Building Industry Ass'n v. McCarthy

Decision Date13 October 2009
Docket NumberNo. 38254-7-II.,38254-7-II.
Citation152 Wn. App. 720,218 P.3d 196
CourtWashington Court of Appeals
PartiesBUILDING INDUSTRY ASSOCIATION OF WASHINGTON, Appellant/Cross-Respondent, v. Pat McCARTHY; Pierce County Auditor; Pierce County, Washington Respondents/Cross Appellants.

Greg Overstreet, Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Olympia, WA, Andrew C. Cook, Hamilton Consulting Group, Madison, WI, for Appellant/Cross-Respondent.

Daniel Ray Hamilton, Attorney at Law, Tacoma, WA, for Respondents/Cross Appellants.

Katherine George, Harrison Benis & Spence, LLP, Seattle, WA, for Amicus Curiae on behalf of Washington State Association of Broadcasters, Amicus Curiae on behalf of Washington Newspaper Publishers Assoc., Amicus Curiae on behalf of Allied Daily Newspapers of Washington.

PENOYAR, J.

¶ 1 The Building Industry Association of Washington (BIAW) appeals the summary judgment dismissal of its suit against Pierce County alleging that the County violated the Public Records Act (PRA), chapter 42.56 RCW. BIAW contends that the trial court erred by: (1) granting the County's summary judgment motion, (2) dismissing the county auditor as a defendant, (3) striking an inadvertently disclosed email communication from defense counsel to his client, and (4) denying BIAW's motion for CR 11 sanctions. The County cross-appeals the trial court's dismissal of its cross-claim. The County contends that the trial court erred by: (1) denying its cross-claim for sanctions for BIAW's frivolous suit, and (2) denying its motion to seal the inadvertently disclosed attorney/client email communication. We affirm the trial court.

¶ 2 On October 12, 2006, Pierce County Auditor Pat McCarthy and her election manager Lori Augino reported by telephone to State Assistant Elections Director Pam Floyd that they had observed problems with voter registration forms submitted by a political group identified as the Association of Community Organizations for Reform Now (ACORN). Having heard similar concerns from two other counties, Floyd sent a "global informational email" announcement to all county auditors informing them of these reports. Clerk's Papers (CP) at 1161. Floyd later explained she had done so "to inform those who had not yet reported such concerns of this issue and to solicit from them information if similar issues had risen in those offices." CP at 1162. Based on information her office had received from Pierce and other reporting counties, Floyd later that day sent a second global email bulletin to every auditor describing how they too could identify ACORN registrations.

¶ 3 Though Pierce County's auditor already was aware of the issue because she had reported it, copies of the emails were sent to her because it was "easier to send a global email to all auditors." CP at 1162. In compliance with applicable retention policies, McCarthy read these informational emails and "more probably than not" deleted them the same month she received them. CP at 64-65.

¶ 4 Over five months later, on March 23, 2007, McCarthy received a public records request from BIAW seeking "all records relating to or referencing ... ACORN registration cards submitted to your office" and "all records relating to the cases referred to the prosecutor" from "this batch of registration cards." CP at 28. Within five days the auditor had identified 615 responsive documents and informed BIAW that they were available for inspection, copying, or mailing.1 On April 18, 2007, however, BIAW wrote claiming it had "proof that Pierce County is withholding documents responsive to the original public records request" because the hundreds of documents the auditor previously provided included neither the global informational "email from the Washington Secretary of State's office to Pat McCarthy" that BIAW had obtained prior to making its PRA request, nor any documentation of a telephone call county election official "Lori" supposedly had concerning "ACORN registration cards with King County elections staff." CP at 34. BIAW threatened that if McCarthy's office "fails to provide the documents requested, BIAW will sue Pierce County to obtain the requested records." CP at 34.

¶ 5 Within a week McCarthy replied that despite a further exhaustive search, neither she nor her staff had discovered the email mentioned because her office did not keep the same emails as the secretary of state's office and that any alleged telephone conversation with King County had not been documented because the auditor's office does not generate records of every meeting and conversation. She also explained that both the staff and working space for the Pierce County Auditor's Office is small, which allows most communications between the auditor and her staff to be "face to face" so that they "do not generate large numbers of emails unless [someone] is out of the office." CP at 60. This second search, however, did reveal that one additional responsive email in the office's electronic in-box had been overlooked as well as had all those in the auditor's sent boxes of email (because the sent boxes mistakenly had not been checked previously) and therefore 38 pages of additional emails were immediately provided to BIAW.

¶ 6 On May 2, 2007, BIAW again wrote asserting that the County had "failed to provide all of the public records it requested," describing it as "astonishing" that the auditor's office did not keep duplicates of secretary of state email bulletins and arguing "your office surely had in its possession e-mails and other public records pertaining to the ACORN voter registration forms prior to February, 2007" because "Pierce County knew there were problems with the ACORN registration forms prior to February, 2007." CP at 42. BIAW again threatened suit if the auditor's office did not produce the requested records, and warned that "[u]nlawful destruction of such records can be a crime." CP at 43. The auditor referred the matter to the Pierce County Prosecutor's Office, which confirmed to BIAW in a letter and a telephone conversation that the auditor's office had previously provided BIAW all records related to or referencing voter registration cards submitted by ACORN, other than original voter registration records protected by RCW 29A.08.710, and that the emails from the Washington Secretary of State's Office were not retained because they do not fall within the retention schedules set for local governments.

¶ 7 On May 25, 2007, BIAW filed a "Complaint For Violations of Public Records Act, RCW 42.56 and RCW 40.14," naming as defendants McCarthy "in her official capacity as Pierce County Auditor" and Pierce County. CP at 6. The complaint alleged that McCarthy and the County "violated RCW 42.56.550 by failing to provide all public records requested by BIAW" or "violated the Public Records Act and the Preservation and Destruction of Public Records Act, RCW 40.14 et seq., by failing to retain emails under the retention schedules set forth ... under the act." CP at 10.

¶ 8 In their answer, defendants denied these claims and asserted a counterclaim under RCW 4.84.185 contending that BIAW's suit was frivolous. BIAW conducted no discovery during the ensuing 4 months of litigation.

¶ 9 On June 21, 2007, McCarthy and the County moved for summary judgment based on sworn declarations from the auditor, her election manager, the records management coordinator, and a county computer expert, which confirmed that: (1) repeated searches revealed no requested document had been withheld from BIAW, (2) the only records not retained were the two informational emails from the secretary of state that had been disposed of pursuant to the state approved destruction authorization, and (3) no other undisclosed responsive emails would have existed because the small auditor's office does not often use electronic messages for internal communication. BIAW did not offer evidence disputing this testimony or seek a continuance under CR 56(f) to facilitate discovery of some opposing evidence; it instead asserted that defendants' unrefuted evidence was "extremely unlikely" and that it raised a fact question about whether the County had failed to properly retain and disclose records responsive to BIAW's request. CP at 92. BIAW contended that the County's affidavits provided "grounds for discovery." CP at 93. Without seeking a continuance to conduct discovery,2 BIAW's brief opposing summary judgment asked the court to dismiss the County's summary judgment motion and "instead ... compel Pierce County to show any cause why it hasn't violated the PRA." CP at 103.

¶ 10 On July 20, 2007, the trial court ruled there was no "action in this case under [chapter] 42.56[RCW]" for withholding documents. Report of Proceedings (RP) (July 20, 2007) at 27. The court explained that:

[T]he only facts in the record are from Pierce County, their sworn declarations from the [C]ounty auditor and certain of her staff, including somebody from the IT department ... And I don't think there's any showing that Pierce County has these documents in their possession, that they have not disclosed.... There's no showing that they existed and I'm going to grant summary judgment on that respect.

RP (July 20, 2007) at 27-28. The court dismissed the auditor as a separate defendant, granted summary judgment to the County "as to RCW 42.56," and further ruled that "any claim under RCW 40.14 et seq." against the County for deletion of records was "continued for further briefing." CP at 198.

¶ 11 On July 30, 2007, BIAW moved for reconsideration of its dismissed PRA claim. Recognizing BIAW still had made "no showing that Pierce County improperly deleted or destroyed any record in violation of the Act, despite the plaintiff's attempt to characterize the record in that way," the trial court on September 7, 2007, denied reconsideration and dismissed all of BIAW's claims. RP (Sept. 7, 2007) at 35.

¶ 12 On October 5, 2007, defendants moved for summary judgment on...

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