Recent PRA Litigation Missteps: Abandoned Claims, False Starts

By Milt Rowland and Lee Marchisio

Abandoned Claims.  In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review.  Arthur West submitted a public records request to Governor Gregoire’s office.  After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months.  And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire).  West sued, claiming that executive privilege should not be recognized in Washington. 

Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable).  Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial.  Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned. 

A PRA claimant does not have to proceed by a .550(1) show cause motion, however, and can instead proceed to trial under the Civil Rules.  But if the party does file a show cause motion, it must either assert every PRA issue on that motion or otherwise preserve the issue expressly.  If not, the issue is abandoned.

False Starts.  In Hobbs v. Washington State Auditor’s Office, also before Division II, the Court of Appeals held that a records requestor may initiate a lawsuit under the PRA only after it reasonably appears that the agency will not provide records responsive to the request.  Here, the requestor sought “a large amount of technical information” related to an Auditor’s whistleblower investigation.  The Auditor’s five‑day letter indicated that the office would provide records in installments.  Two days after the Auditor provided the first installment, the requestor sued for alleged PRA violations.  In the meantime, the Auditor’s office continued to search for and produce responsive records in rolling installments, including by correcting errors in its initial productions.  Eventually, the Auditor’s office produced all responsive documents and cured all alleged violations. 

Because the suit was filed during an open request that was eventually fulfilled in compliance with the PRA, the Court held that the Auditor’s office did not improperly withhold records.  The Court also held that an agency does not violate the PRA if it makes every reasonable effort to comply with a PRA request and also fully cures alleged PRA violations while the request remains open.  Accordingly, the Auditor’s office did not violate the PRA by improperly disclosing certain documents in its initial installments because it later corrected those errors before closing out the request. 

In its final notable holding, the Court also made clear that the PRA does not require an agency to provide a reasonable estimate of the time it will take to fully respond to a request.  Instead, if an agency notifies the requestor that it will provide records on an installment basis, it need only provide in its five‑day response letter the agency’s reasonable estimate of the time it will take to produce the first installment.  

PRA Inquiries into Washington State's "Shadow Governments"

Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).

Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.

The Governor’s office withheld, under a claim of executive privilege, a document authored by one of the Governor’s Executive Policy Advisors. Mr. West sued under the PRA. After an in-camera review, the trial court concluded that the document contained no advice to the Governor and was thus subject to disclosure regardless of whether executive privilege exists in Washington. The Governor’s office disclosed the document that day.

The trial court awarded Mr. West $25/day in statutory penalties, excluding 22 days which the trial court concluded was a reasonable period for the Governor’s office to respond. West petitioned the Supreme Court for direct review of the penalty, and the Governor’s office cross-appealed. The Supreme Court transferred the case to Division II, which affirmed on all points. The court concluded that the statutory language providing that the prevailing requester is entitled to a statutory penalty “for each day that he or she was denied the right to inspect or copy said public record” necessarily included a reasonable time period for the government to respond to a request. That is, the government does not “deny” the right to inspect a record during the time reasonably necessary to gather responsive documents.

Both parties appealed the award of a $25/day penalty. Division 2 concluded that under the list of mitigating and aggravating factors contained in the Yousoufian V case, the amount was not "manifestly unreasonable" and affirmed.