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.