Asotin Cnty. v. Eggleston, 35720-1-III

• Decision Date: 17 January 2019
• Docket Number: No. 35720-1-III,35720-1-III
• Court: Washington Court of Appeals
• Parties: ASOTIN COUNTY, Respondent, v. Richard EGGLESTON, Appellant.

7 Wash.App.2d 143

432 P.3d 1235

ASOTIN COUNTY, Respondent,

v.Richard EGGLESTON, Appellant.

No. 35720-1-III

Court of Appeals of Washington, Division 3.

FILED JANUARY 17, 2019

Todd Samuel Richardson, Law Offices of Todd S. Richardson PLLC, 604 6th St., Clarkston, WA, 99403-2011, for Appellant.

Jane Bremner Risley, Asotin County, Po Box 864, Asotin, WA, 99402-0864, Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Respondent.

PUBLISHED OPINION

Siddoway, J.¶ 1 In this lawsuit involving Richard Eggleston’s public records request to Asotin County, Mr. Eggleston ultimately received properly redacted attorney invoices. But he received them only after he resisted a county motion that sought in part to withhold the invoices, and only after an unwarranted delay in the county’s redaction process.

¶ 2 We agree that as the substantially prevailing party, he was entitled to an award of reasonable attorney fees and costs, and to the court’s consideration of his request for per diem penalties. We reverse the court’s order denying his fee request and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 This case arises out of Richard Eggleston’s public record request to Asotin County for "the legal costs incurred by the county relative to any and all legal actions ... involving me." Clerk’s Papers (CP) at 9.¹ At the time, Mr. Eggleston had two cases pending against the county. One sought to recover damages allegedly caused by county road and bridge work taking place near Mr. Eggleston’s home. The other was an action under the Public Records Act (PRA), chapter 42.56 RCW, complaining of the county’s alleged withholding of documents related to that project.

¶ 4 Mr. Eggleston sent the record request at issue in this appeal to the county by electronic mail, and the county responded with a letter the same day. It stated it had received the request and would "research whether or not these records exist[ ], and if they do, if we are allowed to disclose the records." CP at 89. Mr. Eggleston was told to expect a response within about three weeks.

¶ 5 A couple of weeks later, on August 8, the county moved for and obtained an ex parte order to show cause why production of invoices for attorney fees it had paid in Mr. Eggleston’s cases should not be enjoined. Specifically, the county’s motion sought an order

allowing the County withhold the invoices the County has paid to outside counsel in two law suits the Requester, Mr. Eggleston, has pending against the County ... and other communications with insurance counsel regarding one of those causes of action, pursuant to RCW 42.56.290, an exemption for agencies that are parties to controversies. ... In the alternative, the County requests heavy redaction.

CP at 1. In a supporting declaration, the county’s lawyer said she was providing the invoices to the court "for in camera inspection. If the Court orders any invoices disclosed, the County requests it be allowed to heavily redact the documents and submit them to the Court for approval before providing them to the Requestor." CP at 6.

¶ 6 The order prepared by the county and signed by the court was captioned, "Order to show cause: why attorney invoices for work done in cases initiated by the requestor and requested under the Public Records Act should not be permanently enjoined from disclosure." CP at 19 (some capitalization omitted). It concluded with the statement, "If you fail to appear and defend against this request the court may order grant [sic] all the relief requested in the motion." Id. (capitalization and boldface omitted).

¶ 7 Mr. Eggleston responded to the motion through counsel. In his brief he argued that " RCW 42.56.210(1) mandates that records must be disclosed if the agency can protect the intended privacy interest or vital government interest by redacting the exempt information," that "attorney invoices cannot be withheld from disclosure in their entirety, but can be redacted if (only if) ‘they would reveal an attorney’s mental impressions, actual legal advice, theories[,] or opinions, ...." CP at 29, 32 (boldface omitted) (quoting RCW 42.56.904 ). He stated, "Mr. Eggleston does not object to an in camera review; in fact he encourages and requests it." CP at 33. He did object to the county’s two-step process of delivering unredacted documents for in camera review before it would provide its proposed redactions. Id.

¶ 8 At the hearing on the order to show cause, the county’s lawyer explained why the county had provided documents to the court without any proposed redactions:

I need the Court’s guidance here. That’s why I came to the Court. I am not as ... experienced [a] litigator as [defense counsel] or as the Court. I trust the Court’s judgment on what constitutes from attorney work product and attorney/client privileges as to these fees. Most expressly, I noted that there were case names in the invoices and bills (inaudible) redacting. So that’s what I’m asking the Court here today, Your Honor, is guidance. Is it necessary? May the ... County redact (inaudible) names, or is it your ruling that they should be given directly to Mr. Eggleston without any redaction? Again, the law in this area is a bit murky.

Report of Proceedings (RP) at 4-5.

¶ 9 Counsel for Mr. Eggleston argued there could be no good faith argument that attorney invoices themselves are privileged documents; at most, they may contain references that are exempt and subject to redaction. He told the court, "We’re asking that if there are any legitimate work product or attorney/client confidences that are disclosed in those, let them be redacted, but the rest of the record must be presented." RP at 7. He concluded:

[T]he simple way to have handled all of this would have been to redact those issues they believed were properly attorney/client privilege and provide a withholding log. That’s within the law, and it would have saved everybody a lot of time and money.

RP at 8.

¶ 10 The trial court took the matter under advisement, later issuing a ruling that the invoices were subject to an exception from disclosure under RCW 42.56.290, however, "it is incumbent upon the county to provide the Court its requested redactions so that a determination can be made as to whether or not they are justified as work product or privileged information." CP at 42. It set a deadline for submitting any proposed redactions.

¶ 11 The county submitted proposed redactions by the court’s deadline and the court found after review that "the County’s redactions are very narrowly tailored to prevent the disclosure of only those minimal references from which one could conceivably deduce an attorney’s mental impressions, legal advice, theories, or opinions." CP at 45. It ordered the invoices, as redacted, to be produced.

¶ 12 Addressing Mr. Eggleston’s request for an award of attorney fees, the court found:

5. ... [Mr. Eggleston] did not have any motion for affirmative relief before the court seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time. Rather, [Mr. Eggleston] opposed exemption or redaction.

6. [The county] has prevailed with respect to the request to selectively redact.

CP at 45. Based on its findings, it refused to award costs, fees, or penalties. Mr. Eggleston’s motion for reconsideration was denied. He appeals.

ANALYSIS

¶ 13 Mr. Eggleston contends the trial court erred in refusing to award him reasonable attorney fees and costs and refusing to consider a per diem penalty. Three issues are presented: whether a record requester must have filed a complaint or motion for affirmative relief in order to be a prevailing party, whether Mr. Eggleston was the prevailing party, and whether the court abused its discretion in refusing to consider a penalty award. We address the issues in the order stated.

I. A REQUESTER NEED NOT INITIATE LEGAL ACTION IN ORDER TO BE A PREVAILING PARTY ENTITLED TO FEES UNDER RCW 42.56.550(4)

¶ 14 Whether a record requester must initiate legal action and seek affirmative relief in order to be awarded reasonable attorney fees and costs presents an issue of statutory construction. We review statutory interpretation questions de novo. In re Det. of Williams, 147 Wash.2d 476, 486, 55 P.3d 597 (2002). "The court’s paramount duty in statutory interpretation is to give effect to the legislature’s intent." In re Pers. Restraint of Nichols, 120 Wash. App. 425, 431, 85 P.3d 955 (2004). The surest indication of legislative intent is the language enacted by the legislature, so if the meaning of a statute is plain on its face, this court " ‘give[s] effect to that plain meaning.’ " State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ). In arriving at that plain meaning, we also consider "all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Gwinn, 146 Wash.2d at 11, 43 P.3d 4.

¶ 15 The county persuaded the trial court that the PRA’s attorney fee remedy is "limited to situations where the requestor commences an action ‘in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time.’ " Br. of Resp’t at 13 (emphasis added). The PRA does not include the "where the requester commences an action" language; instead, RCW 42.56.550(4) provides:

Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.

¶ 16 There is a textual basis for the county’s and trial court’s...