Beal v. City of Seattle

• Decision Date: 22 June 2009
• Docket Number: No. 62171-8-I.,62171-8-I.
• Citation: 150 Wn. App. 865,209 P.3d 872
• Parties: Lana BEAL, BJ Cummings, James Rasmussen, and Greg Wingard, as individuals, Appellants, v. The CITY OF SEATTLE, a Washington municipal corporation, Respondent.
• Court: Washington Court of Appeals

209 P.3d 872

150 Wn. App. 865

Lana BEAL, BJ Cummings, James Rasmussen, and Greg Wingard, as individuals, Appellants, v. The CITY OF SEATTLE, a Washington municipal corporation, Respondent.

No. 62171-8-I.

Court of Appeals of Washington, Division 1.

June 22, 2009.

Richard A. Poulin, SCOPE Law Firm, PLLC, Seattle, WA, for Appellants.

Mary F. Perry, Seattle City Attorney's Office, Seattle, WA, for Respondent.

AGID, J.

¶ 1 While meeting with the City of Seattle's Fleets and Facilities Department (FFD) director, members of the public orally requested information about the City's plans to mitigate environmental damage caused during construction of its Joint Training Facility (JTF). Although the City ultimately responded to a later written records request, the plaintiffs filed suit claiming that the City did not respond to their oral request within five business days as required by the Public Records Act (PRA), chapter 42.56 RCW. The trial court granted the City's motion for summary judgment, holding that the plaintiffs did not request public records at the meeting. Because the request was unclear and did not ask for public records, we affirm.

FACTS

¶ 2 FFD "oversaw the construction of the Joint Training Facility for City of Seattle police and firefighters in White Center. During construction of the JTF, John Beal, who ran I'M A PAL, an organization concerned about the Hamm Creek watershed, reported to the Army Corps of Engineers that the City had not obtained a necessary permit for construction." The Corps issued a stop work order and threatened enforcement action. The Seattle City Council approved a settlement agreement with the Corps on November 20, 2006. The Duwamish River Cleanup Coalition (DRCC) objected to the mitigation provisions of the settlement. To that end, DRCC representatives and other interested persons, including appellants Lana Beal, BJ Cummings, James Rasmussen, and Greg Wingard (Citizens), met with Brenda Bauer, FFD's director, on December 12, 2006, to discuss DRCC's concerns.

¶ 3 On January 24, 2007, Citizens met with Bauer again to discuss FFD's response to DRCC's suggested mitigation plan improvements. Bauer explained that FFD could not implement DRCC's suggestions. In response, Cummings asked Bauer to provide documentation supporting her asserted inability to implement our suggestions or any of the alternatives to their proposal. I specifically asked Director Bauer to provide all documentation of the mitigation alternatives that had been considered by [FFD]; all existing information [FFD] believed supported its position that the mitigation alternatives [Citizens] proposed at the JTF site were not feasible; and records containing specific information about the characteristics of the site that the Coalition's experts would need to provide meaningful input to the ongoing design of mitigation projects, including the Department's records containing information about the stormwater volumes generated on the site, the relevant water table levels, and groundwater infiltration into the pond. Cummings "did not reference the Public Records Act and likely used the word `information' rather than `records,' but [] was certain Director Bauer understood that [Cummings] had asked her to show us copies of written documentation and reports we both knew existed."¹

¶ 4 Wingard "thought it was obvious and understood by all present [at the January 24, 2007 meeting] that we had asked the Department to produce the written information in its files that the Director held up as supporting its position. I did not hear the Department's Director or staff ask for clarification, or say anything indicating that they didn't understand what we wanted them to give us for future use."

¶ 5 Bauer "did not hear anyone ask for public records during the January 24 meeting." Emelie East, the director of Council Relations/Senior Advisor to the Mayor of the City of Seattle, was at the January 24 meeting and also "did not hear anyone ask for public records."

¶ 6 On February 3, 2007, Cummings e-mailed East asking her to resend any e-mails she had attempted to send Cummings regarding the JTF discussions with the City because Cummings had experienced e-mail problems. Cummings did not mention a public records request. East replied on February 7, 2007, with a request that Citizens proceed by putting their mitigation suggestions in writing so the City's engineers could review the feasibility of implementing those suggestions. Cummings replied to East the same day, stating that

[i]t was our understanding that the next step was for the Fleets and Facilities [Department] to provide a written response to our previous list of suggestions, including any data relevant to considerations of feasibility, e.g., stormwater volumes generated on site, water table levels, groundwater infiltration into the pond, etc. This information was not provided by the City during our last meeting, and would serve as the basis for more detailed recommendations from our consultant. In the absence of this data, I can ask our consultant to prepare a generalized description of her recommended approach to integrating habitat into the stormwater pond, but it will not be specific to the site conditions and engineering considerations until these are provided by the city.

On February 9, 2007, Bauer e-mailed Cummings, affirming that I did say I would look into providing you with additional information, and this is what I have discovered. We have some records from the original design team related to water table and the stormwater pond from the original design that I can provide to you.... [T]he records developed since then were developed as attorney work product in anticipation of litigation. We still have claims related to the design issues on this project, and the City Attorney hired a number of consultants to prepare for potential claims settlement or litigation. The City Attorney won't release this information, or have these firms consult with you, as it would jeopardize the City's legal position.[²]

¶ 7 On February 11, 2007, Wingard responded to Bauer's February 9 e-mail, interpreting it as improper denial of public records under the Public Records Act. In her February 13, 2007 reply, Bauer wrote, "[i]f you are seeking records under RCW 42.17[sic],[³] please provide a specific request so that I can provide a formal response." Cummings replied on the same day, describing the requested documentation and information and stating that "[t]his information has been, and is again, requested under the Washington State Public Disclosure Act." On February 15, 2007, Bauer responded to Cummings, stating: "With regard to your most recent e-mail below, I now understand that you wish to make your further inquiries as public disclosure requests. I estimate that it will take until about April 12, 2007 to assemble the various documents which fall within the scope of your request and to review which of them may be either exempted or precluded from disclosure under applicable law."⁴ FFD hired a paralegal from March 11, 2007 to April 22, 2007, to process the records request. It then gave the records to Citizens, who make no complaint about the records they received.

¶ 8 On September 13, 2007, Citizens filed an amended complaint alleging that the City failed to promptly respond to their records request, wrongfully refused to make the records promptly available, failed to provide a reasonable estimate of time required to respond, and wrongfully denied them an opportunity to inspect or copy public records. The City moved for summary judgment, and the trial court heard oral argument on the motion. Before the trial court issued its July 14, 2008 order granting the City's motion, Citizens submitted a declaration from Sara Nelson, who was present at the January 24, 2007 meeting, stating that during the course of the meeting

Ms. Cummings asked to see the written documents containing the specifications about the JTF Site compiled by the Department's engineers—specifically, information regarding the hydrology of the site, the retention pond, and whether or not the pond could fulfill the dual purpose of wildlife habitat and storm/surface water drainage.

"The meeting concluded with Ms. Cummings, Mr. Rasmussen and Mr. Wingard requesting written documents containing detailed information about several technical issues, including the hydrology of the pond (`how high is the water table' is one specific question [Nelson] remember[s]) and how engineering could salvage the dual purpose of the pond." Citizens also submitted a supplemental declaration from Cummings following the summary judgment hearing, in which she indentified the specific documentation she remembered requesting at the January 24, 2007 meeting.

¶ 9 Ruling on the City's motion for summary judgment, the trial court found that Citizens "did not make a valid public records request at the January 24, 2007 meeting" and concluded that the "City did not violate the Public Records Act in responding to [Citizen's] request." Citizens moved for reconsideration, which the trial court denied after considering their supplemental declarations. Citizens appealed but abandoned their arguments that the trial court erred by dismissing their unreasonable time estimate claim and by denying their motion for reconsideration. Thus, the only issue remaining on appeal is the trial court's dismissal of the Citizen's claim that DFF violated the PRA by failing to respond to their request within five days.

DISCUSSION

¶ 10 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.⁵ Factual issues may be decided on summary judgment "`when reasonable minds could reach but one conclusion from the evidence presented.'"⁶ When the record consists only of affidavits, memoranda of law, and other documentary evidence, we review summary judgment orders under the PRA de novo,...