Cantu v. Yakima Sch. Dist. No. 7

Docket Number37996-5-III
Decision Date02 August 2022
PartiesANDREA CANTU, Appellant, v. YAKIMA SCHOOL DISTRICT NO. 7, Respondent.
CourtCourt of Appeals of Washington


Andréa Cantu believed her daughter was being bullied at school. Over the course of two years she made three requests for records from the Yakima School District. Her first request was made in October 2016. In January 2017, Ms. Cantu clarified this request. In April 2018, Ms. Cantu made two requests seeking more records. The District failed to adequately respond to these requests. In September 2018, Ms. Cantu filed a complaint seeking damages for violating the Public Records Act (PRA), ch. 42.56 RCW. Over the course of several motions the court denied most of her claims. Ultimately, the court determined that 85 "emails" responsive to her January 2018 clarification were wrongfully withheld for 631 days and assessed a per diem penalty of $10 per day, or a total penalty of $6,310.

On appeal, Ms. Cantu raises five issues. We affirm the trial court's interpretation of her October 2016 request, but we reverse and remand on the other four issues.

First we hold that the District failed to meet its burden of showing that its search for records in response to Ms Cantu's January 2017 clarification was reasonably calculated to uncover all relevant records. The inadequate search not only failed to discover responsive records, but it constituted an aggravating factor that the court did not consider when calculating the per diem penalty.

Second, we reverse the trial court's summary judgment order dismissing Ms. Cantu's claim for denied records. We hold that when an agency ignores a request for an extended period of time, such inaction may constitute the constructive denial of records. In this case, the evidence establishes that the District ignored one of Ms. Cantu's April 2018 requests for an extended period of time, thus wrongfully denying her the records she had requested.

Third, we hold that the District's narrow interpretation of Ms. Cantu's April 2018 requests was based on an unreasonable assumption. Consequently, the District wrongfully withheld at least 75 email attachments on the basis that they were nonresponsive to Ms. Cantu's April 2018 requests. To the extent that any exemptions apply to those email attachments, the records can be redacted and provided.

Finally, we find that the $10 per diem penalty imposed for wrongfully withholding 85 email records for 631 days was inadequate and constitutes an abuse of discretion. On remand, the court will need to recalculate how many records have been wrongfully withheld and determine the appropriate per diem penalty for those wrongfully withheld records.


During 2016, Ms. Cantu's daughter, AM, suffered multiple incidents of harassment, intimidation, and bullying at Davis High School in Yakima. Ms. Cantu sought assistance from the school but ultimately petitioned for protection orders from the court. In an attempt to gather records to support her petition for a protection order, Ms. Cantu requested records from the Yakima School District. The District's response was inadequate, which lead Ms. Cantu to request additional documents over the next several years. The lengthy chronology of her communications with the District is set forth below.

A. Ms. Cantu's October 2016 Records Requests

On October 27, 2016, Ms. Cantu submitted her first records request on a form created by the District. Her request read: "Description of records requested: All incidences/incident reports where [A] was a victim of bullying, threats, harassment, etc. Dates: April 2016-present." Clerk's Papers (CP) at 438. She indicated that the intended use of the records was to support a petition for an anti-harassment order.

On November 7, the District's public records officer, Kirsten Fitterer,[1] responded to Ms. Cantu by email, apologizing for not seeing the request, and indicated that she would "get back to you with a timeline." CP at 639. Ms. Fitterer indicated that Ms. Cantu would be receiving "a formal letter acknowledging your request was received," but did not provide a time estimate for responding to Ms. Cantu's request. CP at 639. A 5-day letter was not sent.

On November 9, Ms. Fitterer contacted the Davis High School Vice Principal, Bob Stanley, about the records request. He provided "several records" the same day from his "hard copy file," including emails, and indicated that others would come from the Skyward system and the "Harassment, Intimidation, Bullying (HIB) system" operated by the Office of Student and Family Services. CP at 571, 643. He indicated that additional statements needed to be obtained from another staff member who was out of the office and he emailed this staff member. Ms. Fitterer also contacted the office manager of the Department of Student and Family Services, who provided three reports that same day, November 9.

On January 20, 2017, Ms. Cantu sent a follow up email to Ms. Fitterer inquiring about the status of her request because she had "not received ANY info regarding this request submitted over 2 months ago." CP at 649. On January 24, Ms. Fitterer emailed Ms. Cantu to apologize for the delay and admitted she "dropped the ball" and requested Ms. Cantu come by the school to review the records. CP at 648. Ms. Fitterer realized that she had not kept Ms. Cantu informed. "Dropped the ball" meant that she had not followed up with the vice principal for additional records. CP at 1158.

On January 30, a phone call took place between Ms. Fitterer and Ms. Cantu. Ms. Cantu verbally extended her October request through January 30, 2017, and clarified that she wanted emails. Ms. Fitterer sent two follow-up emails that day. The second email indicated that if the email system search did not yield additional records that the request would be closed.

Ms. Fitterer proceeded to email the vice principal and other staff about the expanded request, and they provided one new HIB report from the three previously sent. Ms. Fitterer also emailed the District's technology director, Andy Gonzalez, requesting an email search and attached Ms. Cantu's October 2016 request where Ms. Fitterer wrote "Revised to 1/30/17" and included her initials. CP at 667.

Ms. Fitterer provided three redacted HIB reports and "other records" to Ms. Cantu by email. The email stated "Our tech department is performing a formal search of our email system. If that search produces additional records (through today's date), I will forward them to you. If it does not, I will advise you and this request will be closed." CP at 663. No exemption log was provided for the redactions from the HIB reports.

On February 2, the District's technology director ran two searches of the District email archive system for the date range of April 1, 2016 through February 2, 2017, using the following search terms:

[A] AND bullying OR HIB
[A] AND harassment OR intimidation OR bullying
[A] AND [M]

CP at 538-39. The search identified 85 email records as potentially responsive. The District's technology director was not confident that all emails related to the incidents were provided, given the search terms used.

On February 2, the technology director emailed his search results to Ms. Fitterer for review in the form of a link to PST[2] files on the District's network along with directions on how to open the PST files. Ms. Fitterer could not open them except to view the "headers" which merely showed "Sender," "Recipient," "Message-Id.," and "Subject," but did not display content. CP at 3232. She needed technical assistance but did not ask even though she knew "tech" services could have opened them. School board member emails were not searched even though they were aware of the issues with Ms. Cantu's daughter.

On February 3, Ms. Fitterer emailed Ms. Cantu that "Our tech services department has completed their search of our email system and there are over 80 email records." CP at 673. She indicated a need for additional time for review but estimated that she could "have them to you by Wednesday February 15, 2017 or will contact you will [sic] an updated fulfillment date." CP at 673.

At an unknown date, Ms. Fitterer provided hard copies of the email headers to Ms. Cantu. Ms. Fitterer apparently assumed, based on a phone conversation, that Ms. Cantu would review the headers and specifically identify which emails she wanted from the headers. Ms. Fitterer did not confirm this assumption in writing. Ms. Cantu denied agreeing to this limitation and indicated that Ms. Fitterer only told her during the call that she was redacting the headers, but Ms. Cantu did not understand what she meant. Ms. Cantu did not agree to accept or review only headers in lieu of requested emails.

No communication between the District and Ms. Cantu occurred for the next 10 months. Ms. Fitterer "assumed that Ms. Cantu had all the email records she wanted because I had not heard back from her." CP at 575.

B. Ms. Cantu's April 2018 Records Requests

On April 5, 2018, Ms. Cantu submitted two records requests to the District. In the first request, she asked for "ALL HIB forms from December 2017 Re: [AM]." CP at 679. In her second request, she requested: "ALL emails including the text of the messages Re: [AM] from April 2016 to present." CP at 680. Ms. Fitterer responded to Ms. Cantu by email the same day, stating "Thank you for your email. I will be out of the office March 30 through April 6th. I will get back to you asap." CP at 1590.

On April 9, Ms. Fitterer responded to the new records request and indicated "I do not have my files with me but it seems we have provided this information previously. Can you remind me?" CP at 441. Ms. Cantu responded: "I did request...

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