Arthur West, V Wa State Assoc. Of Cities ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE N
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DIVISION IIY
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ARTHUR WEST, No. 43787 - -II
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Appellant,
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WASHINGTON STATE ASSOCIATION OF UNPUBLISHED OPINION
CITIES,
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PENOYAR, J. — Arthur West sued the Association of Washington Cities ( AWC) for
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requested records in violation of the Public Records Act ( PRA). ' The trial court
withholding
granted summary judgment in AWC' s favor, finding that the allegedly withheld records were not
responsive to West'
West' ss request. West appeals, arguing that the trial court erred by finding the
records not responsive to his request and by awarding AWC attorney fees. Because the records
related to other requests West made with AWC and not to the request at issue in this suit, the trial
court correctly granted summary judgment for ACW. Additionally, we affirm the trial court' s
attorney fee award because West' s motion for reconsideration was meritless. We affirm.
FACTS
West filed this action against AWC on October`20, 2011, for violation of the PRA. His
complaint alleged that AWC failed to adequately respond to his February 2011 request for
records concerning the AWC' s lobbying to weaken the PRA and for AWC communications
with Rep. Mike Armstrong." Clerk' s Papers ( CP) at 5. AWC received only one request from
1 AWC is wrongly named in the complaint caption as Washington State Association of Cities.
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Ch. 42. 56 RCW.
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West in February 2011. This was his February 9, 2011, request seeking the following records
from AWC:
1. All communications concerning SB 5025, 5022 and 5089 and their companion
bills HB 1139, 1033 and 1289, to include any communications concerning drafts
or proposals for of [sic] any related legislation.
2. All records of any lobbying or correspondence concerning the Public Records
Act, from June of 2010 to present, and any proposed alterations or amendments.
3. All information and communications on your " members only" website areas.
CP at 50. AWC responded on February 16 and sent West internet links to some of the requested
records and provided him. a timeline for production of the remaining records.
On March 3, 2011, before AWC had completed West' s February 9 request,. the Thurston
County Superior Court entered a settlement agreement between West and AWC regarding a
previous PRA action. The agreement terminated all of AWC' s pending PRA obligations to West
and stated that any document not produced to West in the course of the settled litigation would
be subject to a new PRA request. That same day, West e- mailed AWC, stating, " Please regard
this as a renewal of all pending records requests." CP at 63.
AWC responded to this request on March 10 and continued to provide records related to
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West' s February 9 request throughout the month . West again renewed his request through e-
April 28 .5 AWC provided West with more records related to his February
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mails on April and
9 request on May 6, . May 31, June 10, and June 30. On June 30, AWC sent West a letter
3 AWC' s letter stated that. it interpreted West' s March 3 request as including the records
requested in his February 9 request and asked him to clarify his request if this was not correct.
The record does not contain any communication from West clarifying his request or verifying
AWC' s interpretation.
4 " Please consider this as a formal request under RCW 42. 56, for disclosure of records, including
all previous requests. This request incorporates by reference all previous requests." CP at 69.
5 "[
P] lease regard this as a request to reopen all pending requests, and especially the most recent
requests." CP at 69.
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explaining that it considered his February 9 records request closed. The letter also stated that an
exemption and redaction log would be sent to West the following week. West claims that he
never received this log.
On September 12, 2011, West sent AWC an e -mail alleging that AWC was in violation
of the PRA. regarding his " recent request for records. of AWC lobbying and AWC contacts with
Mike Armstrong." CP at 182. AWC did not respond to the e -mail, which it claims it never
received because of technical difficulties. On October 20, West filed this action in superior court
against AWC for failing to respond to his February 2011 request for records relating to lobbying
and communications with Armstrong.
Based on West' s October 20 complaint, AWC opened a new search for records relating
to lobbying and contacts with Armstrong. AWC sent West records from this search on
November 18, 2011. Most of the records were duplicates of records he had received under his
February 9 request. However, there were three e -mails from AWC to Armstrong that had not
been produced in previous requests. On December 1, 2011, AWC sent West an exemption and
redaction log for documents related to his " April 21, 2011, request for communications to and
from the cities of Olympia and Tumwater from February 2004 -2007." CP at 197.
In March 2012, AWC moved for summary judgment in this case, arguing that it had
complied with the PRA regarding West' s February 9 request. AWC stated that it had produced
all documents related to West' s request and that none of the documents were redacted or
withheld. West filed a cross motion for summary judgment, citing AWC' s June 30 letter, the
November 18 production, and the December 1 exemption log as evidence that AWC had
withheld records responsive to his February 9 request.
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43787 -2 -II
The trial court determined that the December 1 exemption log was not related to West' s
February 9 request. It also determined that the late disclosure of the log promised in the June 30
letter was not part of this suit. Finally, the trial court conducted an in camera review of the
Armstrong e -mails produced on November . 18 and found that none of the e -mails were
responsive to West' s February 9 request. Accordingly, the trial court granted summary judgment
in AWC' s favor.
West filed a motion for reconsideration, arguing that the trial court made an error of law
by determining that the November 18 e -mails and the December 1 log were not responsive to the
February 9 request. The trial court denied West' s motion and awarded AWC attorney fees for
responding to the motion. West appeals.
ANALYSIS
West argues that AWC violated the PRA by failing to timely disclose records related to
his February 9 request. Specifically, he alleges that AWC withheld e -mails to Armstrong
produced on November 18 and records within the redaction and exemption log produced on
December 1. In. order to determine whether AWC violated the PRA by withholding these
records, it is first necessary to determine whether the records are responsive to West' s February 9
request, the only request at issue in this suit. Because the records are not responsive to the
February 9 request, West has failed to prove that AWC violated the PRA.
I. STANDARD OF REVIEW
We review a challenged agency action under the PRA de novo. RCW 42. 56. 550( 3). We
are in the same position as trial courts where, as here, the record consists only of documentary
evidence. Progressive Animal Welfare Soc' y v. Univ. of Wash., 125 Wash. 2d 243, 252, 884 P.2d
592 ( 1994). We also review a summary judgment order de novo, engaging in the same inquiry
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as the trial court. Folsom v. Burger King, 135 Wash. 2d 658, 663, 958 P.2d 301 ( 1998). Summary
judgment is appropriate when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. CR 56( c); Folsom, 135 Wash. 2d at 663. We construe the
facts and reasonable inferences in favor of the nonmoving party. Korslund v. DynCorp Tri-
Cities Servs., Inc., 156 Wash. 2d 168, 177, 125 P.3d 119 ( 2005). Summary judgment is appropriate
if reasonable persons could reach only one conclusion from the evidence presented. Korslund,
156 Wash. 2d at 177.
11. ARMSTRONG E -MAILS
West first argues that the trial court erred by finding that the e -mails to Armstrong
provided in the November 18 disclosure were not responsive to his February 9 request. We .
disagree.
West' s February 9 request was for records concerning specific bills, lobbying related to
the PRA, and information from AWC' s " members only" website. CP at 50. The Armstrong e-
mails produced on November 18 related to a conference that Armstrong was participating in.
The e -mails concerned logistics, such as when he should ,arrive, what information he wanted in
his " bio," and whether he would be providing materials for other participants. CP at 391. The e-
mails did not mention the bills that were the subject of West' s request or any PRA lobbying and
the e -mails were not posted on the " members only" section of AWC' s website. The trial court
did not err by finding that the e -mails were not responsive to West' s February 9 request.
West' s arguments to the contrary are not persuasive. He contends that the e -mails are
responsive because the conference concerned open government laws and Armstrong ' was a
sponsor of the bills specified in the February 9 request. But the e -mails about the conference did
not relate to legislation, lobbying, or even the substance of the conference, and the conference
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took place months before any of the bills were even introduced. Further, the fact that Armstrong
was a sponsor of the bills does not mean that every e -mail to him necessarily involved the bills.
These e- mails, which were the product of a separate records search by AWC, were not
responsive to West' s February 9 request, and we affirm the trial court.
III. DECEMBER 1 LOG
West next argues that the trial court erred by finding that the exemption log produced on
December 1 was not responsive to his February 9 request. We disagree. The trial court stated
that it was " quite apparent" from the December 1 log that it was not related to West' s February 9
request but to another request that West had renewed in March. Report of Proceedings at 32.
The letter accompanying the log stated that it was related to his request for communications to
and from the cities of Olympia and Tumwater from February 2004 -07. The log includes
documents from as far back as 2006, well beyond the time frame of West' s February 9 request.
Considering this context, the trial court correctly found that the December 1 log was not
responsive to West'.s February 9 request.
Three of the entries in the December 1 log do fall within the time frame of the February 9
request— June 2010 to February 2011. But AWC is correct that entries within the time frame are
not automatically responsive to the request. The entries at issue are monthly statements to a law
firm representing AWC. AWC argues that the statements are for legal services in another case
involving West. West responds that, since the other case involved the PRA, these entries are
responsive to his request. But his request was not as broad as he is now arguing it is. Bills for
legal services related to a PRA request are not the same as " lobbying or correspondence
CP at 50.
concerning the Public Records Act ... and proposed alterations or amendments."
any
We affirm the trial court' s finding that the log is not responsive to the February 9 request.
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43787 -2 -II
IV. ATTORNEY FEES
A. TRIAL
West argues that the trial court erred by awarding attorney fees to AWC for responding to
West' s motion for reconsideration. Because the trial court' s decision to award fees under CR 11
was reasonably based on West' s meritless motion for reconsideration, we affirm the attorney fee
award.
We initially were unable to review the attorney fee award because the trial court did not
enter any findings of fact or conclusions of law regarding attorney fees. Therefore, we entered
an order directing the trial court to enter findings of fact and conclusions of law relating to its
order awarding attorney fees. The trial court then entered findings of fact and conclusions of law
stating that it awarded attorney fees under CR 11 because West' s motion for reconsideration was
meritless.
A court may impose sanctions under CR 11 if a party' s filing is not well grounded in fact
or not warranted by law or if it is filed for an improper purpose. Bryant v. Joseph Tree, Inc., 119
Wash. 2d 210, 217, 829 P.2d 1099 ( 1992) ( quoting CR 11). " The purpose behind CR 11 is to deter
baseless filings and to curb abuses of the judicial system." Bryant, 119 Wash. 2d at 219. We
review a trial court' s decision to impose CR 11 sanctions to determine if the award was
unreasonable or based on untenable grounds or reasons. Biggs v. Vail, 124 Wn.2d
manifestly
193, 197, 876 P.2d 448 ( 1994); State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775
1971).
Here, West' s motion for reconsideration under CR 59( a)( 8) merely repeated his summary
judgment argument and did not present any evidence of an error of law, as CR 59( a)( 8) requires.
The trial court concluded that West' s motion failed to identify any grounds for reconsideration
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and that it was meritless. Accordingly, under CR 11, the court awarded AWC " not less than
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1, 000 " in attorney fees for responding to West' s meritless motion. CP at 485. We agree with
the trial court that West' s motion for reconsideration was meritless and failed to identify any
errors of law. Instead, he merely repeated his argument that the Armstrong e -mails and the
December 1 log were responsive to his February 9 request. The trial court' s attorney fee award
was not unreasonable and we affirm.
B. APPEAL
West requests attorney fees on appeal under RCW 42. 56. 550( 4). This statute provides
for the award of attorney fees to a person who prevails against an agency in a PRA action. RCW
42. 56. 550( 4). Here, West does not prevail, and we do not award him attorney fees.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
M//. 14- Z--
Worswick, C. J.
O'l,
6 Although the exact amount of attorney fees awarded is not clear from the record on appeal,
West contests the availability of attorney fees rather than the amount awarded.
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