In Eggleston v. Asotin County, No. 34340-5-III, 2017 WL 6388976 (December 14, 2017), Division Three upheld the trial court’s decisions, holding that (1) an email between a contractor and subcontractor is not a “public record,” and therefore not subject to disclosure, and (2) preliminary drafts of a bridge project, which were not evaluative and contained no substantive comments, did not fall within the deliberative process exemption from disclosure, and thus should have been provided to requestor Eggleston. The court affirmed an award of $49,385.00 in penalties and $50,133.67 in attorney fees, staff fees and costs.

Asotin County engaged TD&H, an engineering firm, to replace a bridge. TD&H, in turn, was concerned about possible archaeological sites near the bridge, and consulted a geologist, Kevin Cannell, ultimately engaging him to perform a preliminary archaeological and cultural review of the proposed roadway for the bridge project. Before TD&H engaged him, Mr. Cannell had sent TD&H an email, offering his services. It is that email, from January 2002, that Eggleston sought.

The January 2002 email was referenced in passing in a later email between TD&H and Cannell, but no copy of the emails (original or referencing) was sent to Asotin County. The email was not prepared by the County, nor was it retained by the County. Thus it could constitute a “public record” only if it was “used” by Asotin County. RCW 42.56.010(3). Division Three declined to hold that something as passive as a reference to an email in a second email between a County vendor and subvendor could constitute “use” by Asotin County. The Court contrasted Concerned Ratepayers Ass’n v. Public Utility Dist. No. 1 of Clark County, 138 Wn.2d 950, 983 P.3d 635 (1999), in which the document created by an agency vendor was actually reviewed by agency employees and was instrumental in agency decisions.

Note that the Eggleston court disagreed with a suggestion in a Division Two decision and held that the agency bears the burden of showing that the sought-after document is not a “public record.” Contrast Eggleston, Slip Op. at p.4, with Dragonslayer, Inc. v. Washington State Gambling Comm’n, 139 Wn.App. 433, 441, 161 P.3d 428 (2007) (calling the determination whether a document constitutes a public record a “threshold inquiry,” after which a party seeking to prevent disclosure has the burden of proving that an exemption applies). The agency must show, then, that it did not prepare, own, use or retain the sought-for record. RCW 42.56.010(3).

Finally, Eggleston sought earlier drafts of plans prepared by TD&H. The contract between Asotin County and TD&H provided that these drafts were “the property of the County,” and the draft plans contained no evaluative comments or recommendations. Asotin County claimed the plans were exempt under RCW 42.56.280, the so-called deliberative process exemption. The court disagreed.

The purpose of the preliminary draft exemption, the Eggleston court stated, is to protect “the give-and-take of deliberations that are necessary to formulate agency policy.” Id. This purpose “severely limits [the exemption’s] scope.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 133, 520 P.2d 246 (1978). “[O]nly those portions of documents actually reflecting policy recommendations and opinions may be withheld.” Id. Factual data is not included. “Unless disclosure reveals and exposes the deliberative process, as opposed to the facts upon which a decision is based, the exemption cannot apply.” Id. Eggleston held that preliminary drafts are only exempt if “opinions are expressed or policies formulated or recommended” in the draft. See Slip Op., at p. 6. RCW 42.56.280 expressly exempts only drafts in which opinions or recommendations are expressed, and this court holds that the bare TD&H draft drawings are not exempt, exposing the County to penalties and fees, which the trial court properly segregated to reflect the fact that the County prevailed on some issues.