Jeffrey R. Mckee, App. v. King County, Resp. ( 2015 )

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2015HAY 18 fir. 11= 29
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFFREY R. McKEE,
No. 70901-1-
Appellant, DIVISION ONE
v.
KING COUNTY,
UNPUBLISHED OPINION
Respondent.
FILED: May 18, 2015
Becker, J. — This appeal seeks reversal of a superior court decision to
dismiss a Public Records Act case. We affirm the dismissal.
The requester and appellant is Jeffrey R. McKee. On April 1, 2011,
McKee requested documents held by the King County Prosecutor. McKee's
request sought jail records and copies of documents held in the litigation file
related to the State's case against him in State v. McKee. No. 03-1-01734-1 KNT.
The prosecutor responded on April 13, 2011, initially stating that there were about
4,000 pages of records responsive to McKee's request. After some months of
corresponding with McKee, the prosecutor narrowed that estimate down to 2,177
pages. On December 27, 2011, the prosecutor mailed a letter to McKee. The
letter indicated that certain redactions had been made and stated that a privilege
log detailing those redactions was being provided as an enclosure. The letter
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also requested $266.55 for reproduction costs. McKee admits he never paid this
fee and did not collect the records.
On November 29, 2012, McKee filed suit against King County under the
Public Records Act, chapter 42.56 RCW. The County's first motion for summary
judgment was granted, dismissing McKee's claim that the County's charge for
reproducing the records was unreasonable. The County's second motion for
summary judgment was filed on June 17, 2013, with respect to McKee's general
claim that documents had been improperly exempted. McKee responded by
identifying 31 records that he believed were improperly described as exempt.
The County provided the trial court with copies of these documents in case the
court determined an in camera review was necessary. After a hearing on July
18, 2013, the court decided an in camera review was unnecessary and
dismissed McKee's case with prejudice. McKee appeals.
Judicial review of challenged agency action under the Public Records Act
is de novo. RCW 42.56.55(3); Fisher Broad .-Seattle TV LLC v. City of Seattle,
180 Wash. 2d 515, 522, 326 P.3d 688 (2014).
One of the records McKee requested was his own jail booking record. A
person's jail records are generally exempt from disclosure under RCW 70.48.100
without the person's written permission. The County's privilege log identified
RCW 70.48.100 as the reason for withholding McKee's booking record. In
response to the County's second motion for summary judgment in July 2013,
McKee stated that his request for the jail record was his written permission.
No. 70901-1-1/3
Even though McKee had not paid the copying and collection charges, the County
sent him a copy of the jail booking record at that time.
A person's request for his own booking record amounts to written
permission. Sargent v. Seattle Police Dep't, 167 Wn. App 1, 20, 260 P.3d 1006
(2011),aff^lnp^andrev^ineart, 179 Wash. 2d 376, 314 P.3d 1093(2013).
McKee contends the County's withholding of his nonexempt jail record between
December 2011 and July 2013 was wrongful under Sargent and that the trial
court therefore erred by granting summary judgment to the County. He asks that
the case be remanded for further proceedings. The point of the further
proceedings requested by McKee would be for an assessment of penalties
against the County.
An inmate may be awarded penalties under the Public Records Act only if
"the court finds that the agency acted in bad faith in denying the person the
opportunity to inspect or copy a public record." RCW 42.56.565(1).
McKee, who was an inmate when he made his request, did not raise an
issue about the jail record when he received the privilege log. He did not pay for
collection or copying, calling into question whether he had a right to a copy of the
jail record even after he asserted that it had been wrongfully withheld. See RCW
42.56.120. After McKee filed suit in November 2012, the County sent him an
interrogatory asking him to identify documents he believed had been exempted
from disclosure. He did not answer. It was not until the County filed its final
motion for summary judgment that McKee specifically identified the jail record as
a document he believed was improperly exempted. The County immediately
No. 70901-1-1/4
provided him with a copy of it. Under these circumstances, there is no basis for a
finding that the County acted in bad faith by withholding the jail booking record.
The remaining documents are one memorandum and 29 e-mails
contained in the prosecutor's litigation file. They are all described in the privilege
log as attorney work product, exempt under RCW 42.56.290. For each
document, the identifying information included the type of record, date, number of
pages, and the author and recipient.
Further descriptive information was provided to the court in an affidavit
submitted by a senior prosecuting attorney in support of the motion for summary
judgment. The memorandum is identified as a two-page memorandum from a
deputy prosecutor, requesting further investigation by the lead detective in an
investigation of McKee. Five e-mails are identified as communications among
prosecutors that describe criminal allegations against McKee, aspects of an
investigation of McKee, and McKee's arrest. Four e-mails are identified as
communications between a prosecutor, his paralegal, and a victim advocate,
discussing the victim's participation in criminal litigation involving McKee. Twenty
e-mails are identified as communications between prosecutors, a paralegal, and
persons from various police agencies, showing attempts by the attorneys and
paralegal to gather factual information for trial.
McKee claims none of these materials are exempt from disclosure.
The privilege log states that the four e-mails discussing the victim's
participation in McKee's criminal case were withheld under RCW 5.60.060(8).
The County agrees that RCW 5.60.060(8) was not applicable. That statute
No. 70901-1-1/5
exempts communications between a victim and a victim advocate, not
communications between a victim advocate and an attorney or paralegal. Those
communications, the County claims, are nevertheless exempt as attorney work
product under RCW 42.56.090, along with the memorandum and all the other e-
mails.
The Public Records Act exempts from public disclosure records "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. "Work product under the public
disclosure act is the same as work product under the civil rules." Soter v. Cowles
Pub. Co.. 131 Wash. App. 882, 893, 130 P3d 840 (2006), affd, 162 Wash. 2d 716,
174P.3d60(2007).
The attorney work product doctrine protects materials prepared or
collected in anticipation of litigation. Included within the definition of work product
is factual information which is gathered by an attorney, as well as the attorney's
legal research, theories, communications, opinions, and conclusions. Limstrom
v. Ladenburg. 136 Wash. 2d 595, 605-06, 963 P.2d 869 (1998); Koenig v. Pierce
County. 151 Wn. App. 221,230-31,211 P.3d 423 (2009). review denied. 168
Wn.2d 1023(2010).
The memorandum and the 29 e-mails McKee sought are encompassed by
the attorney work product doctrine. As the attorney's declaration demonstrates,
they memorialize an attorney's communications prepared in anticipation of
litigation. Because these communications would be protected from civil
No. 70901-1-1/6
discovery, they are exempt from disclosure under the Public Records Act. RCW
42.56.290.
McKee contends the prosecutor should have redacted the memorandum
and the 29 e-mails and produced them with only the header and footer showing,
rather than withholding them altogether. Because McKee raises this argument
for the first time on appeal, we decline to consider it. RAP 2.5(a).
Finally, McKee contends the trial court abused its discretion in declining to
examine the documents in camera. Determining whether in camera inspection is
required is left to the discretion of the trial court. Overlake Fund v. City of
Bellevue. 60 Wash. App. 787, 796-97, 810 P.2d 507, review denied. 117 Wash. 2d
1022 (1991). Without examining the documents themselves, the trial court could
determine from the privilege log and the prosecutor's declaration that the
documents were exempt as attorney work product. We find no abuse of
discretion. Harris v. Pierce County. 84 Wash. App. 222, 235-36, 928 P.2d 1111
(1996).
Affirmed.
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WE CONCUR:
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