Discovery in Public Records Act Cases: Yes, But No
On March 29, 2011, Division II of the Washington Court of Appeals held that a city is entitled to conduct discovery in a case the city initiated against a records requestor to affirm the City’s interpretation of the Public Records Act (PRA). But the court found the city’s interrogatories about the requestor’s past litigation history were improper. City of Lakewood v. Koenig.
Koenig, a regular requestor under the Washington Public Records Act, had requested documents from the City of Lakewood related to alleged wrongdoing by three police officers. The City provided information but redacted driver’s license numbers of officers, victims and eyewitnesses. When Koenig did not respond to a request from the City asking if he felt the documents provided were adequate, the City started a lawsuit under RCW 42.56.540 to confirm the validity of the City’s redactions.
When Koenig was served with interrogatories and requests for production, he resisted any questions relating to his past litigation history. He argued that those discovery requests were improper as not allowed by the law. Additionally, the City had no discovery rights in a PRA case the City itself had initiated, because the identity or background or any other information about a requestor has no bearing on document disclosure issues. The Court, however, affirmed that the discovery process is available to the City in this, as in any other case (unless an exception exists under statute or court rule). Since the PRA is not listed as a proceeding barred from discovery under court rule or statute, the City was entitled to conduct otherwise proper discovery.
But, the Court ruled, the City is not entitled to look into the litigation history of Koenig. The City asserted that Koenig was a well-known PRA requester and had a history of waiting until the last day before the statute of limitations ran before filing suit as a strategy to increase eventual penalties. The Court, however, found that the City’s perceptions had no bearing on the nature of the documents or on the ultimate penalties for non-disclosure. In fact, the Court explicitly held that waiting to file a lawsuit until the last day of the statute of limitations for PRA requests was within the right of any litigant, including Mr. Koenig, whatever that litigant’s objectives. On the other hand, the Court did acknowledge that there could be legitimate issues in discovery regarding economic losses of the requestor that might be caused by delay or by incomplete responses of the public agency, as those losses could later affect the amount of penalties for non-disclosure.
Because the City won on the issue of discovery, and Koenig won on the issue of specific interrogatories, the Court ruled that neither party was entitled to fees, especially as the underlying issue of redacting the driver’s license numbers had yet to be decided. One judge dissented, but only on the issue of whether Koenig should have received attorney’s fees under CR 26(c) for having successfully blocked a part of the City’s discovery request.
