Opinion Information Sheet
| Docket Number: | 62171-8 |
| Title of Case: | Beal, Cummings, Rasmussen & Wingard, App. V. The City Of Seattle, Res. |
| File Date: | 06/22/2009 |
| Appeal from King County Superior Court | |
| Docket No: | 07-2-08473-8 |
| Judgment or order under review | |
| Date filed: | 07/11/2008 |
| Judge signing: | Honorable Charles W Mertel |
| Authored by | Susan Agid |
| Concurring: | Stephen J Dwyer |
| Mary Kay Becker |
Counsel for Appellant(s) | |
| Richard Arthur Poulin | |
| SCOPE Law Firm, PLLC | |
| Po Box 22091 | |
| Seattle, WA, 98122-0091 | |
Counsel for Respondent(s) | |
| Mary Farver Perry | |
| Seattle City Attorney's Office | |
| Po Box 94769 | |
| Seattle, WA, 98124-4769 | |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LANA BEAL, BJ CUMMINGS, JAMES )
RASMUSSEN, and GREG WINGARD, ) No. 62171-8-I
as individuals, )
) DIVISION ONE
Appellants, )
)
v. )
)
THE CITY OF SEATTLE, a Washington ) PUBLISHED OPINION
municipal corporation, )
) FILED: June 22, 2009
Respondent. )
________________________________)
AGID, J.?While meeting with the City of Seattle?s Fleets and Facilities
Department (FFD) director, members of the public orally requested information about
the City?s plans to mitigate environmental damage caused during construction of its
Joint Training Facility (JTF). Although the City ultimately responded to a later written
records request, the plaintiffs filed suit claiming that the City did not respond to their
oral request within five business days as required by the Public Records Act (PRA),
chapter 42.56 RCW. The trial court granted the City?s motion for summary judgment,
holding that the plaintiffs did not request public records at the meeting. Because the
request was unclear and did not ask for public records, we affirm.
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FACTS
FFD ?oversaw the construction of the Joint Training Facility for City of Seattle
police and firefighters in White Center. During construction of the JTF, John Beal, who
ran I?M A PAL, an organization concerned about the Hamm Creek watershed, reported
to the Army Corps of Engineers that the City had not obtained a necessary permit for
construction.? The Corps issued a stop work order and threatened enforcement action.
The Seattle City Council approved a settlement agreement with the Corps on
November 20, 2006. The Duwamish River Cleanup Coalition (DRCC) objected to the
mitigation provisions of the settlement. To that end, DRCC representatives and other
interested persons, including appellants Lana Beal, BJ Cummings, James Rasmussen,
and Greg Wingard (Citizens), met with Brenda Bauer, FFD?s director, on December 12,
2006, to discuss DRCC?s concerns.
On January 24, 2007, Citizens met with Bauer again to discuss FFD?s response
to DRCC?s suggested mitigation plan improvements. Bauer explained that FFD could
not implement DRCC?s suggestions. In response, Cummings asked Bauer to provide
documentation supporting her asserted inability to implement our
suggestions or any of the alternatives to their proposal. I specifically
asked Director Bauer to provide all documentation of the mitigation
alternatives that had been considered by [FFD]; all existing information
[FFD] believed supported its position that the mitigation alternatives
[Citizens] proposed at the JTF site were not feasible; and records
containing specific information about the characteristics of the site that
the Coalition?s experts would need to provide meaningful input to the
ongoing design of mitigation projects, including the Department?s records
containing information about the stormwater volumes generated on the
site, the relevant water table levels, and groundwater infiltration into the
pond.
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Cummings ?did not reference the Public Records Act and likely used the word
?information? rather than ?records,? but [] was certain Director Bauer understood that
[Cummings] had asked her to show us copies of written documentation and reports we
both knew existed.?1
Wingard ?thought it was obvious and understood by all present [at the January
24, 2007 meeting] that we had asked the Department to produce the written information
in its files that the Director held up as supporting its position. I did not hear the
Department?s Director or staff ask for clarification, or say anything indicating that they
didn?t understand what we wanted them to give us for future use.?
Bauer ?did not hear anyone ask for public records during the January 24
meeting.? Emelie East, the director of Council Relations/Senior Advisor to the Mayor of
the City of Seattle, was at the January 24 meeting and also ?did not hear anyone ask
for public records.?
On February 3, 2007, Cummings e-mailed East asking her to resend any e-mails
she had attempted to send Cummings regarding the JTF discussions with the City
because Cummings had experienced e-mail problems. Cummings did not mention a
public records request. East replied on February 7, 2007, with a request that Citizens
proceed by putting their mitigation suggestions in writing so the City?s engineers could
review the feasibility of implementing those suggestions. Cummings replied to East the
same day, stating that
[i]t was our understanding that the next step was for the Fleets and
Facilities [Department] to provide a written response to our previous list of
suggestions, including any data relevant to considerations of feasibility,
e.g., stormwater volumes generated on site, water table levels,
1 (Emphasis omitted.)
3
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groundwater infiltration into the pond, etc. This information was not
provided by the City during our last meeting, and would serve as the basis
for more detailed recommendations from our consultant. In the absence
of this data, I can ask our consultant to prepare a generalized description
of her recommended approach to integrating habitat into the stormwater
pond, but it will not be specific to the site conditions and engineering
considerations until these are provided by the city.
On February 9, 2007, Bauer e-mailed Cummings, affirming that
I did say I would look into providing you with additional information, and
this is what I have discovered. We have some records from the original
design team related to water table and the stormwater pond from the
original design that I can provide to you. . . . [T]he records developed
since then were developed as attorney work product in anticipation of
litigation. We still have claims related to the design issues on this project,
and the City Attorney hired a number of consultants to prepare for
potential claims settlement or litigation. The City Attorney won?t release
this information, or have these firms consult with you, as it would
jeopardize the City?s legal position.[2]
On February 11, 2007, Wingard responded to Bauer?s February 9 e-mail,
interpreting it as improper denial of pubic records under the Public Records Act. In her
February 13, 2007 reply, Bauer wrote, ?[i]f you are seeking records under RCW
42.17[sic],[3] please provide a specific request so that I can provide a formal response.?
Cummings replied on the same day, describing the requested documentation and
information and stating that ?[t]his information has been, and is again, requested under
the Washington State Public Disclosure Act.? On February 15, 2007, Bauer responded
to Cummings, stating: ?With regard to your most recent e-mail below, I now understand
that you wish to make your further inquiries as public disclosure requests. I estimate
that it will take until about April 12, 2007 to assemble the various documents which fall
2 (Emphasis omitted.)
3 The public records portion of the Public Disclosure Act, former chapter 42.17 RCW
(2004), was recodified as the Public Records Act, chapter 42.56 RCW, in 2005. See RCW
42.56.001.
4
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within the scope of your request and to review which of them may be either exempted
or precluded from disclosure under applicable law.?4 FFD hired a paralegal from March
11, 2007 to April 22, 2007, to process the records request. It then gave the records to
Citizens, who make no complaint about the records they received.
On September 13, 2007, Citizens filed an amended complaint alleging that the
City failed to promptly respond to their records request, wrongfully refused to make the
records promptly available, failed to provide a reasonable estimate of time required to
respond, and wrongfully denied them an opportunity to inspect or copy public records.
The City moved for summary judgment, and the trial court heard oral argument on the
motion. Before the trial court issued its July 14, 2008 order granting the City?s motion,
Citizens submitted a declaration from Sara Nelson, who was present at the January 24,
2007 meeting, stating that during the course of the meeting
Ms. Cummings asked to see the written documents containing the
specifications about the JTF Site compiled by the Department?s engineers
? specifically, information regarding the hydrology of the site, the
retention pond, and whether or not the pond could fulfill the dual purpose
of wildlife habitat and storm/surface water drainage.
?The meeting concluded with Ms. Cummings, Mr. Rasmussen and Mr. Wingard
requesting written documents containing detailed information about several technical
issues, including the hydrology of the pond (?how high is the water table? is one specific
question [Nelson] remember[s]) and how engineering could salvage the dual purpose
of the pond.? Citizens also submitted a supplemental declaration from Cummings
following the summary judgment hearing, in which she indentified the specific
documentation she remembered requesting at the January 24, 2007 meeting.
4 (Emphasis omitted.)
5
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Ruling on the City?s motion for summary judgment, the trial court found that
Citizens ?did not make a valid public records request at the January 24, 2007 meeting?
and concluded that the ?City did not violate the Public Records Act in responding to
[Citizen?s] request.? Citizens moved for reconsideration, which the trial court denied
after considering their supplemental declarations. Citizens appealed but abandoned
their arguments that the trial court erred by dismissing their unreasonable time estimate
claim and by denying their motion for reconsideration. Thus, the only issue remaining
on appeal is the trial court?s dismissal of the Citizen?s claim that DFF violated the PRA
by failing to respond to their request within five days.
DISCUSSION
Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.5 Factual issues
may be decided on summary judgment ??when reasonable minds could reach but one
conclusion from the evidence presented.??6 When the record consists only of affidavits,
memoranda of law, and other documentary evidence, we review summary judgment
orders under the PRA de novo, undertaking the same inquiry as the trial court.7
Under the prompt response provision of the PRA, an agency must respond to a
request for public records within 5 business days of receipt by either ?(1) providing the
5 CR 56(c).
6 Bonamy v. City of Seattle, 92 Wn. App. 403, 407, 960 P.2d 447 (1998) (quoting Van
Dinter v. City of Kennewick, 121 Wn.2d 38, 47, 846 P.2d 522 (1993)), review denied, 137
Wn.2d 1012 (1999).
7 Spokane Research & Defense Fund v. City of Seattle, 155 Wn.2d 89, 97, 117 P.3d
1117 (2005); Progressive Animal Welfare Soc?y v. Univ. of Wash. (PAWS II), 125 Wn.2d 243,
252-53, 884 P.2d 592 (1994).
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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.?8 The prompt response requirement does not
apply until a requestor makes a specific request for identifiable public records.9 A
?[p]ublic record? is ?any writing containing information relating to the conduct of
government . . . regardless of physical form or characteristics.?10 An identifiable public
record is one for which the requestor has given a reasonable description enabling the
government employee to locate the requested record.11 Although requestors are not
required to cite to the PRA itself, they must state their request with sufficient clarity to
give the agency fair notice that it has received a request for a public record.12
Citizens argue that they made an oral request for public records at the January
24, 2007 meeting, making DFF?s February 15, 2007 response untimely. The City
counters that the Citizen?s declarations at most show that Citizens requested
information, not public records. And the City argues that Citizens did not communicate
their request clearly enough to put the City on notice that they were requesting public
records, meaning that the trial court properly decided as a matter of law that Citizens
did not make a records request at the January 24 meeting.
8 RCW 42.56.520. ?The quick response is necessary so the requestors will not think
they are being led along only to have their requests ultimately denied.? Wood v. Lowe, 102
Wn. App. 872, 881, 10 P.3d 494 (2000).
9 See RCW 42.56.080 (?Public records shall be available for inspection and copying,
and agencies shall, upon request for identifiable public records, make them promptly available
to any person.?); Lowe, 102 Wn. App. at 878; Bonamy, 92 Wn. App. at 409.
10 RCW 42.56.010(2). The definition of a ?[w]riting? includes ?existing data compilations
from which information may be obtained or translated.? RCW 42.56.010(3).
11 Lowe, 102 Wn. App. at 878 (citing Bonamy, 92 Wn. App. at 410).
12 Id.
7
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In Wood v. Lowe, an agency employee wrote a letter to her boss, the agency?s
director, requesting her personnel file and any other information and documentation
related to her employment.13 Twelve days after delivering the letter, she filed an ex
parte motion for the agency to show cause why it had not produced the requested
documents.14 The agency released the personnel file one day after the superior court
ordered a show cause hearing.15 After a telephonic hearing, the trial court denied the
employee?s claim for attorney fees, costs, and sanctions.16 Reviewing the trial court?s
order de novo, the Lowe court held that the employee?s request for information was not
a request for an identifiable public record and that the request for documentation
lacked any ?meaningful description helpful for the person charged with finding the
record.?17 The court also held that the employee?s personnel file, while identifiable, did
not qualify as a public record. The request for the personnel file did not put the agency
on notice that she was requesting public records because her request could have been
made under another statute requiring employers to give employees their personnel
files.18
In Bonamy, a City of Seattle employee sent an e-mail asking about the extent to
which information is available to employees who have had internal complaints filed
against them.19 The employee followed up with a question about the policy guidelines
13102 Wn. App. 872, 874-75, 10 P.3d 494 (2000).
14 Id. at 875.
15 Id. at 876.
16 Id.
17 Id. at 879.
18 Id. at 880.
19 Bonamy v. City of Seattle, 92 Wn. App. 403, 404, 960 P.2d 447 (1998), review
denied, 137 Wn.2d 1012 (1999).
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governing investigations into employee conduct.20 The employee sued the City,
alleging that it failed to disclose the policy guidelines he requested, and the City
successfully moved for summary judgment.21 This court determined that the employee
requested information about certain employment related policies but did not request the
policies themselves.22 Distinguishing between a ?request for information about public
records and a request for the records themselves,? this court held that the City did not
violate the PRA because it only received a request for information, not a request for a
public record.23
Conceding that individuals may make oral requests for public records, the City
also cites to the attorney general?s comments under the PRA model rules for the
proposition that oral requests are ?problematic.?24 While the model rules are not
binding on the City,25 we agree that they contain persuasive reasoning. As this case
demonstrates, orally requesting public records makes it unnecessarily difficult for
citizens to prove that they in fact requested public records. And ambiguous oral
requests made during the course of meetings puts agencies in the awkward position of
contemporaneously parsing the difference between a request to collaboratively share
information and a request that potentially triggers a duty to produce records or pay
fines and attorney fees.
20 Id. at 405-06.
21 Id. at 406-07.
22 Id. at 407-12.
23 Bonamy, 92 Wn. App. at 409.
24 WAC 44-14-03006 (?[F]or some requests such as larger ones, oral requests may be
allowed but are problematic.?).
25 WAC 44-14-00001 (?The attorney general encourages state and local agencies to
adopt the model rules (but not necessarily the comments) by regulation or ordinance.?). The
City does not argue that it has adopted the model rules or the related comments.
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Here, the evidence submitted by Citizens is not sufficient, as a matter of law, to
show that Citizens made an unambiguous request for identifiable public records. The
parties called the January 24 meeting to discuss FFD?s response to DRCC?s suggested
mitigation plan improvements. With the purpose of the meeting in mind, Cummings?
response to Bauer?s refusal to adopt the mitigation suggestions shows that Citizens
wanted to know why Bauer refused and what information Bauer relied on in coming to
her decision. Citizens? demand that the City ?prove it? did not amount to a clear request
for public records. All Citizens? declarations establish is that they wanted Bauer to
compile the information supporting her position or create a document explaining why
Citizens? suggestions were not feasible. Because new documents or a synthesis of
existing documents is not subject to the PRA,26 the City could have responded to
Citizens? demand during the January 24 meeting without producing any public records.
Thus, we hold that the City did not receive fair notice that the request was for specific
documents under the PRA.
The evidence also shows that Citizens wanted DRCC to produce data that their
consultant could use to formulate a site-specific mitigation plan. Cummings? second
February 3 e-mail underscores the ambiguous nature of Citizens? January 24 request.
In it, Cummings refers to ?the next step? as the Department?s ?written response? to their
suggestions and data relevant to improving those suggestions. As discussed above,
Citizens cannot compel an agency to create a new document, in this case a written
response to DRCC about FFD?s mitigation plan decision, under the PRA.27 Similarly,
26 See Smith v. Okanogan County, 100 Wn. App. 7, 14, 994 P.2d 857 (2000) (Citizens
may not compel agency to create new documents or synthesize information into some sort of
compilation.).
10
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Bauer?s reply to Cummings demonstrates her understanding that Citizens were
requesting information, not specific records. In her reply, Bauer explains what she
discovered when she looked into providing Citizens with information. Nelson?s
declaration supports the conclusion that Cummings asked FFD to produce information
about the JTF site?s specifications. A request for information about public records or
for the information contained in a public record is not a PRA request.28
Nelson asserts that Cummings also asked for the documents containing the
desired information, but Nelson?s declaration does not demonstrate that Citizens
unambiguously asked for the public records, as opposed to requesting the information
contained in those records. Nothing in the evidence before the trial court establishes
that Citizens put FFD on notice that they were requesting identifiable public records
under the provisions of the PRA. As was the case in Lowe, the City could have
responded to Citizens? request without producing any records under the PRA.
The PRA does not require written requests, but it does require that requests be
recognizable as PRA requests.29 The request?s medium may be relevant to its clarity,
and an oral statement during the course of a meeting is less clear than a written
request would have been. Citizens failed to put the agency on notice at the meeting or
in their early e-mails that they were requesting public records. Their request could
have been, and apparently was, a request that the City simply provide feedback and
27 Id.
28 Lowe, 102 Wn. App. at 879; Okanogan County, 100 Wn. App. at 15 (holding that a
request, among other related requests, for a list of all available attorneys that the court could
appoint to represent him at a show cause hearing was a request for information, not a request
for public records); Bonamy, 92 Wn. App. at 409-10.
29 See Lowe, 102 Wn. App. at 878.
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information. As such, this request, like the request in Lowe, was ambiguous. The trial
court properly ruled that Citizens did not make a PRA request at the January 24
meeting.
Citizens request attorney fees on appeal. Attorney fees on appeal are
recoverable under the PRA for prevailing parties.30 Because Citizens do not prevail
here, they are not entitled to attorney fees.
We affirm.
WE CONCUR:
30 RCW 42.56.550(4); Progressive Animal Welfare Soc?y v. Univ. of Wash. (PAWS I),
114 Wn.2d 677, 690, 790 P.2d 604 (1990).
12