Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?
In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year. See Laws of 2005, ch. 483, § 5; former RCW 42.17.410. Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6). Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency. This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished). There, the court held that the one-year statute of limitations barred all of the requestor’s claims.
Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010). In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.” Id. at 514 (quoting RCW 42.56.080). Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply.
Division II disagreed with Tobin. Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011). After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.” Id at 777. The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event.
In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue. Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit. Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.” Id. at 537. Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records. The court declined to follow a literal reading of the statute because doing so would lead to absurd results. Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in Bartz. See 177 Wn.2d 1024 (2013).
With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions. One of the plaintiff’s public records requests in Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed. The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period. The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents. Opinion at 14-15; see also id. at 18. Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed. Id. at 15.
Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550. At minimum, it raises doubt as to the continuing precedential value of Tobin. The court cited Tobin as contrary authority in a footnote, but did not elaborate further. Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin. At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed. Those deadlines are November 17 and 26, respectively.