Patricia N. Strand v. Spokane County ( 2021 )

FILED
JUNE 15, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
PATRICIA N. STRAND, )
) No. 37669-9-III
Appellant, )
)
v. )
)
SPOKANE COUNTY AND ) UNPUBLISHED OPINION
SPOKANE COUNTY ASSESSOR, )
)
Respondent. )
SIDDOWAY, J. — Patricia Strand appeals the summary judgment dismissal of her
Public Records Act (PRA)1 complaint against the Spokane County Assessor. She
accused the assessor of failing to timely and fully respond to her request for all records
showing the basis for its 2018 assessed value of her residential property.
1
Chapter 42.56 RCW.
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Ms. Strand apparently believes the assessor has identifiable records reflecting a
process in which staff researched other properties, selected some that were comparable to
hers or identified other valuation criteria, and performed arithmetic in order to arrive at
the 2018 assessed value of her property. But the record demonstrates that the assessor’s
annual valuations are generated by a computer assisted mass appraisal process that does
not rely on this sort of staff work.
The assessor has described a reasonable search and provides a plausible
explanation why it has no records responsive to Ms. Strand’s request other than those it
has produced. Because Ms. Strand failed to present specific facts creating a genuine
issue of disputed fact, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In summer 2018, Patricia Strand received a notice from the Spokane County
assessor of the 2018 assessed value of her and her husband, Palmer Strand’s, residential
property. She appealed the assessment. The assessor and the county board of
equalization agreed that Ms. Strand’s appeal could proceed directly to the Washington
State Board of Tax Appeals (BTA).
On February 20, 2019, Ms. Strand received a scheduling letter for the valuation
appeal from the BTA. That afternoon she e-mailed a public record request to the
assessor, asking it to provide “the following records”:
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Regarding DA 18-0071 on parcel 17355.9014.[2] I want all records that
show the Assessor’s basis for valuation for assessment year 2018 – 2019
taxes.
The request is based on RCWs 84.40.030, 84.40.020, 84.48.150 and
42.56.520.
Clerk’s Papers (CP) at 35.
Ms. Strand’s PRA request was immediately acknowledged, and the next day
Byron Hodgson, the county’s chief deputy assessor, responded to the request by e-mail.
He provided her with a 2-page property record card for parcel number 17355.9014 and
stated, “Expect the second installment on or before March 8th.” CP at 729. The
computer-generated property record card, which was printed on the day it was e-mailed
to Ms. Strand, included information on ownership transfers, historical valuation
information, ownership and transfer of ownership information, a site description, land
data and calculations, and improvement data for the parcel.
A few days later, on February 24, Ms. Strand e-mailed Mr. Hodgson a clarified
request. Her e-mail attached three property cards for parcel 17355.9014 printed on April
25, 2018. For a “specifi[ed] date” within each of five assessment years, Ms. Strand
requested data falling within three categories from which values on the “specifi[ed] date”
were derived. CP at 732-34. Within each category, she requested between 8 and 13
2
DA 18-0071 is the Spokane County Board of Equalization docket number for
Ms. Strand’s appeal; 17355.9014 is Spokane County’s parcel number for her and Palmer
Strand’s property.
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pieces of information, such as “sold properties” and the “arithmetic” used in arriving at
values. Id. She emphasized that for most of the pieces of information being requested
the “items . . . should clearly connect each sale to the . . . associated records.” Id. at
733-34 (boldface omitted).
On the afternoon of March 8, Mr. Hodgson provided Ms. Strand by e-mail with a
second, 19-page installment of records. The records provided included the assessor’s
answer to her petition appealing its 2018 assessed value.
The assessor relies on a form answer to petitions that appeal its assessed values.
Among other information, the form answer explains that in order to measure the
reliability of its computer assisted mass appraisal, the county has adopted the
International Association of Assessing Officers’ standards for ratio studies. (Ratio
studies are discussed further below.) The answer identified four sales taking place
between January 1, 2017, and April 30, 2018, that it explained were not necessarily
comparable to her property, but that “helped establish market valuation of other
properties within the statistical neighborhood in which you reside.” CP at 748. It stated
that “[t]he statistical measures included within this report appear to be supportive of our
initial valuation position” and, “Within 21 days of the scheduled [appeal] hearing, we
will be also be [sic] providing comparable properties which we feel are reflective of your
property and supportive of market value.” CP at 743. Mr. Hodgson provided property
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record cards for three of the four properties whose sales the answer to the petition
identified as helping establish market valuation.3
Mr. Hodgson’s e-mail provided links to the county’s website where Ms. Strand
could find photographs for comparable sales and other additional information pertaining
to her request. The e-mail informed Ms. Strand that her request remained open and to
expect the next installment of responsive records on or before March 15.
Ms. Strand responded by e-mail to Mr. Hodgson within an hour of receiving his,
stating that the records he provided were “[f]rankly . . . confusing and totally
nonresponsive.” CP at 762. She asked him to provide the records she had requested.
On March 15, Mr. Hodgson e-mailed Ms. Strand a third installment of records.
The third, 581-page installment included more property records cards, neighborhood final
reports, and more links to photos for comparable sales and property sold information
pertaining to Ms. Strand’s public records request. The e-mail informed Ms. Strand the
attached information included all relevant sales information for each year, analysis used
to develop values, property characteristics for sold properties, and specific dates when
values were posted. Mr. Hodgson also informed Ms. Strand that her record request
remained open until March 22.
3
It appears that an error was made by providing two copies of property cards for
the third property sold and none for the fourth. A property card for the fourth property
sold was provided in the third installment of records produced. See CP at 912-13.
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On the afternoon of March 22, Mr. Hodgson e-mailed to Ms. Strand a fourth, nine-
page installment of records responsive to her request. He attached files from the Online
Services/Parcel Data Downloads for parcels in county neighborhood 231720. He also
provided links to additional information such as the assessor’s website. He also
summarized the records provided to Ms. Strand in response to her request.
A couple of hours later, Ms. Strand responded to Mr. Hodgson’s e-mail,
complaining that he had failed to “connect everything you have mailed to me” as
requested by her on March 15. CP at 1361. She asked him to “[p]lease immediately
connect what you have mailed to me” with her request and concluded, “[I]f you do not
immediately connect the records you are producing with what I requested I shall not ask
again for this to be done. We will again end up in Court for violations of RCW
42.56.520.” Id.
The following week, Mr. Hodgson sent Ms. Strand an e-mail that itemized the
records she had requested; identified, for each, what he had produced that he considered
responsive; and identified the items he concluded were not an identifiable record: ProVal
code sheets, the arithmetic (formula), and appraisal theory. He concluded:
All identifiable records that you have requested have been provided. An
agency is not obligated to create a new record to satisfy a records request.
Even if a new record was contemplated, it would be a complicated
undertaking requiring the compilation of historical data which would not
yield an arithmetic formula (correlation between sold and unsold property)
to derive valuation. This request is considered closed.
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CP at 1363 (emphasis omitted).
In a reply to Mr. Hodgson’s summary e-mail the following day, Ms. Strand
supported her request for what she called “ProVal code sheets” with two documents she
described as “examples”:
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CP at 1364, 161-63. The example on the right is referred to hereafter as the “Floor Level
Designations illustration.” A label added to the top of both of Ms. Strand’s examples
says “Received Jul/20/10 as Assessor Policy/Procedure Record.” Id. at 162-63.
Mr. Hodgson sent his last response to Ms. Strand’s record request on April 4,
reiterating that he believed Ms. Strand had received a complete response. He informed
her she could contact the Spokane County Public Records Office if she believed a public
record had been missed, provided her with a link to the county’s website, and concluded
with a statement of her right to appeal a determination to withhold information. Id.
Ms. Strand appealed, alleging withholding. Spokane County Public Records
Officer Anthony Dinaro met with Mr. Hodgson and Steven Kinn, the county’s former
public records officer, to review her appeal. Mr. Dinaro concluded and timely reported to
Ms. Strand, that “[a]fter a thorough review” he concluded that “all identifiable public
records responsive to your request have been produced.” CP at 723.
Approximately a year later, Ms. Strand filed suit against the county and the
assessor, alleging violations of the PRA. We refer to the defendants hereafter,
collectively, as “the Assessor.” The Assessor responded by moving for summary
judgment the following month. The caption of its motion for summary judgment
erroneously listed Ms. Strand’s husband, Palmer Strand, as a plaintiff. In support of its
motion for summary judgment, the Assessor attached the declarations of Mr. Dinaro and
Mr. Hodgson.
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Mr. Hodgson’s declaration described the steps taken in searching for documents
responsive to Ms. Strand’s request and clarifications and the history of his
communications with her. It attached and authenticated the county’s production of
records.
Mr. Dinaro’s declaration described the steps taken in reviewing Ms. Strand’s
appeal of the assessor’s PRA response. It attached and authenticated his correspondence
with Ms. Strand. He explained that in reviewing her appeal, he satisfied himself that the
county had provided an adequate and prompt response, had performed a reasonable
search, and had produced all responsive records.
Ms. Strand’s response to the summary judgment motion attached over 200 pages
of unauthenticated documents. They included copies of records she received from
Thurston County that were different from records she received from Spokane County.
She identified 19 factors, referred to by her as “valuation factors,” that were not applied
to her property in any records produced by the county. CP at 286-94 (boldface and
capitalization omitted). She gleaned her “valuation factors” from sources such as
statutes, case law, and the Assessor’s responses to discovery requests and hearing
transcripts from prior assessment appeals dated anywhere from 2009 to 2018. Her
response was largely devoted to arguing that the Assessor wrongly valued her property,
made false statements, and failed to comply with Washington statutes other than the
PRA. Ms. Strand also argued that because the property record cards were printed after
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the Assessor received her request, they were nonresponsive. Finally, Ms. Strand’s
response argued the Assessor’s inclusion of her husband as a party in the caption of its
pleadings amounted to a “failure of process violating CR 4.” CP at 298-99 (boldface and
capitalization omitted).
The Assessor replied, supported by a second declaration from Mr. Hodgson. The
second declaration explained that the information on property record cards is data
maintained in the ProVal software, and while the data existed prior to Ms. Strand’s
request, it was only upon receipt of her request that the card was printed, in order to
provide her with the preexisting data. Mr. Hodgson testified that the “code sheet[s]”
referenced by Ms. Strand in her complaint were of unknown origin. He testified, “I
searched the Assessor’s Office and databases and could not locate these documents.”
CP at 1373.
When the trial court heard the Assessor’s summary judgment motion, it orally
granted it, took a short recess so that an order could be prepared and presented, and
entered its written order dismissing Ms. Strand’s complaint that day.
Despite the dismissal, Ms. Strand later filed a supplemental response to the
Assessor’s reply memorandum in support of summary judgment, a “Motion to Dismiss
Summary Judgment,” CP at 587-88, and a motion for an order requiring the Assessor to
correct the caption on its summary judgment submissions. She filed a timely motion for
reconsideration that was denied, with the trial court ruling that it found “no basis in law
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nor other reason(s) to change its original ruling and order.” CP at 692. The court
indicated it would not consider any materials filed by Ms. Strand following its granting of
summary judgment other than the reconsideration motion it was denying.
Ms. Strand appealed.
Shortly before this appeal was originally set for hearing, Ms. Strand filed a
“Motion for Additional Evidence” with 63 pages of unnumbered attachments. Mot. for
Addt’l Evid., Strand v. Spokane County et al., No. 37669-9-III (Wash. Ct. App. Feb. 16,
2021) (available from the court). The motion alleged that in response to a record request
that Ms. Strand submitted to the Assessor in October 2020, it made responsive records
available in a drop box, and one of the records produced was the Floor Level
Designations illustration that she had provided to Mr. Hodgson in March 2019 as an
example of a ProVal code sheet. This was a document that Mr. Hodgson testified in
April 2019 was of unknown origin and could not be located in a search of the Assessor’s
office and databases.
We continued oral argument and afforded the Assessor an opportunity to respond
to the motion. Disposition of the motion was referred to this panel.
ANALYSIS
“The PRA’s primary purpose is to foster governmental transparency and
accountability by making public records available to Washington’s citizens.” Doe v.
Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d 63 (2016). “To be a public record
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under RCW 42.56.010(3), information must be (1) a writing (2) related to the conduct of
government or the performance of government functions that is (3) prepared, owned,
used, or retained by a state or local agency.” Nissen v. Pierce County, 183 Wn.2d 863,
879, 357 P.3d 45 (2015). The PRA does not require agencies to “‘create or produce a
record that is nonexistent.’” Fisher Broad.-Seattle TV LLC v. City of Seattle, 180 Wn.2d
515, 522, 326 P.3d 688 (2014) (quoting Gendler v. Batiste, 174 Wn.2d 244, 252, 274
P.3d 346 (2012)).
A public records request must be for identifiable records. RCW 42.56.080(1). A
request for information does not qualify. Belenski v. Jefferson County, 187 Wn. App.
724, 740, 350 P.3d 689 (2015) (citing Wood v. Lowe, 102 Wn. App. 872, 879, 10 P.3d
494 (2000)), rev’d in part on other grounds, 186 Wn.2d 452, 378 P.3d 176 (2016);
Bonamy v. City of Seattle, 92 Wn. App. 403, 410-12, 960 P.2d 447 (1998). The PRA
does not require agencies to research or explain public records, but only to make those
records accessible to the public. Id. (citing Bonamy, 92 Wn. App. at 409).
Some background on real property assessment is needed to inform conclusions
about what records assessors are likely to possess about valuation. The records an
assessor is likely to possess will differ depending on whether there is a pending appeal of
a property’s assessed value.
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Annual valuation process
RCW 84.40.020 and .030 require all real property in the state subject to taxation to
be listed and assessed every year, with reference to its value on the first day of the year,
and provide that “[s]uch listing and all supporting documents and records shall be open to
public inspection during the regular office hours of the assessor’s office.” RCW
84.40.020.
The Washington State Department of Revenue (DOR) is tasked with the general
supervision and control over the administration of the assessment and tax laws of the
state and over county assessors in the performance of their duties relating to taxation.
RCW 84.08.010(1). In its 2018 report on the 2017 performance of the property tax
appraisal system in Washington, it reported that “Washington has approximately 3.08
million real property parcels,” and “[d]ue to the high volume of assessments, county
assessors must use mass appraisal techniques to determine assessed values.” DOR,
MEASURING REAL PROPERTY APPRAISAL PERFORMANCE IN WASHINGTON’S PROPERTY
TAX SYSTEM 2017, at 39 (Feb. 1, 2018) (DOR 2017 Report).4 Mass appraisal
“‘systematic[ally] apprais[es] groups of properties as of a given date using standardized
procedures and statistical testing.’” 5
4
Https://dor.wa.gov/sites/default/files/legacy/Docs/Reports/2017RatioReport.pdf
[https://perma.cc/K77W-HKZQ].
5
DOR, HOMEOWNER’S GUIDE TO MASS APPRAISAL 2 (July 2014) (citing ROBERT
J. GLOUDEMANS, THE MASS APPRAISAL OF REAL PROPERTY 1 (1999)), https://dor.wa.gov
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The DOR 2017 Report included its own description of the mass appraisal process:
Mass appraisal is the process of valuing a group of properties. This
approach is sometimes contrasted with more familiar single-property
appraisals (sometimes called fee appraisal). Fee appraisal is the process of
valuing a particular property. Both are systematic approaches to
establishing property value. However, they differ in scope and method of
evaluation. Mass appraisal systems are designed to value many properties
and are evaluated by statistical methods. Single-property appraisals are
concerned with one property and are evaluated by a comparison to
comparable properties.
Id. at II.
The DOR is specifically charged with examining the procedures used by county
assessors to assess real property. RCW 84.48.075(4). It is required annually to submit to
each assessor a ratio of the assessor’s assessed values to market values. RCW
84.48.075(1). A ratio study measures a county’s mass appraisal performance. Using
property sales from a recent period, it compares those market prices with the assessed
values that were established by the assessor’s office. DOR 2017 Report, supra, at III.
The closer recent actual sale prices are to an assessor’s then-current assessed value, the
better the assessor’s performance. In 2018, for 2019 taxes, DOR reported that Spokane
County’s real property tax ratio was 95.1 percent. DOR, PROPERTY TAX RATIOS BY
COUNTY 2018 FOR 2019 TAXES (undated), https://dor.wa.gov/sites/default/files
/sites/default/files/legacy/Docs/Pubs/Prop_Tax /PropTaxMassAppraisal.pdf
[https://perma.cc/GW3D-FYEA].
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/legacy/Docs/Reports/2018CombinedIndicatedRatio.pdf [https://perma.cc/QND8-
WSLU].
In a discovery response the Assessor provided to Patricia and Palmer Strand in the
Strands’ appeal of the 2009 assessed value of their property, the Assessor described its
mass appraisal process:
Like assessors in other Washington counties, the Spokane County Assessor
utilizes Computer Assisted Mass Appraisal (CAMA) in the assessment of
property values. . . .
For this purpose, the Assessor’s office uses a computer software
program known as Manatron ProVal. Spokane County does not own
ProVal, but uses it under certain terms and conditions set forth in a non-
exclusive license with Manatron.
Pro Val features a highly productive, integrated sketch package and
an extremely accurate valuation engine for calculating property values. It
includes income approach, sales approach, and cost approach models to
value property. It also includes models to automatically value land. It is
the most widely deployed and, nationally recognized, CAMA software
product. The software’s internal calibration and embedded object code is
proprietary and not subject to public disclosure. Thus, definitive arithmetic
formulae cannot be provided. The precise internal relationship between
various components of value is not visible, or accessible, by the software
user.
....
The Assessor’s staff inputs various data into the ProVal data base
including: (1) information from visual inspections of the property; (2) sales
and other market data from sources such as the Multiple Listing Source; (3)
Real Estate Excise Tax Affidavits; (4) GIS; and (5) building permit
information.
With input data and . . . embedded Marshall Swift cost tables, the
ProVal software is able to determine the value of a Subject Property.
CP at 327-28.
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As long as ratio studies indicate that an assessor’s computer assisted mass
appraisal process is performing well, it is reasonable to assume that the assessor will rely
solely on that computerized process to generate annual assessed values. Only in the six-
year cycle when inspection is required, see RCW 84.41.030(1), would one expect an
assessor to have additional, staff-created records.
Responding to a property owner’s appeal of assessed value
While ratio studies can be evidence that an assessor’s mass appraisal process is
performing well, an assessor cannot rely on ratio studies or mass appraisal if a property
owner challenges the assessed value of her property. By statute, if the assessed value is
appealed, an assessor must defend the value produced by its mass appraisal process with
an individual appraisal. When adequate market data (sales prices of similar property) is
available, comparable sales is the most reliable of the three recognized valuation methods
(market data, cost, and income capitalization). Crystal Chalets Ass’n v. Pierce County,
93 Wn. App. 70, 77, 966 P.2d 424 (1998). By statute, sales of the subject property or of
comparable properties within the preceding five years is the preferred evidence of true
and fair value for taxation purposes. RCW 84.40.030(3)(a).
RCW 84.48.150(1) provides that when a taxpayer petitions her county board of
equalization for review of a valuation dispute the assessor must, upon request:
make available to said taxpayer a compilation of comparable sales utilized
by the assessor in establishing such taxpayer’s property valuation. If
valuation criteria other than comparable sales were used, the assessor must
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furnish the taxpayer with such other factors and the addresses of such other
property used in making the determination of value.
The valuation criteria and/or comparable sales on which the assessor intends to rely at the
appeal hearing must be provided within 60 days of the taxpayer’s request but at least 21
business days before the taxpayer’s appearance before the board of equalization. RCW
84.48.150(2).
In Matalone v. Hara, BTA Docket No. 71193, 2010 WL 11187619 (Apr. 13,
2010),6 property owners challenging the valuation of their property wanted to rely on
assessed values of other properties arrived at by mass appraisal. The BTA rejected their
proposed evidence, repeating an observation it had made in cases for 20 years:
“Computer-Assisted Mass Appraisal techniques are just that, mass
appraisal techniques. They are not without flaw. Certainly the value
generated by any computer assisted approach should be supported on
appeal by standard appraisal processes.”
Matalone, 2010 WL 11187619, at *13 (some emphasis omitted) (quoting O’Connor v.
Belas, BTA Docket No. 41609, 1992 WL 192195, at *2 (May 6, 1992)). The BTA went
so far as to say that values arrived at by annual mass appraisal were irrelevant to the issue
on appeal:
[I]n Spangenberg v. Baenen, BTA Docket No. 5111977 (1999), this Board
explained that the Assessor’s mass appraisal work product is not relevant
upon an appeal:
6
An unrelated scrivener’s error in the decision was corrected by an order of
correction available at 2019 WL 5297790 (Apr. 25, 2019).
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While an understanding of the Assessor’s mass appraisal techniques is
helpful, the focus of this appeal is whether the Assessor’s methodology
produced a reasonable value for the property under review.
This Board has one goal in all of its hearings: the acquisition of sufficient,
accurate evidence to support a determination of true and fair value as
defined by statute (RCW 84.40.030) and the Washington Administrative
Code (WAC 458-12-301). . . .
. . . Appraisal theory guides us in our determination.
Accordingly, the Assessor himself must, as he did here, defend his valuation
based on market sales, which are independent of the mass appraisal
techniques that produce the assessed values that the Assessor certifies to
the assessment rolls.
Id. (emphasis added) (alterations in original).
Accordingly, if a taxpayer appeals an assessed value to the county board of
equalization, assessor staff will engage at that point in an individual appraisal process.
Records in addition to those created by its computer assisted mass appraisal software can
be expected to exist.
With that background, we turn to the issues presented by the appeal: Ms. Strand’s
motion for the taking of additional evidence and her assignments of error to the dismissal
of her complaint.
I. MS. STRAND HAS NOT DEMONSTRATED THAT WE SHOULD ORDER THE TAKING OF
NEW EVIDENCE
Under RAP 9.11, we may direct that additional evidence on the merits of a case be
taken before our decision on review if (1) additional proof of facts is needed to fairly
resolve the issues on review, (2) the additional evidence would probably change the
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decision being reviewed, (3) it is equitable to excuse a party’s failure to present the
evidence to the trial court, (4) the remedy available to a party through postjudgment
motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court
remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would
be inequitable to decide the case solely on the evidence already taken in the trial court.
Only if all six conditions are met will we order the taking of new evidence. State v.
Ziegler, 114 Wn.2d 533, 541, 789 P.2d 79 (1990).
Ms. Strand’s proposed new evidence is a Floor Level Designations illustration that
was produced by the Assessor in response to a record request she made in 2020, after this
action was dismissed. Her 2020 request asked the Assessor to produce (among other
records) “all Assessor policies and procedures (mechanisms) used to determine values.”
Mot. for Addt’l Evid., Attach. 1, at 2. One of what appears to be a dozen or more
manuals produced in response includes the Floor Level Designations illustration as its
page 27. Id., Attach. 3 at 27. The manual’s cover identifies its source and date as
“1/1/2020, Spokane County Assessor’s Office.” Id., Attach. 3 at 1.
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Seen here, page 27
of the 2020 manual is the
same Floor Level
Designations illustration
Ms. Strand provided to the
Assessor in March 2019 as
an example of what she
called “ProVal code
sheets.” The only
difference with the
illustration she provided as
an example was that a
label on her example reads,
“Received Jul/20/10 as
Assessor Policy/Procedure
Record.” CP at 163.
It turns out that the Floor Level Designations illustration Ms. Strand provided to
Mr. Hodgson in March 2019 as an example was a record the assessor’s office produced to
her in 2010. In February 2010, the Assessor identified to Ms. Strand 13 or more binders
or manuals, collectively comprising more than 1,500 pages, as policies and procedures
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responsive to one of her requests. Mr. Hodgson assisted in identifying the list of binders
and manuals. On July 20, 2010, Ms. Strand traveled to the assessor’s office to review the
binders and manuals and marked pages she wanted copied. One page she wanted copied
was the Floor Level Designations illustration.
We can infer from Ms. Strand’s proposed new evidence that some version of a
manual containing the Floor Level Designations illustration might have been in the
Assessor’s possession at the time of her February 20, 2019 records request, since the
Assessor had such a manual in 2010 and 2020. But given the different scope of her
February 2019 request (it did not seek manuals, policies or procedures), the mere fact that
the manual and illustration were not searched for or located in Mr. Hodgson’s search is
not relevant to our review.
Ms. Strand does not demonstrate that additional proof of facts is needed to fairly
resolve the issues on review, that additional evidence would probably change the decision
being reviewed, or that it would be inequitable to decide the case solely on the evidence
already taken in the trial court.7 Her RAP 9.11 motion is denied.
7
Ms. Strand argues that the 2020 production proves Mr. Hodgson committed perjury
when he testified in his second declaration that her example of a “ProVal Code Sheet” was of
unknown origin and was not located in his search of the Assessor’s office. Mot. for Addt’l Evid.
at 9. But Mr. Hodgson testified that in responding to her request he searched “all locations
where responsive records could be located,” including “Department shared drives: Electronic
databases: Local computers: and Websites.” CP at 727. He never testified that he searched all of
the Assessor’s policy and procedure manuals. Even if he had, his mistake about a manual that
was not responsive to the February 2019 record request would be irrelevant to the issues on
review.
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II. THE TRIAL COURT PROPERLY LIMITED ITS CONSIDERATION OF MS. STRAND’S
SUBMISSIONS FOLLOWING DISMISSAL OF HER MOTION FOR RECONSIDERATION
Before turning to the assigned errors we remind Ms. Strand of our rules, including
RAP 10.3(a)(5), which requires the statement of the case to be “[a] fair statement of the
facts and procedure relevant to the issues presented for review, without argument.”
(Emphasis added.) Ms. Strand’s statement of the case is almost entirely argument. It
includes argument about matters that are not assigned as error and addressed in her
argument section. Pro se litigants are expected to comply with the Rules of Appellate
Procedure. State Farm Mut. Auto Ins. Co. v. Avery, 114 Wn. App. 299, 310, 57 P.3d 300(2002).
We will forgive Ms. Strand’s failure to comply with RAP 10.3(a)(5). But we will
not search her statement of the case for issues other than those raised by her assignments
of error and that are addressed in her argument section.
Ms. Strand’s third assignment of error challenges the trial court’s refusal to
consider any submissions filed after summary judgment was granted other than her
motion for reconsideration. We address this alleged error first.
The court’s order granting summary judgment stated, “[T]his matter is dismissed
with prejudice.” CP at 573. The materials filed by Ms. Strand thereafter that the court
refused to consider were her supplemental response to the Assessor’s summary judgment
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reply memorandum, a motion for an order requiring the Assessor to correct captioning on
its pleadings, and a motion to dismiss the Assessor’s summary judgment motion.
CR 7(a) identifies the only pleadings that are permitted, and Ms. Strand’s
postdismissal submissions were not permitted pleadings. CR 7(b) permits the filing of
motions, which are “application[s] to the court for an order.” CR 59(a) identifies a legal
basis on which a plaintiff whose complaint has been dismissed with prejudice can apply
for an order: it can ask that the order of dismissal be vacated. CR 60 also identifies a
legal basis on which such a plaintiff can apply for an order: it can ask that a clerical
mistake in a judgment or order be corrected or that it be relieved from a final judgment.
The three submissions by Ms. Strand that the court refused to consider were
properly ignored either because they violated the terms of the applicable rules or because
there was no order being requested for which she had a legal basis.
Her supplemental response to the Assessor’s reply memorandum was not a
permitted submission under CR 56, which sets a specific timeline for summary judgment
procedure. Keck v. Collins, 181 Wn. App. 67, 83, 325 P.3d 306 (2014), aff’d, 184 Wn.2d
358, 357 P.3d 1080 (2015).
Her motion for an order requiring the Assessor to correct its identification of the
parties on some of its submissions was unsupported by a legal basis for the order.8 It is
8
In the trial court, Ms. Strand cited Deggs v. Asbestos Corp. Ltd., 186 Wn.2d 716,
719 n.1, 381 P.3d 32 (2016), but in that case there was a misspelling in the complaint,
which—being controlling—needed to be corrected.
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apparent that the Assessor’s initial inclusion of Palmer Strand as a plaintiff was a
mistake—presumably the result of the county attorney’s knowledge that Palmer Strand
had joined his wife in litigation with the county in the past.9 Court rules are clear that as
between the plaintiff’s and the defendants’ pleadings, it is the complaint that establishes
the parties to the action. See CR 10(a)(1) (“In the complaint the title of the action shall
include the names of all the parties.”). After the Assessor’s misidentification of the
parties was pointed out, and beginning with its summary judgment reply, it identified Ms.
Strand as the only plaintiff.
Ms. Strand identified no legal basis for obtaining an order “dismissing” the
Assessor’s summary judgment motion after it had already been granted.
The trial court properly refused to consider the three motions.
II. SUMMARY JUDGMENT WAS PROPERLY GRANTED
Ms. Strand’s first and second assignments of error raise the issue of whether
summary judgment was proper. The purpose of summary judgment is to “avoid a useless
trial when there is no genuine issue of any material fact.” LaPlante v. State, 85 Wn.2d
154, 158, 531 P.2d 299 (1975). The moving party bears the burden of proving by
9
E.g., Strand v. Spokane County, No. 36538-7-III (Wash. Ct. App. Dec. 12, 2019)
(unpublished), https://www.courts.wa.gov/opinions/pdf/365387_unp.pdf; Strand v.
Spokane County, No. 34722-2-III (Wash. Ct. App. Apr. 11, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/347222_unp.pdf; Strand v. Spokane County,
No. 34190-9-III (Wash. Ct. App. Apr. 11, 2017) (unpublished), https://www.courts.wa
.gov/opinions/pdf/341909_unp.pdf.
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uncontroverted facts that no genuine issue of fact exists. See Regan v. City of Seattle,
76 Wn.2d 501, 458 P.2d 12 (1969).
Once the moving party meets its initial burden of proof, the burden then shifts to
the nonmoving party to show that a genuine issue of fact exists. See LaPlante, 85 Wn.2d
at 158. When a motion for summary judgment is supported by evidentiary matter, the
adverse party may not rest on mere allegations in the pleadings but must set forth specific
facts showing that there is a genuine issue for trial. W.G. Platts, Inc. v. Platts, 73 Wn.2d
434, 442, 438 P.2d 867 (1968). Summary judgment shall be granted if no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter of law.
CR 56(c).
Appeals courts review the grant or denial of a motion for summary judgment de
novo. Keck, 181 Wn. App. at 78. All facts and reasonable inferences from the facts are
to be construed in the light most favorable to the nonmoving party. Id. at 79.
The Assessor provided a reasonable estimate of time, fullest assistance, and
most timely possible action on Ms. Strand’s request
RCW 42.56.100 requires that an agency responding to public records requests
provide “the fullest assistance to inquirers and the most timely possible action on requests
for information.” “The government agency receiving a request for public records must
respond within five business days by (1) providing the records, (2) denying the request,
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or (3) providing a reasonable estimate of the time within which to respond to the
request.” Andrews v. Wash. State Patrol, 183 Wn. App. 644, 651, 334 P.3d 94 (2014)
(citing RCW 42.56.520).
Undisputed facts establish that the Assessor promptly and adequately assisted Ms.
Strand. Mr. Hodgson responded to Ms. Strand’s request by e-mail one day after
receiving it. In his several responses, Mr. Hodgson informed Ms. Strand whether
additional installments of production were anticipated and when she could expect to see
them. Despite widespread business interruption being caused by the COVID-19
pandemic, Mr. Hodgson delivered the installments as projected, delivering the fourth and
final installment on March 22, a little over a month after receiving Ms. Strand’s record
request. No facts creating a genuine issue of material fact as to the timeliness of the
Assessor’s response were shown.
The Assessor conducted an adequate search
On summary judgment, the agency bears the burden of proving it conducted an
adequate search for records. Block v. City of Gold Bar, 189 Wn. App. 262, 271, 355 P.3d
266 (2015). “To establish that its search was adequate in a motion for summary
judgment, ‘the agency may rely on reasonably detailed, nonconclusory affidavits
submitted in good faith.’” Id. (quoting Neigh. All. of Spokane County v. County of
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Spokane, 172 Wn.2d 702, 721, 261 P.3d 119 (2011)). These affidavits “should include
the search terms and the type of search performed, and they should establish that all
places likely to contain responsive materials were searched.” Neigh. All., 172 Wn.2d at
721. “Purely speculative claims about the existence and discoverability of other
documents will not overcome an agency affidavit, which is accorded a presumption of
good faith.” Forbes v. City of Gold Bar, 171 Wn. App. 857, 867, 288 P.3d 384 (2012).
The declarations of Mr. Hodgson and Mr. Dinaro on which the Assessor relied
were reasonably detailed and nonconclusory, as the law requires. We accord them the
presumption of good faith.
Ms. Strand argues that the Assessor’s failure to produce the press releases, court
transcript testimony and state auditor statements that she attaches to her opposition
memorandum proves its search was inadequate. But she does not explain how her
documents, some going back almost a decade, have anything to do with her record
request. She also fails to explain how or why court transcripts and press releases would
be in the Assessor’s possession. The Assessor relies on computer assisted mass appraisal
to generate its annual assessed values, and court transcripts, statutes, and press releases
are not inputs in that process. As was explained to her in 2010, the inputs are things like
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observed characteristics of a property, sales and other market data, real estate excise tax
affidavits, geographic information system data, and building permit information—
information available from the type of records that Mr. Hodgson either produced or
directed her to.
The Assessor’s declarations are evidence of an adequate search and Ms. Strand
does not respond with facts raising a genuine issue of material fact.
Property record cards printed after receipt of the request were responsive
Ms. Strand contends that property record cards provided by Mr. Hodgson are
nonresponsive because the cards were created after he received her record request. A
record must exist at the time of a request to be subject to required disclosure. Fisher
Broad., 180 Wn.2d at 522. An agency is not required to create a record to respond to a
PRA request. Id.
“Public record” is broadly defined, however, and includes “existing data
compilations from which information may be obtained” “regardless of physical form or
characteristics.” RCW 42.56.010(4), (3). “This broad definition includes electronic
information in a database.” Fisher Broad., 180 Wn.2d at 524 (citing RCW 42.56.010(4),
(3); WAC 44-14-04001). “Merely because information is in a database designed for a
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different purpose does not exempt it from disclosure. Nor does it necessarily make the
production of information a ‘creation’ of a record.” Id.
The Assessor likely would have violated the PRA had it failed to print out
property record cards containing the preexisting information that was responsive to Ms.
Strand’s record request. In any event, the fact that a record did not exist when a request
for records was made is a defense to a failure to produce it. For an agency to do a
requestor the favor of creating a record or providing a later-created record is not a
violation of the PRA. It is not something a typical requestor would complain about.
No violation of the PRA is shown.
Ms. Strand’s main argument is that none of the records produced by the Assessor
is a comparable sale used to arrive at its assessed value as of January 1, 2018, or appears
on its face to be other criteria used to value her property as of that date or the other dates
she specified. But unless Ms. Strand made a request under RCW 84.48.150 for the
information the Assessor would rely on in her future appeal hearing, and the deadline for
producing that information was approaching, there is no reason to believe the Assessor
would have responsive documents. For her specified dates that were unrelated to
assessed value appeals, there was no reason to believe the records she was looking for
existed or ever would exist.
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Ms. Strand offered only speculation that responsive records existed that were not
produced. No facts creating a genuine issue of material fact were shown. Summary
judgment was proper.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Pennell, C.J.
_____________________________
Fearing, J.
30