Cedar Grove Composting, Inc. v. City of Marysville

• Decision Date: 06 July 2015
• Docket Number: No. 71052–4–I.,71052–4–I.
• Citation: 188 Wash.App. 695,354 P.3d 249
• Court: Washington Court of Appeals
• Parties: CEDAR GROVE COMPOSTING, INCORPORATED, Respondent, v. CITY OF MARYSVILLE, Appellant.

188 Wash.App. 695

354 P.3d 249

CEDAR GROVE COMPOSTING, INCORPORATED, Respondent

v.CITY OF MARYSVILLE, Appellant.

No. 71052–4–I.

Court of Appeals of Washington, Division 1.

July 6, 2015.

Philip Albert Talmadge, Thomas M. Fitzpatrick, Talmadge/fitzpatrick/Tribe, Seattle, WA, Jeffrey Scott Myers, Law Lyman Daniel Kamerrer et al, Olympia, WA, for Appellant.

Michael A. Moore, Corr Cronin Michelson Baumgardner & Pree, Howard Mark Goodfriend, Smith Goodfriend PS, Seattle, WA, for Respondent.

Judith A. Endejan, Garvey Schubert Barer, Seattle, WA, for Amicus Curiae on behalf of Washington COAlition for Open Government.

Kathleen J. Haggard, Porter Foster Rorick LLP, Andrea Lynn Bradford, Porter Foster Rorick LLP, Seattle, WA, for Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Opinion

LEACH, J.

¶ 1 In this appeal, we apply the Public Records Act (PRA)¹ to records prepared and held by a private third-party contractor who provided professional services to the city of Marysville (Marysville or City). The City appeals trial court decisions finding the City violated the PRA, imposing penalties, and awarding attorney fees and costs. The City claims that Cedar Grove Composting Inc. did not have standing to sue, that documents created by and in the possession of its private contractor were not public records subject to the PRA, and that the trial court abused its discretion in awarding penalties, attorney fees, and costs. Cedar Grove cross appeals the trial court's award of less than half of the fees it requested.

¶ 2 Because Cedar Grove had a personal stake in the outcome of this action, it had standing to sue under the PRA. Under the exceptional facts of this case, the records prepared by a contractor acting as the functional equivalent of a city employee were public records for purposes of the PRA. Because the record establishes that Marysville violated the PRA by wrongfully withholding these and other public records, we affirm the trial court's PRA decisions. And because the court did not abuse its discretion in assessing penalties, striking Marysville's declarations or reducing Cedar Grove's fee request, we affirm the court's award of costs and attorney fees and denial of reconsideration.

FACTS

¶ 3 In Maple Valley and Everett, Washington, Cedar Grove operates two of the largest commercial composting operations in Washington and among the largest in the United States. The Everett facility is just over half a mile from the city limits of Marysville. The City received a number of complaints about odors attributed to Cedar Grove. The Puget Sound Clean Air Agency (PSCAA) issued notices of violation and imposed fines against Cedar Grove, though the Pollution Control Hearings Board reduced some fines in 2011 after finding that Cedar Grove had made efforts in odor mitigation.²

¶ 4 Cedar Grove believed that a hostile public relations campaign was “spreading disinformation” about the company, particularly that Cedar Grove was the primary source of offensive odors in the Marysville area. A mailer, for example, encouraged residents to contact PSCAA if they “want to lodge an odor complaint—whether [they] believe it originates from Cedar Grove Composting in Everett or another industrial activity.”³ Cedar Grove learned that some of the mailers came from a mailing address and a printing company associated with a public relations firm, Strategies 360.

¶ 5 On November 1, 2011, Kris Cappel, of the Seabold Group, e-mailed a PRA request to Amy Hess, deputy clerk and public records officer for the City of Marysville.⁴ Cappel requested documents including “any and all available information” about communications and professional services agreements “between or among” the City and Strategies, local citizen Mike Davis, the group “Citizens for a Smell Free Marysville,” the Tulalip Tribes, media outlets, and a number of other parties. Cappel also requested records of communication “between or among” the City and other parties “relating or referring to Cedar Grove Composting, odor complaints, composting, permits or licensing.”

¶ 6 In her e-mail, Cappel did not identify Cedar Grove as a client or otherwise indicate her representative capacity. A November 2, 2011, e-mail among Strategies employees, however, indicates that Marysville Chief Administrative Officer Gloria Hirashima knew that Cappel made the requests on behalf of Cedar Grove. According to this e-mail, the day Cappel submitted the PRA request, Hirashima called Strategies Senior Vice President Al Aldrich to “give [Strategies] a heads up that after a quiet period, Cedar Grove has picked up their activity level.... [Hirashima] thought they might try to bootstrap a Records Request into our emails.”⁵ The record before us does not indicate that Hirashima spoke to Hess about Cedar Grove's interest in the records request or the phone call to Aldrich.

¶ 7 Hess's initial queries identified over 10,000 documents potentially responsive to Cappel's request. The City provided a first installment of “easily available” records on November 30, 2011, and a second installment on December 29, 2011. A portion of the documents produced were reproductions of Cedar Grove's own documents or documents from other agencies. These installments did not include responsive e-mail, which the City did not produce for several months.

¶ 8 On February 2, 2012, the City produced several e-mail messages between Kristin Dizon of Strategies and Grant Weed, Marysville city attorney. The City completely redacted the content of the e-mail, explaining in an exemption/redaction log that the redaction was for “Attorney Client Privilege/Work Product.” The City produced additional installments of records on March 8, 2012, and April 5, 2012. Redaction logs for these installments claimed additional exemptions for “Attorney Client Privilege/Work Product.”

¶ 9 In June 2012, Cappel asked Hess whether e-mail communications “to and among Strategies 360 representatives” had been “inadvertently redacted” under attorney-client privilege. Hess replied that the redacted e-mail were privileged:

Strategies 360 was hired as a professional consultant to the City. The emails that are redacted are Work Product/Attorney Client communications between the City Attorney Grant K. Weed and the City Consultant and are legal advice, direction and input related to the project the City Consultant was working on for the City and within the scope of work product and attorney client privilege—the same as if the City Attorney were communicating with a City Staff member working on the project.

¶ 10 Two weeks later, Hess received a letter from a different attorney, Michael Moore, challenging the City's attorney-client privilege/work product claim. The letter requested that the City produce “all of the communications” by July 13, 2012, “[t]o avoid the costs of litigation and penalties for the improper withholding of the documents at issue.”

¶ 11 On August 2, 2012, the City produced unredacted versions of the e-mail it withheld from the fifth installment, stating in a cover letter that it did not waive the attorney-client privilege or work product doctrine exemption beyond those specific records. In several of these e-mail, Dizon asked Weed to forward e-mailed information to Hirashima and Marysville Mayor Jon Nehring. Dizon explained in one e-mail that she was asking Weed to forward her e-mail, rather than sending it directly to Hirashima, “so it comes as privileged information from you,” and said in a later e-mail, “I definitely do not want Cedar Grove to see the trail on this.” Weed forwarded the e-mail as Dizon requested.

¶ 12 On August 28, 2012, Cedar Grove filed suit under the PRA. In September, Cedar Grove subpoenaed documents directly from Strategies 360. The subpoena sought “communications, emails, or other documents sent to, received from or exchanged between Strategies 360 and any third party including the City of Marysville, the City of Seattle, the Tulalip Tribes, Mike Davis, Citizens for a Smell Free Marysville,” among others, that “mention, reference, or relate” to Cedar Grove or the odor dispute. Comparison between Strategies' production and Marysville's earlier productions revealed 17 responsive e-mail between Marysville and Strategies that the City had not produced. The City also located two responsive e-mail on Mayor Nehring's personal computer. The City later stipulated that it initially withheld these 19 records.

¶ 13 In November 2012, Cedar Grove moved for partial summary judgment, alleging that Marysville wrongfully withheld 22 responsive records⁶ under an improper claim of attorney-client privilege. The City filed a response and cross motion for summary judgment. The summary judgment hearing occurred on April 19, 2013.

¶ 14 After noticing references in the City's productions to two particular types of document, Cedar Grove became concerned that Marysville and Strategies had not yet produced all responsive records. First, certain e-mail referred to Strategies' work with Mike Davis, leader of a local anti-Cedar Grove citizens' group, but records produced up to that time contained no information about the nature of that work. Also, Marysville had not produced any records related to mailers Strategies created, though several e-mail referred to this work. In June 2013, Cedar Grove moved to compel Strategies to produce additional documents related to “the Mailers and Strategies 360's work with Mike Davis.”

¶ 15 On July 2, 2013, the court entered its order on cross motions for summary judgment, in which it found that the City had violated the PRA by withholding 15 e-mail under an improper claim of attorney-client privilege and work product. On July 22, the parties stipulated that the City did not produce or disclose in an exemption log 19 more records responsive to Cappel's requests. And two days later, the court granted Cedar Grove's motion to compel, after which Strategies produced 173 responsive records, including 160 e-mail communications...