West v. Port of Olympia
| Decision Date | 21 July 2008 |
| Docket Number | No. 60723-5-I.,60723-5-I. |
| Court | Washington Court of Appeals |
| Parties | Arthur S. WEST, Appellant, and David Koenig, Appellant, and Walter R. Jorgensen, an individual, and Eve Johnson<SMALL><SUP>†</SUP></SMALL>, an individual, Appellants, v. PORT OF OLYMPIA, a Washington municipal corporation, Respondent, and Weyerhaeuser Company, a Washington corporation, Respondent. |
Arthur West, Olympia, WA, pro se.
Bernard H. Friedman, Olympia, Philip A. Talmadge, Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, Tukwila, WA, William John Crittenden, Seattle, WA, for Appellants.
Carolyn A. Lake, Goodstein Law Group PLLC, Tacoma, WA, Eric J Camm, The Otto Law Group PLLC, Matthew R Hansen, Jeffrey A. Beaver, Graham & Dunn PC, Seattle, WA, for Respondent.
Michele L. Hubbard, Allied Law Group LLC, Seattle, Michael J. Reitz, Olympia, Leslie J. Olson, Olson & Olson PLLC, Seattle, for Amicus Curiae.
¶ 1 This case involves three separate public disclosure requests for documents from the Port of Olympia (Port) regarding its lease negotiations with Weyerhaeuser Company. Because the Port had already executed the lease with Weyerhaeuser at the time of this request, the Port's reliance upon that exemption to withhold records was improper. Once an agency implements a policy or recommendation, records pertaining to that policy or recommendation no longer fall within the ambit of the deliberative process exemption of the public records act (PRA).1 We reverse and remand to the trial court to determine whether any of the other exemptions claimed by the Port are applicable.
¶ 2 Walter Jorgensen and Eve Johnson2 (together Jorgensen), Arthur West, and David Koenig, each made separate requests to the Port seeking public disclosure of records pertaining to its lease negotiations with Weyerhaeuser. The lease was executed on August 22, 2005. West made his initial request on November 2, 2005, Jorgensen on January 6, 2006, and Koenig on January 17, 2006.
¶ 3 West requested the Port provide him with all relevant records including "[a]n index to, and all Port records concerning, the recent repaving project and other developments required in the Port's recent contract with Weyerhaeuser, including all correspondence, written or electronic." West also requested any records relating to the Port's compliance with the State Environmental Policy Act (SEPA).3 The Port responded by letter on November 16, 2005, declaring that there was no index of the records, no paving project, and no SEPA records associated with the lease. The Port did, however, enclose copies of the signed Weyerhaeuser lease and its SEPA policy.
¶ 4 Dissatisfied with the Port's response, West filed a pro se complaint in Thurston County Superior Court contending the Port had wrongfully withheld records in violation of the PRA. West made several further demands for disclosure from the Port and served it with a show cause order setting a hearing date for January 27, 2006. The Port disclosed some additional records and provided West with a privilege log (and later a second privilege log) for those documents it believed exempt from disclosure. The show cause hearing was rescheduled to February 17, 2006, and Weyerhaeuser intervened later that month.
¶ 5 Meanwhile, on January 6, 2006, Jorgensen also requested records from the Port relating to the Weyerhaeuser lease. On January 11, the Port responded, requesting additional time to review and prepare the records. The Port subsequently disclosed a number of records on January 17 and 23, 2006. On January 24, Jorgensen filed a complaint in the trial court alleging the Port violated the PRA. Jorgensen also filed a motion to show cause and the Port produced privilege logs on January 25 and 27, 2006.
¶ 6 On February 7, 2006, the Port presented the court with 2,409 pages of sealed documents that it claimed were exempt from disclosure along with related privilege logs and requested in camera review for both the Jorgensen and West actions. The trial court ruled that the Port had failed to respond to Jorgensen's records request in a timely manner and continued the show cause hearing. The court also awarded Jorgensen costs and reasonable attorney fees to that date. Weyerhaeuser then intervened in the Jorgensen action.
¶ 7 The Jorgensen and West actions were consolidated on March 3, 2006. That same day, the Port disclosed a number of other documents. Weyerhaeuser filed a brief arguing that specific documents were exempt from disclosure as proprietary, private, and confidential.
¶ 8 After its in camera review of the 2,409 pages, the trial court issued a 51-page memorandum decision. While the court found a number of documents to be disclosable in their entirety or with redactions, it found that most of the documents fell within the deliberative process and research data exemptions to the PRA. The vast majority of the documents found exempt appear to pertain to the lease negotiations and included earlier versions of the final lease signed on August 22, 2005. The trial court found a number of documents exempt as attorney-client communications. Additionally, the court found some documents exempt as trade secrets.
¶ 9 On April 13, 2006, the Port produced 217 pages of documents ordered released by the court. West, joined by Jorgensen, moved to have documents disclosed that the Port had failed to release as ordered. The Port conceded that it had overlooked some records and released them.
¶ 10 Jorgensen, West and the Port all moved for reconsideration. Apart from ordering the disclosure of a few additional documents, the trial court generally denied the parties' claims on reconsideration. West then moved to have the remaining records released under SEPA which the court denied.4 Jorgensen, acting through new counsel, Philip Talmadge and Emmelyn Hart-Biberfeld, moved for public disclosure penalties and attorney fees. The trial court determined that records were improperly withheld for a total of 123 days.5 The court set the penalty at $60 per day for each day the documents were withheld. The trial court also reduced the amount of attorney fees requested both in hours and in hourly fee charged by the attorneys.
¶ 11 Meanwhile, back on January 17, 2006, David Koenig submitted his own public records request to the Port also seeking records related to the Weyerhaeuser lease. The Port responded on January 19 and subsequently sent Koenig a series of privilege logs that appeared to be identical to those filed in the Jorgensen/West litigation. In April 2006, Koenig filed a complaint in the trial court and Weyerhaeuser again intervened. The parties stipulated to the entry of orders and rulings on disclosure identical to those made in the Jorgensen/West action. Judgment was entered for Koenig for $9,360 in attorney fees and costs and $6,960 in penalties (116 days at $60 per day).
¶ 12 The parties filed separate notices of appeals with the Washington Supreme Court. West's and Jorgensen's suits were automatically consolidated on appeal because they were consolidated at the trial court.6 The Supreme Court denied direct review and transferred the case to the Court of Appeals, Division Two. Division Two consolidated the Koenig appeal with Jorgenson/West and then transferred the case to this court. Along the way, several motions and rulings have been made, many of which involved pro se litigant Arthur West.7 West's objection to attorney fees has been dismissed because of lack of standing.
¶ 13 The PRA "`is a strongly worded mandate for broad disclosure of public records.'"8 The legislation had its origins in an initiative put forth by Washington citizens.9 The legislature clearly intended that exemptions to disclosure should be narrowly construed.10
¶ 14 The trial court found many of the documents exempt from disclosure under the PRA's deliberative process exemption. RCW 42.56.28011 provides:
Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.
The purpose of this exemption is to permit "frank and uninhibited discussion during the decision-making process."12 To come within the ambit of this exemption, an agency must show:
• the records contain pre-decision opinions or recommendations expressed as part of the deliberative process, and
• disclosure would be harmful to the deliberative or consultative function of the process, and
• disclosure would interfere with the flow of recommendations, observations, and opinions, and
• the records reflect policy recommendations and opinions and are not simply the raw factual data underlying a decision.[13]
Records which contain subjective evaluations are not exempt if they are treated as raw data and are not the subject of further deliberation and consideration.14 However, once the agency implements the policies or recommendations such records are no longer exempt under the deliberative process exemption.15 Here, since the lease was executed prior to the records requests, documents relating thereto were no longer covered by this exemption.
¶ 15 In upholding the Port's nondisclosure of records, the trial court relied extensively on this court's decision in The American Civil Liberties Union of Washington (ACLU) v. City of Seattle.16 The trial court's ruling clearly indicates that it viewed the deliberative process exemption as having been extended by this court in that case. But, the trial court misread ACLU in finding the deliberative process exemption applicable here.17 The records sought in ACLU were lists of issues drawn up by a union and the City of Seattle for purposes of contract negotiations. The court reasoned that the disputed lists were the starting point of the negotiation process and the disclosure could...
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