Servais v. Port of Bellingham
| Decision Date | 26 October 1995 |
| Docket Number | No. 61364-8,61364-8 |
| Citation | 127 Wn.2d 820,904 P.2d 1124 |
| Court | Washington Supreme Court |
| Parties | John SERVAIS, Appellant, v. PORT OF BELLINGHAM, Respondent. |
Foster, Pepper & Shefelman, Peter DuJulio, Grover E. Cleveland, Seattle, Amicus Curiae for Washington Public Ports Association.
Christine Gregoire, Attorney General, Thomas G. Holcomb, Jr., Asst., Olympia, Amicus Curiae for Attorney General.
Pemberton & Hoogestraat, P.S., Joseph T. Pemberton, Jr., Bellingham, for Petitioner.
Chmelik & Johnson, Frank J. Chmelik, Richard Davis, Bellingham, for Respondent.
Appellant John Servais seeks review of a decision by the Court of Appeals, Division One, affirming a judgment of the Whatcom County Superior Court which denied his action to compel public disclosure of a cash flow analysis prepared for the Port of Bellingham and which dismissed his complaint with prejudice, awarding Respondent Port of Bellingham statutory attorney fees and costs. We granted review. We affirm.
The sole question presented in this case is whether the Court of Appeals, Division One, was correct in affirming a judgment of the Whatcom County Superior Court which dismissed Appellant John Servais' action to compel the Port of Bellingham to disclose under RCW 42.17, the Public Disclosure Act, certain "public records," a supplemental
cash flow analysis prepared for the Port [904 P.2d 1126] by a national accounting and business consulting firm.
In 1990, the Port of Bellingham (Port) commissioned Coopers & Lybrand, a national accounting and business consulting firm, to prepare a market feasibility study of Port properties at Fairhaven, Squalicum Harbor, Bellingham International Airport and Blaine Harbor. 1 The purpose of the study was to enable the Port to determine the potential and best uses of each of the properties, including leasing Port property for development, and to possibly design a comprehensive development strategy for all the property involved. 2 On May 7, 1991 and on June 18, 1991, the Port held its regularly scheduled commission meetings and publicly disclosed the results of the market feasibility study. 3
After considering the market feasibility study, the Port requested Coopers & Lybrand, a national business and accounting firm, to prepare a cash flow analysis of recommended uses for Squalicum Harbor, Bellingham International Airport and Blaine Harbor. No cash flow analysis of recommended uses for Fairhaven was requested. 4 The second study was prepared by Coopers & Lybrand "for use by the Port of Bellingham in negotiations with prospective joint-venture partners, equity partners and operators with whom the Port of Bellingham will deal directly and should not be used for any other purpose." 5 The study was not disclosed to the public. That study is at issue in this case.
On September 24, 1991, Petitioner Servais filed a public disclosure request with the Port for inspection of the The Port does not question whether the purported "complaint" in this case conforms to the requirements of CR 10. The document, in the form of a memorandum to the Whatcom County Superior Court from John Servais "Re: Port of Bellingham withholding of public records from public inspection," 10 is clearly deficient under the rule. However, the Port filed an "Answer to Plaintiff's Complaint for Release of Public Records" on February 6, 1992, asking for "dismissal of Plaintiff's complaint with prejudice." 11 The parties proceeded to a hearing on February 7, 1992, at which counsel for the Port stated:
Coopers & Lybrand cash flow analysis. 6 The Port did not respond to the request until November 4, 1991. 7 On February 7, 1992, Appellant Servais, acting pro se, and Frank J. Chmelik, counsel for the Port of Bellingham, appeared in the Whatcom County Superior Court before the Honorable Michael F. Moynihan. 8 Appellant Servais was seeking to compel the Port to disclose certain records claimed by the Port to be exempt from public disclosure. 9
This is a request for review under 42.17 for a decision by the Court to withhold some records claimed exempt under 42.27.330. Mr. Servais filed this petition or complaint --I don't know what he entitled the complaint for--yesterday, because he was asking for some penalties, for $25 a day. We responded and got this special setting.... 12
Petitioner Servais appeared at that hearing pro se.
On February 19, 1992, Petitioner appeared with counsel in Superior Court on his "motion to perfect the record." On March 5, 1992, his counsel filed an "Amended Complaint," 1. That the Court order full disclosure by the Defendant, and grant the opportunity to inspect and copy the entire documentation of any sort received at any time by Defendant from the accounting firm of Coopers & Lybrand;
which incorporated "the entirety of the Complaint on file" and which asked the court for the following relief: 13
2. That Court enter judgment against Defendants in favor of Plaintiff for all Plaintiff's costs and attorney fees incurred herein;
3. That the Court order Defendant to pay a $25.00 per day penalty/damages, commencing September 30, 1991;
4. For such other relief as the Court deems just.
On June 19, 1992, 14 Judge Moynihan conducted an in camera review of the requested documents and ruled they were exempt from public disclosure under RCW 42.17.310(1)(h). In the judgment and order dismissing the complaint, the court entered "findings of fact" which included the following:
1. [That] [t]he data withheld by the Port of Bellingham is financial data.
2. That the Port of Bellingham commissioned this data in order to provide for a public gain; (a) namely, to negotiate from a position of a well-informed landlord: and (b) to have the necessary information to value the expected long-term leases.
3. That any hotel development company would keep this type of information private and confidential so that it could deal from its own position of strength.
....
6. That the financial data is valuable formula and/or research data as defined in RCW 42.17.310(1)(h) in that it was obtained by the Port specifically to assist the Port in negotiating leases of its property.
7. That the release of the financial data would produce a private gain and a public loss.
....
The trial court dismissed Appellant's complaint with prejudice and awarded Respondent statutory attorney fees and costs. 15
On December 27, 1993, the Court of Appeals, Division One, Acting Chief Judge Rosselle Pekelis writing, affirmed the decision of the trial court. On June 8, 1994, this court granted Appellant Servais' petition for review.
Under the Washington Public Disclosure Act, "[j]udicial review of all agency actions taken or challenged ... shall be de novo." 16 The act was passed in 1972 by Washington voters as Initiative 276, now codified in RCW 42.17. 17 The Public Disclosure Act mandates "disclosure in four areas of government, namely: campaign financing; lobbyist reporting; reporting of elected officials' financial affairs; and public records." 18 We are concerned only with disclosure of public records in this case.
"The Washington public disclosure act is a strongly worded mandate for broad disclosure of public records." 19 The declaration of policy includes the statement:
That, mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and The declaration of policy also requires that provisions of the act be "liberally construed to promote complete disclosure of all information ... and full access to public records ... to assure continuing public confidence of fairness of ... governmental processes, and ... to assure that the public interest will be fully protected...." 21
necessary precondition to the sound governance of a free society. 20
In Spokane Police Guild v. Liquor Control Bd., 22 Justice Andersen, writing for the majority, stated:
Achieving an informed citizenry is a goal sometimes counterpoised against other important societal aims. Indeed, as the act recognizes, society's interest in an open government can conflict with its interest in protecting personal privacy rights and with the public need for preserving the confidentiality of criminal investigatory matters, among other concerns. Though tensions among these competing interests are characteristic of a democratic society, their resolution lies in providing a workable formula which encompasses, balances and appropriately protects all interests, while placing emphasis on responsible disclosure. It is this task of accommodating opposing concerns, with disclosure as the primary objective, that the state freedom of information act seeks to accomplish.
(Italics ours.)
The Public Disclosure Act requires public agencies to make all "public records" available for public inspection. 23 The act requires agencies to "adopt and enforce reasonable rules and regulations ... to provide full public access to public records ..." 24 and permits agencies to "impose ... reasonable charge[s] for providing copies of The Port of Bellingham is subject to the Public Disclosure Act. The Port is a public agency 28 created under RCW 53.04.010 for "acquisition, construction, maintenance, operation, development and regulation within the district of harbor improvements...." 29 The documents requested in this case are public records under the Act because they are writings relating to conduct and performance of governmental or proprietary functions of the Port of Bellingham, and they were prepared for and retained by the Port. RCW 42.17.020(27) defines "public record":
public records...." 25 Agencies must make prompt response to
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