Neighborhood Alliance v. County of Spokane

• Decision Date: 11 August 2009
• Docket Number: No. 27184-6-III.,27184-6-III.
• Citation: 224 P.3d 775,153 Wash.App. 241
• Court: Washington Court of Appeals
• Parties: NEIGHBORHOOD ALLIANCE OF SPOKANE COUNTY, a non-profit corporation, Appellant, v. COUNTY OF SPOKANE, a political subdivision of the State of Washington, Respondent.

224 P.3d 775

153 Wash.App. 241

NEIGHBORHOOD ALLIANCE OF SPOKANE COUNTY, a non-profit corporation, Appellant, v. COUNTY OF SPOKANE, a political subdivision of the State of Washington, Respondent.

No. 27184-6-III.

Court of Appeals of Washington, Division 3.

August 11, 2009.

Breean L. Beggs, Center for Justice, Bonne W. Beavers, Spokane, WA, for Appellant.

Patrick Mark Risken, Attorney at Law, Spokane, WA, for Respondent.

KULIK, A.C.J.

¶ 1 The Neighborhood Alliance of Spokane County (Alliance) brought an action against Spokane County (County) for its alleged failure to disclose records requested under Washington's public records act (PRA),¹ former chapter 42.17 RCW. Both parties moved for summary judgment. The court granted summary judgment to the County.

¶ 2 We hold that the County failed to adequately search its records when it did not examine the original computer where the requested record was created. Thus, we reverse summary judgment for the County on this issue. However, we affirm the summary judgment in favor of the County on its response to the Alliance's request for records relating to names on the seating chart because the Alliance had received these records under a separate request. Finally, we affirm the trial court's denial of the Alliance's motion to compel.

FACTS

¶ 3 The Alliance is a nonprofit, community-based organization that emphasizes "government accountability, especially in land use and planning issues." Clerk's Papers (CP) at 91.

¶ 4 The Alliance received a letter from what appeared to be an anonymous whistleblower complaining about potential illegal hiring practices in Spokane County's Building and Planning Department (BPD). The letter included a copy of an undated seating chart, allegedly depicting office space for staff in the BPD. The chart, which appears as a map or floor plan of the first floor of the BPD, depicts the location of cubicles and identifies the seating arrangement for approximately 18 current or prospective employees within those cubicles. The seating chart listed only employees' first names, including two in one cubicle, "Ron & Steve." CP at 88. The name "Steve" was also listed on the seating chart in a separate cubicle with what appeared to be a telephone extension number of "7221." CP at 88.

¶ 5 The letter stated that the chart was found in the printer at the BPD on February 16, 2005. Numerous copies were circulated to BPD employees on or about February 16. The chart originated from Pam Knutsen's computer. Ms. Knutsen is the assistant director of building and planning for Spokane County. The letter claimed that the positions occupied by Ron and Steve on the seating chart had not yet been posted for hiring as required by the County's personnel rules.

¶ 6 The Alliance took a strong interest in the allegations when the names Ron and Steve on the February seating chart matched the first names of the department employees hired several weeks later—Ron Hand and Steve Harris. This led the Alliance to believe the County may have engaged in illegal hiring practices.

¶ 7 In early March 2005, Spokane County posted notice of two openings for the position of development assistant coordinator. In mid-March, Spokane County hired Steve Harris as development assistance coordinator 1 to work with Ron Hand, who had also been recently hired as development assistance coordinator 2. Steve Harris is the son of then-Commissioner Phil Harris, and the third son of Phil Harris to be hired by Spokane County.

¶ 8 Bonnie Mager, then executive director of the Alliance, filed public records requests for documents that would substantiate the date of the seating chart and the full names of the employees listed on the chart.

¶ 9 On May 3, 2005, Ms. Mager, on behalf of the Alliance, sent a public records request to the County, asking to review all records created in January 2005, February 2005, and March 2005 "that display either current or proposed office space assignments for County Building and Planning Department officials and employees." CP at 277. On May 11, the County provided Ms. Mager with three "proposed seating assignment charts." CP at 277. The first seating chart was undated. That chart appeared identical to the seating chart provided to the Alliance in February, and included the names Ron and Steve as well as Steve 7221. The other two versions of the chart were dated February 22, 2005, and April 18, 2005. The February 22, 2005 chart no longer had the names Ron and Steve in a cubicle but, instead, simply had the word "New" in two other cubicles. CP at 279.

¶ 10 Then, on May 16, 2005, the Alliance sent a second public records request to the County, addressed to the human resources director for Spokane County, Cathy Malzahn. The request asked for information regarding electronic file information logs for the undated BPD seating chart and records pertaining to the identities of Ron and Steve on the seating chart. The Alliance requested:

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.[²]

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.

¶ 11 The County responded by letter dated May 23, 2005, stating that the County would complete its response process by June 6, 2005.

¶ 12 The County responded to the Alliance's May 16, 2005 public records request by letter dated June 6, 2005. Addressing the first paragraph of the Alliance's request, referred to by the parties as Item 1, the County's letter stated "[c]onsistent with your Public Disclosure Request, enclosed you will find a copy of the `date created' data file[s] as requested." CP at 54. The County attached a single document—an electronic file information log. The log contained the name, location, date created, date modified, and date accessed information for the seating chart and several other documents.

¶ 13 The log showed that the date created for each document listed was either April 26 or April 27, 2005. However, the date created field listed on the information log showed that each of the documents, including the seating chart, were created after the date modified. The seating chart showed a date last modified of February 22, 2005. No other information was provided in the County's June 6 response regarding the discrepancies between the dates of creation for the listed documents, nor was there any explanation of the search that was used to identify these documents.

¶ 14 The County did not provide any records in response to Item 2—the identities of Ron and Steve—of the Alliance's May 16, 2005 public records request. The County's letter stated that the statutory disclosure statement "does not require agencies to explain public records. As such, no response is required with respect to item number 2 referenced above." CP at 54.

¶ 15 Nevertheless, with regard to Item 2, Ms. Knutsen later stated in a declaration that her "search for documents which might reference the identities of `Ron and Steve' and `Steve' turned up nothing. Stated another way, there are no documents which reference the seating chart and identify the full names of `Ron and Steve' or `Steve' therein." CP at 62.

¶ 16 The director of the information systems department (ISD) for Spokane County, Bill Fiedler, later explained the discrepancy in the electronic log file dates by stating that Ms. Knutsen's personal computer was replaced in April 2005 as part of routine maintenance. During that process, all documents that were on the hard drive of her old computer were transferred to her new computer. Mr. Fiedler explained that when that copying takes place, all documents are given a new date created. After all the documents were copied, the new computer was then delivered to Ms. Knutsen.

¶ 17 Mr. Fiedler further stated that the ISD then takes the old computer and hard drive back to its office where it wipes all data off the old hard drive. According to Mr. Fiedler, data stored on local computer hard drives, including Ms. Knutsen's, are not backed up through the County network. "Therefore, the only information contained in that particular computer's Hard Drive would be found on its hard drive." CP at 58. Mr. Fiedler did not state that Ms. Knutsen's old computer, from which the seating chart had originated, had been searched.

¶ 18 The Alliance subsequently obtained the declaration of Bruce Hunt, a senior planner at the BPD, who stated that it was routine policy for staff to copy and paste all County work from staff C drives on their individual computers to network drives for backup and storage. Thereafter, the Alliance believed that if the information was stored on a server rather than...