Yakima Newspapers, Inc. v. City of Yakima
Decision Date | 21 March 1995 |
Docket Number | No. 13609-4-III,13609-4-III |
Citation | 890 P.2d 544,77 Wn.App. 319 |
Parties | YAKIMA NEWSPAPERS, INC. d/b/a Yakima Herald Republic, a corporation, Respondent and Cross Appellant, v. The CITY OF YAKIMA, a municipal corporation; Defendant, Jerry Beeson, Appellant. |
Court | Washington Court of Appeals |
Donald D. Bundy, Wilson, Bundy & Greiner, Yakima, for appellant.
Julia A. Dooris, Velikanje, Moore & Shore, Yakima, for respondent.
Jerry Beeson appeals the Superior Court's order that the City of Yakima disclose to Yakima Newspapers, Inc., d/b/a Yakima Herald Republic, a document relating to his retirement from his position as the City's fire chief. He contends the public disclosure requirements of RCW 42.17 do not apply to the document in question. The Herald cross-appeals that portion of the order in which the court determined the document constituted "work product". We affirm.
Mr. Beeson is a former fire chief for the City of Yakima. In 1993, his performance as chief and his relationship with the City and the firefighters' union became the subject of public comment, culminating in October with the City's announcement it and Mr. Beeson had reached an agreement concerning his retirement. When the City denied a request for documents by the Herald, the newspaper brought this action to compel the City to disclose "any and all records pertaining to the resignation and retirement of Fire Chief Jerry Beeson, including any documents relating to the financial terms and conditions of his retirement." According to the City, a single document existed that was responsive to the Herald's request--the written agreement referenced in the City's October announcement of Mr. Beeson's retirement.
Mr. Beeson intervened in the Herald's action against the City and requested an in camera hearing. The court inspected the written retirement agreement in camera, but held the hearing itself in open court. At the conclusion of the hearing, the court granted the Herald the relief it requested. The City and the Herald agreed to entry of a stipulated order of dismissal with prejudice and without costs. Mr. Beeson's appeal and the Herald's cross appeal followed.
The Public Disclosure Act declares that the public policy of the state of Washington is "[t]hat mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society." RCW 42.17.010(11). Further, the provisions of the act are "liberally construed to promote complete disclosure of all information ... and full access to public records so as to assure continuing public confidence of fairness of ... governmental processes, and so as to assure that the public interest will be fully protected." RCW 42.17.010.
In this appeal, Mr. Beeson contends:
(1) The retirement agreement is not a "public record", as defined in RCW 42.17.020(27):
[a] 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.
(2) The retirement agreement falls within the statutory exemption for "[r]ecords which 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 42.17.310(1)(j).
(3) The retirement agreement falls within the statutory exemption for "[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy." RCW 42.17.310(1)(b).
The Superior Court determined the retirement agreement was a "public record". Further, the agreement was not exempt from disclosure pursuant to RCW 42.17.310(1)(j) because the City had not met the threshold requirement of showing the requested document was "relevant to a controversy". Specifically,
the contents of [the document] do not tend to prove or disprove anything. The fact that the City of Yakima and Mr. Beeson have settled their differences is already known to the public. The terms of the settlement are simply not probative of a material fact in the "controversy".
In regard to this particular exemption, the court also held the agreement constituted "work product", even though its holding relating to the "controversy" requirement effectively eliminated use of the exemption here. Finally, the court decided that disclosure of the agreement did not violate Mr. Beeson's right to privacy.
(1) Is the document a public record?
As set forth above, the act defines "public record" broadly: the term includes all writings which contain information concerning governmental conduct or performance of governmental or proprietary functions. RCW 42.17.020(27). In Dawson v. Daly, 120 Wash.2d 782, 789, 845 P.2d 995 (1993), the court held a prosecutor's file on an expert witness was a public record because the information was used in carrying out the functions of the prosecutor's office. Likewise, performance evaluations for the prosecutor were also public records because they related to both the conduct of government and the performance of governmental functions. Dawson. See also Oliver v. Harborview Med. Ctr., 94 Wash.2d 559, 618 P.2d 76, 26 A.L.R.4th 692 (1980) ( ).
Other jurisdictions have considered whether settlement agreements are public records under their disclosure laws and have uniformly held they are, even when the settlement specified, as it did here, that it was to remain confidential. See, e.g., Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1192-93 (Alaska 1989); Dutton v. Guste, 395 So.2d 683, 685 (La.1981); Daily Gazette Co. v. Withrow, 177 W.Va. 110, 350 S.E.2d 738, 746 (1986). See also Andrea G. Nadel, Annotation, What are "Records" of Agency Which Must Be Made Available under State Freedom of Information Act, 27 A.L.R.4th 680 (1984).
The document sought by the Herald contains information about the City's termination of an employee, i.e., conduct in its proprietary capacity. Also, the document contains the terms of the City's and Mr. Beeson's settlement of their dispute concerning his performance as fire chief. Provision of fire services is a governmental function. The fire chief's job performance impacts that function. Thus, the trial court properly concluded the settlement agreement fits the definition of "public record".
(2) Is the document exempt under RCW 42.17.310(1)(j) as a record relevant to a controversy and not available under the civil rules for pretrial discovery, i.e., work product?
The term "controversy" is not defined in the Public Disclosure Act. In Dawson, the court rejected the trial court's conclusion that the term required existing litigation. The court held that conclusion conflicted "with our court rules establishing the work product rule", which "is triggered prior to the official initiation of litigation and extends beyond the official termination of litigation". Dawson, 120 Wash.2d at 790, 845 P.2d 995. Hence, the court interpreted "controversy" as "encompassing either anticipated litigation or actual past or present litigation ...". Dawson, at 791, 845 P.2d 995. The protection of the work product rule continues after litigation has terminated. Dawson, at 790, 845 P.2d 995.
The dispute concerning Mr. Beeson's job performance fits Dawson's definition of "controversy". But unlike Dawson, the focus here is on the term "relevant". The trial court interpreted "relevant" as modifying and limiting "controversy". It viewed "relevant" in the context of the rules of evidence: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Because the settlement agreement did not contain information probative of either party's position, the court held it was not relevant to a controversy.
Mr. Beeson argues "relevant" must be interpreted so as to encompass not only matters probative in the dispute between the City and Mr. Beeson, but also matters potentially probative in disputes between the City and other persons in the future. We are not persuaded. The exemption does not afford a government agency the right to block disclosure of documents because of some possible relevance to a future hypothetical dispute. To so hold would frustrate the purpose of the disclosure act to promote complete disclosure of and full access to public records. RCW 42.17.010. The trial court did not err.
RCW 42.17.310(1)(j) exempts from disclosure documents not available under the rules of pretrial discovery. The exemption "incorporates the work product doctrine". Dawson, 120 Wash.2d at 790, 845 P.2d 995.
Under CR 26(b)(4), "a party may obtain discovery of documents ... otherwise discoverable under subsection (b)(1) of this rule 2 and prepared in anticipation of litigation ... by or for another party ... only upon a showing [of substantial need]." (Italics ours.) The rule continues: "[T]he court shall protect against disclosure of the mental impressions, conclusions opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
Dawson and Overlake Fund v. Bellevue, 60 Wash.App. 787, 810 P.2d 507, review denied, 117 Wash.2d 1022, 818 P.2d 1098 (1991) discuss the work product exemption to the Public Disclosure Act. In Dawson, an expert witness on...
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