West v. City of Tacoma, No. 51487-7-II
| Court | Court of Appeals of Washington |
| Writing for the Court | Worswick, J. |
| Citation | 456 P.3d 894 |
| Parties | Arthur WEST, Appellant, v. CITY OF TACOMA, Respondent. |
| Docket Number | No. 51487-7-II |
| Decision Date | 28 January 2020 |
456 P.3d 894
Arthur WEST, Appellant,
v.
CITY OF TACOMA, Respondent.
No. 51487-7-II
Court of Appeals of Washington, Division 2.
Filed January 28, 2020
PUBLISHED OPINION
Worswick, J.
¶1 In 2014, Arthur West made a request under the Public Records Act (PRA), chapter 42.56 RCW, to the City of Tacoma and the Tacoma Police Department (TPD) (collectively, the City) regarding its cell site simulator (CSS) technology.1 The City provided records to West, some of which were redacted. West filed this action, alleging that the City wrongfully failed to produce responsive records and improperly redacted other records. West and the City filed cross motions for summary judgment. The trial court ruled that the redactions met the PRA’s specific intelligence information exemption but that the City wrongfully withheld a set of e-mails under an incorrect interpretation of attorney-client privilege. The trial court imposed a PRA penalty on the City for the withheld e-mails and dismissed West’s other claims.
¶2 We hold that the information redacted by the City does not meet the specific intelligence information exemption, the trial court erred by granting the City’s motion for summary judgment because a material issue of fact existed regarding two documents, and
the City did not conduct an adequate search for responsive records. Because we reverse the trial court, we do not reach whether the trial court erred when determining the PRA penalty. Thus, we affirm in part, reverse in part, and remand for further proceedings.
FACTS
I. FACTUAL HISTORY
¶3 This case involves five groups of records West claims were either not provided or were improperly redacted in response to his 2014 public records request. These groups are: (1) redacted invoices, purchase orders, a shipping document, and quotations noted in the 2014 privilege log (Invoice documents); (2) claimed attorney-client privilege e-mails noted in the 2015 privilege log (Attorney-Client Privilege e-mails); (3) a Port Security Grant Upgrade and an August 12, 2014 Harris Corporation quotation noted in the 2015 privilege log (Grant Upgrade documents); (4) 74 pages of e-mails produced to a third party, related to the City’s public response to CSS technology inquiries; and (5) six pages of e-mails labeled "Christopher," related to the City’s public response to CSS technology inquiries (Christopher documents).
A. The City’s CSS Technology
¶4 In 2013, TPD purchased CSS technology. As a prerequisite to obtaining this technology, TPD entered into a nondisclosure agreement with the Federal Bureau of Investigation (FBI). The nondisclosure agreement prevented TPD from disclosing the existence of CSS technology to the public. Further, TPD was prevented from disclosing any information about CSS technology without prior approval from the FBI. The nondisclosure agreement also required TPD to consult with the FBI before disclosing information regarding CSS technology, allowing "sufficient time for the FBI to seek to prevent disclosure through appropriate channels."2 Clerk’s Papers (CP) at 165.
¶5 In 2014, the City began fielding requests for records related to CSS technology. After a news outlet published a story about the City’s CSS technology, the City received additional records requests on the subject. West was one such requester.
B. West’s 2014 Request
¶6 On August 28, 2014, West submitted a PRA request to the City. West requested:
1. Any records of any purchase or use agreement of, or for, a cell site simulator or stingray device.
2. All records and communications concerning the use or assignment of officers to operate any such device.
3. Any index, list or log of information intercepted by any such device.
4. Any records released in response to any previous request or requests for stingray related records.
5. Any records concerning any agreements, policies, procedures, or understandings related to the acquisition, use, or operation of stingray technology.
CP at 9.
¶7 Deputy City Attorney Michael Smith conducted the records search for West’s 2014 request. Smith interpreted West’s 2014 request as seeking documents specifically related to the "acquisition, use, and operation of the equipment," and the City provided only those documents to West. CP at 880. Regarding West’s 2014 request, Smith contacted Chief Don Ramsdell, Assistant Chief Kathy McAlpine, Jeanette Blackwell, Lieutenant Christopher Travis, and Detective Terry Krause.
¶8 Because West’s 2014 request was one of many for CSS information during that time period, and in accordance with the nondisclosure agreement, Smith had been in contact with the FBI regarding particular CSS information the FBI wanted redacted. Smith "was keenly aware of the potential ramifications of breaching our contract with the FBI" because TPD could have lost its CSS equipment and future FBI cooperation.
¶9 The City responded to West’s request by providing documents, some of which, namely the Invoice documents, were redacted.
Specifically, these documents included a Harris Corporation Quotation from February 2013, City of Tacoma purchase orders, an invoice and shipping document, and a Harris Corporation invoice. The 2014 privilege log stated that the redacted information was "[s]pecific intelligence information[,] the nondisclosure of which is essential for effective law enforcement." CP at 11. The redactions withheld the make, model, and pricing information of CSS equipment, including equipment purchased by the City, but also equipment otherwise available for purchase. The City considered West’s request closed on November 4, 2014.
C. West’s 2015 Request
¶10 In 2015, West made another PRA request to the City regarding CSS technology. Although West’s 2015 request is not the subject of this appeal, the 2015 request uncovered the Attorney-Client Privilege e-mails and the Grant Upgrade documents at issue in this case. West’s 2015 request sought, in relevant part, "[a]ll communications concerning, and records relating to, the withholding of, or the production of an unredacted copy of, the non-disclosure agreement[.] ... Any records released in response to any previous request or requests for stingray related records." CP at 824.
¶11 Smith also conducted the search for West’s 2015 request. The City provided documents and privilege logs to West. The 2015 privilege log identified the Attorney-Client Privilege e-mails which were withheld under an attorney-client privilege PRA exemption. The 2015 privilege logs also identified the Grant Upgrade documents.
¶12 Smith’s interpretation of West’s 2014 request did not include the e-mails the City provided to West in response to his 2015 request. Smith stated that the e-mails disclosed in 2015 concerned the City’s response to a newspaper article about CSS technology and how the City’s response needed to comply with its nondisclosure agreement. Smith believed that West’s 2014 request sought only records "concerning the acquisition, use, and operation of [CSS] technology." CP at 781. Smith did not view the e-mails as responsive to West’s 2014 request because those e-mails did not concern the acquisition, use, or operation of the equipment.
II. PROCEDURAL HISTORY
¶13 West filed the instant complaint regarding his 2014 request, alleging that the City violated the PRA "by unreasonably delaying or denying disclosure of records, failing to produce records, failing to conduct a reasonable search and failing to assert valid and lawful exemptions in a valid privilege log." CP at 3. West sought the release of all requested records without redaction. Attached to his complaint was the 2014 privilege log that identified invoices, quotations, purchase orders, and shipping documents. In the log attached to West’s complaint, the City claimed the redacted information was exempt from disclosure because it contained specific intelligence information.3
¶14 West sent an e-mail to the City on January 31, 2017, proposing to note a motion for "the 3rd" and to "limit[ ] the records at issue to the [nondisclosure agreement], and the estimates, invoices and purchase order type records ...." CP at 712. It appears from our record on appeal that the City did not respond to West’s e-mail.
¶15 Both parties filed motions for summary judgment. West filed his motion for partial summary judgment on January 31, 2017, arguing that particular records were wrongfully withheld or redacted regarding his 2014 request. Specifically, West argued that the City (1) failed to identify or produce the Attorney-Client Privilege e-mails; (2) silently withheld the Grant Upgrade documents; and (3) silently withheld "[a] number of Email communications responsive to the request for records" in response to his 2014 request (the 74 pages of e-mails). CP at 50-52.
¶16 As evidence that the City’s response to his 2014 request was inadequate, West attached the privilege log from his 2015 request, which identified the Attorney-Client Privilege e-mails and the Grant Upgrade documents. The Attorney-Client Privilege e-mails consisted of 19 e-mails in total. Fourteen of these e-mails were generated on August 27, 2014. The August 27 e-mails addressed the City’s response to public inquiries about its CSS technology. The...
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...P.3d 119. A search may be adequate and still fail to identify responsive records. See West v. City of Tacoma , 12 Wash. App. 2d 45, 79, 456 P.3d 894 (2020) ("The mere fact that a record is eventually found does not itself establish the inadequacy of an agency's search."). ¶ 80 As the Suprem......
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O'Dea v. City of Tacoma, 53613-7-II
...party and consider only the evidence that was brought to the trial court's attention. West v. City of Tacoma , 12 Wash. App. 2d 45, 69-70, 456 P.3d 894 (2020) ; RAP 9.12. We review the trial court's conclusions of law de novo and may affirm on any basis supported by the record. Bavand v. On......
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...(2014). But an agency does not have to create or disclose records that do not already exist. West v. City of Tacoma, 12 Wn.App. 2d 45, 79, 456 P.3d 894 (2020). The PRA requires adequate searches for responsive records. Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702, 721, 261......
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Banks v. City of Tacoma, No. 52072-9-II
...But an agency does not have to create or disclose records that do not already exist. West v. City of Tacoma, 12 Wn. App. 2d 45, 79, 456 P.3d 894 (2020). The PRA requires adequate searches for responsive records. Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702, 721, 261 P.3d 1......
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Cantu v. Yakima Sch. Dist. No. 7, 37996-5-III
...P.3d 119. A search may be adequate and still fail to identify responsive records. See West v. City of Tacoma , 12 Wash. App. 2d 45, 79, 456 P.3d 894 (2020) ("The mere fact that a record is eventually found does not itself establish the inadequacy of an agency's search."). ¶ 80 As the Suprem......
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O'Dea v. City of Tacoma, 53613-7-II
...party and consider only the evidence that was brought to the trial court's attention. West v. City of Tacoma , 12 Wash. App. 2d 45, 69-70, 456 P.3d 894 (2020) ; RAP 9.12. We review the trial court's conclusions of law de novo and may affirm on any basis supported by the record. Bavand v. On......
-
Banks v. City of Tacoma, 52072-9-II
...(2014). But an agency does not have to create or disclose records that do not already exist. West v. City of Tacoma, 12 Wn.App. 2d 45, 79, 456 P.3d 894 (2020). The PRA requires adequate searches for responsive records. Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702, 721, 261......
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Banks v. City of Tacoma, No. 52072-9-II
...But an agency does not have to create or disclose records that do not already exist. West v. City of Tacoma, 12 Wn. App. 2d 45, 79, 456 P.3d 894 (2020). The PRA requires adequate searches for responsive records. Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702, 721, 261 P.3d 1......