62171-8 - I - Beal, Cummings, Rasmussen & Wingard, App. V. The City Of Seattle, Res. File Date 06/22/2009
Court of Appeals Division I
State of Washington

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 bySusan Agid
Concurring:Stephen J Dwyer
Mary Kay Becker


Counsel for Appellant(s)
 Richard Arthur Poulin  
 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


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.



       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 



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.)



       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 


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.)



       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.


       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).


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.



       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 

       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).


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.


       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 


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.



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 


       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.


       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).