West v. Marzano

Decision Date03 October 2012
Docket Number41497-0-II
CourtWashington Court of Appeals
PartiesARTHUR WEST, Plaintiff/Appellant, v. DICK MARZANO; PAT JONES; JOE MELROY; PAUL SCHNEIDMILLER; HERB BECK; AMBER HANSON; THE WASHINGTON PUBLIC PORTS ASSOCIATION, Defendants/Respondents, STATE OF WASHINGTON, Defendant.

UNPUBLISHED OPINION

WORSWICK, C.J.

In this Public Records Act[1] (PRA) and Open Public Meetings Act[2](OPMA) case, Arthur West brought suit against the Washington Public Ports Association. In his suit he requested a declaratory judgment finding the Association is a public agency. West also sued for costs and statutory penalties alleging the Association violated the OPMA and the PRA. The trial court summarily dismissed West's lawsuit finding that (1) West did not have standing to assert a cause of action under the Uniform Declaratory Judgments Act [3] (2) West did not have standing to pursue a claim under the OPMA and (3) West failed to allege facts to support his claim that the Association violated the PRA. We affirm.[4]

FACTS

West made two PRA requests for documents from the Association, one in 2008 and another in 2009. Although West's present appeal is based on the Association's response to his 2009 PRA request, his 2009 request renewed and expanded his 2008 request. Accordingly, we discuss both West's 2008 and 2009 PRA requests for documents from the Association.

A. West's June 2008 PRA Request

West requested records from the Association in June 2008.[5] Specifically, West sought communications between the Association and its legal counsel, Stoel Rives and Goodstein Law Group, dated between January 2005 and June 2008 on "the projects or activities" counsel performed for the Association, including invoices, policy statements, guides, and manuals. The Association timely responded to West's request and informed him that it anticipated having the requested records ready for his review by mid-July.

The Association notified West on July 14 and August 25 that the records he requested were available for his review by appointment during the Association's normal business hours. At that time, the Association did not claim that any of the records West requested were exempt from production under the PRA. West did not contact the Association to review the records, so on February 27, 2009, the Association sent West a letter informing him that it was closing his records request.

B. West's April 2009 PRA Request

In April 2009, more than a month after the Association closed his June 2008 request, West made another records request to the Association for eight types of records. West specifically requested the following records: (1) "ex parte communications" between the Association and the Washington Supreme Court or any of its justices from October 19, 2008 to present, including the text of any speeches given by any justice at an Association meeting; (2) a copy of a resolution; (3) "[a]ll E-mails sent by the [Association's] Executive Director from January of 2007 to present;" (4) any records related to the Association's record retention and destruction schedule; (5) indexes of all the public records the Association maintains; (6) all records related to the Association's internet server, including its backup and e-mail recovery practices; (7) all records on backup files of the Association's employees' e-mails; and (8) all records relating to the Association's e-mail archiving programs. Clerk's Papers (CP) at 67.

West's April 2009 request for "[a]ll E-mails sent by the [Association's] Executive Director from January of 2007 to present" necessarily included several of the same records he requested in his June 2008 request for communications between the Association and its legal counsel at Stoel Rives and Goodstein Law Group between January 2005 and June 2008. But West's April 2009 records request was much broader in scope than his June 2008 request.

The Association timely responded to West's request, stating that (1) it would re-collect and update the documents responding to his June 2008 request for communications with its legal counsel at Stoel Rives and Goodstein Law Group and have those records ready for his inspection by May 8, and (2) it would have the additional documents responding to the rest of his broader April 2009 request ready by June 8. On May 26, West inspected the records the Association produced in response to his renewed 2008 request.

Then, on May 29, the Association informed West that it did not have documents responding to his requests for records on its public records index, internet server, backup files for employee e-mail, or e-mail archival program. However, the Association informed West that he could schedule an appointment to inspect and copy the following records it compiled responding to his request:

(1) [A] copy of a Washington Supreme Court justice's remarks delivered at the Association's November 19, 2008 luncheon;
(2) a copy of the requested resolution;
(3) many of its executive director's e-mails from February 2, 2009 to present; and
(4) a copy of the Association's record retention and destruction policy.

However, regarding West's request for all e-mails sent by its executive director after January 2007, the Association's May 29 letter (1) stated it had only such e-mails dated February 2, 2009 and after and (2) claimed that some of the requested e-mails were exempt from production under the attorney-client privilege. Along with this letter, the Association provided West with a copy of its privilege log.

The Association's privilege log identified that the exempt e-mails were all between its current executive director and its legal counsel at Stoel Rives and Goodstein Law Group and dated between October 2005 and May 2009.[6] The Association further stated in its privilege log that because the listed records "consist of communication between port staff and [the Association]'s attorneys, these documents are exempt pursuant to the Attorney-Client Privilege. See [Hangartner] v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004)." CP at 79. The privilege log also described the privileged documents as e-mails, identified the date of each privileged e-mail, and provided a brief explanation of the documents. In each explanation of how the attorney-client privilege applied to the listed e-mails, the Association identified the matter to which the e-mails pertained. The Association was a party or amicus in each of those cases.

C. West's Suit

After West received the Association's privilege log and copies of the produced documents, West filed suit against the Association. In his complaint, West requested a declaratory judgment finding that the Association is a public agency and political subdivision of the State and is therefore subject to the PRA and OPMA. West also claimed that the Association violated the OPMA by holding and taking action during private board meetings on November 19 to 21, 2008 without publication or the opportunity for public participation. Lastly, West alleged that the Association violated the PRA by providing an inadequate privilege log identifying documents withheld from production and by not retaining e-mails from the Association's former executive director.

In his complaint, West alleged that he had standing to bring these claims because he "is a citizen and a 'person' as defined in [the OPMA] with standing to seek relief . . . . [and he had] also been denied inspection of records." CP at 5. West further alleged that he "is beneficially interested in the acts of the [Association] which creates impacts which affect him personally." CP at 6. In its answer to West's complaint, the Association denied that it was a public agency and thus stated it was not subject to the OPMA or the PRA.

In response to West's interrogatories and requests for production regarding his OPMA claim, the Association produced evidence that its board of trustees met twice yearly and that

[the Association] publicizes these events with Mailings to [Association] Members, Associate Members, a list maintained by [the Association] of other officials, and to any person or entity that requests notice. [The Association] also publicizes meeting notices with a posting on the [Association's] website, and through invitations to speakers and presenters. [The Association] not only accepts but encourages registrations and attendance from any and all interested persons. No one from the general public is denied attendance.

CP at 95-96. The Association produced evidence that it held an annual meeting November 19 to 21, 2008. The Association also produced evidence that, apparently because of its notice, 245 members and associate members from at least 44 cities and counties across Washington as well as from various industries registered for its November 2008 meeting. The Association produced evidence that at least seven members of the general public were also present at its November 2008 meeting.

D. Summary Judgment

The Association moved for partial summary judgment dismissing West's declaratory judgment and OPMA claims; although West responded, he did not submit any evidence to counter the Association's motion. Accordingly, the trial court granted the Association's motion for summary judgment and dismissed West's declaratory judgment and OPMA claims, without ruling on whether the Association was a state agency or the functional equivalent of a state agency for purposes of the OPMA. Then the trial court set a briefing and hearing schedule for a show cause hearing on West's remaining PRA claim. Both West and the Association filed briefs, but West failed to appear at the scheduled show cause hearing. West did not take any action on the case for nine months, so the Association moved for summary judgment on West's PRA claim.

After...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT