Banks v. City of Tacoma

• Decision Date: 02 June 2021
• Docket Number: No. 52072-9-II,52072-9-II
• Court: Washington Court of Appeals
• Parties: ARTHUR C. BANKS, an individual; TONEY MONTGOMERY, an individual; and WHITNEY BRADY, an individual, Respondent/Cross-Appellant, v. CITY OF TACOMA, a municipal corporation, Appellant/Cross-Respondent.

ARTHUR C. BANKS, an individual; TONEY MONTGOMERY, an individual; andWHITNEY BRADY, an individual, Respondent/Cross-Appellant, v. CITY OF TACOMA, a municipal corporation, Appellant/Cross-Respondent.

No. 52072-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

June 2, 2021

UNPUBLISHED OPINION

GLASGOW, A.C.J.—Four Tacoma residents jointly requested records under the Public Records Act (PRA), chapter 42.56 RCW, from the City of Tacoma Police Department about its use of cell site simulators, which allow the Department, with a court order, to locate a cell phone. The requesters then sued the City, alleging its response violated the PRA.

Both parties filed cross motions for summary judgment. The trial court ruled in favor of the plaintiffs, concluding that the City violated the PRA by failing to disclose an unedited billing spreadsheet, certain records that had been provided to prior PRA requesters, a warrant application template, and citizen review panel meeting minutes. The trial court also partially granted the City's motion for summary judgment, holding that make, model, and pricing information about cell site simulators was exempt from disclosure. The trial court awarded penalties due to inadequate searches and improper withholding but did not order the City to perform further searches. The trial court awarded attorney fees to the plaintiffs.

On appeal, the City contends that the trial court erred by deciding it violated the PRA. The plaintiffs cross appeal, arguing that the trial court erred by determining that make, model, and pricing information was exempt and not ordering additional searches, including for simulator operating manuals. The City appeals the penalty and attorney fees award in favor of the plaintiffs and both parties request attorney fees on appeal.

We reverse the trial court's ruling in favor of the plaintiffs regarding the billing spreadsheet and remand for an evidentiary hearing because deposition and affidavit testimony conflicted about the spreadsheet, but we otherwise affirm the PRA violations. We affirm the trial court's ruling allowing redaction of make, model, and pricing information because this information is specific intelligence information exempt from disclosure. We also affirm the trial court's decision not to require additional searches but remand for an evidentiary hearing to determine whether the City used any operating manual at the time of the request, making it a responsive public record that should have been disclosed with appropriate redactions.

We affirm the trial court's penalties except for those associated with citizen review panel meeting minutes and the billing spreadsheet, which we reverse. We remand for recalculation of penalties consistent with our opinion and the resolution of the remaining factual issues identified above. We affirm the award of attorney fees to the plaintiffs below and grant attorney fees to the plaintiffs on appeal.

FACTS

In 2015, Gregory Christopher,¹ Arthur C. Banks, Toney Montgomery, and Whitney Brady jointly requested records from the Tacoma Police Department about its use of cell site simulators under the PRA.

A. Cell Site Simulators

Cell site simulators mimic wireless carrier cell towers. See RCW 9.73.260(1)(f). When deployed, nearby mobile phones and cellular data devices connect to a cell site simulator, which can locate the device based on its signaling information. Id. This type of surveillance technology is also commonly referred to as a "Stingray" device although the manufacturer, Harris Corporation, makes several different models with different names. See Clerk's Papers (CP) at 224.

A cell site simulator is similar to a "pen, trap, and trace" device. CP at 1392; RCW 9.73.260(1)(d)-(f). Both are used to locate cellular devices, but a cell site simulator may pinpoint the location of a cell phone more precisely. Law enforcement cannot use either device without a warrant. RCW 9.73.260(2). Under RCW 9.73.260(5), a phone company can be ordered to provide certain services and information to law enforcement if presented with a warrant authorizing use of a cell site simulator.

In 2013, the City purchased cell site simulator technology and entered into a nondisclosure agreement with the Federal Bureau of Investigation (FBI), requiring the City to consult with the FBI before disclosing information about the simulators to the public. Only the officers who worked in the special investigations unit (also known as the technical unit) of the Department used or operated the City's cell site simulator.

B. Request for Records and Response

Relevant to this appeal, Christopher, Banks, Montgomery, and Brady requested:

• "1. All records regarding [Tacoma Police Department's] acquisition, use, or lease of Cell Site Simulators." CP at 16.

• "8. All communications regarding Cell Site Simulators, including . . . between Tacoma Police Department and any other local, state, or federal agency or person." CP at 17.

• "10. All applications submitted to . . . courts for warrants, orders, or other authorization for use of Cell Site Simulators in criminal investigations, as well as any warrants, orders, authorizations, denials of warrants, denials of orders,denials of authorization, and returns of warrants associated with those applications." CP at 17.

Michael Smith, a deputy City attorney and legal advisor to the Department, coordinated the search for responsive records. The City ultimately provided 560 pages of responsive documents. The City generally withheld or redacted records that revealed the make, model, and pricing of Harris Corporation cell site simulators, as well as operational details of the City's device. The City claimed this information was exempt from disclosure because it was specific intelligence information essential for effective law enforcement. The City later provided some missed spreadsheets, but otherwise confirmed it had provided all possible responsive material.

C. Procedural History

In 2016, the requesters filed a complaint alleging that the City violated the PRA by failing to disclose all responsive records, failing to provide a complete log or cite valid exemptions for withheld records, and improperly redacting and withholding records. The plaintiffs sought all responsive records, penalties, attorney fees, and costs, and asked the trial court to order any other appropriate equitable relief.

During discovery, the City provided additional documents relating to its use of cell site simulators that it had previously failed to disclose. The plaintiffs also obtained documents from non-City sources that related to the City's use of cell site simulators, some of which the City had failed to provide. During depositions, where disputes arose about the adequacy of the City's search, the City performed some additional searches to ensure that all responsive records had been provided.

The City and the plaintiffs then filed cross motions for summary judgment. The plaintiffs argued that the City violated the PRA by unlawfully withholding 11 responsive documents thatthe plaintiffs later obtained during litigation. Primarily, the plaintiffs alleged that an inadequate search caused the failure to disclose these responsive documents in response to the PRA request.

The plaintiffs included the 11 documents as exhibits to their motion for summary judgment. Exhibit 4 was the complete billing log spreadsheet that the City used to track payments to phone companies. Exhibits 5-9 were e-mails between the Department and the FBI addressing what the City could disclose about its cell site simulator. Exhibit 10 was a blank warrant application template that the City used to obtain court orders for the use of cell site simulators. Exhibits 11-13 were meeting minutes that discussed cell site simulators. Exhibit 15 was an invoice from Harris Corporation.

The plaintiffs further argued that the City misapplied the specific intelligence exemption and improperly redacted or withheld make, model, and price information about the simulators and an operator's manual. The plaintiffs also argued that the City violated the PRA by failing to adequately search for certain records that the plaintiffs believed should have been disclosed, but were not. The plaintiffs sought an order requiring the City to more thoroughly search for these additional records.

The City responded that it had conducted an adequate and reasonable search for all responsive records, properly redacted specific intelligence information, and had no duty to provide nonexistent records. The City asserted that the later discovery of some additional responsive documents did not mean the City's search violated the PRA.²

The trial court partially granted the plaintiffs' motion for summary judgment, concluding that the City violated the PRA by failing to disclose exhibits 4-13 and 15. The trial court partially granted the City's motion for summary judgment, ruling that make and model information relatingto cell site simulators was exempt and could be redacted. The trial court did not specify whether any operator's manuals were also exempt on this basis. The trial court declined to order additional searches. The plaintiffs moved for reconsideration or clarification, arguing again for an order requiring additional searches. The trial court denied this request.

The trial court awarded a total of $182,340 in statutory penalties against the City. The trial court discussed the Yousoufian II³ factors used by Washington courts to inform public records penalties and found at least five aggravating factors but did not mention mitigating factors. The trial court also awarded the plaintiffs $109,885 in attorney fees.

The City appeals the order granting the plaintiffs' motion for summary judgment, the penalty award, and the attorney fee award in favor of the plaintiffs. The plaintiffs cross appeal the order to the extent it granted partial summary judgment to the City on the application of the specific intelligence information...