Arthur West v. Dept. Of Licensing ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ARTHUR WEST, No. 71643-3-1
Appellant, ORDER GRANTING
MOTION TO PUBLISH
v.
DEPARTMENT OF LICENSING,
Respondent.
Respondent, State of Washington Department of Licensing, has moved for
publication of the opinion filed in this case on June 9, 2014. The panel hearing
the case has considered the motion and Appellant's answer and has determined
that the motion should be granted. The court hereby
ORDERS that the motion to publish the opinion is granted.
Dated this 1st day of August, 2014.
For the Panel:
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ARTHUR WEST, No. 71643-3-1
Appellant, DIVISION ONE
v.
DEPARTMENT OF LICENSING, PUBLISHED
Respondent. FILED: June 9. 2014
Cox, J. - Arthur West appeals the summary dismissal of his suit brought
under the Public Records Act against the Department of Licensing. He contends
that the Department violated the Public Records Act by failing to reasonably
search for, identify, and produce records related to motor vehicle fuel tax
payments to Indian Tribes. West also appeals the order denying his motion for
reconsideration of the summary judgment order. The Department properly
redacted and withheld information pursuant to a statutory exemption. Its search
for records was adequate and timely. The court properly exercised its discretion
in denying West's motion for reconsideration. Accordingly, we affirm.
On January 12, 2012, West submitted a Public Records Act request to the
Department of Licensing. He sought: (1) "All records showing the total amounts
of gas tax money given monthly to each Indian Tribe, 2008 to present"; (2) "All
audit reports concerning the expenditure of such funds"; and (3) "All
communications concerning the disclosure or witholding [sic] of such records, or
No. 71643-3-1/2
the propriety of disclosing or withholding such records, [J]anuary of 2011 [t]o
present." The Department of Licensing timely acknowledged receipt of West's
request and sought clarification. After West clarified his request, the Department
informed him that the estimated date of response was March 9, 2012.
West e-mailed the Department on February 11, 2012 stating that the
estimated time period was "unreasonable." Additionally, he made a second
request for disclosure, seeking "any indexes of public records maintained by the
department that encompass the gas tax refund amounts, and any applicable
retention and destruction schedules." The Department acknowledged receipt of
his second request on February 17, 2012. It informed West that it expected a
response could be made on or before February 24, 2012.
On February 24, the Department contacted West to provide a status
update on his second public records request. It informed West that it expected to
respond on or before March 2, 2012. Three days later, West responded and
informed the Department that he considered it to be in violation of the Public
Records Act by failing to reasonably disclose the records.
The Department made its first disclosure for West's first request on March
7, 2012. It stated that responsive records to items #1 and #2 were exempt from
disclosure, and it attached an exemption/redaction log. It also told West that it
was reviewing other records to determine whether they were exempt.
Additionally, the Department stated that it continued to "search for and review
records responsive to item #3" and that it expected to provide such records to
No. 71643-3-1/3
West "no later than March 23, 2012 and in installments as they become
available."
The next day, West sued the Department alleging that it violated the
Public Records Act by "failing to reasonably search for, identify, and produce
records."
The Department continued to respond to West's requests throughout the
spring and summer. The details of the Department's response are described
later in this opinion.
In November 2012, the Department moved for summary judgment. It
argued that West's suit was unnecessary, that its search for records was
reasonable, that it timely responded to West's requests, that it properly identified
each exempt record, and that it properly redacted or withheld records pursuant to
a statutory exemption.
West cross-moved for summary judgment and requested a continuance
pursuant to CR 56(f). In his motion, he argued that he was forced to file suit and
conduct discovery in order to compel the disclosure of records and that the
Department's exemptions were improper.
The Department moved for in camera review of the withheld and redacted
documents.
The trial court denied West's motion for a continuance, denied the
Department's motion for in camera review, and granted the Department's motion
for summary judgment.
West moved for reconsideration, and the trial court denied his motion.
No. 71643-3-1/4
West appeals.
SUMMARY JUDGMENT TO THE DEPARTMENT
West claims that the trial court erred when it (1) concluded that the
Department properly redacted or withheld records pursuant to a statutory
exemption, (2) concluded that the Department responded to his requests in a
timely manner, and (3) concluded that West's lawsuit was unnecessary to
compel production. His arguments are addressed in turn.
Judicial review under the Public Records Act is de novo.1 Public Records
Act cases may be decided on summary judgment.2 "Under summary judgment
analysis, the appellate court engages in the same inquiry as the trial court: '[l]t
views the pleadings and affidavits in the file, and all reasonable inferences
therefrom, in the light most favorable to the nonmoving party, and it grants
judgment when no material issue of fact exists and the moving party is entitled to
judgment as a matter of law.'"3
Statutory Exemptions
West argues that the Department improperly withheld and redacted
records pursuant to a statutory exemption. Specifically, he contends that these
RCW 42.56.550(3).
2 Spokane Research & Def. Fund v. City of Spokane, 155 Wash. 2d 89, 106,
117P.3d 1117(2005).
3 Limstrom v. Ladenburg, 98 Wash. App. 612, 614, 989 P.2d 1257 (1999)
(alteration in original) (quoting Mueller v. Miller, 82 Wash. App. 236, 246-47, 917
P.2d 604 (1996)).
No. 71643-3-1/5
statutes do not exempt disclosure of amounts of money refunded by the state to
the tribes. We disagree.
The Public Records Act requires each agency to make available all public
records unless the record falls within a Public Records Act exemption or other
statutory exemption.4 "To the extent necessary to prevent an unreasonable
invasion of personal privacy interests protected by the [Public Records Act], the
agency shall redact identifying details and produce the remainder of the record."5
"The burden of proof shall be on the agency to establish that refusal to permit
public inspection and copying is in accordance with a statute that exempts or
prohibits disclosure in whole or in part of specific information or records."6
The Public Records Act is a "'strongly worded mandate for broad
disclosure of public records.'"7 The Act is to be "'liberally construed and its
exemptions narrowly construed to promote this public policy and to assure that
the public interest will be fully protected.'"8
When interpreting a statute, we conduct a de novo review.9 We interpret a
statute so as to ascertain and give effect to the legislative intent.10 "If the
4 Bainbridge Island Police Guild v. City of Puvallup, 172 Wash. 2d 398, 407,
259 P.3d 190 (2011); RCW 42.56.070(1).
5 Bainbridge, 172 Wash. 2d at 407.
6 RCW 42.56.550(1).
7 Bainbridge, 172 Wash. 2d at 408 (quoting Hearst Corp. v. Hoppe, 90 Wash. 2d
123, 127, 580 P.2d 246 (1978)).
8 \± (quoting Hearst, 90 Wash. 2d at 127).
9 Limstrom, 98 Wash. App. at 615.
No. 71643-3-1/6
statute's meaning is plain, [the court] give[s] effect to that plain meaning as the
expression of the legislature's intent."11 "'Statutes must be interpreted and
construed so that all the language used is given effect, with no portion rendered
meaningless or superfluous.'"12
Under RCW 82.36.450, the State may enter into an agreement with any
federally recognized Indian tribe regarding the taxation of motor vehicle fuel on
reservation property.13 One provision of this statute provides:
(4) Information from the tribe or tribal retailers received by
the state or open to state review under the terms of an agreement
shall be deemed to be personal information under [RCW
42.56.230(4)(b)] and exempt from public inspection and
copying^
RCW 42.56.230(4)(b) provides:
The following personal information is exempt from public
inspection and copying under this chapter:
(4) Information required of any taxpayer in connection with
the assessment or collection of any tax if the disclosure of the
information to other persons would: . . . (b) violate the taxpayer's
right to privacy or result in unfair competitive disadvantage to the
taxpayer.
10 \±
11 Bostain v. Food Express, Inc.. 159 Wash. 2d 700, 708, 153 P.3d 846
(2007).
12 State v.J.P., 149 Wash. 2d 444, 450, 69 P.3d 318 (2003) (internal
quotation marks omitted) (quoting Davis v. Dep't of Licensing, 137 Wash. 2d 957,
963, 977 P.2d 554 (1999)).
13 RCW 82.36.450.
14 (Emphasis added.)
No. 71643-3-1/7
Here, the Department properly withheld and redacted information related
to the amounts of gas tax money refunded to a tribe pursuant to these statutory
exemptions. The plain language of RCW 82.36.450(4) shows the legislature's
intent to protect "information from the tribe," which it expressly deems "personal
information." The plain language of RCW 42.56.230(4)(b) shows the legislature's
intent to protect "[i]information required of [the tribe]," if that information would
violate the tribe's right to privacy. Under these statutes, this personal information
is plainly exempt from public inspection and copying.
West focuses on the words "from the tribe" in RCW 82.36.450 or
"required of any taxpayer" in RCW 42.56.230(4)(b) to argue that the dollar
amounts of gas tax money given or refunded to the tribes is fundamentally
different information from information received from or required of the tribe, such
as numbers of gallons of gasoline, that is used to calculate the refund. He
argues that only the latter is exempt under the statutes. This argument is not
persuasive.
West's reading of the statutes is too restrictive.
The amount of gas tax money given or refunded to the tribe contains
"information required of [the tribe]." Likewise, it contains "information from the
tribe." Whether the State discloses this private information to West in its original
form, i.e., the number of gallons of gasoline, or rather, whether it provides the
information in the form of a mathematical calculation, i.e., the number of gallons
of gasoline is equal to the refund amount divided by the tax rate, the private
information is the same. It would simply be disclosed in a different form.
No. 71643-3-1/8
Disclosure of such personal information would be contrary to the plain words of
the statute. West's arguments that this information is qualitatively different are
not convincing.
West contends that Bainbridge Island Police Guild v. City of Puvallup is
"on point."15 We disagree.
He relies on that case for the assertion that "[e]ven though a public record
requestor could work backwards and figure out some information provided by the
tribes, that does not make the amount the State paid out exempt."16 In
Bainbridge, a police officer accused of sexual misconduct sought an injunction to
prevent the disclosure of investigation reports.17 The supreme court considered
whether the reports must be disclosed under the Public Records Act, or whether
they fell under the personal information exemption or the investigative records
exemption.18 The lead opinion concluded that while the officer's identity was
exempt from production, the remainder of the reports were not exempt, because
the nature ofthe investigations is a matter of legitimate public concern.19
Bainbridge is distinguishable from this case. In order for either exemption
to apply in Bainbridge, it was necessary to determine that disclosure of the
15 Appellant Arthur West's Opening Brief at 22 (citing Bainbridge, 172
Wash. 2d at 417-18).
16 lU at 23.
17 Bainbridge, 172 Wash. 2d at 405.
18 JU at 408-09.
19 JU at 417-18.
8
No. 71643-3-1/9
information would violate the individual's right to privacy.20 A person's right to
privacy is violated only if disclosure of information about the person: (1) would be
highly offensive to a reasonable person, and (2) is not of legitimate concern to
the public.21 Because only the officer's name was not of legitimate public
concern, the remainder of the reports did not qualify under the exemption.
Here, in contrast, RCW 82.36.450 does not turn on whether the
individual's right to privacy would be violated by disclosure.22 Accordingly, it is
not necessary for this court to conduct this balancing inquiry and consider
whether the matter is one of legitimate public concern. So long as the
information is "information from the tribe," it is statutorily defined as personal
information and is exempt.
West relies on the following language from Bainbridge to support his
argument: "We recognize that appellants' request under these circumstances
may result in others figuring out [the officer's] identity. However, it is unlikely that
these are the only circumstances in which the previously existing knowledge of a
third party, paired with the information in a public records request, reveals more
than either source would reveal alone."23
20 lg\ at 408-09, 419.
21 Id, at 415.
22 See RCW 82.36.450(4).
23 Bainbridge, 172 Wash. 2d at 418.
9
No. 71643-3-1/10
He appears to rely on this information to support the argument that
nonexempt information does not become exempt simply because its disclosure
may result in figuring out other exempt information. But that is not the
circumstance in this case. Here, we do not reach our conclusion that the refund
amounts given by the state are exempt because disclosure may result in figuring
out other exempt information provided by the tribes. Rather, as previously
discussed, the refund amounts here contains the same "information required of
[the tribe]."24 Likewise, it contains the same "information from the tribe."25 This
private information is merely expressed in a different manner. It is exempt.
Further, Bainbridge is distinguishable because the "previously existing
knowledge of a third party" in that case was obtained from newspaper reports
outside the public records request.26 Here, in contrast, the public records request
alone reveals personal information from the tribe if it is not redacted or withheld.
And, as West acknowledges, an agency should look to the contents of the
document, when deciding if a record should be exempt because of a privacy
right. The contents of the documents in this case further support our conclusion
that the legislature intended to protect the refund amounts as personal
information. For these reasons, West's reliance on this case is not helpful.
Finally, West argues that this court should consider RCW 42.56.270(15),
which exempts financial information provided to the department of licensing "as
24RCW42.56.230(4)(b).
25 RCW 82.36.450(4).
26 Bainbridge, 172 Wash. 2d at 418.
10
No. 71643-3-1/11
required by RCW 19.112.110 or 19.112.120, except information disclosed in
aggregate form that does not permit the identification of information related to
individual fuel licensees." But West fails to adequately explain the relationship
between these statutes. RCW 42.56.270(15) does not expressly refer to the
statute at issue in this case, RCW 82.36.450. The only link between the two is
that RCW 19.112.120 refers to chapter 82.36 as a whole. West's citation to
these statutes does nothing to override the clear statutory exemption of the
information we previously discussed. We conclude that the legislative intent is
clear from the words of RCW 82.36.450(4), which plainly support the claimed
exemption.
Timeliness of Response
West next argues that the trial court erred when it concluded that the
Department responded to his record requests in a timely manner. We disagree.
"The [Public Records Act] mandates full disclosure of public records in a
timely manner."27 RCW 42.56.520 provides that upon receiving a request for
public records, the Department must respond within five business days by either
"(1) providing the record; (2) providing an internet address and link on the
agency's web site . . .; (3) acknowledging that the agency . . . received the
request and providing a reasonable estimate of the time the agency . . . will
require to respond to the request; or (4) denying the public record request."
"Additional time required to respond to a request may be based upon the need to
27 Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn.
App. 110, 120, 231 P.3d 219 (2010).
11
No. 71643-3-1/12
clarify the intent of the request, to locate and assemble the information
requested, to notify third persons or agencies affected by the request, or to
determine whether any of the information requested is exempt and that a denial
should be made as to all or part of the request."28
Here, the Department timely responded to both of West's requests.
The Department received West's first request on January 23, 2012 and
responded on January 30, 2012, within five business days, by acknowledging his
request and asking for clarification. After getting clarification, the Department e-
mailed West a week later, on February 10, with an update. The Department
estimated that it would respond to his first request on March 9. West did not
challenge the reasonableness of this estimate.
West's first request was "complex." A declaration from Hannah Fultz, an
employee in the Public Records Office for the Department of Licensing, shows
that throughout the spring of 2012, the Department searched for responsive
records. Fultz, along with Sara Crosby, a Public Disclosure Manager, reviewed
records to determine whether they were responsive and whether they should be
produced, disclosed, redacted, or withheld. The records responsive to West's
first request were substantial. For example, Crosby stated that on June 15, the
Prorate and Fuel Tax Program provided paper copies of approximately 50,000
pages of records in response to West's first request. As Fultz stated, "It was
28 RCW 42.56.520.
12
No. 71643-3-1/13
difficult to grasp the scope of the responsive records because of how broad the
request was."29
Given this broad request, the Department also timely disclosed records to
West. The Department provided its first disclosure for this request on March 7,
which was within its estimated time frame. This e-mail stated:
Records responsive to items #1 and #2 [in West's first
request] are exempt from disclosure. Please see the attached
Exemption/Redaction Log for details. Please note that pages
#000001 to #000020 aren't listed on the log. The Department is
currently working with our attorneys to determine whether or not
these pages are exempt, either in whole or in part. Pending their
review, and adding in a short time to appropriately document this
outcome for you, I expect to report the outcome to you by March
16, 2012J30]
The Department also stated that it continued to search for and review records
responsive to item #3 of this request and that it expected to provide records by
March 23, 2012.
Although not always within its estimated deadlines, the Department
continued to contact West and provide periodic updates and installments of
documents. The Department provided records responsive to part 3 of the
request on June 28. It provided pages #000001-000020 to West on July 26.
Crosby's declaration reveals that the Department sent installments in response to
this request on the following dates in 2012: July 6, 10, 23, 26, and 27; August 6,
17, 20, 21, 23, 24, and 31; September 18; and October 4, 11, 18, 19, 23, 24, and
29 Clerk's Papers at 84.
30 Id. at 129.
13
No. 71643-3-1/14
29. As of October 31, 2012, the Department had sent a total of 47,363 pages to
West, and there remained 7,000 to 10,000 pages to be reviewed.
Overall, the Department's response to this request was timely. The
request was complex and broad, and the record shows that the Department
continued to search for records, review the records, contact West, and provide
installments throughout the spring and summer. Additional time was necessary
to locate and assemble the information requested, to notify third persons or
agencies affected by the request, and to determine whether any of the
information requested was exempt. The Department's actions are within the
scope of what is permitted under RCW 42.56.520. As Fultz stated in her
declaration, "The scope, type and volume of records requested in Request #1
were not routine. Responding to West's requested [sic] could not be
accomplished at any faster rate than what the Department has accomplished and
certainly not by March 8, 2012, when West filed the present lawsuit."31
The Department also timely responded to West's second request. It
received this request on February 13, 2012 and acknowledged it on February 17,
2012. It provided an estimated response date of one week. One week later, on
February 24, the Department contacted West to provide another update and to
inform him that the new expected response date was March 2. On March 9, the
Department again contacted West to inform him that there were no responsive
records to his search. It explained the results of the search and asked West to
31 Id. at 85-86.
14
No. 71643-3-1/15
call the Department if it had misunderstood his request. West did not further
clarify this request, and the request was closed.
In sum, the trial court properly concluded that the Department responded
to West's record requests in a timely manner.
West concedes that the Department's search was adequate, but he
argues that the Department embarked upon an "unnecessary review" of
nonresponsive records, acted in bad faith, silently and deliberately withheld
records until after the show cause hearing, "acted to obstruct and complicate the
disclosure process." Nothing in this record supports these accusations.
Further, as just discussed, West's request was complex and broad. And
as the Department points out, West drafted the broad language, he did not
indicate that the records were not responsive, and he did not further clarify his
request. Moreover, West concedes that half of these records were responsive to
his request. Accordingly, West's "bad faith" arguments are wholly unpersuasive.
West also argues generally that the Department "could have easily
disclosed" certain records sooner because it had these records "at its fingertips."
He relies on RCW 42.56.100 for the proposition that the Department is required
to provide the timeliest possible assistance to requestors. But West fails to
provide authority that the Department had any obligation to provide these records
first, or that it had an obligation to provide the installments in any particular order.
As discussed previously, the Department provided timely assistance to West. As
Fultz's declaration reveals, the Department continuously worked to process and
respond to his request, and given the complexity, scope, type, and volume of the
15
No. 71643-3-1/16
records, the disclosure likely could not have been accomplished at any faster
rate. West's assertions to the contrary are not persuasive.
West also argues that the Department's response was untimely because
the Department "ignored its own deadlines," and failed to "provide justification"
for its "unilateral extension of time." He relies on Violante v. King County Fire
District No. 20 to argue that "[a]bsent such justification, this Court should bind the
Department to its original time estimate."32 But Violante did not expressly
consider whether failure to abide by original time estimates constituted a violation
under the Act.33 West cites no other authority to support this claim. Rather, he
relies on Model Rules for the Public Records Act to argue that the Departments
"serial extensions" had the effect of denying West access to public records.34 But
the Model Rules "are advisory only and do not bind any agency."35 Accordingly,
West's argument is not persuasive.
Necessity of Lawsuit
Finally, West argues that the trial court erred when it concluded that his
lawsuit was unnecessary to compel the Department to produce the records he
had requested. Because we conclude that the Department complied with the
32 Appellant Arthur West's Opening Brief at 30 (citing Violante v. King
County Fire Dist. No. 20, 114 Wash. App. 565, 570-71, 59 P.3d 109 (2002)).
33 Violante, 114 Wash. App. at 565.
34 Appellant Arthur West's Reply Briefat 15-16 (citing WAC 44-14-
04003(6)).
35 WAC 44-14-00003.
16
No. 71643-3-1/17
relevant provisions of the Public Records Act, we need not address this
argument.
MOTION FOR RECONSIDERATION
West argues that the trial court improperly denied his motion for
reconsideration. We disagree.
As an initial matter, West argues that the proper standard of review is de
novo because the trial court was engaged in deciding questions of law, not fact.
West is incorrect. This court reviews the denial of a motion for reconsideration
for abuse of discretion.36
A trial court abuses its discretion if its decision is manifestly unreasonable
or based on untenable grounds or reasons.37 A court's decision is manifestly
unreasonable if it is outside the range of acceptable choices, given the facts and
the applicable legal standard; it is based on untenable grounds ifthe factual
findings are unsupported by the record; and it is based on untenable reasons if it
is based on an incorrect standard or the facts do not meet the requirements of
the correct standard.38 Additionally, we may affirm on any basis supported by the
record.39
West moved for reconsideration pursuant to CR 59(a)(4) and CR 59(a)(7).
CR 59(a)(4) allows the court to grant reconsideration based on "[n]ewly
36 Lilly v. Lynch, 88 Wash. App. 306, 320-21, 945 P.2d 727 (1997).
37 In re Marriage of Littlefield, 133 Wash. 2d 39, 46-47, 940 P.2d 1362 (1997).
38 JU at 47.
39 LaMon v. Butler, 112Wn.2d 193, 200-01, 770 P.2d 1027(1989).
17
No. 71643-3-1/18
discovered evidence, material for the party making the application, which he
could not with reasonable diligence have discovered and produced at the trial."
CR 59(a)(7) allows the court to grant reconsideration ifthe decision is "contrary
to law."
West argues that he "put before the Trial Court a great mass of late-
produced responsive records, which could have and should have been produced
to [him] long ago" and that these were "material records that would have and
should have changed the result of the show cause hearing." But he fails to
identify these specific records on appeal, argue how these were material to the
issues before the trial court, or explain how they would have changed the result
at the hearing. Rather, he generally asserts that if the trial court had considered
these records, it would have concluded that the Department could have produced
them earlier. Again, West fails to support these speculative arguments. Further,
given the scope, complexity, and the Department's response, West fails to show
that this evidence would have changed the result of the show cause hearing.
In sum, West fails to show that the newly discovered evidence was
material to any of the issues before the court, or that the court's decision was
contrary to law. The trial court did not abuse its discretion.
West argues that the trial court applied the wrong legal standard and thus,
based its decision on untenable grounds. It is true that the trial court identified an
18
No. 71643-3-1/19
outdated version of Local Civil Rule 59.40 But even if the trial court erred by
looking to an outdated rule, we may affirm on any basis supported by the
record.41 For the reasons just discussed, we conclude that the record shows that
trial court did not abuse its discretion.
ATTORNEY FEES
West argues that he is entitled to fees pursuant to RCW 42.56.550(4).
RCW 42.56.550 provides that any person who prevails against an agency shall
be awarded all costs. A Public Records Act claimant "prevails" against an
agency "only when that agency [wrongfully] withheld documents."42 Because the
Department did not wrongfully withhold the documents, West has not prevailed.
Accordingly, we deny his request for fees on appeal.
We affirm the orders and deny West's request for fees on appeal.
^3
WE CONCUR:
yW/yw^v, CJ>
40 See Clerk's Papers at 1836 ("Local Civil Rule 59 specifies as follows:
'Motions for Reconsideration are disfavored. The court will ordinarily deny such
motions in the absence of showing of manifest error in the prior ruling or a
showing of new facts or legal authority which could not have been brought to its
attention earlier with reasonable diligence.'").
41 LaMon, 112 Wash. 2d at 200-01.
42 Germeau v. Mason County, 166 Wash. App. 789, 811, 271 P.3d 932,
review denied, 174 Wash. 2d 1010 (2012).
19