Hangartner v. City of Seattle
| Decision Date | 13 May 2004 |
| Docket Number | No. 73930-7.,73930-7. |
| Citation | 151 Wash.2d 439,90 P.3d 26 |
| Court | Washington Supreme Court |
| Parties | Rick HANGARTNER Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant. Citizens Against the Monorail, a political action committee registered with the Washington State Public Disclosure Commission, Respondent, v. Seattle Popular Monorail Authority (the "Seattle Monorail Project"), and Harold Robertson, Appellants. |
Thomas Carr, Seattle City Atty., Roger Wynne, Edwin Inkley, Shelley Pellegrino, Seattle, Asst. City Attys., for appellants.
Graham & Dunn, Judith Endejan, Lane Powell Spears Lubersky, Linda Clapham, Lane Powell Spears Lubersky, L.L.P., Aaron Caplan, ACLU of Washington, Duncan Manville, Riddell Williams, P.S., Seattle, for respondents.
James A. Anderson, Bellevue, Alison Page Howard, Michele Lynn Earl-Hubbard, Eric B. Martin, Davis Wright Tremaine LLP, Seattle, for Amicus Curiae (Allied Daily Newspapers of Washington, Washington Coalition for Open Government and Washington Newspaper Publishers Association).
Theodore Henry Gathe, Brent David Boger, Judith Martha Zeider, City Attorneys Office, Vancouver, for Amicus Curiae (Association of Washington Cities and Washington State Association of Municipal Courts).
Narda D. Pierce, Attorney General, Solicitor General, Olympia, for Amicus Curiae (Attorney General).
David John Lenci, Preston Gates & Ellis LLP, John Lawrence Groh, Seattle City Attorney's Office, Seattle, for Amicus Curiae (King County School Coalition, Washington Public Ports Association and Washington Public Utility Districts).
William John Crittenden, Patrick D. Brown, Seattle, for Amicus Curiae (League of Women Voters of Seattle).
Pamela Beth Loginsky, Washington Association of Prosecuting Attorneys, for Amicus
Curiae (Washington Association of Prosecuting Attorneys).
Leo Edward Poort, Seattle Police Department, Seattle, for Amicus Curiae (Washington Association of Sheriffs).
Mark J. Lee, Langabeer Tull & Lee PS, Bellingham, for Amicus Curiae (Washington State Trial Association).
These consolidated cases raise several issues including: (1) whether a request made under the public disclosure act (PDA) for all of an agency's documents is overbroad, thus excusing the agency from complying with the disclosure request, (2) whether the mere existence of public debate surrounding a transportation project is a "controversy," as defined in RCW 42.17.310(1)(j), rendering documents related to the project exempt from the PDA, and (3) whether documents covered by the attorney-client privilege are exempt from the PDA. We conclude that documents covered by the attorney-client privilege are exempt from the PDA and, therefore, reverse the trial court in Hangartner v. City of Seattle and remand for a determination as to whether the withheld documents are covered by the privilege. We also reverse in Citizens Against the Monorail v. The Elevated Transportation Company1 on the basis that the request for "all books, records, [and] documents of every kind" was too broad.
In early 2000, the City of Seattle (the City) announced that it would hold a public hearing on March 21, 2000, regarding Council Bill (CB) 113100. This proposed ordinance was designed to allow the City to issue permits for the "temporary structures and uses" necessary for the construction of a light rail transit system.2 Hangartner's Clerk's Papers (HCP) at 62. On February 25, 2000, Rick Hangartner sent a PDA3 request to the City seeking the disclosure of documents relating to CB 113100. Although the City produced the bulk of the requested documents, it withheld three of the requested documents (hereinafter referred to as the light rail documents), asserting that they were exempt from disclosure under RCW 42.17.260(1) by an "other statute," the attorney-client privilege set forth in RCW 5.60.060(2)(a), and the so-called "controversy exemption" contained at RCW 42.17.310(1)(j). At the time Hangartner made his request, there was a considerable amount of public debate over the development of the light rail line. The City was not, however, involved in any litigation concerning CB 113100 at that time.
Hangartner brought suit against the City in King County Superior Court seeking an order compelling disclosure of the light rail documents. He then moved for summary judgment. The City responded by filing a cross-motion for summary judgment.
The trial court granted Hangartner's motion and ordered the City to allow Hangartner to inspect and obtain copies of the light rail documents. The trial court did, however, stay its judgment to allow the City an opportunity to seek review of its ruling. The City then sought discretionary review of the trial court's decision with Division One of the Court of Appeals.
In a separate PDA request sent almost two weeks after the trial court's order, Hangartner sought records from the City relating to the City's designation of an alcohol impact area in the Pioneer Square neighborhood. Although the City produced many of the requested documents, it withheld three documents (hereinafter referred to as the AIA documents) contending that they were exempt from the PDA under the attorney-client privilege.4
The City agreed to allow Hangartner to amend his original complaint to include the City's refusal to release the AIA documents. The trial court then amended the judgment it had previously entered in order to provide that the City was required to release these additional documents.5 The trial court also stayed the effectiveness of its amended judgment pending resolution of the matter on appeal. The City appealed to Division One of the Court of Appeals, which struck the prior motion for discretionary review and considered the entire case as an appeal of right.
Citizens Against the Monorail (Citizens) sent a PDA request to the Elevated Transportation Company (ETC) in an effort to obtain documents relating to a proposed initiative regarding the development of a new monorail line in Seattle, a matter that was on the November 5, 2002, ballot. In an effort to clarify which documents it was requesting, Citizens modified its request on September 26, 2002, "to ask for the opportunity to inspect all books, records, documents of every kind and the physical properties of the Elevated Transportation Company." Citizens' Clerk's Papers (CCP) at 15. Although the ETC informed Citizens that the PDA requires it to produce only "`identifiable'" public records, it agreed to respond to the request but stated that it would "exercise its responsibility to review for exemptions." CCP at 18. Citizens never narrowed its request.
The ETC attempted to comply with Citizens' request, "on a rolling basis[,]" by screening all documents and releasing the documents it believed were not exempt from disclosure. CCP at 86. Unsatisfied with the ETC's actions, Citizens filed suit against the ETC in King County Superior Court to compel the production of the documents prior to the November 2002 election.
Two days after the suit was filed, the ETC produced a log identifying the records that it believed were exempt from production. The ETC claimed that all of the records at issue in this appeal were either protected by an "other statute," the attorney-client privilege, or the controversy exemption set forth in RCW 42.17.310(1)(j). ETC's Opening Br. at 9-10.
CCP at 206-07. The court stayed its ruling for 48 hours to allow the ETC to seek emergency appellate review, which it did by filing a petition for discretionary review with Division One of the Court of Appeals.
The following day, Citizens filed an emergency motion with the trial court requesting the immediate production of certain records. In response to this motion, the trial court reviewed two documents in camera and determined that they were exempt from disclosure under RCW 42.17.310(1)(j), the controversy exemption.
Approximately one week later, the trial court reviewed, in camera, an additional 115 documents relating to the emergency motion. It determined that many of the documents were exempt from production, relying on the PDA's controversy exemption and the attorney-client privilege.6
The Court of Appeals granted the ETC's request for discretionary review. Citizens was later granted cross-review of the trial court's determination that certain documents were exempt. The Court of Appeals consolidated both cases that are before us now, and certified them to this court pursuant to RCW 2.06.030(d). Determining that these cases presented issues of broad public importance, we accepted certification.
Agency actions challenged under the PDA are reviewed de novo. RCW 42.17.340(3). We, therefore, stand in the same position as the trial court. O'Connor v. Dep't of Soc. & Health Servs., 143 Wash.2d 895, 904, 25 P.3d 426 (2001).
These consolidated cases raise several common issues including: (1) whether the...
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...pursuant to the PDA and identify the documents with reasonable clarity to allow the agency to locate them." Hangartner v. City of Seattle , 151 Wash.2d 439, 447, 90 P.3d 26 (2004) (citing Wood v. Lowe , 102 Wash. App. 872, 878, 10 P.3d 494 (2000) ). Agencies are not required to read minds. ......
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