Rufin v. City of Seattle

• Decision Date: 26 June 2017
• Docket Number: No. 74825-4-I,74825-4-I
• Citation: 199 Wash.App. 348,398 P.3d 1237
• Court: Washington Court of Appeals
• Parties: Rebecca A. RUFIN, an individual Appellant, v. CITY OF SEATTLE, a municipality, Respondent.

199 Wash.App. 348

398 P.3d 1237

Rebecca A. RUFIN, an individual Appellant,

v.CITY OF SEATTLE, a municipality, Respondent.

No. 74825-4-I

Court of Appeals of Washington, Division 1.

FILED: June 26, 2017

John Patrick Sheridan, The Sheridan Law Firm, P.S., 705 2nd Ave., Ste. 1200, Seattle, WA, 98104-1745, for Appellant.

Jessica Nadelman, Michael K. Ryan, Seattle City Attorney's Office, 701 5th Ave., Ste. 2050, Seattle, WA, 98104-7095, Angela G. Summerfield, Ogden Murphy Wallace, 901 5th Ave., Ste. 3500, Seattle, WA, 98164-2008, for Respondent.

Spearman, J.¶1 An agency must respond to a Public Records Act (PRA), chapter 42.56 RCW request within five days by providing the records, denying the request, or sending a letter estimating the date of production. Rebecca Rufin challenges the City of Seattle's response to three of her PRA requests, arguing that records were delayed or the search was inadequate. We conclude that with respect to one of those requests, the trial court erred in finding no PRA violation because the City failed to give Rufin a five-day letter with a reasonable estimate of production. We also conclude that the trial court erred in finding that CR 68 offers of judgment do not apply in PRA proceedings. We affirm in all other respects.

FACTS

¶2 Rebecca Rufin worked for Seattle City Light from 1990 to 2006. While there and shortly after leaving, she was involved as a potential witness in an investigation and in a separate lawsuit related to gender discrimination allegations by other City Light employees.

¶3 In August 2011, Rufin applied for a civil and mechanical engineer manager (CME) position with City Light. She was interviewed three times, but not hired. When City Light relisted the CME position in April 2012, Rufin e-mailed Mike Haynes, the director of Power and Production, and asked, "[s]o Mike, is there any point in applying for this? I still don't understand how I failed to measure up with the last lengthy process." CP at 298. Haynes forwarded the e-mail to City Light employees Gary Maehara, DaVonna Johnson, and Steve Kern.

¶4 Rufin filed a complaint against City Light and its Director alleging gender discrimination and retaliation for her involvement in the above mentioned investigation and lawsuit. She began making numerous PRA requests to City Light in connection with her retaliation case. Three of her requests, those made on September 28, 2012, March 4, 2014, and March 17, 2014, are at issue in this appeal.

¶5 On August 15, 2012, Rufin e-mailed a public disclosure request to Maehara, City Light's Public Disclosure Officer. Rufin requested, among other things, "[a]ll e-mails, attachments to e-mails, written correspondence, and/or notes, to or from any employee or entity at Seattle City Light, dated January 1, 2004 or later, containing the name ‘Rufin’ or referring to Rebecca (Becky) Rufin." CP at 140. The City's e-mails are automatically deleted after 45 days unless they are saved to an archive folder or a litigation hold is placed on the account. Josh Walter, who worked on PRA requests, conducted a broad search and found that there were thousands or tens of thousands of responsive records. He did not review all the e-mails, and instead asked Rufin to refine her request. On September 28, 2012, Rufin agreed to narrow the request to the e-mails of Jorge Carrasco, Johnson, Kern, and Haynes that mention her name (September 28, 2012 request). Walter searched the e-mail accounts of these individuals, and provided the responsive documents to Rufin. He did not find, and therefore did not provide, the April 2012 Rufin e-mail that Haynes forwarded to Johnson, Kern, and Maehara.

¶6 With her retaliation trial set to begin in April 2014, Rufin made additional requests for documents. On March 4, Rufin requested various payroll records for at least 49 City Light employees (March 4, 2014 request). She wrote that "TIME IS OF THE ESSENCE, as these items may become important exhibits in a trial scheduled for the end of March 2014." CP at 180. Walter acknowledged the request, as well as another that Rufin had sent the day before, and estimated that the first installment of records would be available in 20 days. Walter provided the records on May 8.

¶7 On March 17, Rufin made another PRA request for various partial hiring files (March 17, 2014 request). She again indicated that time was of the essence. Walter did not send a five-day letter acknowledging the request and estimating a time for production. But he provided the first installment of records on May 30, 2014, and completed the request on July 30, 2014.

¶8 Meanwhile, at trial, Rufin did not have the benefit of the documents she requested on March 4, 2014 and March 17, 2014. She also did not have the forwarded e-mail responsive to her September 28, 2012 request. The City prevailed at trial.

¶9 In November 2014, Rufin filed a claim alleging six violations of the PRA. In discovery, Rufin requested e-mails bearing her name that may exist among public disclosure officers. The City produced the forwarded e-mail. It was located in Maehara's e-mail account, which was not searched for the September 28, 2012 request.

¶10 In June 2015, the City made Rufin a CR 68 offer of judgment for $40,000 plus reasonable attorney fees for her PRA claims. At that point, Rufin had incurred only $12,966.11 in fees and costs. She did not accept the offer of judgment. The City moved for summary judgment on all six PRA claims and prevailed on two claims that were not appealed. In January 2016, the trial court conducted a bench trial on the remaining four claims. On a CR 41(b)(3) motion, the court dismissed the March 4, 2014 claim. At the close of trial, the court found that the City did not violate the PRA with respect to the September 28, 2012 and March 17, 2014 requests.

¶11 Rufin received a judgment for $1,688 for one PRA violation. She requested $168,038.96 in fees and costs, but was awarded $33,229.12. The court declined to shift attorney fees or costs under CR 68, finding that CR 68 does not apply in PRA cases. The court reasoned that

it would undermine the statutory purpose of the PRA to limit Plaintiff's recovery of costs and attorney fees. The purpose of the PRA is to protect the sovereignty of the people of this State. RCW 42.56.020. To assure that the public interest will be fully protected, the PRA is a strongly worded mandate for broad disclosure of public records and should be liberally construed to promote full access to public records, and its exemptions are to be narrowly construed.... Application of CR 68 in this context would have a chilling effect on this public policy.

CP at 1763.

¶12 Rufin appeals the dismissal of three of her PRA claims arising from the September 28, 2012, March 4, 2014, and March 17, 2014 requests. The City cross-appeals the trial court's finding that CR 68 does not apply to the PRA.

DISCUSSION

September 28, 2012 Request

¶13 Rufin argues that the search in response to her September 28, 2012 request was not reasonable because it did not follow an "obvious lead" to search Maehara's e-mail account.

¶14 When the trial court has weighed the evidence in a bench trial, we review whether the court's findings of fact are supported by substantial evidence and, if so, whether the findings support the conclusions of law. Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc. , 102 Wash.App. 422, 425, 10 P.3d 417 (2000) ; Zink v. City of Mesa , 140 Wash.App. 328, 337, 166 P.3d 738 (2007). Whether the findings of fact support the conclusions of law is a question of law that we review de novo. Sunnyside Valley Irr. Dist. v. Dickie , 149 Wash.2d 873, 880, 73 P.3d 369 (2003). The City bears the burden to establish that it responded adequately to record requests.¹ Block v. City of Gold Bar , 189 Wash.App. 262, 270, 355 P.3d 266 (2015)rev . denied, 184 Wash.2d 1037, 379 P.3d 951 (2016).

¶15 Government agencies must disclose public records upon request.

The PRA is a strongly worded mandate for broad disclosure of public records. Passed by popular initiative, it stands for the proposition that ‘full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.’ Agencies are required to disclose any public record on request unless it falls within a specific, enumerated exemption.

Neighborhood Alliance of Spokane County v. County of Spokane , 172 Wash.2d 702, 714-15, 261 P.3d 119 (2011) (quoting Progressive Animal Welfare Soc'y v. Univ. of Wash. , 125 Wash.2d 243, 251, 884 P.2d 592 (1994) (citations omitted)).

To adequately disclose documents, the agency must conduct an adequate search for records.

[T]he focus of the inquiry is not whether responsive documents do in fact exist, but whether the search itself was adequate. The adequacy of a search is judged by a standard of reasonableness, that is, the search must be reasonably calculated to uncover all relevant documents. What will be considered reasonable will depend on the facts of each case. When examining the circumstances of a case, then, the issue of whether the search was reasonably calculated and therefore adequate is separate from whether additional responsive documents exist but are not found.

Additionally, agencies are required to make more than a perfunctory search and to follow obvious leads as they are uncovered. The search should not be limited to one or more places if there are additional sources for the information requested. Indeed, ‘the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.’ This is not to say, of course, that an agency must search every possible place a record may conceivably be stored, but only those places where it is reasonably likely to be found.

Id. at 719-20, 261 P.3d 119 (quoting Oglesby v. U.S. Dep't of Army , 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990) (emphasis added) (citations...