O'Neil v. City of Shoreline

• Decision Date: 21 July 2008
• Docket Number: No. 59534-2-I.,59534-2-I.
• Citation: 187 P.3d 822,145 Wn. App. 913
• Parties: Beth and Doug O'NEILL, individuals, Appellants, v. The CITY OF SHORELINE, a municipal agency; and Deputy Mayor Maggie Fimia, individually and in her official capacity, Respondents.
• Court: Washington Court of Appeals

187 P.3d 822

145 Wn. App. 913

Beth and Doug O'NEILL, individuals, Appellants, v. The CITY OF SHORELINE, a municipal agency; and Deputy Mayor Maggie Fimia, individually and in her official capacity, Respondents.

No. 59534-2-I.

Court of Appeals of Washington, Division 1.

July 21, 2008.

Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Michael G. Brannan, Law Office of Michael G. Brannan, Seattle, WA, for Appellants.

Flannary Pasieka Collins, City of Shoreline, Shoreline, WA, Ramsey E. Ramerman, Foster Pepper PLLC, Seattle, WA, for Respondents.

COX, J.

¶ 1 This is an action under the Public Records Act of the state of Washington (PRA).¹ At issue is whether metadata in the electronic version of an e-mail is subject to disclosure under the PRA.²

¶ 2 In November 2006, Beth and Doug O'Neill commenced this action, claiming that the City of Shoreline and its deputy mayor violated the PRA in responding to Ms. O'Neill's multiple requests for public records. They also contend that the trial court abused its discretion by dismissing the case after the show cause hearing, which was held solely on declarations and briefs. They further claim this procedure violated due process. Finally, they contend that the trial court erroneously awarded costs to the City and its deputy mayor, Maggie Fimia. For the reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.

¶ 3 The material facts are not substantially in dispute. At a public meeting of the Shoreline City Council on September 18, 2006, Deputy Mayor Maggie Fimia stated that she had received an e-mail that related to a pending zoning matter. According to her, the e-mail stated serious allegations of improper influence by members of the City Council over that zoning matter. She said the message came to her from "a Ms. Hettrick and a Ms. O'Neill."³

¶ 4 Ms. O'Neill was present at the public meeting and claims that Deputy Mayor Fimia's remarks "came as a complete shock to [her]."⁴ She orally requested "to see that e-mail."⁵ Deputy Mayor Fimia stated that she would be "happy to share" the e-mail with Ms. O'Neill.⁶

¶ 5 Central to the dispute on appeal are actions the deputy mayor took after Ms. O'Neill's request. The deputy mayor deleted the top four lines of the header on the e-mail when she forwarded it from her personal computer to herself. Sometime thereafter, it appears she deleted the e-mail from her personal computer. Whether the editing of the e-mail and the failure to provide the entire e-mail with all metadata violates the PRA are at issue.

¶ 6 Further communication between Ms. O'Neill and the City (including Deputy Mayor Fimia) occurred the following day and thereafter. O'Neill made six more oral or written requests for records following the oral request at the public meeting on September 18. No one argues that any of the City's responses were untimely. We discuss the details of the requests and the responses later in this opinion.

¶ 7 Dissatisfied with the City's responses to the requests, the O'Neills commenced this action pursuant to the PRA, simultaneously moving for an order to appear and show cause directed to the City and Deputy Mayor Fimia. At the same time, they also moved for an order requiring the City and its agents, including the deputy mayor, to lodge public records for in camera review and to prepare a detailed record of documents withheld and exemptions claimed. All parties submitted declarations and briefing on the requests for relief.

¶ 8 The trial court reviewed the briefing, the declarations, and one record submitted for in camera review as exempt from disclosure.⁷ In its order, the trial court made several findings, denied the O'Neills' motions, dismissed the action, and awarded costs to the City and the deputy mayor.⁸ The trial court also denied the O'Neills' motion for reconsideration.

¶ 9 They appeal.

PUBLIC RECORDS ACT

¶ 10 O'Neill argues that the City violated the PRA by, among other things, altering and destroying public records following her request.⁹

¶ 11 The PRA was enacted in 1972 by initiative as part of the Public Disclosure Act, formerly chapter 42.17 RCW.¹⁰ The relevant portions were later recodified at chapter 42.56 RCW and renamed the Public Records Act.¹¹ The PRA states:

Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of ... this chapter, or other statute which exempts or prohibits disclosure of specific information or records.[¹²]

The supreme court has recognized that the PRA "`is a strongly worded mandate for broad disclosure of public records.'"¹³

¶ 12 Judicial review of challenged agency actions under the PRA is de novo, and a court may examine the records in camera to determine whether disclosure is proper.¹⁴ In light of the PRA's purpose, we liberally construe its disclosure provisions and narrowly construe its exemptions.¹⁵ In interpreting the PRA, we "shall take into account" the following policy:

... that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.[¹⁶]

Public Records

¶ 13 A threshold issue under the PRA is whether the requested documents are public records.¹⁷ O'Neill argues that the e-mail to which Deputy Mayor Fimia referred at the September 18 public meeting of the Shoreline City Council and its associated metadata are public records. The City does not dispute that the e-mail is a public record, but argues that the electronic version of the e-mail was properly deleted under its then-existing records retention policy. Deputy Mayor Fimia contends that the electronic version of the e-mail and its metadata are not public records.

¶ 14 The PRA specifies that a "public record" is:

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.[¹⁸] A "writing" is defined as: handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.[¹⁹]

¶ 15 It is undisputed that the City is a "local agency" under the PRA.²⁰ Moreover, there can be no serious dispute that the e-mail to which Deputy Mayor Fimia referred at the September 18 public meeting is a public record. It is: (a) a "writing" that (b) "relat[es] to the conduct of government or the performance of [a] governmental ... function" that the deputy mayor (c) "used" during the public meeting. She stated that the message commented on alleged improprieties in dealing with a zoning matter before the City Council, making it a subject for discussion at the meeting.²¹ The e-mail fulfills the plain meaning of the statutory definition of a public record.

¶ 16 Deputy Mayor Fimia argues that the electronic version of the e-mail is not a public record because it was not "used" by the City. She argues that it was created and transmitted by a private citizen, not the City. Her argument fails to acknowledge that Deputy Mayor Fimia used the e-mail when she made it the subject of public comment at the city council meeting. And she cites no authority for the proposition that a private citizen's creation and transmission of an e-mail is relevant to the question whether the e-mail is a public record. We conclude that the electronic version of the e-mail is a public record.

¶ 17 We next turn to the question of whether the metadata associated with the foregoing e-mail is also a public record. As we previously indicated, the definitions section of the PRA provides the answer. A "public record" is:

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.[²²]

A "writing" is:

Handwriting ... and every other means of recording any form of communication or representation, including, but not limited to ... magnetic or punched cards, discs, drums, diskettes, ... and other documents including existing data compilations from which information may be obtained or translated.[²³]

¶ 18 The metadata associated with the e-mail, or some portion of it, falls within the broad definition of a writing. It is sufficiently similar to the examples of the types of documents in the definition to qualify as a "writing." Accordingly, the information falls within that broad definition in the statute, as we must liberally interpret the PRA.

¶ 19 Moreover, on this record, the metadata contains information that "relates to" the conduct of government or the performance of a governmental function. It shows the e-mail addresses of persons who may have knowledge of alleged government improprieties in dealing with a zoning matter. This too falls squarely within the statute's definition of "public record," as we must liberally construe the PRA.

¶ 20 Finally, no one argues that anyone other than the deputy mayor, an agent of the City, "owns" the metadata from the e-mail she received on her personal e-mail account that she uses, in part, for the City's business.²⁴ The PRA does not define "own." Thus, reference to a dictionary is permissible to determine legislative intent.²⁵ The dictionary definition of own is, "To have or possess as property."²⁶ Using that definition here,...