O'Dea v. City of Tacoma, 53613-7-II

• Court: Court of Appeals of Washington
• Writing for the Court: Glasgow, A.C.J.
• Citation: 493 P.3d 1245
• Parties: David O'DEA, an individual, Respondent/Cross Appellant, v. CITY OF TACOMA, a public agency; and the Tacoma Police Department, a public agency, Appellants/Cross Respondents.
• Docket Number: No. 53613-7-II,53613-7-II
• Decision Date: 24 August 2021

493 P.3d 1245

David O'DEA, an individual, Respondent/Cross Appellant,
v.
CITY OF TACOMA, a public agency; and the Tacoma Police Department, a public agency, Appellants/Cross Respondents.

No. 53613-7-II

Court of Appeals of Washington, Division 2.

Filed August 24, 2021

Jennifer J. Taylor, Tacoma City Attorney's Office, 747 Market St. Ste. 1120, Tacoma, WA, 98402-3701, Kenneth Wendell Masters, Masters Law Group PLLC, 321 High School Road Ne, D3-#362, Bainbridge Island, WA, 98110-2648, for Appellants/Cross-Respondents.

Brett Andrews Purtzer, Attorney at Law, 1008 Yakima Ave. Ste. 302, Tacoma, WA, 98405-4850, for Respondent/Cross-Appellant.

PART PUBLISHED OPINION

Glasgow, A.C.J.

¶1 The Tacoma Police Department placed Lieutenant David O'Dea on administrative leave following a shooting incident in August 2016, investigated his conduct, and ultimately fired him in June 2017. While on administrative leave, O'Dea requested documents and information from the Department relating to the investigation and his participation in a promotional test. In March 2017, O'Dea’s lawyer mailed two letters requesting documents under the Public Records Act (PRA), chapter 42.56 RCW. It is undisputed on appeal that the City of Tacoma's public records officer never received these letters and did not respond.¹

493 P.3d 1248

¶2 O'Dea then sued the City in November 2017, alleging multiple PRA violations. O'Dea attached the PRA request letters as exhibits to the complaint. The City answered the complaint but did not start responding to the PRA request letters until nine months later.

¶3 Both parties filed cross motions for partial summary judgment. The trial court granted O'Dea’s motion, holding that the City had an obligation under the PRA to respond to the two PRA request letters when it received them as attachments to the complaint. The trial court also granted the City's motion for partial summary judgment, dismissing O'Dea’s other claims. The trial court then awarded approximately $2.6 million in penalties to O'Dea for the City's delay in responding to the two letter requests after receiving them with the complaint in November 2017.

¶4 The City appeals the order granting O'Dea’s motion for partial summary judgment and imposing penalties. O'Dea cross appeals the dismissal of his other claims, the denial of a motion for additional searches, and the trial court's refusal to find bad faith. The City seeks to reverse the attorney fees award in favor of O'Dea below, and O'Dea requests attorney fees on appeal.

¶5 We affirm the trial court's summary judgment decision. The trial court properly concluded that the City violated the PRA when it failed to respond to the two PRA request letters when it received them as attachments to the complaint. The trial court also properly dismissed O'Dea’s remaining claims. However, we reverse the $2.6 million penalty award as an abuse of discretion and remand for recalculation of penalties and attorney fees consistent with this opinion. We award appellate attorney fees to O'Dea to the extent fees for his prevailing argument can be segregated.

FACTS

¶6 In August 2016, O'Dea fired multiple shots at a car whose driver was trying to flee a group of officers. The Department placed O'Dea on administrative leave and investigated whether he had violated Department policies. O'Dea made several requests for information and records while he was on administrative leave. We address issues related to those requests in the unpublished portion of this opinion.

A. March 2017 PRA Request Letters

¶7 In March 2017, O'Dea’s counsel, Brett Purtzer, wrote and mailed to the Department two letters explicitly requesting documents under the PRA on O'Dea’s behalf. The subject lines of both letters read, "PUBLIC RECORDS REQUEST." Clerk's Papers (CP) at 23, 25 (underscore omitted).

¶8 The first letter, dated March 24, 2017, requested several categories of records. O'Dea sought documentation showing how the Department tracked internal affairs investigations from 2006 to 2017. Purtzer requested information about the deadly force review board and "[c]opies of any and all Claims for Damages filed against the ... Department for the period January 1, 2006 [to] March 17, 2017," relating to use of force, personal injury, civil rights violations, racial discrimination, harassment, and bias. CP at 24 (underscore omitted). O'Dea sought policies and procedures for notifying Department staff about incidents involving use of force and deployment of chaplains and other support services for officers involved in use of force incidents.

¶9 The second PRA request letter, dated March 28, 2017, requested three additional categories of records. O'Dea requested training directives and special orders that addressed the use of force, as well as "[d]ata" about these trainings, including dates, times, locations, "[p]ersonnel attending," and "[t]opics covered in the training." CP at 25. O'Dea asked for "[p]ersonnel [r]osters or any other documents or reports" revealing "the assignments of personnel within the various bureaus of the Department" from 1995 to 2017. Id. Finally, the letter sought "memorandums, notifications, emails, and/or text messages concerning [the assistant chief's]" interviews for positions outside the Department. CP at 26.

¶10 Purtzer's paralegal testified that she deposited the letters in the mail on March 24 and 28, 2017. For reasons that are unclear, the City's public records officer did not receive them, a fact that is not contested on appeal.

493 P.3d 1249

B. November 2017 Complaint

¶11 In June 2017, The Department terminated O'Dea’s employment and a review board upheld that decision.

¶12 In November 2017, O'Dea sued the City, alleging violations of the PRA. O'Dea alleged that he made multiple requests for records under the PRA via the two PRA request letters and in other communications and that the Department violated the PRA by withholding responsive records. O'Dea requested penalties and "[a]n order that all records requested ... be provided promptly for inspection and copying." CP at 21. O'Dea attached the PRA letters as exhibits to both his initial and amended complaints. In its answer, the City denied receiving the PRA request letters. The City did not transmit the PRA request letters to its PRA officer at that time nor did it begin to respond to the PRA requests.

C. Cross Motions for Summary Judgment and Initial Response to PRA Requests

¶13 In May 2018, the City sent interrogatories and requests for production to O'Dea asking him to identify the communications he claimed were PRA requests. O'Dea again provided the two PRA request letters in response to the request for production.

¶14 In June 2018, O'Dea moved for partial summary judgment, arguing that the two PRA request letters attached to his complaint were public records requests and that the City failed to provide a timely response.

¶15 In July 2018, City attorney Jennifer Taylor e-mailed Purtzer, asking if he wanted to treat the two letters attached to the complaint as PRA requests. Purtzer did not respond.

¶16 In August 2018, the City deposed Purtzer's paralegal, Lee Ann Mathews. While on the record, Taylor reiterated that the City did not receive the letters purportedly mailed in March and again asked Purtzer whether she should give the letters to the public records staff to begin responding. Purtzer told Taylor that the City should have done so when it received the complaint in November 2017, but he confirmed that Taylor should send the letters to the public records staff. Taylor immediately sent the letters to Lisa Anderson, a public records officer for the City.

¶17 On August 31, 2018, within five days of receiving the two PRA request letters, Anderson sent Purtzer a notice acknowledging his PRA requests. Anderson told Purtzer that the City would likely finish responding to the letter originally dated March 28, 2017 by October 2, 2018. For the more extensive March 24, 2017 letter, Anderson estimated the City would provide complete responses by February 27, 2019. Due to the more complicated requests in the March 24, 2017 letter, Anderson warned Purtzer that it could take up to a year to fully respond. Anderson said the City would provide responses in monthly installments.

¶18 In September 2018, the City moved for partial summary judgment, asking the trial court to dismiss all of O'Dea’s PRA claims except those arising from the two PRA request letters. The City also responded to O'Dea’s motion for partial summary judgment, explaining that it never received the letters in March 2017. The City further contended that attaching the letters to the complaint did not constitute a valid PRA request.

¶19 On October 2, 2018, the City provided more than 500 documents in response to the letter originally dated March 28, 2017 and closed that request. The City continued to work on its response to the larger March 24, 2017 letter.

¶20 The trial court granted both parties’ motions for partial summary judgment. The trial court found there was no dispute that the City received the two PRA letters as attachments to the complaint. The trial court held that the letter attachments constituted valid PRA requests and there was "no genuine issue of material fact that the City violated [the] PRA regarding...