Morgan v. City of Federal Way

• Decision Date: 20 August 2009
• Docket Number: No. 81556-9.,81556-9.
• Citation: 213 P.3d 596,166 Wn.2d 747
• Parties: Michael F. MORGAN, Appellant, v. CITY OF FEDERAL WAY, a code municipality; and the City Attorney, for Federal Way, Respondents, and Tacoma News, Inc. d/b/a/ The News Tribune, Respondent/Intervenor.
• Court: Washington Supreme Court

213 P.3d 596

166 Wn.2d 747

Michael F. MORGAN, Appellant, v. CITY OF FEDERAL WAY, a code municipality; and the City Attorney, for Federal Way, Respondents, and Tacoma News, Inc. d/b/a/ The News Tribune, Respondent/Intervenor.

No. 81556-9.

Supreme Court of Washington, En Banc.

August 20, 2009.

John Benjamin Kerr Schochet, Dorsey & Whitney LLP, Stephen Joel Crane, Douglas S. Dunham, Crane Dunham PLLC, Seattle, WA, for appellant.

P. Stephen Dijulio, Ramsey E. Ramerman, Foster Pepper PLLC, Seattle, WA, for respondents.

James Walter Beck, William Edward Holt, Gordon Thomas Honeywell, Tacoma, WA, for respondent intervenor.

Duane Michael Swinton, Steven Joseph Dixson, Spokane, WA, for amicus curiae on behalf of Washington Coalition for Open Government.

James Kendrick Pharris, Alan D. Copsey, Office of the Attorney General, Olympia, WA, for amicus curiae on behalf of Attorney General.

OWENS, J.

¶ 1 In response to a public records request from the News Tribune, the city of Federal Way (City) agreed to release a report on the investigation of a Federal Way Municipal Court employee's hostile work environment complaint. Presiding Judge Michael Morgan filed for a protective order to prevent the release, claiming that the report was exempt from the Public Records Act (PRA), chapter 42.56 RCW. We disagree. Because the report was initiated by the city attorney in accordance with city policy and completed without Judge Morgan's permission, it is a city document subject to disclosure under the PRA. Judge Morgan did not have an attorney-client relationship with the outside investigator, and the report was not prepared in anticipation of litigation, so the PRA exemptions cited by Judge Morgan do not apply. We affirm the trial court's decision to allow the City to release the report.¹

FACTS

¶ 2 A Federal Way Municipal Court employee complained of a hostile work environment to the City. Per the City's antidiscrimination policy, City Attorney Patricia Richardson initiated an investigation. Richardson contacted Judge Morgan to inform him, in general terms, of the complaint and investigation. Richardson also sought Judge Morgan's cooperation because he had prohibited court employees from cooperating in a prior investigation into accusations against him. Richardson hired attorney Amy Stephson to conduct a factual investigation of the complaint. After meeting with Stephson, Judge Morgan attempted to terminate her investigation. Richardson instructed Stephson to complete a report on her investigation anyway. Later that month, Judge Morgan wrote an e-mail to Richardson complaining that Stephson's investigation was creating a hostile work environment for him. Clerk's Papers (CP) at 215-17 (SEALED). He then forwarded that e-mail message to the private e-mail address of one of the city council members (Document 10). Id. at 215.

¶ 3 The News Tribune requested a copy of the "Stephson Report," and the City agreed to produce it. Judge Morgan filed a motion to prevent the release. The trial court granted a temporary restraining order (TRO) preventing the City from releasing the report but ultimately denied Judge Morgan's motion and dissolved the TRO. Judge Morgan appealed to Division One of the Court of Appeals and that appeal was transferred to this court.

ISSUES

¶ 4 1. Is the Stephson Report a city record subject to the PRA?

¶ 5 2. Is the Stephson Report protected under the work product doctrine, attorney-client privilege, or personal information exemptions?

¶ 6 3. Does attorney-client privilege apply to Judge Morgan's e-mail to the city attorney after he sent it to a third party (Document 10)?

¶ 7 4. Did the trial court abuse its discretion when it denied attorney fees after an injunction was wrongfully issued?

STANDARD OF REVIEW

¶ 8 When the record before the trial court consists entirely of "documentary evidence, affidavits and memoranda of law," this court stands in the same position as the trial court and reviews the trial court's decision de novo. Limstrom v. Ladenburg, 136 Wash.2d 595, 612, 963 P.2d 869 (1998). The PRA must be "liberally construed and its exemptions narrowly construed" to ensure that the public's interest is protected. RCW 42.56.030; Livingston v. Cedeno, 164 Wash.2d 46, 50, 186 P.3d 1055 (2008).

ANALYSIS

I. The PRA

¶ 9 A "`[p]ublic record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010(2). At all stages, the Stephson Report appeared to be a city record. The initial complaint was made to the City, not to Judge Morgan. The city attorney initiated the investigation in accordance with the City's antidiscrimination policy, not as a result of instruction from Judge Morgan, and continued it over Judge Morgan's protests.² As a whole, the record indicates that the Stephson Report was prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.

II. Work Product Doctrine, Attorney-Client Privilege, and Personal Information Exemptions

¶ 10 Judge Morgan contends that the Stephson Report is protected from release under the PRA's work product, attorney-client privilege, and personal information exemptions. RCW 42.56.290, .230(2). The PRA exempts any records related to a "controversy" that would be protected from pretrial discovery. RCW 42.56.290. This includes attorney work product, CR 26(b)(4), and records protected by attorney-client privilege, CR 26(b)(1). Soter v. Cowles Publ'g Co., 162 Wash.2d 716, 730-32, 174 P.3d 60 (2007). The PRA also exempts records containing personal employee information when disclosure would violate the employee's right to privacy. RCW 42.56.230(2).

A. Work Product Doctrine

¶ 11 To invoke the work product exemption, the records must relate to "`completed, existing, or reasonably anticipated litigation.'" Soter, 162 Wash.2d at 732, 174 P.3d 60 (quoting Dawson v. Daly, 120 Wash.2d 782, 791, 845 P.2d 995 (1993)). The work product doctrine does not shield records created during the ordinary course of business. Heidebrink v. Moriwaki, 104 Wash.2d 392, 396-97, 706 P.2d 212 (1985); see Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554-55, 691 A.2d 321 (1997) (holding that an investigation into a hostile work environment claim was likely not work product because it was conducted during the ordinary course of business, not in anticipation of litigation).

¶ 2 At the time of the Stephson investigation, no one had threatened litigation related to the hostile work environment and none was reasonably anticipated. The City's antiharassment policy calls for an investigation into any harassment claim and prompt remedial action. The Stephson investigation was conducted per this antiharassment policy and had a remedial purpose. Therefore, we hold that the Stephson Report was not prepared in reasonable anticipation of litigation and is not protected by the work product doctrine.

B. Attorney-Client Privilege

¶ 13 The attorney-client privilege protects "`communications and advice between attorney and client.'" Hangartner v. City of Seattle, 151 Wash.2d 439, 452, 90 P.3d 26 (2004) (quoting Kammerer v. W. Gear Corp., 96 Wash.2d 416, 421, 635 P.2d 708 (1981)); RCW 5.60.060(2)(a). This privilege "does not protect documents that are prepared for some other purpose than communicating with an attorney." Hangartner, 151 Wash.2d at 452, 90 P.3d 26.

¶ 14 The evidence does not support Judge Morgan's contention that the Stephson Report is protected by attorney-client privilege because no attorney-client relationship developed between Judge Morgan and Stephson. Stephson was hired as an independent investigator, and Judge Morgan referred to her as "the investigator" and not as his attorney. Transcript of Proceedings (TR) (Mar. 10, 2008) at 12. In fact, he complained when she offered "unsolicited advice" and he perceived her actions to exceed those appropriate for an investigator. CP at 71; TR (Mar. 10, 2008) at 10. Moreover, the purpose of her investigation was not to provide legal advice, but to comply with the City's antidiscrimination policy. Her report consists solely of a factual investigation and contains no legal analysis or recommendations. Because no attorney-client relationship developed between Stephson and Judge Morgan, the investigation and report are not protected by attorney-client privilege.

C. Personal Information Exemption

¶ 15 The PRA exempts "[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy." RCW 42.56.230(2). The right to privacy extends to matters concerning a person's private life that "(1) [w]ould be highly offensive to a reasonable person, and (2) [are] not of legitimate concern to the public." RCW 42.56.050; Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wash.2d 199, 212, 189 P.3d 139 (2008). Unsubstantiated allegations are exempt from disclosure. Does, 164 Wash.2d at 215-16, 189 P.3d 139 (holding that teachers had a right to privacy in unsubstantiated allegations of sexual misconduct toward a minor).

¶ 16 Judge Morgan claims that the report violates his right to privacy because it contains unsubstantiated allegations of "inappropriate behavior," which he contends are highly offensive. However, the allegations— including angry outbursts, inappropriate gender-based and sexual comments, and demeaning colleagues and employees—are nowhere near as offensive as allegations of sexual misconduct with a minor and do not rise to the level of "highly offensive." Cf. id. Contrary to Judge Morgan's assertion, the incidents are not unsubstantiated simply because he disputes them. The Stephson Report evaluates each person's credibility and concludes that many of the...