Rental Housing Ass'n v. City of Des Moines

• Decision Date: 22 January 2009
• Docket Number: No. 80532-6.,80532-6.
• Citation: 165 Wn.2d 525,199 P.3d 393
• Court: Washington Supreme Court
• Parties: RENTAL HOUSING ASSOCIATION OF PUGET SOUND, a Washington non-profit public benefit corporation, Appellant, v. CITY OF DES MOINES, a Washington municipal corporation, Respondent.

199 P.3d 393

165 Wn.2d 525

RENTAL HOUSING ASSOCIATION OF PUGET SOUND, a Washington non-profit public benefit corporation, Appellant, v. CITY OF DES MOINES, a Washington municipal corporation, Respondent.

No. 80532-6.

Supreme Court of Washington, En Banc.

Argued May 6, 2008.

Decided January 22, 2009.

Katherine George, Law Offices of Charlotte Cassady, Bellevue, WA, for Appellant.

Jeffrey Scott Myers, Law Lyman Daniel Kamerrer & Bogdanovich, P.S., Olympia, WA, Patricia Bosmans, City of Des Moines, Des Moines, WA, for Respondent.

Greg Overstreet, Allied Law Group, LLC, Olympia, for Amicus Curiae Allied Daily Newspapers of Wash. and Wash. Newspaper Publishers Ass'n.

Jeffrey David Goltz, Olympia, for Amicus Curiae Atty. General's Office.

Pamela Beth Loginsky, Wash. Assn. of Prosecuting Attys., Olympia, for Amicus Curiae Wash. Ass'n of Prosecuting Attys.

Duane Michael Swinton, Steven Joseph Dixson, Spokane, for Amicus Curiae Wash. Coalition for Open Government.

Milton G. Rowland, Foster, Pepper, PLLC, Spokane, kathleen J. Haggard, Dionne & Rorick, Seattle, for Amicus Curiae Wash. State Ass'n of Municipal Attys.

STEPHENS, J.

¶ 1 Washington's Public Records Act (PRA), chapter 42.56 RCW, is a strongly-worded mandate for open government, requiring broad disclosure of public records unless the responding agency demonstrates that the record falls within a specific exemption. RCW 42.56.070(1). When a requesting party is dissatisfied with an agency's response to a records request, it may bring an action under the PRA but must do so "within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis." RCW 42.56.550(6). This case presents the question of when a response to a records request is sufficient to trigger the running of the limitation period. The Rental Housing Association of Puget Sound (RHA) appeals an order granting a motion to dismiss its action against the city of Des Moines (City) as untimely under RCW 42.56.550(6). RHA argues that the limitations period did not begin to run until at least April 14, 2006, when the City first provided a privilege log identifying individual records it was withholding under a claim of exemption. We agree, and reverse and remand.

FACTS

¶ 2 The RHA is the largest association of rental housing owners in the Pacific Northwest. On November 11, 2004, the City considered and adopted the crime free rental housing program (Program) in ordinance number 1351. Like programs established in cities across the country, Des Moines' Program includes training for landlords to help control crime in rental housing and provides guidance on crime prevention through environmental design. Rental property owners must pay an annual "crime-free housing endorsement fee" based upon the number of rental units each landlord owns, in addition to obtaining a business license. Clerk's Papers (CP) at 2082. When the Program was adopted, the fee was initially set at $100.00 per unit, and the City later raised the yearly per-unit fee to $105.73.

¶ 3 On July 20, 2005, the RHA in a letter made its first PRA request to the City, seeking 12 different categories of documents relating to the Program. The letter asked for a privilege log for each record claimed to be exempt from disclosure. On July 21, 2005, the City sent an initial response letter acknowledging receipt of the public records request and estimating a response within two weeks.

¶ 4 On August 17, 2005, the City provided RHA with 593 pages of documents relating to the Program. In a cover letter, the City refused to provide hundreds of pages of other documents from the city attorney's file, claiming exemptions under former RCW 42.17.310(1)(i) (2003) (now codified at RCW 42.56.280), the deliberative process exemption, and former RCW 42.17.310(1)(j) (2003) (now codified at RCW 42.56.290), the documents not available through civil discovery exemption. The August 17, 2005 letter from the city attorney did not describe individual documents and did not provide a privilege exemption log; rather, it generally characterized the withheld documents as:

• Inter-office legal opinions and memoranda;

• Copies of reported cases decided by the Washington State Supreme Court and Court of Appeals dealing with rental housing ordinances;

• Copies of newspaper articles regarding the crime-free rental housing ordinance & possible litigation;

• Copies of treatises & articles dealing with the legality of crime-free rental housing ordinances;

• Copies of treatises & articles dealing with the Washington Landlord/Tenant Act (RCW 59.18);

• Attorney notes regarding preparation for teaching the "legal issues" portion of the Landlord Training Workshop;

• Copies of similar crime-free rental housing ordinances from other municipalities;

• Copies of "edits, drafts, re-drafts, & redlined versions" of the crime-free rental housing ordinance; and

• Copies of "edits, drafts, re-drafts, & redlined versions" of the Agenda Items prepared for presentation to the City Council.

CP at 61-62.

¶ 5 On October 7, 2005, the RHA sent a letter to the City complaining that some of the documents withheld by the City, such as treatises, articles, ordinances, and appellate court opinions, did not fall under PRA exemptions and demanded disclosure under the PRA. The RHA again requested the City to provide a privilege log specifically describing each withheld individual document and the basis for withholding each document. The RHA also reminded the City that it had yet to produce numerous requested documents including: e-mails, e-mail attachments, records identifying which properties had been certified as crime-free, records showing which landlords had paid fees for the Program, and records regarding how to comply with the crime prevention through environmental design program.

¶ 6 On October 12, 2005, the City responded in a letter to RHA stating:

At this time, we believe that we have properly withheld exempt public records, stating the specific exemption in the terms required. ... However, at your request, I will re-review the applicable statutes and caselaw (sic) concerning these exemptions; and the City Clerk will again request that City departments review their records, specifically searching for public records that you suspect we have failed to disclose. We will attempt to provide a complete response by November 18, 2005.

CP at 68.

¶ 7 The City did not respond to RHA by November 18, 2005. CP at 70. On November 23, 2005, the Des Moines city attorney sent a letter to RHA indicating: "Due to the demands that come with the end of the year, I will not be able to provide you with a complete response to your October 7, 2005 public disclosure request until December 9, 2005." CP at 70. The City did not respond to RHA by December 9, 2005.

¶ 8 On January 25, 2006, RHA wrote to the City demanding results of the "re-review" of its July 20, 2005 first PRA request:

It is now January 25, 2006 — more than two months past the City's original estimation of November 18, and nearly five months from when the documents should have been produced in the first instance. Unless we receive immediate assurance from the City that the responsive documents will be promptly produced, we will file suit under the PDA to compel production of the documents. Further, we will seek an award of monetary sanctions and attorneys' fees and costs for bringing such an action

. . . .

To avoid such dispute, the City must promptly and fully respond to our PDA requests, copies of which are attached for your convenience.

CP at 72-73. In this letter, RHA once again requested a privilege log detailing individual records claimed exempt by the City. RHA also made a second PRA request for documents containing additional cost and revenue information generated after RHA made its July 20, 2005 first PRA request and for copies of the 2006 City budget.

¶ 9 On January 26, 2006, the city attorney responded to RHA in a letter stating that all responsive records had been provided and the City had properly withheld exempt public records using the same specific exemptions language as stated in the City's August 17, 2005 letter. Also, on January 26, 2006, the city attorney sent a letter to RHA stating that the City had received RHA's second PRA request and would provide an appropriate response as soon as possible.

¶ 10 On February 2, 2006, RHA sent a letter to the City stating that the City was in continuing violation of the PRA because: (1) the City must specifically use a privilege log to identify withheld documents and explain the grounds for withholding each specific document, and it had not yet done so; (2) the City may not withhold protected documents in their entirety where protected content can be redacted, and the City had made no effort to provide any redacted documents; (3) exemptions claimed under the deliberative process exemption and the documents not available through civil discovery exemption based upon the attorney/client privilege or work product doctrines must provide sufficient detail to justify the claims, which the City had not done; (4) the City may not withhold the entire city attorney file based on a work product claim.

¶ 11 On February 8, 2006, in response to RHA's February 2, 2006 letter, the city attorney called RHA's attorneys and through a teleconference the parties agreed that they would work cooperatively to avoid litigation. Shortly after the teleconference, RHA sent an e-mail to the city attorney requesting that the City e-mail any documents in electronic format directly to RHA's attorney. The city attorney replied via e-mail: "Will do. I appreciate your willingness to take a cooperative approach to resolving these issues." CP at 2170.

¶ 12 On February 10, 2006, in response to RHA's second PRA request of January 25, 2006, the City sent a letter to RHA containing the city of Des Moines 2006 budget appendix, adopted version, which it asserted had just been...