Concerned Ratepayers v. PUD No. 1

• Decision Date: 09 September 1999
• Docket Number: No. 67244-0.,67244-0.
• Citation: 138 Wash.2d 950,983 P.2d 635
• Court: Washington Supreme Court
• Parties: CONCERNED RATEPAYERS ASSOCIATION, a Washington non-profit corporation, Petitioner, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, WASHINGTON, a Washington Public Utility also known as Clark Public Utilities, Respondents.

983 P.2d 635

138 Wash.2d 950

CONCERNED RATEPAYERS ASSOCIATION, a Washington non-profit corporation, Petitioner, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, WASHINGTON, a Washington Public Utility also known as Clark Public Utilities, Respondents.

No. 67244-0.

Supreme Court of Washington, En Banc.

Argued May 13, 1999.

Decided September 9, 1999.

Aaron H. Caplan, Seattle, Amicus Curiae on Behalf of American Civil Liberties Union.

John S. Karpinski, Vancouver, for Petitioner.

Carney, Badley, Smith & Spellman, James E. Lobsenz, Seattle, for Respondent.

MADSEN, J.

We are asked to decide whether a public disclosure request for a technical document, which was reviewed, evaluated, and referred to by a public agency, constitutes "use" within the meaning of the Public Disclosure Act, thereby rendering the information a public record subject to disclosure. RCW 42.17.020(36) provides that any information which is "prepared, owned, used, or retained" by any state or local agency regardless of physical form or characteristics is a public record. Here, the trial court dismissed a request by the Concerned Ratepayers Association (CRA or Association), a non-profit "utility watchdog" corporation, on grounds that the Clark County Public Utility District No. 1 (PUD or District) neither possessed nor "used" the requested technical document (IPS 10380). The Court of Appeals affirmed. We conclude that information which is applied to a given purpose or instrumental to an end or process is "used" within the meaning of the Public Disclosure Act. Where a nexus exists between the information and an agency's decision-making process, as is apparent here, we hold that review, evaluation, and reference to information constitutes "use" and, therefore, qualifies such information as a public record. Accordingly, we reverse the Court of Appeals and remand the case for further proceedings to determine whether the technical document is exempt and attorney fees appropriate.

FACTS

In 1994, the Clark County Public Utility District proposed the construction of a 248-megawatt power plant in Vancouver, Washington. The District awarded the contract¹ to Cogentrix Energy, Inc. (Cogentrix), the project's general contractor, which in turn subcontracted with General Electric (GE) for the turbine generator component of the power plant.²

Betty Smith and Robert Wachter, Clark County citizens who later formed the Concerned Ratepayers Association,³ began making public disclosure requests for documents relating to technical specifications, engineering design, and financial records of the proposed power plant. The PUD disclosed all the requested information to the CRA, except for documents relating to the proposed model for the turbine generator that Cogentrix had originally proposed to install in the Clark County power plant.⁴

After reviewing the numerous documents it had obtained from the District, CRA found several references to IPS 10380. Consequently, CRA made additional requests for the disclosure of the design specifications of the turbine generator, IPS 10380. Smith and Wachter wanted to review the technical specifications in the IPS 10380 in order to determine whether the proposed power plant would be capable of generating more than 250-megawatts of power, thus necessitating a public vote under RCW 80.52.040.

The main concern for the citizens was the power plant's generating capacity. RCW 80.52.040 provides that a public vote is required before a public agency or assignee may issue or sell bonds to finance the cost of constructing a major public energy project. A "[m]ajor public energy project" is defined as "a plant or installation capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts...." RCW 80.52.030(2). See also RCW 80.52.050 for how elections for approval of major energy projects are to be conducted.

In the process of requesting various documents from the PUD for purposes of invoking the public vote provision of RCW 80.52, the CRA also contacted the Washington State Energy Facility Site Evaluation Council (Council) urging it to assert jurisdiction over the proposed power plant on grounds that the plant would exceed the 250-megawatt threshold. RCW 80.50.040 enumerates the Council's various powers, including the authority to investigate, prepare reports, certify, and issue permits relating to proposed energy plants. See generally RCW 80.50.040.

The Council considered CRA's complaints on at least four occasions, holding public meetings on the issue, but ultimately concluded that the proposed power plant would not exceed the statutory threshold and, therefore, would not invoke the statutory voting requirement under RCW 80.52.040 or the Council's jurisdictional threshold pursuant to that chapter.

The PUD's initial response to the Association's request for documents relating to the IPS 10380 stated that the requested document was unavailable at the time, as Cogentrix had the only copy. The PUD also indicated that the information relating to IPS 10380 was to be incorporated into the procedures manual prepared by Cogentrix, and that the District would disclose the procedures manual to CRA upon its receipt. Subsequent correspondence between the PUD and CRA regarding the requested document indicates that the PUD did not receive a complete copy of the IPS 10380 specifications. The District, however, did release 115 pages of related bid information it eventually received from Cogentrix. The PUD's later responses to CRA's continued requests stated that the nature of the District's contract with Cogentrix had changed from a specifications-based contract to a performance-based contract, so that the details of the IPS 10380's engineering design were no longer necessary for the PUD to review.⁵ The PUD also explained that the District did not possess the document, and that much of the technical information relating to the IPS 10380 was being claimed as proprietary information by GE, the manufacturer of the turbine generator and, therefore, the technical documents relating to the IPS 10380 were not public records.⁶

Despite the PUD's assertion that the technical design of the IPS 10380 was GE's proprietary information, the PUD did not claim that the document came within any exemption provided for under RCW 42.17.310.

Dissatisfied with the PUD's position, the CRA filed an action for disclosure in Clark County Superior Court. In a letter order the trial court noted that the documents provided by the PUD to the Association suggested the PUD did "use" the IPS 10380. However, the trial court was unclear as to whether the PUD ever possessed or used the requested document. Ultimately, the court ordered the PUD disclose "any and all parts of the IPS 10380 not previously disclosed that were received, viewed, used, and/or retained in any way to develop the original or subsequent plans for the [construction of the] power plant." Clerk's Papers (CP) at 160. The court ordered that, in the alternative, the District was to provide an affidavit if it claimed that all information requested by the CRA had already been disclosed.

Affidavits and documents considered by the trial court included the following:

• October 6, 1994, letter from Cogentrix to Economic and Engineering Services, Inc., the consulting firm retained by the PUD, which updated the proposal for the power plant and refers to the IPS 10380 for documentation relating to the gas turbine, steam turbine and generator scope, to be reviewed as part of the proposal.⁷

• The Project Description of the Vancouver Combined-Cycle Plant which includes a summary of the main equipment to be installed in the power plant, and specifically refers to the IPS 10380 for further detail regarding the proposed combustion turbine package, steam turbine, and generator.

• Deposition of CRA member Robert Wachter, and PUD letters to the organization indicating that in June 1995, Clark County provided CRA with 115 pages relating to the IPS 10380 when the District's contract with Cogentrix specifically provided for the installation of the IPS 10380 turbine generator.

• March 6, 1996, letter from Clark County Public Utilities General Counsel to the CRA, explaining that: "While our engineering department, the Utilities consulting engineers and Cogentrix engineers have seen and carefully evaluated most if not all of the technical data in the possession of GE regarding the turbine, much of the technical information has been protected by GE through a claim of proprietary information, i.e. the information is confidential." CP at 390 (emphasis added).

• Affidavit and deposition of James Sanders, PUD Director of Technical Services, indicating PUD officials' attendance at a meeting at Cogentrix's offices in North Carolina, at which time portions of the IPS 10380 "and every page that had anything to do with the combustion turbine" were viewed by the PUD's representative and consulting engineers as the information was being reviewed and discussed by Cogentrix and GE.⁸ CP at 176.

• Affidavit and letter of PUD Technical Director indicating that, consistent with Cogentrix's original proposal suggesting the PUD's review of the IPS 10380 during the early stages of the project, the PUD planned to review the engineering details of the IPS 10380.

Although the PUD admits that the IPS 10380 model was initially intended to be the turbine generator component of the proposed power plant, a different model was eventually installed.

Based on the PUD's affidavits that it had disclosed all the documents it possessed or used, the trial court dismissed CRA's public disclosure request for the technical specifications of the IPS 10380. The Court of Appeals affirmed, finding that although the evidence showed that the PUD either reviewed, evaluated, or referred to the technical specifications documents relating to the IPS 10380, such was insufficient to establish "use" within the meaning of...