Neighborhood Alliance of Spokane County v. County of Spokane

Decision Date29 September 2011
Docket NumberNo. 84108–0.,84108–0.
Citation261 P.3d 119,172 Wash.2d 702
CourtWashington Supreme Court
PartiesNEIGHBORHOOD ALLIANCE OF SPOKANE COUNTY, a non-profit corporation, Petitioner,v.COUNTY OF SPOKANE, a political subdivision of the state of Washington, Respondent.


Breean Lawrence Beggs, Paukert & Troppmann, PLLC, Bonne W. Beavers, Center for Justice, Spokane, WA, for Petitioner.Patrick Mark Risken, Evans, Craven & Lackie, P.S., Spokane, WA, for Respondent.Michele Lynn Earl–Hubbard, Christopher Roslaniec, Allied Law Group LLC, Seattle, WA, amicus counsel for Allied Daily Newspapers of Washi, Washington Newspapers Publishers, Seattle Times, Tacoma News Tribune and Tri-city Herald.C. JOHNSON, J.

[172 Wash.2d 708] ¶ 1 This Public Records Act (PRA) case asks us to define the scope of discovery allowed in PRA-provoked lawsuits, what constitutes an adequate search for requested records, and whether a party may be prevailing when it possesses some responsive documents at the time suit is filed. We hold discovery in a PRA case is the same as in any other civil action and is therefore governed only by relevancy considerations, reversing the Court of Appeals' decision. We hereby adopt Freedom of Information Act (FOIA) standards of reasonableness regarding an adequate search, consistent with the Court of Appeals' decision. Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wash.App. 241, 224 P.3d 775 (2009) ( NASC ). Finally, since the harm is done at the time the request is made and refused, we hold that a party may be entitled to recover costs and fees if the agency wrongfully fails to disclose documents in response to a request, reversing the Court of Appeals on this issue.


¶ 2 At its core, this case involves PRA requests that sought to uncover suspected illegal hiring practices in Spokane County's Building and Planning Department (the BPD).1 On February 16, 2005, a copy machine at the BPD printed copies of an undated office seating chart. Clerk's Papers (CP) at 283–84. The print request came from the BPD employee Pam Knutsen's computer. This chart showed cubicle arrangements of employees at the BPD, but it also included (central to this case) two names within a cubicle, who had not yet been hired, designated “Ron & Steve.” CP at 283–84. This caused quite a stir among the BPD employees, many of whom already suspected the BPD of illegal hiring practices. CP at 130, 283, 289. Mark Holman, an Assistant Director of the BPD, saw the chart, cancelled the print job from Knutsen's office, and unplugged the copy machine. CP at 284.

¶ 3 On February 19, 2005, the seating chart and an accompanying letter were anonymously transmitted to the Neighborhood Alliance of Spokane County (the Alliance). CP at 127–28. The Alliance is a nonprofit, community-based organization that emphasizes government accountability. The letter stated the positions assigned to Ron and Steve had not been posted yet, and alleged other “appointment” positions in violation of county policy and employment law. CP at 130.

¶ 4 The Alliance took interest in this matter when Steve Harris, son of Commissioner Phil Harris, and Ron Hand, a former employee, were hired in March. CP at 91, 257–75. Steve is evidently the third son of Commissioner Harris to be hired by Spokane County (the County), and it was reported in a local newspaper in April 2005. CP at 91, 286. The Alliance first sent a PRA request to the County seeking all records created in January, February, and March 2005 displaying current or proposed office-space assignments for the BPD's planning officials. CP at 277–80. The County provided three iterations of the same seating chart, two of which were dated, and a third, matching the one the Alliance had anonymously received, which was not dated. CP at 277–80. This led to the next PRA request, which is the subject of this case.

¶ 5 Essentially, the Alliance wanted to know when the “Ron & Steve” seating chart was created. It sought to prove, using the BPD's own records, that the undated chart was created prior to job postings for the positions later filled by Ron and Steve. To that end, it sent the following PRA request to the County:

1) The complete electronic file information logs for the undated county planning division seating chart provided by Ms. Knutsen to the Neighborhood Alliance on May 13th. This information should include, but not necessarily be limited to, the information in the “date created” data field for the document as it exists on the specific Microsoft Publisher electronic document file created for the referenced seating chart. The requested information should also include, but not be limited to, the computer operating system(s) data record indicating the date of creation and dates of modification for the referenced seating chart document.

2) The identities of “Ron & Steve” individuals who are situated near the center of the seating chart referenced in item # 1. Also, the identity of the individual listed as “Steve” in the cubicle with the number 7221 at the top of the chart.

By the term public records, I am invoking a broad definition, consistent with [former] RCW 42.17.020(36) [ (2002) ] and specifically mean to include records that exist in any electronic form as well as those that exist on paper. This should be read to include, but not be limited to, records preserved in paper correspondence, electronic mail, facsimiles, videotape, and computer files.

Pursuant to [former] RCW 42.17.310 [ (2003) ], please identify any record covered by the above requests that is being withheld as exempt, and provide a summary of the record's content and the specific reason for the exemption.CP at 51–52.

¶ 6 The County provided one document in response to Item # 1, a log showing the requested fields, but problematically, the “date created” field was later than the “date modified” field for each of the documents. CP at 56. No explanation was offered for this discrepancy. Regarding Item # 2, however, the County replied that the PRA “does not require agencies to explain public records. As such, no response is required.” CP at 54.

¶ 7 It was eventually revealed that Knutsen's computer, which had evidently generated the seating charts, was replaced in April 2005.2 When the files were copied from the old hard drive to a new hard drive, the date of copying became the date of creation, rather than retaining the original date of creation. CP at 61–62. When the PRA request was submitted in May, Knutsen only accessed and copied the records from her current, new computer. She did not contact the Information Systems Department to determine whether the hard drive of her old computer had been erased, and she had not backed up the file in any other place. While it is unclear exactly when the computer was wiped of all data, the hard drive had been certainly erased by August 8, 2005, when it was given to another employee. CP at 609–12. Other BPD employees stated that such a file, which would be used administratively, would normally have been copied to a shared server. CP at 287–88, 332. Regarding Item # 2, Knutsen did indeed conduct a search, but found “no documents which reference the seating chart and identify the full names of ‘Ron and Steve’ or ‘Steve’ therein.” CP at 62.

¶ 8 Following extensive correspondence seeking to resolve the issue, the Alliance filed suit against the County on May 1, 2006. Discovery issues immediately erupted. The County objected to every request for admission, though it did respond to a handful. But it did not respond to interrogatories or requests for production at all. The Alliance next sought to depose Pam Knutsen, and it was finally agreed this would happen in December 2006. CP at 104–05. Before the deposition occurred, the County moved for summary judgment in November 2006. The Alliance sought a continuance and to compel discovery, and in response, the County sought a protective order.

¶ 9 At the hearing, the Alliance argued a PRA case is no different than any other civil action and the normal court rules applied, so its discovery requests were proper. Verbatim Report of Proceedings (VRP) (Dec. 5, 2006) at 11. But the Alliance agreed to narrow discovery to whether responsive documents existed and the process used to find them, and to delay other potential penalty-related discovery. VRP (Dec. 5, 2006) at 6–7. The hearing on the motion for summary judgment was continued. The trial court ordered the written deposition of Knutsen, narrowed in scope as the Alliance had agreed.

¶ 10 The deposition occurred in October 2007, but the County still refused to allow Knutsen to answer most questions. It claimed many questions to be outside the scope of discovery in a PRA case. The County used its own conclusions to determine what questions were appropriate, and it did not seek a protective order from the trial court to support its refusal to answer.

[172 Wash.2d 713] ¶ 11 When the hearing resumed, the parties agreed to present their respective motions for summary judgment first, delaying the discovery issues. The Alliance argued that the search regarding Item # 1 was inadequate because it only included the one place the complete log would not be found, Knutsen's new computer, and the Alliance attached documents that it alleged would have been responsive to the request in Item # 2 to demonstrate the inadequacy of the County's response.3 CP at 232, 239. The trial court granted summary judgment to the County, finding no evidence that responsive documents did in fact exist.

¶ 12 On appeal, the Alliance argued that the County failed to conduct adequate searches for records responsive to both items, and that the trial court erred by limiting the scope of discovery. The Court of Appeals agreed with the Alliance regarding Item # 1, that the search for the electronic log was inadequate, because the agency had reason to know the record would be stored somewhere other than the...

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