individuals,           )            No. 59534-2-I
                                              )
                     Appellants,              )            ORDER CHANGING 
                                              )      OPINION
              v.                              )
                                              )
THE CITY OF SHORELINE, a                      )
municipal agency; and DEPUTY                  )
MAYOR MAGGIE FIMIA, individually              )
and in her official capacity,                 )
                                              )
                    Respondents.              )
                                              )
                                              )
                                              )

       Respondents, the City of Shoreline and Deputy Mayor Maggie Fimia, 

have moved for reconsideration of the opinion filed in this case on July 21, 2008.  

The panel hearing the case has called for an answer from Appellants, Beth and 

Doug O?Neill.  The panel hearing the case has determined that the opinion 

should be changed.  The court hereby

       ORDERS that the opinion in the above case be changed as follows:

On page eight of the slip opinion, delete the second full paragraph, which states:

              Moreover, on this record, the metadata contains information 
       that ?relates to? the conduct of government or the performance of a 
       governmental function. It shows the e-mail addresses of persons 
       who may have knowledge of alleged government improprieties in 
       dealing with a zoning matter. This too falls squarely within the 
       statute's definition of ?public record,? as we must liberally construe 
       the PRA.

Replace the paragraph with the following paragraph:

No. 59534-2-I/2

              Moreover, on this record, the metadata contains information 
       that ?relates to? the conduct of government or the performance of a 
       governmental function. For example, it shows the e-mail addresses 
       of persons who may have  knowledge of alleged government 
       improprieties in dealing with a zoning matter. This falls squarely 
       within the statute's definition of ?public record,? as we must liberally 
       construe the PRA.      On remand, the trial court should determine 
       which of the other portions of the metadata in the e-mail fall within 
       the scope of the PRA.

The motion for reconsideration is otherwise denied.

       Dated this _____ day of ________________________ 2008.

                                                    _________________________

_________________________                           _________________________

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BETH and DOUG O?NEILL, individuals,           )
                                              )
                      Appellants,             )
                                              )
              v.                              )
                                              )
THE CITY OF SHORELINE, a                      )
municipal agency; and DEPUTY                  )
MAYOR MAGGIE FIMIA, individually              )
and in her official capacity,                 )
                                              )
                      Respondents.            )
                                              )
                                              )

                                           2

No. 59534-2-I/3

                                                           No. 59534-2-I

                                                        DIVISION ONE

                                                        PUBLISHED

                                                        FILED: July 21, 2008

       Cox, J.?This is an action under the Public Records Act of the state of 
Washington (PRA).1 At issue is whether metadata in the electronic version of an 

e-mail is subject to disclosure under the PRA.2  

       In November 2006, Beth and Doug O?Neill commenced this action, 

claiming that the City of Shoreline and its deputy mayor violated the PRA in 

responding to Ms. O?Neill?s multiple requests for public records.  They also 

contend that the trial court abused its discretion by dismissing the case after the 

show cause hearing, which was held solely on declarations and briefs.  They 

further claim this procedure violated due process.  Finally, they contend that the 

trial court erroneously awarded costs to the City and its deputy mayor, Maggie 

       1 We cite to the 2006 version of the PRA that was recodified in chapter 
42.56 RCW and became effective on July 1, 2006.  We note that portions of the 
PRA were further amended in 2007.  E.g., Laws of 2007, ch. 197, §1.

       2 ?Metadata? is not defined in standard English dictionaries.  But other 
sources generally describe the term as ?data about data,? or more specifically, 
?information describing the history, tracking, or management of an electronic 
document.?  Williams v. Sprint / United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 
2005) (discussing the evolving state of the law concerning discovery of 
electronic documents and associated metadata in litigation).

                                           3

No. 59534-2-I/4

Fimia.  For the reasons that follow, we affirm in part, vacate in part, and remand 

for further proceedings.

       The material facts are not substantially in dispute.  At a public meeting of 

the Shoreline City Council on September 18, 2006, Deputy Mayor Maggie Fimia

stated that she had received an e-mail that related to a pending zoning matter.  

According to her, the e-mail stated serious allegations of improper influence by 

members of the City Council over that zoning matter.  She said the message 
came to her from ?a Ms. Hettrick and a Ms. O?Neill.?3  

       Ms. O?Neill was present at the public meeting and claims that Deputy 
Mayor Fimia?s remarks ?came as a complete shock to [her].?4 She orally 

requested ?to see that e-mail.?5 Deputy Mayor Fimia stated that she would be 

?happy to share? the e-mail with Ms. O?Neill.6

       Central to the dispute on appeal are actions the deputy mayor took after 

Ms. O?Neill?s request.  The deputy mayor deleted the top four lines of the header 

on the e-mail when she forwarded it from her personal computer to herself.  

Sometime thereafter, it appears she deleted the e-mail from her personal 

computer.  Whether the editing of the e-mail and the failure to provide the entire 

e-mail with all metadata violates the PRA are at issue.

       3 Clerk?s Papers Sub 4 at 3 (O?Neill declaration).  

       4 Id.  

       5 Id.  

       6 Clerk?s Papers at 20 (Fimia declaration).  

                                           4

No. 59534-2-I/5

       Further communication between Ms. O?Neill and the City (including

Deputy Mayor Fimia) occurred the following day and thereafter.  O?Neill made six 

more oral or written requests for records following the oral request at the public 

meeting on September 18.  No one argues that any of the City?s responses were 

untimely. We discuss the details of the requests and the responses later in this 

opinion.  

       Dissatisfied with the City?s responses to the requests, the O?Neills

commenced this action pursuant to the PRA, simultaneously moving for an order 

to appear and show cause directed to the City and Deputy Mayor Fimia.  At the 

same time, they also moved for an order requiring the City and its agents, 

including the deputy mayor, to lodge public records for in camera review and to 

prepare a detailed record of documents withheld and exemptions claimed. All 

parties submitted declarations and briefing on the requests for relief.    

       The trial court reviewed the briefing, the declarations, and one record 
submitted for in camera review as exempt from disclosure.7  In its order, the trial 

court made several findings, denied the O?Neills? motions, dismissed the action, 
and awarded costs to the City and the deputy mayor.8 The trial court also 

denied the O?Neills? motion for reconsideration.

       They appeal.

                              PUBLIC RECORDS ACT

       7 Clerk?s Papers at 141.  

       8 Id.  

                                           5

No. 59534-2-I/6

       O?Neill argues that the City violated the PRA by, among other things, 
altering and destroying public records following her request.9  

       The PRA was enacted in 1972 by initiative as part of the Public 
Disclosure Act, formerly chapter 42.17 RCW.10 The relevant portions were later

recodified at chapter 42.56 RCW and renamed the Public Records Act.11 The 

PRA states:

       Each agency, in accordance with published rules, shall make 
       available for public inspection and copying all public records, 
       unless the record falls within the specific exemptions of . . . this 
       chapter, or other statute which exempts or prohibits disclosure of 
       specific information or records.[12]

The supreme court has recognized that the PRA ??is a strongly worded mandate 
for broad disclosure of public records.??13

       Judicial review of challenged agency actions under the PRA is de novo, 

and a court may examine the records in camera to determine whether disclosure 
is proper.14 In light of the PRA?s purpose, we liberally construe its disclosure 

provisions and narrowly construe its exemptions.15 In interpreting the PRA, we 

       9 Clerk?s Papers at 5-6.  

       10 Soter v. Cowles Publ?g Co., 162 Wn.2d 716, 730, 174 P.3d 60 (2007).

       11 Id.

       12 RCW 42.56.070(1).

       13 Soter, 162 Wn.2d at 730 (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 
123, 127, 580 P.2d 246 (1978)).

       14 RCW 42.56.550(3).

       15 Progressive Animal Welfare Soc?y v. Univ. of Wash. (PAWS), 125 

                                           6

No. 59534-2-I/7

?shall take into account? the following policy:

       . . . that free and open examination of public records is in the public 
       interest, even though such examination may cause inconvenience 
       or embarrassment to public officials or others.[16]

                                    Public Records

       A threshold issue under the PRA is whether the requested documents are 
public records.17 O?Neill argues that the e-mail to which Deputy Mayor Fimia 

referred at the September 18 public meeting of the Shoreline City Council and its 

associated metadata are public records.  The City does not dispute that the e-

mail is a public record, but argues that the electronic version of the e-mail was 

properly deleted under its then-existing records retention policy.  Deputy Mayor 

Fimia contends that the electronic version of the e-mail and its metadata are not 

public records.

       The PRA specifies that a ?public record? is:

       any writing containing information relating to the conduct of 
       government or the performance of any governmental or proprietary 
       function prepared, owned, used, or retained by any state or local 
       agency regardless of physical form or characteristics.[18]

Wn.2d 243, 251, 884 P.2d 592 (1994) (citing RCW 42.17.010(11), recodified in 
the PRA at RCW 42.56.030).

       16 RCW 42.56.550(3).

       17 See Tiberino v. Spokane County, 103 Wn. App. 680, 687, 13 P.3d 1104 
(2000).

       18 Former RCW 42.17.020(41) (2006) (emphasis added).  The 2006 
version of the PRA incorporated the definitions from RCW 42.17.020.  See
former RCW 42.56.010 (2006).  The PRA was amended in 2007, and the 
identical definition of ?public record? now appears in the PRA.  See RCW 
42.56.010(2).  RCW 42.17.020 was also amended in 2007.  Those amendments 
likewise did not change the definition of ?public record.?  See Laws of 2007, ch. 

                                           7

No. 59534-2-I/8

A ?writing? is defined as:

       handwriting, typewriting, printing, photostating, photographing, and 
       every other means of recording any form of communication or 
       representation, including, but not limited to, letters, words, pictures, 
       sounds, or symbols, or combination thereof, and all papers, maps, 
       magnetic or paper tapes, photographic films and prints, motion 
       picture, film and video recordings, magnetic or punched cards, 
       discs, drums, diskettes, sound recordings, and other documents 
       including existing data compilations from which information may be 
       obtained or translated.[19]

       It is undisputed that the City is a ?local agency? under the PRA.20  

Moreover, there can be no serious dispute that the e-mail to which Deputy 

Mayor Fimia referred at the September 18 public meeting is a public record.  It 

is: (a) a ?writing? that (b) ?relat[es] to the conduct of government or the 

performance of [a] governmental . . . function? that the deputy mayor (c) ?used?

during the public meeting.  She stated that the message commented on alleged 

improprieties in dealing with a zoning matter before the City Council, making it a 
subject for discussion at the meeting.21  The e-mail fulfills the plain meaning of 

358, §1.  

       19 Former RCW 42.17.020(48) (2006).  The 2007 amendments to RCW 
42.17.020 and to RCW 42.56.010 did not affect the definition of ?writing.?  See
Laws of 2007, ch. 358, §1; Laws of 2007, ch. 197, §1.

       20 The PRA provides that an agency includes local agencies.  A local 
agency includes, among other things, every city and office, department, division, 
bureau, board, commission, or agency thereof.  RCW 42.17.020(2).  The 2007 
amendments to RCW 42.17.020 and to RCW 42.56.010 did not change the 
definition of ?agency.?  See Laws of 2007, ch. 358, §1; Laws of 2007, ch. 197, 
§1.

       21 See Concerned Ratepayers Ass?n v. Pub. Utility Dist. No. 1, 138 Wn.2d 
950, 961, 983 P.2d 635 (1999) (technical document was used when PUD 
officials attended a meeting and reviewed the document during negotiations).

                                           8

No. 59534-2-I/9

the statutory definition of a public record.  

       Deputy Mayor Fimia argues that the electronic version of the e-mail is not 

a public record because it was not ?used? by the City.  She argues that it was 

created and transmitted by a private citizen, not the City.  Her argument fails to 

acknowledge that Deputy Mayor Fimia used the e-mail when she made it the 

subject of public comment at the city council meeting.  And she cites no authority 

for the proposition that a private citizen?s creation and transmission of an e-mail 

is relevant to the question whether the e-mail is a public record.  We conclude 

that the electronic version of the e-mail is a public record.    

       We next turn to the question of whether the metadata associated with the 

foregoing e-mail is also a public record.  As we previously indicated, the 

definitions section of the PRA provides the answer.  A ?public record? is:

       any writing containing information relating to the conduct of 
       government or the performance of any governmental or proprietary 
       function prepared, owned, used, or retained by any state or local 
       agency regardless of physical form or characteristics.[22]

A ?writing? is:

       Handwriting . . . and every other means of recording any form of 
       communication or representation, including, but not limited to . . . 
       magnetic or punched cards, discs, drums, diskettes, . . . and other 
       documents including existing data compilations from which 
       information may be obtained or translated.[23]
       The metadata associated with the e-mail, or some portion of it, falls within 

the broad definition of a writing.  It is sufficiently similar to the examples of the 

       22 Former RCW 42.17.020(41) (2006) (emphasis added).  

       23 Former RCW 42.17.020(48) (2006).  

                                           9

No. 59534-2-I/10

types of documents in the definition to qualify as a ?writing.? Accordingly, the 

information falls within that broad definition in the statute, as we must liberally 

interpret the PRA.    

       Moreover, on this record, the metadata contains information that ?relates 

to? the conduct of government or the performance of a governmental function.  It 

shows the e-mail addresses of persons who may have knowledge of alleged 

government improprieties in dealing with a zoning matter.  This too falls squarely 

within the statute?s definition of ?public record,? as we must liberally construe the 

PRA.  

       Finally, no one argues that anyone other than the deputy mayor, an agent 

of the City, ?owns? the metadata from the e-mail she received on her personal e-
mail account that she uses, in part, for the City?s business.24  The PRA does not 

define ?own.? Thus, reference to a dictionary is permissible to determine 
legislative intent.25 The dictionary definition of own is, ?To have or possess as 

property.?26 Using that definition here, it is clear that the City owns the metadata 

associated with the requested e-mail.   

       We conclude that, on this record, the metadata associated with the e-mail

Deputy Mayor Fimia discussed at the meeting, or some portion of it, is also a 

public record. We do not rule on the more general question whether e-mail or 

       24 See Clerk?s Papers at 19 (Fimia declaration). 

       25 See Concerned Ratepayers, 138 Wn.2d at 959 (defining the term ?use?
with reference to the dictionary definition).

       26 The American Heritage Dictionary 1294 (3d ed. 1992).

                                           10

No. 59534-2-I/11

metadata that is transmitted to personal e-mail accounts, without more, is subject 

to the PRA. Here, the materials at issue fall within the statutory definitions 

subjecting those materials to disclosure under the PRA. Moreover, the metadata 

was specifically requested in this case.

       The City does not dispute in its brief that the metadata associated with the 

e-mail is a public record.  Moreover, we find nothing in the record indicating that 

the City ever took the position, either before or during this litigation, that the 

metadata at issue here is not a public record.  While the City appears to have 

taken a different position at oral argument before this court, we conclude that its 

position at oral argument does not address, in a persuasive way, the analysis we 

set forth above.      

                   Requests for Public Records and Responses

       As in most public records cases, the other basic issues here are whether 

all public records that O?Neill requested were provided and whether the City 

bore its burden to show that any requested records are exempt. Here, O?Neill 

specifically argues that the City altered and deleted an e-mail after her request 
for that e-mail and failed to protect public records from damage or destruction.27  

O?Neill also directly attacks the trial court?s ruling that ??no additional responsive 

records are available or contained on the computer hard drive of [Deputy Mayor 

Fimia] and duplication of the hard drive for further in camera inspection is not 
warranted.??28  

       27 Brief of Appellants at 30-31.

                                           11

No. 59534-2-I/12

       The PRA requires agency rules to ?provide for the fullest assistance to 
inquirers.?29 Agencies shall refrain from destroying public records that are 

subject to a pending public record request.30 The PRA requires disclosure only 

when there has been a request for an ?identifiable? public record.31 This 

requires ?a reasonable description enabling the government employee to locate 
the requested records.?32  

       We first examine O?Neill?s claim that the City failed to provide the e-mail 

in response to her oral request of September 18, 2006, at the city council 

meeting on that date. Doing so requires a close reading of the record.  

       This matter originated when Deputy Mayor Maggie Fimia received on 

September 18, 2006, an e-mail from Lisa Thwing.  That message forwarded an e-

mail that was from Diane Hettrick.  The header in the e-mail to the deputy mayor

from Thwing reads:

       From: ?Lisa Thwing? 
       Date: Mon, 18 Sep 2006 07:55:38 -0700
       To: ?Lisa Thwing? 
       Subject: Current city council meeting being broadcast this week

       From: Diane Hettrick 
       Sent: Thursday, September 14, 2006 11:40 PM
       Subject: Current city council meeting being broadcast this week

       28 Id. at 34 (quoting trial court?s order, Clerk?s Papers at 141).

       29 RCW 42.56.100.

       30 Id.

       31 RCW 42.56.080.

       32 Bonamy v. City of Seattle, 92 Wn. App. 403, 410, 960 P.2d 447 (1998).

                                           12

No. 59534-2-I/13

The body of the message begins as follows:

       From my friend Judy:

       Hi Folks,  
       My dear friend, Beth O?Neill has asked me to pass along 
       information about our dysfunctional Shoreline City Council.[33]

The e-mail goes on to state that city council members are ?playing favorites? in 

zoning decisions in favor of their political supporters.    
       That night, a Monday, the Shoreline City Council held a public meeting.34  

At that meeting, Deputy Mayor Fimia publicly stated that she had received an e-

mail from ?a Ms. Hettrick and a Ms. O?Neill? containing serious allegations that 

city council members were using their influence to affect zoning decisions.  

       During the public comment portion of this meeting that followed, Ms. 

O?Neill denied knowledge of the message that the deputy mayor described and 

orally requested to ?see that e-mail.? Deputy Mayor Fimia responded that she 

did not have the document with her but would be happy to share it with O?Neill.  

       Following the public meeting, the deputy mayor reviewed the e-mail from 

Thwing and forwarded that e-mail from her personal e-mail account to herself.  

Before forwarding this e-mail, the deputy mayor deleted the first four lines of the 

header, which includes the ?to? and ?from? lines listing Thwing as the sender and 

recipient.  She did this ?in order to protect Ms. Thwing from potential public 

       33 Clerk?s Papers Sub 4 Exhibit J at 21.  

       34 The record indicates that September 18, 2006, was a Monday.  See
Clerk?s Papers Sub 4 Exhibit J at 1.

                                           13

No. 59534-2-I/14

exposure.?35 The deputy mayor did not otherwise modify the e-mail from Thwing. 

The next day, September 19, she forwarded the altered e-mail to Carolyn 

Wurdeman, Executive Assistant to the City Manager.

       That same day, a Tuesday, O?Neill called the City of Shoreline and left a 
voicemail message ?again requesting a copy of the e-mail.?36 When she was 

told later that day that the e-mail was missing the ?To? header, O?Neill orally 

requested the entire e-mail string. She also said that she would come down to 

pick up the material.  

       In response, Carolyn Wurdeman sent an e-mail to Deputy Mayor Fimia 

requesting ?information about who the e-mail [was] sent to.?  The deputy mayor 

responded that ?there was no ?To? line in the e-mail.?  

       On Wednesday, September 20, O?Neill went to the City Clerk?s office to 

pick up the requested record.  There, she submitted her first written request, PD 

06-135, for the ?E-mail mentioned by Deputy Mayor Fimia at the 9-18 Council 

meeting.? In response, the clerk?s office gave O?Neill a hard copy of the e-mail 

from Hettrick, without the forwarding header from Thwing.  

       Dissatisfied with the record she received, O?Neill immediately submitted 

another written request, PD 06-134.  She requested:

       [A]ll information relating to this e-mail: how it was received by 
       Maggie Fimia, from whom it was received, and the forwarding 
       chain of the e-mail.[37]

       35 Clerk?s Papers at 21 (Fimia declaration).  

       36 Clerk?s Papers Sub 4 Exhibit J at 4 (emphasis added).  

       37 Clerk?s Papers Sub 4 Exhibit F.  

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No. 59534-2-I/15

       On Monday, September 25, Deputy Mayor Fimia located the original 

September 18 e-mail from Thwing on her computer and forwarded the complete 

e-mail, including the forwarding information from Thwing, to the Shoreline City 
Attorney.38 The same day, the City gave O?Neill a hard copy of that complete e-

mail.39 This copy included both headers, each of which in turn included the date 

and time of the message. Significantly, O?Neill does not dispute having received 

a complete copy of this e-mail on September 25.  

       The deputy mayor deleted the original e-mail from her computer sometime 

after forwarding the message to the city attorney. The record is unclear on when 
this deletion occurred.40

       That same day, Monday, September 25, O?Neill submitted a third written 

request, PD 06-138.  It expanded on the prior requests by seeking:

       Any and all correspondence (including memos) relating to this [e-
       mail] and a COMPLETE transmission / forwarding chain AND ALL
       metadata pertaining to this document.[41]  

       That evening, there was another city council meeting.  At the meeting, 

Deputy Mayor Fimia publicly corrected the error she made in the September 18 

       38 Clerk?s Papers at 22 (Fimia declaration).  

       39 Clerk?s Papers at 34 (Shenk declaration).  

       40 Compare Clerk?s Papers at 21-22, with Clerk?s Papers Sub 4 Exhibit J 
at 27 (showing a date stamp of September 26).  

       41 Clerk?s Papers Sub 4 Exhibit G (bold and italics added).  

                                           15

No. 59534-2-I/16

meeting by explaining that Hettrick had sent the original e-mail quoting her friend 

?Judy,? but that O?Neill had not sent the e-mail.    

       On Wednesday, September 27, O?Neill submitted a fourth written records

request, PD 06-139.  Specifically, she sought a copy of the e-mail Deputy Mayor 

Fimia mentioned during the September 25 council meeting, including all 
?metadata, memos, and any other correspondence relating to this document.?42  

       The City responded to O?Neill?s third and fourth written requests on 

September 29.  It provided numerous records and also indicated that further 

records would likely be available by October 5.    

       The City?s letter stated that it was declining to disclose one document that 

was covered by the attorney-client privilege.  That document was later 

accidentally released to O?Neill.  

       The records provided included, among other documents, metadata from a 

copy of the e-mail that Deputy Mayor Fimia had apparently sent to herself on 
September 26.43  

       The letter also informed O?Neill that the City would search Deputy Mayor 

Fimia?s computer for any additional responsive records.  We describe later in 

this opinion the City?s efforts in this respect.  

       42 Clerk?s Papers Sub 4 Exhibit I (emphasis added).  

       43 See Clerk?s Papers Sub 4 Exhibit J at 27.  Deputy Mayor Fimia did not 
state in her declaration that she sent a copy of the e-mail to herself on 
September 26, a day after she sent it to the city attorney.  Nevertheless, the 
record contains the metadata from such an e-mail with a date stamp of 
September 26.  O?Neill received a copy of this metadata.  

                                           16

No. 59534-2-I/17

       In the meantime, Deputy Mayor Fimia was unable to locate the original e-

mail on her computer, so she asked Thwing to re-send it to her.  On September 
30, Thwing complied with that request.44  

       The City provided a second installment of records to O?Neill on October 3.  

The second installment included a paper copy of the original e-mail that Thwing 

re-sent to Deputy Mayor Fimia on September 30 and metadata from that e-mail.  

It also included metadata from the September 18 e-mail Thwing had sent to 

Janet Way, a city council member.  The City declined to release one additional 

document based on attorney-client privilege.  

       On October 16, O?Neill submitted her fifth and final written records

request, PD 06-154.  Her request essentially reiterated her past requests and 

also requested any and all documents of any kind relating to the incident or the 

City?s treatment of the incident.  

       The City responded on either October 23 or 24.  Included in its response 

were several e-mail messages.  On October 25, the City supplemented its 

response to O?Neill?s fourth written request.  

       O?Neill first argues that the City did not comply with her oral request of 

September 18 at the public meeting because the deputy mayor intentionally 

altered the e-mail by deleting the forwarding header after the request.  O?Neill 

also claims the deputy mayor?s later deletion of the entire e-mail violated the 

PRA.  

       44 Clerk?s Papers at 34.  

                                           17

No. 59534-2-I/18

       The record shows that O?Neill made an oral request at the September 18, 

2006 public meeting to ?see that e-mail? to which the deputy mayor referred at 

that meeting.  A fair reading of that request is that O?Neill sought to see the 

entire e-mail, not an altered version of it.  It is undisputed that the deputy mayor 

altered the e-mail after the oral request and before forwarding it by removing the 

header information showing who sent it to her.  Nothing in the PRA supports 

alteration of the record ?in order to protect Ms. Thwing from potential public 

exposure,? the deputy mayor?s stated rationale for altering the document.

       O?Neill argues that Deputy Mayor Fimia?s ?alteration? of the original e-mail 

could support a criminal charge under Chapter 40.16 RCW.  That statute 
renders the destruction of a public record a class C felony.45 But this is a civil 

case, not a criminal prosecution.  Whether anyone is liable for violation of 

Chapter 40.16 RCW is not presently before us. There has been no charging 

decision by a prosecutor and no determination of guilt beyond a reasonable 

doubt by a jury.  

       O?Neill does not dispute that on September 25, 2006, she received a hard 

copy of the original e-mail, which contained the header and body of the 
September 18 e-mail.46 This was within five business days of September 18, 

2006, the date of her original request, as RCW 42.56.520 expressly requires.47  

       45 RCW 40.16.010.

       46 Clerk?s Papers at 34 (Shenk declaration).  

       47 RCW 42.56.520 provides:

                                           18

No. 59534-2-I/19

In short, O?Neill received a timely and complete response to the records request 

to see the e-mail from Thwing.  

       O?Neill argues that her September 18 request fairly identified that she 

sought the electronic version of the e-mail.  A careful reading of the record 

shows that she did not make that request on that date.

       The City is not required to be a mind reader when responding to public 
records requests.48 The PRA only requires providing a public record when it is 

identifiable.49 Here, the oral request on September 18 makes no mention of 

either the electronic version of the e-mail or its associated metadata.  Rather, 

the O?Neill declaration in this case states that her voicemail to the City the 
following morning clarified that she sought a ?copy of the e-mail.?50 We 

conclude from our review of her own words that she did not request an electronic 

copy of the e-mail or its metadata on September 18.

       Deputy Mayor Fimia argues that requiring her to identify Thwing as the 

sender of the e-mail violates her First Amendment right to freedom of 

       Within five business days of receiving a public record request, an 
       agency . . . must respond 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.

       48 Bonamy, 92 Wn. App. at 409. 

       49 Id. at 410 (citing RCW 42.17.270).

       50 Clerk?s Papers Sub 4 at 4.  

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No. 59534-2-I/20

association.  We disagree.

       Washington?s First Amendment jurisprudence requires an initial showing 

that there is ?some probability that the requested disclosure will infringe upon 
[the person?s] First Amendment rights.?51  For example, requiring a group to 

disclose all membership lists, meeting notes, and financial records would have a 
chilling effect on the members? First Amendment rights.52 After such a showing, 

the burden shifts to the party seeking discovery to show the relevance and 

materiality of the information and that reasonable efforts to obtain the 
information another way have been unsuccessful.53  Here, Deputy Mayor Fimia 

has failed to produce any evidence or reasoned argument to make the required 

initial showing that there is some probability the disclosure of one sender of one 

e-mail would burden her right to association.

       Next, we must determine whether the City complied with O?Neill?s request 

for the e-mail?s metadata, which she first requested on September 25.  

       Deputy Mayor Fimia describes the deletion of e-mail as accidental.  She 

also testified that she was not familiar with the term metadata until O?Neill

requested that information.  This latter statement could be read to suggest that 

the deputy mayor did not intentionally delete any metadata before O?Neill 

       51 Right-Price Rec., LLC v. Connells Prairie Comty. Council, 105 Wn. App. 
813, 822, 21 P.3d 1157 (2001), aff?d in part and remanded on other grounds, 
146 Wn.2d 370, 46 P.3d 789 (2002).

       52 Id. at 825.

       53 Id. at 822.

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No. 59534-2-I/21

specifically requested that information.  The City defends on the basis that the 

deletion of e-mail and associated metadata was consistent with its records

retention policy.

       The records retention guidelines promulgated by the Secretary of State 

provide that certain e-mails are public records.  Those that are public records 

may be deleted as long as they are printed along with the following information: 

name of sender, name of recipient, and date and time of transmission and/or 
receipt.54 The City?s actions in this case appear to have complied with these 

guidelines. O?Neill does not argue otherwise.  

       However, the PRA directs courts to review agency actions de novo, giving 

them no deference in determining whether a record is subject to disclosure 
under the PRA.55  And when there is a conflict between the PRA and another 

law, the PRA controls.56  Thus, the records retention guidelines then in effect do 

not inform the questions presented in this case, which we review de novo.  

       Here, the City admits that it did not provide the exact metadata from the 

original e-mail.  Rather, the City argues that O?Neill received metadata 
?associated with? the e-mail.57 Specifically, it argues that it provided to O?Neill 

       54 Clerk?s Papers at 92; see also Clerk?s Papers at 36 (retention 
schedule).  

       55 Hearst Corp., 90 Wn.2d at 129-31; Zink v. City of Mesa, 140 Wn. App. 
328, 335-37, 166 P.3d 738 (2007).

       56 PAWS, 125 Wn.2d at 262 (citing RCW 42.17.920, which was recodified 
in the PRA at RCW 42.56.030).

       57 Brief of Respondent City of Shoreline at 22.

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No. 59534-2-I/22

metadata from a copy of the e-mail to the deputy mayor that Thwing sent to 

Janet Way on the same date.  

       Without having the metadata associated with the September 18 e-mail to 

the deputy mayor before us, we cannot tell the extent to which it differs from the 

metadata from the e-mail that went to Way, which was provided to O?Neill.  In 

any event, the metadata from the e-mail to Way is not the specific record O?Neill 

requested.  At the very least, the information contained in the headers of the 

respective e-mails would likely be different.  This header information includes, 

among other things, the name, e-mail address, and Internet protocol address of 
the e-mail?s recipient.58  In short, the City has not yet proven that it provided to 

O?Neill access to the metadata she requested.  She is entitled to this public 

record.

       Our conclusion on this point addresses O?Neill?s challenge to the trial 

court?s ruling that ??[n]o additional responsive records are available or contained 

on the computer hard drive of [Deputy Mayor Fimia] and duplication of the hard 
drive for further in camera inspection is not warranted.??59 In response, the City 

contends that it conducted a thorough search for the deleted e-mail on that hard 

drive.  But the record in this case does not fully support the City?s contention.  

       Joel Taylor, a computer and network specialist for the City, stated only 

       58 Clerk?s Papers Sub 4 Exhibit L at 4.  

       59 Brief of Appellant at 34 (quoting the trial court?s order).

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No. 59534-2-I/23

that he searched Deputy Mayor Fimia?s e-mail program for the missing e-mail.60  

A search of the City?s backup drive would not have helped because the deputy 
mayor did not receive the e-mail on her City e-mail account.61  

       Tho Dao, the City?s manager of information services, stated that the City 

did not search Deputy Mayor Fimia?s hard drive:

       The City only has software capable of copying the hard drives of 
       personal computers (?PC?), not macintosh computers (?MAC?).  The 
       Deputy Mayor has a MAC.  I estimate the cost to purchase the 
       software capable of copying a MAC hard drive at somewhere 
       between $500 - $1,000.[62]

       On this record, we cannot tell whether the hard drive of the deputy 

mayor?s computer contains metadata associated with the September 18 e-mail 

that would be responsive to the request.  The trial court shall determine the 

answer to that question on remand.

       We also note that the deputy mayor forwarded to the city attorney the 

September 18 e-mail to which she referred at the September 18 meeting.  This 

record does not tell us whether that forwarded e-mail had with it the same 

metadata that O?Neill sought or whether the City could provide the metadata 

from the forwarded e-mail to her in response to her request.  Whether the 

metadata is the same or different is a question this court cannot answer.  We 

leave it for decision by the trial court on remand.

       60 Clerk?s Papers at 29-30.  

       61 Clerk?s Papers at 30.  

       62 Clerk?s Papers at 25.  

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No. 59534-2-I/24

       The trial court should also consider on remand whether the e-mail Thwing 

resent to the deputy mayor contains the requested metadata.  Again, we cannot 

tell on this record whether it does.

       If the metadata exists from any of these sources, it is subject to O?Neill?s 

pending record request, and the City is required under the PRA to provide it to 

her.  If it does not exist, the trial court must determine, consistent with this 
opinion, whether the City?s deletion of the metadata violated the PRA.63 Where 

appropriate, the trial court should determine the appropriate monetary penalty 
under the PRA.64

       O?Neill also challenges the trial court?s conclusion regarding the record
the City withheld as attorney-client privileged.65  The evidence in the record 

describes in detail the nature of this document.66 The trial court was vested with 

the discretion to review the evidence and the document claimed exempt and 

       63 O?Neill appears to rely on RCW 42.56.100 as a basis for claiming the 
City violated the PRA.  Reply of Appellants to Brief of City of Shoreline at 2-3. 
Because the record is unclear on when an electronic version of the September 
18 e-mail was destroyed, we cannot address whether the PRA was violated in 
this respect.

       64 See Yacobellis v. City of Bellingham, 64 Wn. App. 295, 298, 299 n.3, 
825 P.2d 324 (1992) (imposing a monetary penalty for the city?s failure to 
disclose a destroyed record for each day the record was withheld from the date 
of the request through the date the supreme court denied review of the matter), 
abrogated in part on other grounds by Amren v. City of Kalama, 131 Wn.2d 25, 
929 P.2d 389 (1997).  

       65 Another record was withheld until it was accidentally released to 
O?Neill.

       66 See Clerk?s Papers at 32-34 (Shenk declaration).  

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No. 59534-2-I/25

conclude that the City met its burden in proving that this document was

privileged.  Nothing in the PRA requires anything more.  The trial court?s 

decision was proper with regard to the exempt document.

       Finally, O?Neill cites an unpublished case from another jurisdiction 

regarding electronic information to support her argument concerning the 

computer?s hard drive.  We note that our court rules prohibit the citation of 

unpublished cases under the circumstances here because the rules of the other 
jurisdiction do not allow such citation.67 We also note that in the past we have 

imposed sanctions for unauthorized citation of unpublished cases.68  Because no 

party has sought sanctions, we limit our comments to directing all counsel to the 

relevant Rules of Appellate Procedure.

                         Dismissal at Show Cause Hearing

       O?Neill argues that the trial court abused its discretion in dismissing her 

complaint without a hearing or trial on the merits.  Specifically, she asserts that 

the decision to dismiss was contrary to the requirements of the PRA and violated 

due process.  

       RCW 42.56.550 sets forth the procedure to be followed when a litigant 

       67 See Appellant?s Brief at 35 (citing Krumwiede v. Brighton Assocs., No. 
05 C 3003, 2006 WL 1308629 (N.D. Ill. 2006)); Wash. RAP 10.4(h); Wash. GR 
14.1 (whether unpublished case may be cited depends upon the rule in that 
jurisdiction); Fed. R. App. Pro. 32.1(a) (cases published before Jan. 1, 2007 are 
subject to local rules regarding publication); U.S. Ct. App. 7th Cir. R. 32.1 
(unpublished cases may not be cited as precedent). 

       68 See Dwyer v. J.I. Kislak Mortgage Corp., 103 Wn. App. 542, 548-49, 13 
P.3d 240 (2000).

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No. 59534-2-I/26

wishes to challenge an agency?s actions surrounding a public records request.  

The statute provides for the superior court in the relevant county to conduct a 

show cause hearing at which the agency may be required to justify its response 
to a request for public records.69 At such a hearing, the agency bears the 

burden of proving that any public record not provided is exempted from 
disclosure.70 The PRA explicitly states, ?The court may conduct a hearing based 

solely on affidavits.?71  ?[S]how cause hearings are the usual method of resolving 

litigation under? the PRA.72 Our supreme court has stated that trial court rulings

under the PRA are trial ?management decisions? that are designed to avoid 

making ?public disclosure act cases so expensive that citizens could not use the 
act for its intended purpose.?73 Dismissal of an action is subject to review for 

abuse of discretion.74  

       Here, O?Neill did not request oral argument on her motion to show cause.  

The court was permitted by statute to resolve, without oral argument, the basic 

       69 RCW 42.56.550(1).

       70 Id.

       71 RCW 42.56.550(3); see also WAC 44-14-08004(1) (?To speed up the 
court process, a public records case may be decided merely on the ?motion? of a 
requestor and ?solely on affidavits.??) (quoting RCW 42.56.550(1), (3)).

       72 Wood v. Thurston County, 117 Wn. App. 22, 27, 68 P.3d 1084 (2003).

       73 Brouillet v. Cowles Publ?g Co., 114 Wn.2d 788, 801, 791 P.2d 
526 (1990).

       74 Quality Rock Prods., Inc. v. Thurston County, 126 Wn. App. 250, 260, 
108 P.3d 805 (2005), review denied, 163 Wn.2d 1018 (2008).

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No. 59534-2-I/27

issues before it: whether all requested public records were produced and 

whether the City had fulfilled its burden justifying any exemptions from disclosure 

under the PRA.  

       Although we disagree with the trial court?s ruling to the extent that it held 

that no further records were subject to disclosure, that does not mean that a 

hearing with oral argument or a trial must follow.  The PRA outlines the 

procedure to be followed in cases of this type, and nothing in that act requires 

either a hearing with oral argument or a trial.

       The argument that the procedure here violated other, inapplicable rules is 

unpersuasive.  This was neither a CR 56 matter nor a CR 12(b)(6) matter,

despite O?Neill?s attempt to characterize it in that manner.  

       Moreover, O?Neill?s reference to the general right of discovery in civil 

cases does not convincingly advance the argument.  The discovery rules have 

nothing to do with the statutory show cause proceeding that the trial court 

utilized in this case.  In short, for a proper resolution of the issues then before it, 

there was nothing to prohibit the court from dismissing the case at the show 

causing hearing pursuant to RCW 42.56.550(1).  

       The due process argument is also unavailing.  O?Neill fails to cite to any 

authority that supports a constitutional right to a hearing with oral argument 

under the circumstances of this case.  There was no due process violation.

       O?Neill assigns error to the trial court?s denial of the motion for 

reconsideration, but does not separately argue this point.  Accordingly, we do

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No. 59534-2-I/28

not address this specific argument.

                                         Costs

       O?Neill next argues that the trial court improperly awarded costs in favor 

of the City and Deputy Mayor Fimia.  This claim is now moot, and we conclude 

there is no reason to address it.  

       The reviewing court should award attorney fees and costs to a party 
?prevail[ing] against an agency.?75 The court should also award the prevailing 

party between five and one hundred dollars, in its discretion, for each day the 
record was unlawfully withheld.76  

       In its order addressing the PRA issues and dismissing the case, the trial 

court awarded costs ?to Defendants.? The court denied O?Neill?s motion for 

reconsideration of this order.  Significantly, in response to that motion below, the 

City rescinded its request for costs.  

       On appeal, the City expressly states that it does not object to this court 

?striking this portion of the order since it is consistent with the City?s position in 
the trial court proceeding.?77  We accept the City?s proposal.  Accordingly, we 

       75 RCW 42.56.550(4).

       76 Id.

       77 Brief of Respondent City of Shoreline at 27.  

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No. 59534-2-I/29

vacate the portion of the order granting costs to the City and Deputy Mayor 

Fimia.  

       Finally, O?Neill also seeks attorney fees on appeal based on the PRA.  An 

award is proper because she has partially prevailed.  The trial court shall 

determine the amount of fees, as provided in RAP 18.1(i).

       We affirm the trial court?s order to the extent of the request for e-mails

and the ruling on the exempt record.  We vacate the portion of the order to the 

extent of the request for metadata, the decision that ?defendants have 

established that no additional responsive records are available or contained on 

the computer hard 

drive,? and the award of costs ?to Defendants.? We remand for further 

proceedings consistent with this opinion.

WE CONCUR:

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