Zink v. City of Mesa

• Decision Date: 23 August 2007
• Docket Number: No. 24322-2-III.,24322-2-III.
• Citation: 140 Wn. App. 328,166 P.3d 738
• Parties: Jeff ZINK and Donna Zink, husband and wife, Appellants, v. CITY OF MESA, a Washington Municipal Corporation, Respondent.
• Court: Washington Court of Appeals

166 P.3d 738

140 Wn. App. 328

Jeff ZINK and Donna Zink, husband and wife, Appellants, v. CITY OF MESA, a Washington Municipal Corporation, Respondent.

No. 24322-2-III.

Court of Appeals of Washington, Division 3.

August 23, 2007.

Ronald Francis St. Hilaire, Liebler Ivey Connor Berry & St Hilaire, Kennewick, WA, for Appellants.

Terry M. Tanner Jr., Tanner & Hui, Richland, WA, for Respondent.

STEPHENS, J.

¶ 1 Former RCW 42.17.340(3) (2002)¹ of the Public Disclosure Act (PDA) provides that the court, in reviewing agency action on public record requests, "shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience ... to public officials." (Emphasis added.) The central issue in Donna and Jeff Zink's appeal is whether the sheer number of their public record requests of the City of Mesa (City), and the limited personnel resources of the City to fill those requests, justify the City's less than strict compliance with the PDA's provisions.

¶ 2 The trial court did not make specific findings on each of the PDA violations alleged by the Zinks. Instead, it found generally that the City had substantially complied with the Zinks' requests. We hold that "substantial compliance" is an incorrect standard by which to judge an agency's compliance with its statutory duties. We further hold that the record does not support the trial court's determination that the Zinks unlawfully harassed City officials or that the City met its obligations under the PDA. We therefore reverse and remand this matter to the trial court for determinations consistent with this opinion.

FACTS

¶ 3 This action had its beginnings in August 2002 when the City decided to "expire" a building permit it had issued to the Zinks to repair and remodel their fire damaged home. In support of its decision, the City cited neighbors' complaints about the home's exterior. The Zinks appealed to the City of Mesa Board of Appeals. They also began filing disclosure requests for public documents held by the City. The requests, by the City's count, totaled 172 over the period beginning July 30, 2002 and ending January 31, 2005.

¶ 4 Many of the Zinks' requests were linked to the decision on their building permit. In addition, some requests related to their self-described "watchdog type" role in the City. Clerk's Paper (CP) at 343. Ms. Zink is both a former councilwoman and a former mayor of the City. She stated in a declaration that "[m]y husband and I have been asking for records to investigate several complaints we have received from other Mesa residents.... Many of the residents are non-English speaking and many do not know their rights." CP at 343. Ms. Zink later testified it was her impression that these watch-dog activities generated the City's alleged resistance to filling her public record requests.

¶ 5 On April 30, 2003, the Zinks filed this action against the City. They alleged the City wrongfully denied or delayed many of their requests for access to and copies of public records maintained by the City. They further alleged the City wrongfully limited the time in which they could view public records and charged them excessive amounts for copies. They sought a court order compelling the City to allow them to view the public records it had wrongfully withheld from them and to provide the Zinks copies of the documents at no more than the statutory maximum charge. They also asked for penalties of $100 for each day they were denied their rights under the PDA, as well as costs and reasonable attorney fees.

¶ 6 On February 27, 2004, the Zinks filed a motion under former RCW 42.17.340 for an order to show cause why the court should not enter findings granting them the relief requested in their complaint. Ms. Zink specifically argued in the show cause motion that the City had violated RCW 42.17.250 through .320 by failing to respond to the Zinks' requests within five days; failing to provide the records within the time the City in its responses stated that it would; causing unreasonable delays in record requests; wrongfully denying record requests; wrongfully redacting portions of records produced; failing to specifically state the bases for the City's denials of certain requests; charging excessive amounts for copying; and limiting the time in which the Zinks could view the public records to only one hour per work day.

¶ 7 At the hearing on the show cause motion, the trial court heard testimony from Jeff and Donna Zink, Anita Zink, City Clerk Teresa Standridge and Assistant City Clerk Carolyn Stephenson. On June 22, 2005, the court entered findings, conclusions, and an order denying the motion. Except in three instances, the court did not make specific findings on the numerous violations of the PDA alleged by the Zinks.² Instead, it entered a general finding that the City had "more than substantially complied" with all the requests. CP at 31. It concluded that there was a limit to the number of requests an individual can make to an agency, and it was a "practical impossibility" for the City to strictly comply with the Zinks' requests because of the sheer number of those requests and the City's limited manpower. CP at 32. The court further concluded that the Zinks' public record requests "amounted to unlawful harassment," and that the City did not engage in disparate treatment of the Zinks. CP at 30.

¶ 8 The trial court ordered judgment entered in favor of the City. The Zinks timely appealed.

ANALYSIS

A. Standard of Review

¶ 9 Former RCW 42.17.340(3) provides that judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo. While agencies have some discretion in establishing procedures for making public information available, the provision for de novo review confirms that courts owe no deference to agency interpretations of the PDA, but are charged with determining when a duty to disclose exists and whether a statutory exemption applies. See Hearst Corp. v. Hoppe, 90 Wash.2d 123, 130, 580 P.2d 246 (1978). When a record request is subject to the PDA, the burden of proof is on the agency to establish the applicability of a specific exemption. Id.

¶ 10 This court has never examined whether de novo review provided in former RCW 42.17.340(3) pertains to appellate review of a trial court's findings and conclusions following a show cause hearing at which live testimony is presented. Our Supreme Court has recognized de novo appellate review under the PDA only where agency action is being reviewed solely on a documentary record. O'Connor v. Dep't of Soc. & Health Servs., 143 Wash.2d 895, 904, 25 P.3d 426 (2001) (noting, "`[t]he appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda of law, and other documentary evidence'") (quoting Progressive Animal Welfare Soc'y v. Univ. of Washington, 125 Wash.2d 243, 252, 884 P.2d 592 (1994) (emphasis added)); see also Amren v. City of Kalama, 131 Wash.2d 25, 32, 929 P.2d 389 (1997) (holding, "[b]ecause the trial court decided this case on the basis of affidavits, this court will review its decision de novo."). Previously when we have applied a de novo standard of review we have done so in this context. See Daines v. Spokane County, 111 Wash.App. 342, 346, 44 P.3d 909 (2002) (citing O'Connor, 143 Wash.2d at 904, 25 P.3d 426).

¶ 11 The Zinks urge us to engage in de novo review of the testimonial record, enter findings on the alleged PDA violations, and impose an appropriate remedy rather than remanding to the trial court. The Zinks cite Ockerman v. King County Department of Developmental and Environmental Services, 102 Wash.App. 212, 216, 6 P.3d 1214 (2000) in support of their argument that an appellate court, just as a trial court, reviews agency action de novo and enters its own findings of fact. See Appellants' Br. at 26. Ockerman does not support this argument, however, because the record in that case consisted only of documents, without courtroom testimony. When a trial court hears live testimony and judges the credibility of the witnesses, appellate courts consistently afford deference to its determinations of fact. See Org. to Preserve Agric. Lands v. Adams County, 128 Wash.2d 869, 882, 913 P.2d 793 (1996) (applying substantial evidence review following trial on issues under Open Public Meetings Act, chapter 42.30 RCW).

¶ 12 The provision for de novo review in former RCW 42.17.340(3) does not supplant this general principle, but rather serves to negate the usual deference that courts give to an agency's discretion in interpreting the rules governing it. Hearst Corp., 90 Wash.2d at 129-30, 580 P.2d 246. Thus, while we review de novo all questions regarding the City's obligations under the PDA, we review the trial court's findings of fact based on the testimonial record to determine if there is substantial evidence to support them. See Progressive Animal Welfare Soc'y, 125 Wash.2d at 252-53, 884 P.2d 592 (noting appellate court is not bound by trial court's findings of fact only where based solely on documentary record).³

B. Substantial Compliance

¶ 13 The PDA establishes a strong presumption in favor of full disclosure of public records by state and local agencies. Amren, 131 Wash.2d at 31, 929 P.2d 389; Am. Civil Liberties Union v. Blaine Sch. Dist. No. 503, 86 Wash.App. 688, 693, 937 P.2d 1176 (1997) (ACLU I). The central issue in this case is whether the trial court erred as a matter of law by applying a substantial compliance standard to its review of the City's actions in response to the Zinks' public disclosure requests. We hold this was error.

¶ 14 It has long been recognized that compliance with the PDA may impose an administrative burden on an agency entrusted with public records. Yet, administrative inconvenience or difficulty does not excuse strict compliance with the PDA....