West v. Thurston Cnty.

• Decision Date: 08 May 2012
• Docket Number: No. 41085–1–II.,41085–1–II.
• Citation: 275 P.3d 1200
• Court: Washington Court of Appeals
• Parties: Arthur S. WEST, Appellant, v. THURSTON COUNTY, Respondent.

275 P.3d 1200

Arthur S. WEST, Appellant,

v.THURSTON COUNTY, Respondent.

No. 41085–1–II.

Court of Appeals of Washington, Division 2.

May 8, 2012.

Arthur West, Olympia, WA, Appellant pro se.

Duncan K. Fobes, Mark Allen Anderson, Patterson Buchanan Fobes Leitch & Kalzer, Seattle, WA, for Respondent.

HUNT, J.

¶ 1 Arthur S. West appeals the superior court's memorandum opinion ruling that certain attorney fee invoices of Thurston County's insurer-appointed defense counsel did not meet the Public Records Act's (PRA) ¹ definition of public records because the County never physically received the invoices, was not responsible for paying them, and did not consider the invoices as part of any decision-making process. West also argues that the superior court erred in (1) failing to rule that the County improperly redacted parts of other invoices, (2) failing to impose a higher PRA penalty amount on the County, (3) unreasonably delaying the issuance of its memorandum opinion, (4) failing to rule on allegedly newly-discovered evidence that the County supposedly suppressed, (5) awarding attorney fees and costs to West's former counsel instead of to West himself, and (6) granting West's former counsel's motion for an attorney fees lien. We affirm.

FACTS

I. Background

¶ 2 Thurston County contracts with the Washington Counties Risk Pool for self-insurance coverage. The Risk Pool “is a public agency created by interlocal agreement in 1988, to provide coverage for liability exposures of counties.” ² The County has a $250,000 deductible under the Risk Pool agreement. The Risk Pool has the contractual right to appoint defense counsel to represent the County in matters that the self-insurance agreement covers. The Risk Pool-appointed defense counsel sends attorney fee invoices to the Risk Pool for payment, which the Risk Pool satisfies; if the County has not yet reached its $250,000 deductible, then the Risk Pool forwards these invoices to the County with requests for reimbursement. After the County meets its deductible, however, the Risk Pool no longer sends invoices to the County, which, at that point, is not responsible for paying them.

A. Broyles³ Litigation

¶ 3 In 2001, several former prosecutors sued the County for discrimination (the Broyles litigation). The County's contract with the Risk Pool covered the County's potential liability. The Risk Pool appointed at least five law firms to represent the County.⁴ In 2006, the Broyles plaintiffs received large jury verdicts and awards for attorney fees and costs, which our court later upheld on appeal.⁵

¶ 4 Between October 2001 and November 2002, five Risk Pool-appointed firms billed the Risk Pool for approximately $280,000 in services. Between November 2002 and December 2006, four of the original five Risk Pool-appointed firms ⁶, plus other (apparently Risk Pool-appointed) law firms and service providers, billed almost $1.9 million. Because the County was ultimately responsible for satisfying these invoices up to the deductible amount, the Risk Pool paid the first $250,000 and forwarded copies of the invoices to the County with requests for reimbursements. After the cumulative amount of invoices exceeded $250,000, the Risk Pool ceased forwarding copies of the invoices to the County because it was no longer responsible for paying them.

B. Public Records Act Request

¶ 5 On December 17, 2006, a local newspaper reported that Michael Patterson, one of the County's Broyles attorneys, “wo[uld]n't tell the public how much [the County's] legal defense [in the Broyles litigation] ha[d] cost.” Clerk's Papers (CP) at 116. About five weeks later, on January 22, 2007, Arthur S. West filed a Public Records Act (PRA) ⁷ request with the Thurston County Public Records Officer, which stated:

Please consider this a formal request under the Washington State Public Records Act (PRA) for copies of the complete records and official public records concerning the attorney billings related to the defense of the Thurston County Prosecutor's [O]ffice in Mason County Superior Court, and any records mentioned in any records request by the Olympian or any other entity presently being withheld from disclosure.

Specifically, this refers to the records of billings from the firm of Lee, Smart, Cook, Martin and Patterson. The law firm should “get Smart” and make full disclosure of the public records at issue in order to forestall a loss of public confidence in their integrity.

CP at 163.

¶ 6 In a letter dated January 26, Patterson, still representing the County, denied West's PRA request.⁸ Patterson's letter cited specific exemptions, including RCW 42.56.290, which exempts

[r]ecords that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.RCW 42.56.290. Patterson also cited RCW 42.56.070(1), which exempts documents that “fall[ ] within the specific exemptions of ... other statute[s] which exempt[ ] or prohibit[ ] disclosure of specific information or records.” For the “other statute,” Patterson relied on RCW 5.60.060(2)(a), which reads,

An attorney ... shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.

II. Procedure

¶ 7 On February 12, 2007, West filed a PRA action against the County in Mason County Superior Court. On February 24, Patterson wrote another letter to West, maintaining that RCW 42.56.290 exempted defense counsel's invoices from disclosure. Patterson also wrote that, nevertheless, the County would provide “redacted copies” of the invoices the County had in its “possession.” CP at 165.

A. First Disclosure (February 24, 2007); First Appeal

¶ 8 On the same day that Patterson wrote his February 24 letter to West, the County turned over to West 243 pages of redacted documents, comprising 46 individual invoices from five Risk Pool-appointed firms, even though West's PRA request had asked only for “records of billings from the firm of Lee, Smart, Cook, Martin and Patterson.” CP at 163. These invoices' dates ranged from October 1, 2001, through November 22, 2002. The invoices

were redacted to remove the name, address and other contact information of the person or entity to whom the invoice was sent, the file number and description of the matter, all descriptions of work performed and all descriptions of costs or disbursements as well as personal or financial information such as tax identification numbers.

CP at 182. The cumulative total of these invoice amounts was $255,030.95. ⁹ The County also provided to West a four-page document listing the Risk Pool's individual payments to law firms (including, but not limited to, four of the original five Risk Pool-appointed firms) and other service providers between November 2002 and December 2006, which amounted to nearly $1.9 million.

¶ 9 On March 26, the superior court dismissed West's PRA action, apparently because the County had disclosed the requested invoices; West appealed. ¹⁰ On May 13, 2008, we unanimously concluded in a published opinion that the superior court had erred by dismissing West's PRA action. West v. Thurston County, 144 Wash.App. 573, 584, 183 P.3d 346 (2008). We reasoned,

RCW 42.56.904 was expressly intended to clarify the Public Records Act's applicability to records of public funds expended on private legal counsel. The new statute clarified that attorney invoices held by a public agency may not be withheld in their entirety and that any work product redactions must be justified.West, 144 Wash.App. at 584, 183 P.3d 346. We remanded with instructions for the superior court to determine (1) “whether the County has, in fact, disclosed all of the invoices in its possession”; (2) “whether [the County's] redactions are justified as work product or privileged information”; and (3) “the costs and penalties to be assessed against the County for resisting disclosure until West filed this lawsuit.” West, 144 Wash.App. at 584, 183 P.3d 346.

B. Second Disclosure (July 9, 2008); Remand from First Appeal

¶ 10 On July 9, 2008, apparently in response to our court's decision, the County disclosed 303 pages of documents to West. This 303–page disclosure comprised numerous individual invoices, two of which the County had not included in its previous February 24, 2007 disclosure.¹¹ The July 2008 invoices were in “significantly less redacted form” than their February 2007 counterparts. CP at 166. But, like the February 2007 disclosure, the July 2008 disclosure did not include invoices substantially exceeding the $250,000 deductible.¹² Nor did the July 2008 disclosure include the Risk Pool's four-page payment history for the $1.9 million in costs incurred between November 2002 and December 2006.

¶ 11 On August 11, 2008, approximately one month after the County provided West with this second disclosure, we mandated West v. Thurston County back to the superior court. On September 8, West moved the superior court to order the County to “show cause ... why [the County] should not be compelled to comply in all respects with” our decision in West v. Thurston County. CP at 740. On October 17, the County sent the superior court two sets of documents: (1) “[u]nredacted copies of all Broyles v. Thurston County attorney fee invoices provided to [West] on February 24, 2007”; and (2) “[u]nredacted copies of all Broyles v. Thurston County attorney fee invoices provided to [West] on July 9, 2008.” CP at 726.

¶ 12 On January 6, 2009, counsel entered appearance for West. The superior court held the show cause hearing on February 6. West argued that the County had violated the PRA by failing to disclose Risk Pool-appointed defense counsel invoices in excess of the County's $250,000 deductible.¹³ He contended that the PRA required the County to disclose invoices for amounts...