Isabelle Bichindaritz v. University Of Washington ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ISABELLE BICHINDARITZ, an ]
individual, ) (O or'-
No. 70992-5-1 cj-> -:Ho\
Respondent, j
DIVISION ONE
v.
UNIVERSITY OF WASHINGTON,
w? : 3--
co '-:-:";
Appellant, ) UNPUBLISHED OPINION
and j FILED: February 17, 2015
ORLANDO BAIOCCHI, an individual,
Defendant. j
Becker, J. —This is an appeal from a judgment in a Public Records Act
case imposing a large penalty and award of attorney fees against the University
of Washington. We reverse.
The dispute arose from the University's decision to deny tenure to Isabelle
Bichindaritz, Ph.D., a former professor at the University's Tacoma Institute of
Technology.
On September 9, 2009, Bichindaritz e-mailed a request to the University's
Office of Public Records seeking "a complete copy of all of my personnel files
and public records at the University of Washington, at the University of
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Washington Tacoma, and at the Institute of Technology." The request also
sought copies of "every email related to me (Isabelle, Isabelle Bichindaritz)
among all the people involved below" and went on to list approximately 96
different university employees.
The University received Bichindaritz's request on September 10, 2009,
and responded by letter 5 business days later. The letter estimated that it would
take approximately 25 business days to assemble and process the responsive
documents relating to Bichindaritz's request; that records would be made
available "on a rolling production basis to avoid unnecessary delay"; and that
Bichindaritz would be notified if the University needed additional time to locate,
review, or assemble documents. The director of the University's Office of Public
Records immediately began to locate and assemble responsive documents by
contacting University faculty. If she did not receive a response from a faculty
member, she followed up on her original request by e-mail.
By the end of October 2009, all responsive documents—totaling
approximately 25,000 pages—had been assembled. The University then began
to review the records and to redact information that was exempt from disclosure
under state and federal law. This proved to be a time-consuming process, and
the University notified Bichindaritz several times that the estimated production
date would have to be pushed back. In six stages during the 14 months between
October 13, 2009, and December 9, 2010, the University provided Bichindaritz
with some 13,000 pages of documents that had been reviewed and in some
cases redacted.
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Meanwhile, on March 11, 2010, Bichindaritz filed an administrative
complaint alleging sex discrimination, retaliation, and national origin
discrimination by the University.
On June 15, 2010, the University terminated Bichindaritz.
As of July 30, 2010, there were still 12,000 pages awaiting review—about
half of the documents assembled in response to her request. Finding of Fact
1.19.
On August 25, 2010, Bichindaritz filed a gender discrimination lawsuit
against the University in federal court.
On December 9, 2010, the University produced stage 6 with a letter
indicating that the production was still "partial."
On January 31, 2011, the University informed Bichindaritz that her request
would be closed if she did not view or pick up the stage 6 documents by
February 7, 2011.
On February 7, 2011, Bichindaritz directed the University to close her
request. According to Bichindaritz, counsel advised her that the documents
would be obtained through discovery in the federal lawsuit. The University
closed the request and stopped processing the remaining documents.
According to Bichindaritz, the discovery process in federal court was
unsatisfactory. On June 6, 2011, a day after the federal court discovery deadline
passed, she asked the University to resume processing the remaining
documents related to her September 2009 public records request. The
University estimated that the remaining documents would be available by July
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20, 2011. After several e-mails notifying her that additional time would be
necessary, the University disclosed the final 12,000 pages in four stages
between August 15, 2011, and November 15, 2011. With the last stage, the
University produced a 12-page privilege log.
On February 14, 2012, with her trial in federal court two months away,
Bichindaritz filed suit against the University in superior court, asserting civil rights
claims under Washington law.
On February 23, 2012—a date significant to the statute of limitations issue
in this appeal—she amended her complaint to add a cause of action under
Washington's Public Records Act, chapter 42.56 RCW, for failing to provide
documents in a timely manner between September 9, 2009, and November 15,
2011.
On April 20, 2012, after a bench trial, judgment was entered against
Bichindaritz in her federal lawsuit.
On July 16, 2012, the trial court in this matter dismissed Bichindaritz's civil
rights claims as barred by res judicata and collateral estoppel.
The order of July 16, 2012, also dismissed "all claims associated with or
arising from the University's response to Plaintiff's September 9, 2009 public
records act request" as time barred under the one-year statute of limitations in
RCW 42.56.550. This time bar applied to the University's response to the initial
request that was closed on February 7, 2011. It did not bar suit on any violations
committed by the University when it resumed the processing of documents on
June 6, 2011, because that date was within one year before February 23, 2012.
No. 70992-5-1/5
On July 1, 2013, the superior court ordered the University to respond to a
request for production of 485 pages of documents that Bichindaritz believed had
been improperly redacted. On July 13, 2013, the University submitted a
memorandum explaining that 384 of those pages had not been redacted, 58 of
those pages had already been provided in response to Bichindaritz's 2009
request, and the remaining pages had been properly redacted. On August 2,
2013, after reviewing 43 documents in camera, the trial court released a number
of e-mails that the court determined had been improperly redacted.
The trial court then held a trial by affidavit as allowed by RCW 42.56.550
and ruled against the University. The court entered extensive findings and
conclusions adapted from a set proposed by Bichindaritz. The court was
particularly troubled by the redaction of an e-mail that had been sent from one
professor to another on January 11, 2008, during the tenure decision process. It
had been provided to Bichindaritz in redacted form on November 3, 2011. The
redacted portion stated, "I believe that the nursing person made the comments
about gender. The nursing person who was on Isabelle's committee hinted that
we might be picking on Isabelle's teaching because she was a woman."
Bichindaritz believed this e-mail might have provided critical support for her
gender discrimination lawsuit in federal court if she had obtained it in unredacted
form before trial.
The superior court ultimately determined that the University violated the
Public Records Act by waiting until the end of 2011 to produce the 12,000
documents "that were assembled and ready for distribution by October 2009."
No. 70992-5-1/6
Clerk's Papers at 1149. The court concluded that the University acted in bad
faith with a self-serving motive to delay production long enough so the records
would not be available for use in Bichindaritz's federal lawsuit. Conclusion of
Law 2.7; Conclusion of Law 2.17. The court imposed a $723,290.50 penalty
($0.50 per page for each day of delay after June 7, 2011) and awarded
Bichindaritz $102,958.03 in attorney fees. The University appeals.
The parties agree that de novo review is appropriate for the interpretation
and construction of the Public Records Act. Bichindaritz, however, contends that
the findings of fact should be reviewed for substantial evidence. See West v.
Wash. State Dep't of Natural Res.. 163 Wn. App. 235, 245, 258 P.3d 78 (2011),
review denied, 173 Wn.2d 1020 (2012); Marriage of Rideout, 150Wn.2d337,
350-51, 77 P.3d 1174 (2003).
As indicated by RCW 42.56.550(3), review of a trial court's decision in a
Public Records Act matter is generally de novo. Fisher Broad .-Seattle TV LLC v.
City of Seattle. 180 Wn.2d 515, 522, 326 P.3d 688 (2014) ("Our review of both
the agency action and the court opinions below is de novo.") Whether the more
deferential review of findings of fact for substantial evidence is proper to apply in
a public records case where facts are in dispute need not be decided in this
case. Here there is no factual dispute about what the documents say and when
they were disclosed. The dispositive issue is whether the trial court erred by
faulting the University for taking five months to deliver the final 12,000 documents
after Bichindaritz renewed her request on June 6, 2011. Conclusion of Law 2.17
("By reactivating the 2009 PDA request on June 6, 2011, plaintiffs request could
No. 70992-5-1/7
have been met the next day, June 7, 2011, given completed assembled
documents"); Conclusion of Law 2.21.
The University agrees that all documents responsive to Bichindaritz's
request had been assembled by the end of October 2009 and remained in that
state when Bichindaritz reactivated her request on June 6, 2011. What the
University challenges is the court's conclusion that as soon as the documents
were assembled, they were ready to be produced.
The University is right. While the statute requires that responses to
requests for public records shall be made "promptly," it also expressly recognizes
that an agency may need additional time to determine whether any part of the
information requested is exempt:
Additional time required to respond to a request may be based
upon the need 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.
RCW 42.56.520. By the time Bichindaritz closed her 2009 request in February
2011, the University had assembled about 25,000 pages but had reviewed only
about half of them for applicable exemptions. It was unreasonable to expect the
University to produce the remaining 12,000 pages the same day Bichindaritz
reopened her request simply because it had already assembled those
documents.
Bichindaritz does not argue otherwise. In fact, the record reflects her
recognition that review and redaction of records is a time-consuming process
separate from assembling them. The University's first set of interrogatories
asked Bichindaritz, among other things, to identify what would have been a
No. 70992-5-1/8
reasonable estimate of time to produce the records referred to in her public
records request. Bichindaritz answered by observing that the last half (the
12,000 pages) had been processed within 6 months, whereas the production of
the first half had been "spread in time over approximately one year and half. It
seems to me that a reasonable estimate would be 6 months from the date of
request." Clerk's Papers at 1413, 1415. In other words, Bichindaritz admitted
the last 12,000 pages were timely produced and that she was only complaining
about the amount of time it took the University to deliver the first six stages—the
14 months following her initial request in September 2009.
Bichindaritz contends that the finding of a delay that violated the Public
Records Act should be sustained on the basis that 14 months was unreasonable.
But delays during that 14-month period occurred more than one year before
February 23, 2012, the date Bichindaritz filed suit under the Act. Therefore they
may not be considered in deciding whether the University violated the Public
Records Act, as such claims are time barred under the one-year statute of
limitations in RCW 42.56.550. The trial court so ruled in the order of partial
summary judgment entered on July 16, 2012. The trial court never modified that
order, although asked by Bichindaritz to do so. As can be seen by comparing the
findings and conclusions proposed by Bichindaritz with the findings and
conclusions actually entered by the trial court, Bichindaritz wanted the trial court
to withdraw that interlocutory order of partial summary judgment. But the trial
court deleted from its findings and conclusions the language proposed by
Bichindaritz. Compare Clerk's Papers at 1139-40 (Conclusion of Law 2.1) and
8
No. 70992-5-1/9
Clerk's Papers at 1149 ("Conclusion") with Clerk's Papers at 2016-17 (Proposed
Conclusions of Law 2.2, 2.3) and Clerk's Papers at 2028 (Proposed Conclusion
2.27.2.) See also Clerk's Papers at 2347, 2371 (plaintiff's trial brief requesting
reconsideration of the order on partial summary judgment). The unappealed
order of partial summary judgment remains in effect as a conclusion of law
precluding redress of violations that may have occurred before February 23,
2011. The court's findings and conclusions discuss delays in the initial six stages
of production (2009-2010), but only as an aggravating factor for the penalty. The
court decided a violation had occurred based only on the five-month production
of the final 12,000 pages between June and November 2011. And as discussed
above, that finding of violation rests on the unsustainable assumption that
documents are ready to be produced as soon as they are assembled.
Bichindaritz suggests that the finding of violation can be sustained on the
basis that the University "repeatedly missed production deadlines." The
University did miss several self-imposed deadlines between June 2011 and
November 2011. But the Act only demands that agencies provide reasonable
estimates for production. Forbes v. City of Gold Bar. 171 Wn. App. 857, 864,
288 P.3d 384 (2012) ("The operative word is 'reasonable.'"), review denied. 177
Wn.2d 1002 (2013). The Act does not necessarily require an agency to comply
with its own self-imposed deadlines. The question is whether the agency "was
acting diligently in responding to the request in a reasonable and thorough
manner." Hobbs v. State. Wn. App. , , 335 P.3d 1004, 1011 (2014).
Bichindaritz does not argue, and the record does not indicate, that the University
No. 70992-5-1/10
was less than diligent in completing the review and redaction of the final 12,000
pages. Indeed, as noted above, Bichindaritz admitted in discovery that six
months was a reasonable time.
Bichindaritz cites Violante v. King County Fire District No. 20. 114 Wn.
App. 565, 570-71, 59 P.3d 109 (2002). But the Violante court was concerned
with an agency that tried to excuse its nonresponsiveness on the basis that the
requester had other means of access to the documents. Violante does not
suggest that an agency's failure to meet its own estimated date of production
automatically violates the Public Records Act.
A more useful precedent is West v. Department of Licensing. 182 Wn.
App. 500, 331 P.3d 72, review denied. 339 P.3d 634 (2014). West alleged that
the Department had 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. The Department responded in installments and not
always within its estimates of time needed. After nine months, the Department
had delivered almost 50,000 pages and still had as many as 10,000 pages to
review. The trial court entered summary judgment for the Department. This
court affirmed, recognizing that when a request for records is broad in scope and
the number of responsive records is substantial, an agency must be allowed time
to review the records "to determine whether they were responsive and whether
they should be produced, disclosed, redacted, or withheld." West, 182 Wn. App.
at 512.
10
No. 70992-5-1/11
Bichindaritz does not refute the University's assertion that locating and
assembling the responsive documents was only the beginning; reviewing and
redacting them was the time-consuming part of the process. Bichindaritz does
not meaningfully distinguish this case from West. The trial court did not
conclude, and neither do we, that the University was disingenuous when it
advised her that the process was taking more time than originally estimated.
The trial court erred in concluding that the University violated the Act. It is
unnecessary to address other issues discussed in the briefs. Those issues
include: whether a penalty can be imposed on a per-page basis as opposed to
per-record; whether this court should take judicial notice of the federal court's
ruling that the nondisclosure of the "nursing person" e-mail was immaterial;
whether the University's request for an evidentiary hearing should have been
granted; whether the 12,000 pages should have been grouped as a single "public
record" when calculating the penalty; whether the trial court erred in imposing
post-judgment interest on the penalty; and whether the award of attorney fees is
sufficiently supported by meaningful findings and conclusions.
We reverse the judgment for the penalty of $723,290.50 and the judgment
for attorney fees and costs.
^yACed,
WE CONCUR:
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