Coalition on Government Spying v. King County Dept. of Public Safety

• Decision Date: 17 December 1990
• Docket Number: No. 24543-1-I,24543-1-I
• Citation: 801 P.2d 1009,59 Wn.App. 856
• Parties: , 18 Media L. Rep. 2043 COALITION ON GOVERNMENT SPYING, Appellant, v. KING COUNTY DEPARTMENT OF PUBLIC SAFETY, Lawrence G. Waldt, Sheriff, King County, Respondents, and the Law Enforcement Intelligence Unit, Defendant.
• Court: Washington Court of Appeals

Page 856

59 Wn.App. 856

801 P.2d 1009, 18 Media L. Rep. 2043

COALITION ON GOVERNMENT SPYING, Appellant, v. KING COUNTY DEPARTMENT OF PUBLIC SAFETY, Lawrence G. Waldt Sheriff, King County, Respondents and the Law Enforcement Intelligence Unit, Defendant.

No. 24543-1-I.

Court of Appeals of Washington Division 1.

Dec. 17, 1990.

As Changed Jan. 18, 1991.

Stephen Strong and Bendich, Stobaugh & Strong, Seattle, for appellant

Norm Maleng, Pros. Atty., and Mary F. Perry, Deputy, for respondents.

WEBSTER, Judge.

This case concerns interpretation of the Washington Public Disclosure Act (WPDA). The Coalition on Government Spying (COGS) appeals two orders in favor of the King County Department of Public Safety (Department). COGS asserts that the trial court erred: (1) in ruling that neither party prevailed and that COGS, therefore, was not entitled to an award of attorney fees, costs, or penalties, and (2) in determining that disclosure of additional documents was a moot issue. We reverse.

FACTS

In 1978, pursuant to the WPDA, COGS requested from the Department copies of records pertaining to the Department's relationship with the Law Enforcement Intelligence Unit (LEIU). The requested records included historical information and organizational materials about LEIU, executive board minutes, articles and bylaws, procedures and policies, legislative and regulatory information, and financial statements. The Department's attorney initially conceded that many of the documents were not exempt. Nonetheless, The Department denied nearly all elements of the request because LEIU refused permission to disclose the records. The Department maintained that the records were the property of LEIU and that its contract with LEIU prevented disclosure. In response to these contentions, COGS named LEIU as an additional party. LEIU was subsequently dismissed from the suit. Despite its initial concession, the Department continued to refuse disclosure, asserting that the records were exempt.

In 1979, to learn the Department's grounds for withholding the records, COGS asked the trial court to order submission of a page-by-page itemization and a more detailed During 1980, COGS negotiated with the Department to obtain release of the records. On December 16, 1980, the Department released 250 pages of LEIU documents. The Department stated that it was disclosing the records "for the purpose of settlement and compromise of this action," without agreeing they were disclosable. The only documents both requested by COGS and identified as withheld by the Department were LEIU financial statements.

                justification for withholding records pursuant to RCW 42.17.310(4) and 42.17.340(1).   Alternatively, COGS asked to participate in the court's in camera review of records.   The trial court denied COGS's motion for a detailed explanation of the reasons for withholding the records.   Furthermore, it ruled that COGS's "viewing of these documents in their current unexpurgated form would be detrimental to effective law enforcement and that a viewing [was] unnecessary since adequate disclosure for discovery purposes [had] been made."  (Emphasis added).   The trial court did not decide, however, whether the various records, or portions of them, were exempt
                

In 1981 and 1982 COGS conducted further discovery, and in 1984, it filed an affidavit describing the contents of the records released. In 1986, after the case had been totally inactive for 2 years, the clerk of the superior court sent COGS notice that the case would be dismissed under CR 41(b)(2) unless COGS took action or showed good cause why the case should not be dismissed. At that juncture, COGS filed an arbitration request, stating it would waive all claims for the purpose of arbitration except its claim for attorney fees, costs, and penalties. The Department responded by arguing that arbitration was inappropriate because COGS sought relief other than a money judgment in its complaint and no final determination had been reached. Based on the Department's arguments, the case was removed from arbitration.

In 1988, the superior court directed the parties to submit a Joint Status Report. The Department moved to dismiss all of COGS's claims with prejudice under the theories of On July 22, 1988, a trial was held on the issue of whether COGS had prevailed. The trial court limited testimony to this question, declining to hear evidence on attorney fees, costs, and penalties until after deciding which party had prevailed. The trial court found that the Department had not properly withheld the 250 pages of records because they were not exempt. ¹ Regardless of this finding, the trial court held that the WPDA "contemplates an award of attorney fees only where there was an order or judgment and failure to respond pursuant to that order or judgment." The trial court, thus, held that neither party prevailed and denied COGS any award.

"laches, mootness, equitable estoppel, waiver, res judicata, and collateral estoppel," contending that the action was rendered resolved and moot on several occasions. The Department characterized the trial court's 1979 ruling as proof that the documents sought were exempt. It also argued that it was prejudiced because COGS delayed in prosecuting its claims, attorneys handling the case were no longer with the Department, and the file had been closed on two separate occasions. In response, COGS argued that the trial court merely ruled in 1979 that the Department had sufficiently complied with COGS's discovery requests. Furthermore, COGS asserted the Department's attorney had admitted that the records at issue were still in his office. On June 6, 1988, the trial court summarily dismissed the disclosure claims with prejudice, stating that the disclosure issue "was essentially moot since 1979." The trial court ruled, however, that the issue of attorney fees, costs, and penalties still remained for trial.

COGS filed a motion for reconsideration of the June 6, 1988, and July 22, 1988, rulings, which was denied. As one of its exhibits, COGS submitted a deposition proving that

the Department still had the LEIU financial records at issue. ²

DISCUSSION

The first issue is whether the trial court erred in determining that COGS did not prevail and, therefore, was not entitled to an award of attorney fees, costs, or penalties.

The WPDA states in part:

Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed twenty-five dollars for each day that he was denied the right to inspect or copy said public record.

(Emphasis added) RCW 42.17.340(3). In the instant case, the Department disclosed the records COGS requested only after COGS had filed a lawsuit and initiated several negotiations with the Department. At no time, however, did either party ask the trial court to rule on whether the disclosed records were exempt. No Washington court has decided whether a plaintiff "prevails" pursuant to RCW 42.17.340(3) under these circumstances.

The plain language of RCW 42.17.340(3) is susceptible to more than one interpretation. It is unclear whether "in the courts" modifies "prevails" or "action." If "in the courts" modifies "prevails," then the plaintiff cannot recover unless it prevails in court. However, if "in the courts" modifies "action," then the plaintiff may recover if it has prevailed and if filing an action in court was necessary to obtain disclosure. Under the latter interpretation, the plaintiff could prevail if the documents were disclosedafter the plaintiff filed an action, even though the plaintiff did not prevail in court for the simple reason that no court judgment was necessary.

Washington courts have held that the WPDA must be liberally construed to promote full access to public records. Progressive Animal Welfare Soc'y v. University of Wash., 114 Wash.2d 677, 682, 790 P.2d 604 (1990). The statute's "mandate for liberal construction includes a liberal construction of the statute's provision for award of reasonable attorneys' fees." Id. at 683, 790 P.2d 604. In Progressive Animal Welfare Soc'y, the court held that a plaintiff's failure to negotiate with a public entity for the release of records was not a basis for reducing the amount of attorney fees a plaintiff is entitled to under RCW 42.17.340(3). Id. at 681, 790 P.2d 604. In so holding, the court reasoned in part that imposing on plaintiff a duty to negotiate would

allow an agency to deny a request for information in its entirety and by the simple act of offering to discuss the matter with the requester put the recovery of attorneys' fees mandated by the statute (RCW 42.17.340(3)) at risk. This undercuts the public policy of the act, which is to require public entities to promptly answer requests for public records.

(Emphasis added) Id. at 685, 790 P.2d 604. The court thus indicated that imposing a duty on the plaintiff to negotiate jeopardizes the plaintiff's right to attorney fees, undercutting the policy of the Act. By analogy, permitting an agency to avoid attorney fees by disclosing the documents after the plaintiff has been forced to file a lawsuit also would undercut the policy behind the Act. This we refuse to do.

The attorney fees provision of the WPDA differs from that found in the Freedom of Information Act (FOIA). ³ Nonetheless, both provisions further the same basic objective. Washington courts have stated that interpretations of the FOIA are helpful in construing the WPDA. Hearst Corp. v. Hoppe, 90 Wash.2d 123, 129, 580 P.2d 246 (1978). Federal courts have held that interpreting the FOIA to require plaintiffs to prevail in court would take the teeth out of the Act. Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C.Cir.1977); Kaye...