The Honorable Richard B. SANDERS v. State of Wash.

• Decision Date: 16 September 2010
• Docket Number: No. 82849-1.,82849-1.
• Citation: 240 P.3d 120
• Court: Washington Supreme Court
• Parties: The Honorable Richard B. SANDERS, Appellant/Cross Respondent, v. STATE of Washington, Respondent/Cross Appellant.

240 P.3d 120

The Honorable Richard B. SANDERS, Appellant/Cross Respondent, v. STATE of Washington, Respondent/Cross Appellant.

No. 82849-1.

Supreme Court of Washington,En Banc.

Argued March 31, 2010.

Decided Sept. 16, 2010.

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Paul J. Lawrence, Matthew J. Segal, Gregory J. Wong, K & L Gates LLP, Seattle, WA, for Appellant/Cross-Respondent.

Timothy George Leyh, Randall Thor Thomsen, Katherine See Kennedy, Danielson Harrigan Leyh & Tollefson LLP, Seattle, WA, for Respondent/Cross-Appellant.

STEPHENS, J.

¶ 1 Justice Richard B. Sanders sued the attorney general's office (AGO) for inadequately responding to his public records request and for withholding nonexempt documents in violation of the Public Records Act (PRA). Resolving the suit requires an examination of numerous topics under the PRA, including the form of the request, the adequacy of AGO's disclosure, the adequacy of AGO's production, the appropriate penalty, and the award of costs and fees at trial and on appeal. One major issue is whether AGO violated the PRA by failing, in its response to Justice Sanders's PRA request, to provide a brief explanation of how its claimed exemptions applied to the records withheld, and what remedy follows from such a violation. We hold that AGO's failure to provide a brief explanation violated the PRA and should be considered as an aggravating factor when setting penalties for withholding nonexempt documents. Other issues pertain to the attorney-client and work product privileges and their use to claim exemptions under the PRA. We hold that the trial court correctly interpreted the work product privilege and do not reach its interpretation of the attorney-client privilege.

TERMINOLOGY

¶ 2 This case involves interpretation and application of the PRA. ¹ Because PRA analysis uses technical terms that are sometimes confusing, we begin by identifying the terminology used throughout this opinion:

1. Records are either “disclosed” or “not disclosed.” A record is disclosed if its existence is revealed to the requester in response to a PRA request, regardless of whether it is produced.

2. Disclosed records are either “produced” (made available for inspection and copying) or “withheld” (not produced). A document may be lawfully withheld if it is “exempt” under one of the PRA's enumerated exemptions. A document not covered by one of the exemptions is, by contrast, “nonexempt.” Withholding a nonexempt document is “wrongful withholding” and violates the PRA. Yousoufian v. Ofice of King County Executive, 152 Wash.2d 421, 429, 98 P.3d 463 (2004) ( Yousoufian I ).

3. A document is never exempt from disclosure; it can be exempt only from production. An agency withholding a document must claim a “specific exemption,” i.e., which exemption covers the document. RCW 42.56.210(3). ² The claimed exemption is “invalid” if it does not in fact cover the document.

FACTS AND PROCEDURAL HISTORY

¶ 3 On January 27, 2003, Justice Sanders visited the Special Commitment Center on McNeil Island. Sanders v. State, 166 Wash.2d 164, 168, 207 P.3d 1245 (2009). This visit led to an inquiry by the Commission on Judicial Conduct (CJC). Id. Justice Sanders believed that he was entitled to have AGO defend him before the CJC at public expense and sued to compel AGO to do so. Id.

¶ 4 Separately, on June 15, 2004, Justice Sanders delivered a written public records request to AGO pursuant to the PRA, requesting all records pertaining to his visit to McNeil Island and the related CJC action. Clerk's Papers (CP) at 475, 478-79. AGO had already compiled a response to a broader request for similar materials from the Building Industry Association of Washington (BIAW). To expedite Justice Sanders's request, an AGO representative contacted Justice Sanders's attorney, Kurt Bulmer, to ask if he “wished to expand [his] request for documents to those which were disclosed to... BIAW.” CP at 171, 187. Mr. Bulmer agreed to accept the additional documents. CP at 475-76. AGO sent Justice Sanders a copy of its response to the BIAW request on July 8, 2004. CP at 481-84. BIAW never objected to, or sued to supplement, the response AGO gave it. CP at 170.

¶ 5 AGO's response included some 1,000 pages of material and an entire document index (EDI). CP at 171, 187-224. The EDI disclosed the 334 documents that AGO was producing, producing in redacted form, or withholding, and provided information about them such as their author, recipient, and date of creation. CP at 1717, 187-224. It also specified AGO's claimed exemptions for the 144 documents redacted or withheld. Id. The EDI did not contain any facts or explanation of how its claimed exemptions applied to each document withheld. Id. Justice Sanders did not contact AGO to object to any of the withholding or to request further explanation. CP at 171. On July 21, 2005, he sued in Thurston County Superior Court, claiming that AGO had violated the PRA by failing to provide a brief explanation of how its claimed exemptions applied to each record withheld and by withholding nonexempt documents. CP at 5, 7.

¶ 6 Upon notice of the suit, AGO hired outside counsel to review the disputed documents. CP at 1763. AGO's counsel refined the claimed exemptions for several documents, as it continued to do during this litigation. CP at 1084-1125; see also CP at 127-54 (State's “Appendix A” addressing each document in detail). Outside counsel also determined that AGO considered several disputed documents “innocuous,” and so counsel produced them for Justice Sanders despite AGO's claim that the documents were exempt, nonresponsive, or previously produced. CP at 1763-64, 1084-88. The productions either expressly disclaimed waiver or proceeded as if AGO continued to claim that the documents were exempt. CP at 115, 378, 1090-91, 1093, 1113. The parties refer to these documents, which were produced subsequent to litigation, as the subsequent-production documents (SPDs). See Opening Br. of Hon. Richard B. Sanders (Sanders's Opening Br.) at 6-7 & n. 3; cf. Br. of Resp't & Cross-Appellant State of Wash. (Br. of Resp't) at 10 n. 34. The SPDs are distinguished from those documents that AGO never produced, which the State submitted to the trial court for an in camera determination of whether they were exempt (in camera documents). CP at 1719-20.

¶ 7 Justice Sanders sought discovery regarding how AGO's claimed exemption applied to each document it withheld. He noted a CR 30(b)(6) deposition, requesting that AGO supply an expert who could testify as to “[t]he grounds for each exemption claimed” and details about the privileges underlying the exemptions. CP at 499-501. At the deposition, however, the State's expert could do no more than read the EDI. CP at 564-65. Justice Sanders eventually obtained a full explanation of how each claimed exemption applied when the State moved for summary judgment. The State submitted an Appendix A summarizing each document and arguing why it was exempt from disclosure. CP at 127-54. It also made all of the disputed documents available for in camera review. See CP at 1724 (describing the process for litigating the exemptions in the trial court). Justice Sanders had the opportunity to review all of the in camera documents and to respond to Appendix A. Id. Justice Sanders objected to Appendix A as unsworn testimony and argument based on facts not in evidence, but the trial court rejected this argument. CP at 382-89; see CP at 1724 (considering Appendix A). The trial court incorporated the summaries of the disputed documents, both sides' arguments, and its own rulings into trial court's Appendix A, CP at 1375-1434 (in camera documents), and trial court's Appendix B, CP at 1435-37 (SPDs). ³

¶ 8 Both parties moved for summary judgment. The State argued that Justice Sanders agreed to narrow his request to accept only those documents produced for BIAW, and even if not, AGO had complied with the PRA and withheld only exempt documents. CP at 106-26. Justice Sanders argued that (1) he agreed to expand his request to include additional documents but never agreedto narrow his request, (2) AGO had failed to provide a brief explanation of how its claimed exemptions applied to the records withheld and thus waived exemption or was estopped from arguing that the documents were exempt, (3) AGO waived exemption by producing the SPDs or was estopped from arguing that they were nonexempt, and (4) AGO continued to wrongfully withhold some records. CP at 391-415. For these alleged violations of the PRA, Justice Sanders requested costs and attorney fees, as well as statutory per diem penalties. Id.

¶ 9 The trial court viewed the dispute over the alleged narrowing of Justice Sanders's request as a dispute over the legal sufficiency of AGO's search and disclosure. CP at 1713-17. Because Justice Sanders could not identify any documents that AGO should have disclosed but did not, and because AGO's search responded to BIAW's broader request, the trial court ruled that AGO's search for documents was legally sufficient. Id. The dispute over disclosure, the trial court concluded, was irrelevant to the issue of production. Id. at 1716.

¶ 10 The trial court determined that AGO's response to Justice Sanders's request violated the PRA. Although the EDI specifically identified AGO's claimed exemptions, it failed to contain a brief explanation of how the claimed exemptions applied to each record withheld. CP at 1718. The remedy for this violation was not waiver or estoppel, however, but consideration when imposing penalties for wrongfully withholding records. CP at 1718-19. Nor had AGO waived or been estopped from claiming exemption for any of the SPDs. CP at 1719-20. The question was whether any SPD or in camera document had been withheld wrongfully and what fees, costs, and penalties award should follow. Id.

¶ 11 The trial court examined each disputed document and...