Yacobellis v. City of Bellingham

• Decision Date: 16 October 1989
• Docket Number: No. 22434-4-I
• Citation: Yacobellis v. City of Bellingham, 780 P.2d 272, 55 Wn.App. 706 (Wash. App. 1989)
• Court: Washington Court of Appeals
• Parties: John YACOBELLIS, Appellant, v. CITY OF BELLINGHAM, Respondent.

Page 706

55 Wn.App. 706

780 P.2d 272

John YACOBELLIS, Appellant, v. CITY OF BELLINGHAM, Respondent.

No. 22434-4-I.

Court of Appeals of Washington Division 1.

Oct. 16, 1989.

John H. Anderson, Sherwood, Bentley & Anderson, Rolf Beckhusen, Bellingham, for appellant.

Richard Little, Bruce Disend, Bellingham City Attys., for respondent.

REVELLE, Judge Pro Tem. ^*

As an independent contractor, John Yacobellis was hired by the City of Bellingham to manage its Lake Padden Golf Course facility for the City Parks and Recreation Department. Yacobellis' contract ran from 1984 through 1986 with an option to renew for an additional 3 years. In February 1986, Yacobellis gave notice of intent to renew. Negotiations were ongoing on several issues, including Yacobellis' lease proposal.

During the summer and fall of 1986, the City conducted a "Municipal Golf Manager Survey". The survey was mailed to 20 Washington governmental agencies who manage 27 public golf courses. The stated purpose of the survey was to assist in negotiating a new contract with Yacobellis. Byron Elmendorf, the director of the City Parks and Recreation Department, promised to compile all the surveys and return copies of the compiled information to each participating agency. Elmendorf informed the agencies that he would keep the originals of the survey on file if they would like detailed information.

This method of fact-gathering was not new to the Parks Department. It had been Elmendorf's practice to contact other departments to gain information on specific issues relating to the operation of various recreation facilities, such as recreation program fees, job descriptions, department policies, maintenance standards, and swim pool operations and revenue. The information was gathered through telephone calls, questionnaire mailings or meeting discussions. The raw data from the worksheets was then compiled into a summary comparison. The Parks Department also conducted community surveys on various recreation programs and needs.

Elmendorf mailed a copy of the municipal golf survey report to Yacobellis on about November 7, 1986. On November 26, 1986, Yacobellis requested a copy of the raw data, .e., the answers to the questionnaire. The City mailed Yacobellis a copy of the cover letter and questionnaire which was sent to the agencies. The City refused to provide copies of the completed questionnaires on the ground that all complete data was in the survey. The City advised Yacobellis to contact each agency individually. Subsequently, on numerous occasions Yacobellis renewed his request for release of the questionnaires pursuant to the public disclosure law. On September 8, 1987, the City informed Yacobellis that the completed questionnaires had been discarded. It is unknown when this occurred.

Yacobellis filed a "Complaint seeking access to public records". Yacobellis sought disclosure of all information concerning the golf survey, costs and attorney fees and $25.00 per day for each day that he was denied access to the documents. The matter was heard on Yacobellis' motion for an order to show cause and the City's motion for summary judgment. The trial court found that the report was the final document, that the questionnaires were merely the "sense impressions" used to create the report and that the questionnaires were not public records. The trial court also determined that the question of production of the documents was moot since they had been discarded. The court entered judgment for the City.

Yacobellis appeals, raising the following issues:

1. Are the issues raised in the appeal moot?

2. Did the trial court err in determining that the completed questionnaires are not public records?

3. Are the completed questionnaires exempt from disclosure?

4. Is Yacobellis entitled to costs and attorney fees at trial and the $25 per day statutory award?

5. Is Yacobellis entitled to costs and attorney fees on appeal?

MOOTNESS

The threshold question is whether the issues are moot. Yacobellis contends that the issues are not moot because there may be a recurring problem of access to the same or similar records in the future and he is entitled to compensation. The City does not address this issue.

"It is a general rule that, where only moot questions or abstract propositions are involved, or where the substantial questions involved in the trial court no longer exist, the appeal ... should be dismissed." Harvest House Restaurant, Inc. v. Lynden, 102 Wash.2d 369, 373, 685 P.2d 600 (1984) (quoting Sorenson v. Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). A case is moot if the court can no longer provide effective relief and the issues it presents are purely academic. Kuehn v. Renton Sch. Dist. 403, 103 Wash.2d 594, 597, 694 P.2d 1078 (1985); In re Schuoler, 106 Wash.2d 500, 503, 723 P.2d 1103 (1986). Although declaratory relief may be impossible to grant due to an intervening occurrence, the existence of a monetary dispute arising out of a declaratory action will prevent the action from becoming moot. Kuehn v. Renton Sch. Dist. 403, supra, 103 Wash.2d at 597, 694 P.2d 1078 (action was not moot where, although the court could not grant declaratory relief enjoining the alleged unconstitutional search, issue of nominal damages and attorney fees under 42 U.S.C. § 1983 remained), See D.C.R. Entertainment v. Pierce Cty., 55 Wash.App. 505, 778 P.2d 1060 (1989).

Because the documents were destroyed, the court cannot grant complete relief. However, the questions of costs, attorney fees and the $25 per day statutory award remain. The issues in this case are not moot. D.C.R. Entertainment v. Pierce Cty., supra; Kuehn v. Renton Sch. Dist. 403, supra.

PUBLIC RECORDS

The Washington Public Disclosure Act, RCW 42.17, is a strongly worded mandate for broad disclosure of public records. ¹ Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). The act is to be liberally construed to promote full access to public records to assure continuing public confidence in governmental processes and to assure that the public interest is fully protected. RCW 42.17.010; Oliver v. Harborview Medical Center, 94 Wash.2d 559, 565, 618 P.2d 76 (1980). RCW 42.17.260 provides that each agency shall make available for public inspection and copying all public records unless the record falls within a statutory exemption. The agency shall delete identifying information only to prevent an unreasonable invasion of personal privacy and must justify any deletion in writing. RCW 42.17.260(1). Upon request, agencies shall make public records available promptly and shall not distinguish among persons requesting records, RCW 42.17.270, and release of information is not conditioned upon the use to which the information will be put. In re Rosier, 105 Wash.2d 606, 611, 717 P.2d 1353 (1986). In addition, each agency shall make available a current index providing identifying information as to numerous types of records, including:

Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others....

RCW 42.17.260(2)(e). Upon the motion of a person who has been denied access to records, the superior court may require the agency to show cause why access was denied and the burden of proof is on the agency to justify its failure to disclose. RCW 42.17.340(1). Judicial review of all agency actions is de novo. RCW 42.17.340(2).

The public disclosure act establishes a three-part test for determining whether a particular document is a public record:

"Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

RCW 42.17.020(26). ²

In this case, it is clear that the questionnaires were a writing and that they were prepared, used or retained by a governmental agency, i.e., the City's Parks Department. It also appears that they contained information relating to the conduct of a governmental function, i.e., management of municipal golf courses. The City contends, however, that to be a public record, the document must have been intended to be a memorial or permanent evidence of the matters to which it relates. The City compares the completed questionnaires to personal notes.

In Cowles Publishing Co. v. Murphy, 96 Wash.2d 584, 637 P.2d 966 (1981), a newspaper sought access to search warrants and affidavits of probable cause. The court did not determine whether the documents were public records within the meaning of the statute because they were accessible under a common law right. In dicta, however, the court stated that the issue of access to records should be determined by the role the documents play in the system, not who handles them.

In cases interpreting the FOIA, courts have not focused on one factor, but instead have looked at all the circumstances, such as whether the documents were in the agency's control, were generated within the agency, were placed into the agency's files and were used by the agency. Bureau of Nat'l Affairs v. Department of Justice, 742 F.2d 1484 (D.C.Cir.1984).

As the City contends, the cases consistently hold that personal notes, as well as telephone messages and daily appointment calendars are not public records. This is because they are generally created solely for the individual's convenience or to refresh the writer's memory, are maintained in a way indicating a private purpose, are not circulated or intended for distribution within agency channels, are not under agency control, and may be discarded at the writer's sole discretion. See, e.g., American Fed. of Gov't Employees v. Department of Commerce, 632 F.Supp. 1272 [780 P.2d 276] (D.DC.1986); Kalmin v. Department of Navy, 605...