Kilduff v. San Juan Cnty.

CourtCourt of Appeals of Washington
PartiesEDWARD KILDUFF, Appellant, v. SAN JUAN COUNTY, a political subdivision of the State of Washington, and JAMIE STEPHENS in his capacity as San Juan County Council Member and San Juan County Public Records Officer, Respondent.
Docket Number82711-1-I
Decision Date31 May 2022


Coburn, J.

Edward Kilduff appeals the trial court's order dismissing his Public Records Act (PRA) complaint. He argues that the trial court erred in finding that San Juan County satisfied his public records request. Kilduff also claims that the trial court abused its discretion by denying a recusal request denying a request to present new evidence, and excluding testimony related to the underlying investigation of an Improper Governmental Action (IGA). The Washington Coalition for Open Government (WCOG) filed an amici curiae brief in support of Kilduff. The trial court did not abuse its discretion. We affirm the dismissal of Kilduffs PRA complaint.


Chris Laws was a San Juan County (County) code enforcement officer. In 2014, Laws began a code enforcement investigation related to the designation of a local wetland.

In January 2015, Laws filed an improper governmental action (IGA) complaint with County Prosecutor Randall Gaylord alleging that a County employee engaged in misconduct related to the wetland designation. Gaylord investigated[1] Laws' complaint and issued a final IGA report in February 2015.

The next month, the County received a Public Records Act (PRA) request from a local land use consultant, Sheryl Albritton for the code enforcement file.[2] During the Albritton PRA request, county employees became aware that Laws, as the custodian of the related code enforcement file, included some of his personal items related to the IGA complaint into the code enforcement file.

On May 12, 2015, Laws' supervisor instructed him to remove the personal items from the file and he declined to do so. They consulted with Gaylord by phone and all agreed no documents would be destroyed. The next day, legal counsel for Laws' union and Gaylord discussed the need to have personal items taken out of the enforcement code file and agreed that Gaylord's assistant would handle the task. The personal items dealt with confidential records concerning the IGA that Gaylord's office was already familiar with. Gaylord testified that, as the custodian of the IGA file, he had his own copy of Laws' draft notes but expected that Laws would keep his own personal file related to his IGA complaint.

On the morning of May 20, Gaylord's assistant removed Laws' personal items from the IGA file and those files were returned to him. That same day, Laws approached his friend Edward Kilduff. Kilduff testified that Laws was upset that his supervisor asked him to remove items from an official file to a personal file. Laws showed Kilduff a copy of what appeared to be Laws' code enforcement file and, according to Kilduff, Laws said the file was at the moment being torn apart by the County and segregated. Laws asked Kilduff to file a public records request.

In the afternoon of May 20, at 3:45 p.m., Kilduff submitted a PRA request related to the wetlands classification dispute and the subsequent IGA investigation. Kilduff identified the specific County Department of Community Development (DCD) code enforcement file associated with the wetlands dispute and requested copies of "all documents, correspondence, memos, statements, reports, and other contents" of that file. Kilduff also requested copies of "all documents, memos, statements, reports, correspondence and other records associated with the investigation of improper governmental action, related to the above referenced code enforcement file."

The County recognized and treated Kilduffs submission under the PRA. Sally Rogers, the public records clerk, forwarded the request to Gaylord and the director of the DCD. On May 26, Rogers sent Kilduff an email acknowledging receipt of his request and to "expect a response within the next 5-10 business days." Gaylord called Kilduff on May 28 to discuss his broad request as it related to the IGA. Gaylord and Kilduff dispute what was agreed to in the phone conversation.

According to Gaylord, he identified himself as the custodian of the IGA file, which contained a final IGA report. He explained that a copy of that report had been redacted to protect the name of the whistleblower and had been given to another requester (Albritton), and the same could be provided to Kilduff to expedite his request. Gaylord further explained that all the documents Gaylord relied upon in preparing the report were listed in the report and Kilduff could further request any of those documents. According to Gaylord, Kilduff "agreed that obtaining only the final report was an acceptable way to proceed, and that if he desired to obtain additional documents from the file after reviewing the final report, he would contact me and let me know as part of a new public records request." Gaylord testified that Kilduff agreed to proceed accordingly.

Kilduff s memory of the phone conversation was less precise. He acknowledged that his phone records reminded him that the call took place on May 28 and not on June 12, which is what he had previously submitted in a declaration a year earlier. When asked later in an evidentiary hearing if there was discussion on redactions or withholdings during the phone call, Kilduff said, "I don't recall. Could have been. I don't recall." In Kilduffs earlier declaration he stated that Gaylord was going to send him the IGA report "with the name of the person who had made the complaint redacted and that this was the same way it had been redacted when it was produced to another requestor Sheryl Albritton." In his declaration, Kilduff explained he told Gaylord "something to the effect of 'I can't say that your redactions are ok until I see them, but sure, go ahead and send it to me.'" Kilduff testified that Gaylord did most of the talking and Kilduff did not say much at all, and while he did "not necessarily remember chapter and verse of what was said," he "distinctly" remembered "what was not agreed to." Kilduff did not view the report as a substitute for anything he had requested.

Immediately after the phone call, Gaylord emailed Rogers:

I have just spoken with Mr. Kilduff by phone and he and I agreed that we would proceed with you providing him with a copy of the final report redacted as you did for Albritton. Only the final report for now, if he wants more he will call me and I'll have to deal with it and make further redactions, etc.

On June 2, Rogers emailed Kilduff the contents of the code enforcement file and told him that he should expect the second set of records related to the improper governmental action (IGA) in two weeks. After returning from taking some personal time off, Rogers emailed Kilduff the IGA report on June 12:

In final response to your public records request received on 5/20/15 for the remaining document, ("for copies of all documents, memos, statements, reports, correspondence and other records associated with the investigation of improper governmental action, related to the above referenced code enforcement file . . .)" per Randy Gaylord he spoke to you by phone it was agreed that the County would proceed with providing a copy of the final report redacted as done for the response to Ms. Albritton's public records request.
Attached is a memorandum dated 3/11/15 from Randall K. Gaylord, RE: Report on IGA Report dated January 21, 2015. The attachment has the name redacted of the person making the report pursuant to RCW 42.41.030. The identity of a reporting person is to be kept confidential to the extent possible under law, unless the employee authorized the disclosure of his or her identity in writing. RCW 42.41.030(7).
This email response and attachment fulfills your public records request. If you have any questions related to this request or believe we should have provided additional documents, please let me know.

Kilduff never contacted Rogers or Gaylord with any questions.


On June 1, 2016, Kilduff sued San Juan County alleging that it violated the PRA by failing to conduct a reasonable search for responsive records and silently withholding records without an exemption. In the same suit, Kilduff initiated a quo warranto action to oust a Snohomish County councilmember.

The trial court held an evidentiary hearing on Kilduff s claims over three days between February and November 2017.[3]

After closing arguments, the court indicated that a procedural issue of exhaustion of administrative remedies might preclude its ruling on the facts of the PRA issue. At issue was San Juan County Code (SJCC) 2.108.130, which required requesters to appeal the denial of a records request with the County before filing a PRA lawsuit. On May 28, 2018, the trial court dismissed Kilduff s PRA claims, concluding that Kilduff failed to exhaust administrative appeals according to SJCC 2.108.130. The court also dismissed the ouster action. The court awarded sanctions under CR 11 and costs under RCW 4.84.185 against Kilduff and his attorneys for bringing a frivolous lawsuit.

Kilduff appealed directly to the Washington State Supreme Court. Kilduff v. San Juan County, 194 Wn.2d 859, 453 P.3d 719 (2019). The Supreme Court held that SJCC 2.108.130 was invalid because the PRA did not authorize San Juan County to create an additional administrative exhaustion procedure Id., at 867-68. The court therefore concluded that the trial court's dismissal of Kilduff s PRA claim was improper. Id. at 868. The court affirmed the dismissal of the ouster action, but held that the trial court abused its discretion when it awarded...

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