Kittitas Cnty. v. Sky Allphin

• Decision Date: 09 August 2016
• Docket Number: No. 33241–1–III,33241–1–III
• Citation: 195 Wash.App. 355,381 P.3d 1202
• Parties: Kittitas County, a municipal corporation and political subdivision of the State of Washington, Respondent, v. Sky Allphin, ABC Holdings, Inc., Chem–Safe Environmental, Inc., Appellants, Washington State Department of Ecology, Defendant.
• Court: Washington Court of Appeals

195 Wash.App. 355

381 P.3d 1202

Kittitas County, a municipal corporation and political subdivision of the State of Washington, Respondent,

v. Sky Allphin, ABC Holdings, Inc., Chem–Safe Environmental, Inc., Appellants,Washington State Department of Ecology, Defendant.

No. 33241–1–III

Court of Appeals of Washington, Division 3.

FILED August 9, 2016

Leslie Alan Powers, Attorney at Law, 3502 Tieton Dr., Yakima, WA, 98902–3661, Nicholas James Lofing, Davis, Arneil Law Firm, 617 Washington St., Wenatchee, WA, 98801–2600, for Appellants.

Travis H. Burns, Attorney General of Washington, P.O. Box 40117, Olympia, WA, 98504–0117, for Defendant.

Kenneth W. Harper, Quinn N. Plant, Menke Jackson Beyer, LLP, 807 N. 39th Ave., Yakima, WA, 98902–6389, Neil Alan Caulkins, Kittitas County Prosecutor, 205 W. 5th Ave., Ste. 213, Ellensburg, WA, 98926–2887, for Respondent.

OPINION PUBLISHED IN PART

Lawrence–Berry, A.C.J.¶1 In 2011, Kittitas County (the County) issued a notice of violation and abatement (NOVA) to Chem–Safe Environmental, Inc. and its parent company, ABC Holdings, Inc. (collectively Chem–Safe) for storing and handling moderate risk waste without proper county permits. The Kittitas County Prosecuting Attorney's Office sought assistance from technical professionals at the Washington State Department of Ecology (Ecology), and the deputy prosecutor and Ecology employees exchanged e-mails throughout the regulatory enforcement litigation.

¶2 Sky Allphin, Chem–Safe's president, then submitted a Public Records Act (PRA) request under chapter 42.56 RCW, seeking the County's records pertaining to the case, including its attorneys' e-mails and correspondence. The trial court reviewed the e-mails in camera and determined they were a product of litigation ongoing between the County and Mr. Allphin and were, therefore, exempt from production under the PRA.

¶3 Mr. Allphin argues the sealed e-mails are not attorney work product or attorney client privileged and, even if they are, the County waived any privilege when it exchanged the e-mails with Ecology. In the published portion of this opinion, we discuss the “common interest doctrine,” an exception to the rule that the presence of a third party to a communication waives a privilege. We hold that this doctrine applies here, and the County did not waive any privilege by consulting with Ecology.

¶4 Mr. Allphin also argues (1) the County's exemption logs are inadequate, (2) the County violated the PRA when it initially withheld or redacted records and then subsequently produced those same records, (3) the County failed to provide the fullest assistance, (4) the County unlawfully withheld handwritten notes by Richard Granberg, and (5) the County abused the judicial process and this court should release the e-mails as a sanction. In the unpublished portion of this opinion, we agree with Mr. Allphin that the County wrongfully withheld six emails, but disagree with his remaining arguments. We therefore affirm in part, reverse in part, and remand for further proceedings.

FACTS

¶5 Chem–Safe operates a hazardous waste transport and transfer facility in Kittitas County, Washington. Beginning in 2009 or 2010, the County and Ecology worked with Chem–Safe to develop operations and engineering plans that would comply with Washington's waste handling regulations. In December 2010, James Rivard, the environmental health supervisor for the Kittitas County Public Health Department (KCPHD), received letters from the Idaho Department of Environmental Quality. The letters said an Idaho disposal company sent three shipments of waste back to Chem–Safe because the contents of Chem–Safe's waste drums did not match the labels on the drums or Chem–Safe's paperwork.

¶6 Mr. Rivard inspected Chem–Safe's facility and observed moderate risk waste materials. Chem–Safe did not have a permit from KCPHD to collect moderate risk waste or operate a moderate risk waste facility. Chem–Safe also failed to properly label hazardous waste, had unsanitary drums, and lacked a secondary containment for their drums.

¶7 The County issued Chem–Safe a NOVA, which alleged Chem–Safe had operated a hazardous waste facility without a proper permit, required Chem–Safe to take a number of abatement actions, and required Chem–Safe to suspend all facility operations until it obtained a permit. Mr. Rivard copied his letter to Gary Bleeker, Ecology's facilities specialist lead, Wendy Neet, Ecology's solid waste inspector, and Richard Granberg, Ecology's hazardous waste specialist. The County issued a health order that incorporated the NOVA's findings and requirements.

¶8 Chem–Safe appealed the NOVA and the hearing examiner affirmed. Chem–Safe appealed to the superior court, which also affirmed and ordered Chem–Safe to submit a sampling plan and test its facility. Chem–Safe then appealed to this court. We upheld the NOVA and concluded Chem–Safe did not comply with the County's permitting ordinances. See ABC Holdings, Inc. v. Kittitas County, 187 Wash.App. 275, 284–86, 289, 348 P.3d 1222

, review denied , 184 Wash.2d 1014, 360 P.3d 817 (2015).

¶9 Chem–Safe also brought a 42 U.S.C. § 1983

claim in federal court against the County, Ecology, Mr. Rivard, Mr. Granberg, Mr. Bleeker, and two other Ecology employees—Norman Peck with Ecology's toxics cleanup program, and his supervisor, Valerie Bound.

¶10 The Kittitas County Prosecuting Attorney's Office originally assigned Deputy Prosecutor Suzanne Becker to handle the Chem–Safe litigation. Deputy Prosecutor Zera Lowe later took over the case. The County's employees and Ecology's employees e-mailed one another and met in person throughout Chem–Safe's various appeals, and Ecology's employees generally acted in a consultative role with respect to the civil enforcement action. For example, Mr. Peck kept Mr. Rivard updated as to whether Chem–Safe had submitted a sampling plan, and discussed what the plan needed to include in order to meet both agencies' requirements. After Chem–Safe moved to stay the superior court's order, Ms. Lowe e-mailed Mr. Peck and asked for help responding to and gathering additional declarations. Mr. Peck e-mailed Chem–Safe's declarations to the other Ecology employees in order to coordinate a response, and also met with Ms. Lowe and Mr. Rivard.

¶11 On October 17, 2012, Mr. Allphin submitted a PRA request to the County requesting “[a]ll documentation, correspondence, pictures, court records and emails to and from Kittitas County Public Health and Kittitas County Prosecutors Office regarding Chem–Safe Environmental, Inc. dating from January 1, 2010 to current.”¹ Clerk's Papers (CP) at 70. Mr. Allphin sent Ecology a similar request, seeking all of Ecology's documents regarding Chem–Safe. This request included all communications between Ecology and the Kittitas County Prosecuting Attorney's Office while working on the Chem–Safe case.

¶12 Ms. Lowe and legal secretary Angela Bugni were responsible for responding to Mr. Allphin's PRA request. When Ms. Lowe learned Mr. Allphin had also requested records from Ecology, she asked Ecology's public records officer not to release any records containing communications between the County's legal counsel and Ecology employees that would disclose legal strategy or the attorneys' thought processes. Ecology's records officer advised Ms. Lowe that Ecology would not release the records until the County sought court protection. However, Ecology inadvertently released a few e-mails between Ms. Becker (the former deputy prosecutor) and Ecology that Ms. Lowe believed contained attorney work product.

¶13 The County filed a complaint in the superior court naming Mr. Allphin, Chem–Safe, and Ecology as respondents. The complaint sought a declaratory judgment that the County and Ecology's e-mails were attorney work product and attorney client privileged and thus exempt from production under the PRA. The County moved the superior court to review the records in camera and also moved for a temporary restraining order (TRO) enjoining Ecology from releasing the challenged records until the court had the chance to review them.

¶14 At the hearing, the County handed up one sealed envelope with the caption “DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW.” CP at 781. The cover sheet identified 11 individual e-mails and identified the sender, recipients, and date and time at which the e-mail was sent.

¶15 The superior court reserved ruling at the hearing and later issued a memorandum decision. The court reviewed the records in camera and determined the e-mails were a product of litigation ongoing between the County and Mr. Allphin and were, therefore, exempt from production under the PRA. The superior court also held the fact that the County e-mailed Ecology during the litigation did not waive this privilege, given that the County and Ecology worked cooperatively to enforce the environmental laws and were thus on the same “legal team.” CP at 788.

¶16 In December 2013, the superior court incorporated its memorandum decision into a final order, dissolved the TRO, and permanently enjoined Ecology from producing the 11 e-mails it reviewed in camera. The court ordered Ecology to produce the e-mails it previously withheld under the TRO. The court found that sealing satisfied the Ishikawa²

factors, then sealed the e-mails.

¶17 In March 2014, Mr. Allphin filed an amended answer and brought counterclaims against the County, alleging the County failed to provide the fullest assistance and unlawfully withheld nonexempt records. The County obtained new counsel. Throughout the next several months, the County and Mr. Allphin exchanged a number of letters discussing the adequacy of the County's PRA response.

¶18 In one of his letters, Mr. Allphin listed 21 additional e-mails from the County's exemption logs that he wanted the court to review in camera. Mr. Allphin disagreed with the County's claim that these e-mails were work product and thus exempt from disclosure. The County agreed to assemble the 21 e-mails...