¶ 1 Justice Richard B. Sanders sued the attorney general's office (AGO) for inadequately responding to his public records request and for withholding nonexempt documents in violation of the Public Records Act (PRA). Resolving the suit requires an examination of numerous topics under the PRA, including the form of the request, the adequacy of AGO's disclosure, the adequacy of AGO's production, the appropriate penalty, and the award of costs and fees at trial and on appeal. One major issue is whether AGO violated the PRA by failing, in its response to Justice Sanders's PRA request, to provide a brief explanation of how its claimed exemptions applied to the records withheld, and what remedy follows from such a violation. We hold that AGO's failure to provide a brief explanation violated the PRA and should be considered as an aggravating factor when setting penalties for withholding nonexempt documents. Other issues pertain to the attorney-client and work product privileges and their use to claim exemptions under the PRA. We hold that the trial court correctly interpreted the work product privilege and do not reach its interpretation of the attorney-client privilege.
¶ 2 This case involves interpretation and application of the PRA.
¶ 3 On January 27, 2003, Justice Sanders visited the Special Commitment Center on McNeil Island. Sanders v. State, 166 Wn.2d 164, 168, 207 P.3d 1245 (2009). This visit led to an inquiry by the Commission on Judicial Conduct (CJC). Id. Justice Sanders believed that he was entitled to have AGO defend him before the CJC at public expense and sued to compel AGO to do so. Id.
¶ 4 Separately, on June 15, 2004, Justice Sanders delivered a written public records request to AGO pursuant to the PRA, requesting all records pertaining to his visit to McNeil Island and the related CJC action. Clerk's Papers (CP) at 475, 478-79. AGO had already compiled a response to a broader request for similar materials from the Building Industry Association of Washington (BIAW). To expedite Justice Sanders's request, an AGO representative contacted Justice Sanders's attorney, Kurt Bulmer, to ask if he "wished to expand [his] request for documents to those which were disclosed to
¶ 5 AGO's response included some 1,000 pages of material and an entire document index (EDI). CP at 171, 187-224. The EDI disclosed the 334 documents that AGO was producing, producing in redacted form, or withholding, and provided information about them such as their author, recipient, and date of creation. CP at 1717, 187-224. It also specified AGO's claimed exemptions for the 144 documents redacted or withheld. Id. The EDI did not contain any facts or explanation of how its claimed exemptions applied to each document withheld. Id. Justice Sanders did not contact AGO to object to any of the withholding or to request further explanation. CP at 171. On July 21, 2005, he sued in Thurston County Superior Court, claiming that AGO had violated the PRA by failing to provide a brief explanation of how its claimed exemptions applied to each record withheld and by withholding nonexempt documents. CP at 5, 7.
¶ 6 Upon notice of the suit, AGO hired outside counsel to review the disputed documents. CP at 1763. AGO's counsel refined the claimed exemptions for several documents, as it continued to do during this litigation. CP at 1084-1125; see also CP at 127-54 (State's "Appendix A" addressing each document in detail). Outside counsel also determined that AGO considered several disputed documents "innocuous," and so counsel produced them for Justice Sanders despite AGO's claim that the documents were exempt, nonresponsive, or previously produced. CP at 1763-64, 1084-88. The productions either expressly disclaimed waiver or proceeded as if AGO continued to claim that the documents were exempt. CP at 115, 378, 1090-91, 1093, 1113. The parties refer to these documents, which were produced subsequent to litigation, as the subsequent-production documents (SPDs). See Opening Br. of Hon. Richard B. Sanders (Sanders's Opening Br.) at 6-7 & n. 3; cf. Br. of Resp't & Cross-Appellant State of Wash. (Br. of Resp't) at 10 n. 34. The SPDs are distinguished from those documents that AGO never produced, which the State submitted to the trial court for an in camera determination of whether they were exempt (in camera documents). CP at 1719-20.
¶ 7 Justice Sanders sought discovery regarding how AGO's claimed exemption applied to each document it withheld. He noted a CR 30(b)(6) deposition, requesting that AGO supply an expert who could testify as to "[t]he grounds for each exemption claimed" and details about the privileges underlying the exemptions. CP at 499-501. At the deposition, however, the State's expert could do no more than read the EDI. CP at 564-65. Justice Sanders eventually obtained a full explanation of how each claimed exemption applied when the State moved for summary judgment. The State submitted an Appendix A summarizing each document and arguing why it was exempt from disclosure. CP at 127-54. It also made all of the disputed documents available for in camera review. See CP at 1724 (describing the process for litigating the exemptions in the trial court). Justice Sanders had the opportunity to review all of the in camera documents and to respond to Appendix A. Id. Justice Sanders objected to Appendix A as unsworn testimony and argument based on facts not in evidence, but the trial court rejected this argument. CP at 382-89; see CP at 1724 (considering Appendix A). The trial court incorporated the summaries of the disputed documents, both sides' arguments, and its own rulings into trial court's Appendix A, CP at 1375-1434 (in camera documents), and trial court's Appendix B, CP at 1435-37 (SPDs).
¶ 8 Both parties moved for summary judgment. The State argued that Justice Sanders agreed to narrow his request to accept only those documents produced for BIAW, and even if not, AGO had complied with the PRA and withheld only exempt documents. CP at 106-26. Justice Sanders argued that (1) he agreed to expand his request to include additional documents but never agreed
¶ 9 The trial court viewed the dispute over the alleged narrowing of Justice Sanders's request as a dispute over the legal sufficiency of AGO's search and disclosure. CP at 1713-17. Because Justice Sanders could not identify any documents that AGO should have disclosed but did not, and because AGO's search responded to BIAW's broader request, the trial court ruled that AGO's search for documents was legally sufficient. Id. The dispute over disclosure, the trial court concluded, was irrelevant to the issue of production. Id. at 1716.
¶ 10 The trial court determined that AGO's response to Justice Sanders's request violated the PRA. Although the EDI specifically identified AGO's claimed exemptions, it failed to contain a brief explanation of how the claimed exemptions applied to each record withheld. CP at 1718. The remedy for this violation was not waiver or estoppel, however, but consideration when imposing penalties for wrongfully withholding records. CP at 1718-19. Nor had AGO waived or been estopped from claiming exemption for any of the SPDs. CP at 1719-20. The question was whether any SPD or in camera document had been withheld wrongfully and what fees, costs, and penalties award should follow. Id.
¶ 11 The trial court examined each disputed document and ruled on whether it was exempt from production. CP at 1373-74, 1375-1437. The relevant exemptions were the attorney-client privilege, under RCW 42.56.070(1)
¶ 12 Because Justice Sanders prevailed on some of his claims and showed that about 5 percent of the withheld documents were nonexempt, the trial court awarded him $55,443.12, which was 37.5 percent of his costs and attorney fees.
¶ 13 Both parties appealed. Justice Sanders challenges several aspects of the trial court's disposition of the case, as outlined below. The State responds to each of those contentions and cross-appeals on its claim that it is entitled to summary judgment because Justice Sanders agreed to accept only the production given to BIAW. The Court of Appeals certified the case directly to this court, and we accepted review. Wash. Supreme Court Order Accepting Certification, Sanders v. State, No. 82849-1 (Mar. 26, 2009).
¶ 14 The State argues that it is entitled to summary judgment because Justice Sanders's attorney, Mr. Bulmer, agreed to accept the production given to BIAW as a full response to Justice Sanders's records request. Because Justice Sanders got everything he requested, the State contends, he cannot seek additional production. Justice Sanders counters that Mr. Bulmer agreed to expand his request to accept additional documents but never agreed to narrow his request in any respect. The trial court avoided this issue by viewing the debate as one over the legal sufficiency of AGO's search for records in response to Justice Sanders's request. Since BIAW's request was broader and Justice Sanders did not identify any documents that should have been disclosed to him but were not, the trial court held the search to be sufficient. But, it denied the State's motion for summary judgment because the search and disclosure issue was independent of the production issues making up the rest of the case.
¶ 15 From the parties' refinement of their argument on appeal, it appears that the dispute is not over whether AGO searched for the appropriate records. The question on summary judgment is whether Mr. Bulmer agreed to accept the production given to BIAW or the disclosure given to BIAW. 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. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). In reviewing a motion for summary judgment, we construe the facts in the light most favorable to the nonmoving party. Id. Our review is de novo. Id.
¶ 16 The record shows that Mr. Bulmer agreed to modify his PRA request to match BIAW's. CP at 171, 187. But, there is a genuine issue of fact as to what this modification meant. The State argues that Mr. Bulmer agreed to accept the production given to BIAW. When considered in the light most favorable to Justice Sanders, however, the evidence suggests that Mr. Bulmer agreed only to accept the disclosure given to BIAW. See id. (AGO employee quoting Mr. Bulmer as saying that he "wished to expand [his] request for documents to those which were disclosed to . . . BIAW" (emphasis added)). Therefore, Justice Sanders could rightfully object to AGO's failure to produce some of the disclosed documents, even if BIAW did not do so. See CP at 475-76 (including Mr. Bulmer's statement that he never agreed to waive production of any requested documents). The trial court's denial of summary judgment on this issue was appropriate.
¶ 17 Justice Sanders argues that AGO violated the PRA because its response to his records request (the EDI) did not provide a brief explanation of how the claimed exemptions applied to the records withheld. The State argued in the trial court that it had "explained" the claimed exemptions by identifying each withheld document's author, recipient, date of creation, and broad subject matter along with its specification of the exemption. See CP at 1069-70 (using an example from the EDI to illustrate). The trial court disagreed. CP at 1717-18. It construed the PRA to require an agency claiming an exemption to "`include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.'" CP at 1717 (quoting RCW 42.56.210(3)
¶ 18 The trial court's interpretation of the statute is correct: an agency withholding or redacting any record must specify the exemption and give a brief explanation of how the exemption applies to the document. RCW 42.56.210(3).
¶ 19 Furthermore, we have consistently enforced the PRA's disclosure requirements to advance its policy of public access. See Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wn.2d 243, 269-71, 884 P.2d 592 (1994) (PAWS II) (declaring "silent withholding" illegal and noting that an "agency's compliance with the Public Records Act is only as reliable as the weakest link in the chain"); Rental Hous. Ass'n v. City of Des Moines, 165 Wn.2d 525, 540, 199 P.3d 393 (2009) (relying on PAWS II to conclude that failure to require an indication of "whether there is a valid basis for a claimed exemption for an individual record" would "defeat[] the very purpose of the PRA"). Claimed exemptions cannot be vetted for validity if they are unexplained. Thus, AGO's failure to explain its claimed exemptions violated the PRA.
¶ 20 The remedy for such a violation is a more difficult issue. Justice Sanders argues that the remedy is waiver or estoppel. See Sanders's Opening Br. at 36-41; CP at 1718-19. In other words, by failing to adequately explain a claimed exemption, AGO either waived the right to claim the exemption or is estopped from arguing an explanation other than one found in the EDI. Since the EDI contained no explanation, AGO would be estopped from offering any explanation. Id. The State's position is that the only remedy for the brief explanation violation is to compel the agency to explain. Br. of Resp't at 48-49. This is because an agency can meet the explanation requirement in court submissions. See id. (citing PAWS II). The trial court adopted neither position. It concluded that an exempt public record does not lose its exemption because of an inadequate response to a request. CP at 1718. Rather, the PRA gives the requester the right to sue and authorizes the imposition of penalties against an agency for wrongfully withholding the record. Id. The trial court therefore held that the remedy for a brief explanation violation is consideration when awarding costs, attorney fees, and penalties. CP at 1719.
¶ 21 We have already rejected the waiver or estoppel argument that Justice Sanders advances. In PAWS II, the agency initially explained its claimed exemptions to the requester but then sought to argue different
¶ 22 On the other hand, the State's interpretation contravenes the PRA's purpose. If the only remedy for a failure to explain is to sue to compel explanation, the agency has no incentive to explain its exemptions at the outset. This forces requesters to resort to litigation, while allowing the agency to escape sanction of any kind. Cf. Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005) (refusing to allow agencies to resist complying with the PRA until after a suit is filed without facing a penalty).
¶ 23 The trial court's conclusion reflects a fair middle ground under the PRA: the agency's failure to provide a brief explanation should be considered when awarding costs, fees, and penalties, but the agency is not foreclosed from offering a satisfactory explanation. Such an interpretation serves the PRA's policy of disclosure by providing incentives for the agency to explain its claimed exemptions, while avoiding the negative consequences warned of in PAWS II. Cf. Rental Hous. Ass'n, 165 Wash.2d at 540, 199 P.3d 393 (requiring a detailed privilege log based on similar considerations).
¶ 24 The interpretation also follows from the PRA's text. The PRA entitles a prevailing party in an action "seeking the right to inspect or copy any public record or the right to receive a response to a public record request" to costs and reasonable attorney fees. RCW 42.56.550(4)
¶ 25 In addition, as discussed below in part 5, an agency's failure to explain its claimed exemptions is relevant to the agency's "lack of strict compliance . . . with all the PRA procedural requirements," which may aggravate the penalty for wrongfully withholding public records. Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467, 229 P.3d 735 (2010) (Yousoufian II).
¶ 26 In sum, AGO's failure to provide a brief explanation of its claimed exemptions violated the PRA. The remedy for the violation is consideration when awarding costs, fees, and penalties.
¶ 27 Justice Sanders contends that AGO waived its right to claim that the SPDs were exempt when it produced them after suit was filed. He urges us to hold that agencies may not force a requester to sue and then escape penalties by producing the documents after litigation begins. AGO responds that it has always maintained that the documents were exempt, but, after outside counsel reviewed them, AGO determined that it considered several of the documents "innocuous" and so produced them in a good-faith effort to narrow the area of dispute. The trial court found that the State had disclaimed waiver and had maintained that the documents were exempt. CP at 1720. It therefore held that the State had not waived the right to claim exemptions, nor was it estopped from doing so. Id.
¶ 28 The determination of waiver is a mixed question of law and fact. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41, 191 P.3d 879 (2008). The record supports the trial court's crediting of the State's claim that it did not intend to relinquish its claimed exemptions. CP at 115, 378, 1090-91, 1093, 1113. AGO simply determined that it did not care if certain documents
¶ 29 Nor do we believe that production of documents after the requester files suit ipso facto admits that the initial withholding of the documents was wrongful. The PRA's purpose is to increase access to government records. See RCW 42.56.030.
¶ 30 Justice Sanders challenges the trial court's rulings on each of AGO's claimed exemptions. He points to four distinct legal issues, asserting that the trial court misapplied the law in each instance. He then asks this court to determine de novo the validity of the claimed exemption for each document. The State, on the other hand, defends the trial court's rulings of law on each document.
¶ 31 Preliminarily, Justice Sanders argues that the trial court should not have considered the State's Appendix A, filed with the State's motion for summary judgment. He claims that Appendix A contains facts not in the record and amounts to unsworn testimony by AGO's attorneys. Sanders's Opening Br. 35 n. 25. Moreover, Justice Sanders asserts, the State may not contradict the deposition testimony of its CR 30(b)(6) expert. Id. The expert was retained to testify about how each claimed exemption applied to the record withheld, but in fact could do no more than read the EDI. As a sanction for this alleged subversion of the discovery process, Justice Sanders argues that Appendix A should have been rejected. Id.
¶ 32 The State responds that Appendix A is not unsworn testimony; it is analogous to a series of cover sheets. Each cover sheet summarizes the contents of a disputed document and AGO's argument for why the document is exempt, in an effort to reduce or eliminate the need for extensive oral argument on each document. As to its CR 30(b)(6) expert, the State maintains that its expert was the person most qualified to discuss the procedure for amassing the total response to Justice Sanders's records request, not the specifics of any given document. The State therefore argues that it did not subvert the discovery process.
¶ 33 The trial court evidently adopted the State's view, as it created its own appendices incorporating the State's Appendix A, Justice Sanders's responding arguments, and the court's rulings on each document.
¶ 34 A trial court may exercise reasonable control over the orderly presentation of argument and evidence. See, e.g., ER 611(a) (granting the court authority to make the "presentation effective for the ascertainment of the truth" and to "avoid needless consumption of time"); State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969) ("Because the trial court has a duty to conduct the trial fairly, expeditiously and impartially, it has a corresponding power to adopt practices and procedures reasonably designed to secure such ends."). When considering a procedure "not regulated or covered by statute, formal rule or precedent," we review in light of that "wide discretion." Id.
¶ 35 Appendix A contains summaries of the disputed documents and arguments for why
¶ 36 Justice Sanders objects to the trial court's interpretation of the attorney-client privilege. The trial court held that "[o]nce an attorney-client relationship exists, any communication arising from that relationship is privileged, unless waived or controlled by a recognized exception to the privilege." CP at 1724. It applied this understanding when determining whether the disputed documents were exempt. Id. Justice Sanders argues that the privilege protects only communications pertaining to legal advice and urges us to hold that if the client is not seeking legal advice when communicating with the attorney, the communication is not privileged. Otherwise, he maintains, "every phone call" from AGO to a government agency will be privileged. Sanders's Opening Br. at 34.
¶ 37 It is unnecessary to decide whether Justice Sanders's interpretation of the attorney-client privilege is correct. If the issue were dispositive as to any document withheld in this case, we would determine the proper scope of the attorney-client privilege, and, if the trial court applied the wrong legal standard, remand to the trial court for application of the proper standard. However, we have reviewed all of the disputed documents as part of our analysis of the work product privilege, discussed below. In the interest of judicial economy, we also reviewed each claim of attorney-client privilege. In doing so we assumed, without needing to decide, that the attorney-client privilege protects only communications pertaining to legal advice. The result in this case is the same irrespective of whether we adopt the trial court's analysis of the attorney-client privilege or the analysis advocated by Justice Sanders. Our conclusions are set forth below in part e.
¶ 38 Justice Sanders argues that the trial court erroneously exempted several documents under the "common interest" doctrine. This doctrine is not one of the enumerated PRA exemptions, he notes, and the courts are not empowered to fashion new exemptions. Even if the doctrine is part of the exemptions based on privileges, Justice Sanders contends that the legislature did not intend for the courts to wield authority over broad exceptions to disclosure, and so the common law "common interest" doctrine should not be interpreted to apply to the PRA. The State responds that the "common interest" doctrine is merely a common law exception to waiver of privilege that applies when parties share a common interest in
¶ 39 The "common interest" doctrine provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group. Broyles v. Thurston County, 147 Wn.App. 409, 442, 195 P.3d 985 (2008); accord Morgan, 166 Wash.2d at 757, 213 P.3d 596 (citing Broyles). Justice Sanders argues that the doctrine is an unwarranted expansion of the PRA exemptions, but we have already recognized its application to attorney-client privilege in the PRA context. See Morgan, 166 Wash.2d at 757, 213 P.3d 596 (applying the doctrine in a PRA case). Furthermore, the "common interest" doctrine is not an expansion of the privilege at all; it is merely an exception to waiver. See id. ("The presence of a third person during the communication waives the privilege, unless the third person is necessary for the communication, or has retained the attorney on a matter of `common interest.'" (citations omitted)). And in any event, documents that fall under the common interest doctrine are not discoverable in civil cases and so are exempt under the controversy exemption. Soter, 162 Wash.2d at 731, 174 P.3d 60 ("Any materials that would not be discoverable in the context of a controversy under the civil rules of pretrial discovery are also exempt from public disclosure under [the PRA]."). The trial court did not err by applying the "common interest" doctrine, where relevant, to the disputed documents.
¶ 40 Justice Sanders argues that the trial court incorrectly ruled that some documents were privileged work product even though they (1) did not specify on their face the controversy to which they were relevant, (2) did not pertain to the three controversies specifically mentioned by the trial court in its opinion, or (3) were created well before litigation to have been created in reasonable anticipation of the litigation.
¶ 41 RCW 42.56.290
¶ 42 (1) Controversy Not Facially Apparent. Nowhere does the statute say that the "controversy" must appear on the face of the record claimed exempt. Indeed, the use of the term "relevant" evokes the concept of relevance applicable to pretrial discovery: "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." ER 401 (emphasis added). Clearly, this broad definition includes evidence that does not facially relate to a given controversy, but whose relevance arises indirectly from context. See Faust v. Albertson, 167 Wn.2d 531, 538, 222 P.3d 1208 (2009) ("[C]ircumstantial and direct evidence are viewed as equivalently valuable.").
¶ 43 In Soter, we examined several records to determine if they were work product protected from PRA disclosure. 162 Wn.2d 716, 174 P.3d 60. Most of those records were handwritten notes of witness interviews, which was enough to reveal their connection to a "controversy." Id. at 732-33, 743-44, 174 P.3d 60. We did not discuss whether the nature of the controversy appeared on the document. It was enough that one could infer the document's relevance to the pending suit from the fact that it pertained to testimony or facts that would be at issue in the suit. Thus, the trial court did not err in ruling that the work product privilege protects documents even if they do not specify on their face a controversy to which they are relevant.
¶ 44 (2) Controversy Not Enumerated. The trial court specially noted three controversies to which the exempt documents were relevant. See CP at 1721-22. However, the "controversy" exemption does not apply only to a specific controversy or controversies,
¶ 45 (3) Document Predates Controversy by Too Long. The controversy exemption pertains to work product relevant to completed, existing, or reasonably anticipated litigation. Soter, 162 Wash.2d at 732, 174 P.3d 60. In Dawson v. Daly, we adopted this definition of "controversy" as opposed to one based on "`a prolonged public dispute, debate or contention'" because the latter was too broad. 120 Wn.2d 782, 790, 845 P.2d 995 (1993), abrogated on other grounds by PAWS II, 125 Wash.2d at 257-58, 884 P.2d 592. The distinction is one based on the expected likelihood of formal litigation, not merely the controversial nature of the agency's work. See Hangartner v. City of Seattle, 151 Wn.2d 439, 449-50, 90 P.3d 26 (2004). In Hangartner, the city claimed exemptions for documents pertaining to a city ordinance governing permits for construction of the light rail system. Id. at 443, 90 P.3d 26. The city argued that the "controversy" exemption applied because of the "`litigation-charged atmosphere'" surrounding the light rail's construction. Id. at 450, 90 P.3d 26 (quoting City's Opening Br. at 43). We declined to recognize the exemption: the considerable public debate over the light rail did not "establish that there was any threat or reasonable anticipation of litigation concerning the enactment" of the ordinance. Id. The opposite conclusion would endorse the "`prolonged public dispute'" definition rejected in Dawson. Id. (quoting Dawson, 120 Wash.2d at 790, 845 P.2d 995).
¶ 46 Under Hangartner, the issue is not how long before litigation commences a document is created, but whether the litigation is reasonably anticipated (as opposed to whether the issue is politically controversial). Thus, Justice Sanders's objection that certain documents, such as in camera document 75, were created months before litigation commenced misses the point. 2 Sealed Docs. 75.
¶ 47 In camera document 75 was redacted to remove an e-mail string from Chief Deputy Attorney General Kathy Mix to the Office of Financial Management discussing how to respond to Justice Sanders's request for a public defense before the CJC. CP at 1414. AGO claims that this document was created in reasonable anticipation of litigation, namely Justice Sanders's suit against the State when it refused to pay for his defense. Id. AGO claims that it anticipated litigation because Justice Sanders had previously sued the State to provide him with a defense in another ethics matter, In re Disciplinary Proceeding Against Sanders, 135 Wn.2d 175, 955 P.2d 369 (1998). Resp't Br. at 26-27 & n. 101. The fact that the suit did not occur until three months later does not render the State's anticipation of litigation unreasonable.
¶ 48 As the example shows, the trial court did not err by holding that documents can be exempt as work product even if created some time before the anticipated controversy. Accordingly, we review each disputed document to determine whether each claimed piece of work product was relevant to completed, existing, or reasonably anticipated litigation.
¶ 49 Justice Sanders asks us to review each claimed exemption de novo to determine
¶ 50 For each document, we have examined the AGO's claimed exemption, the trial court's ruling, and Justice Sanders's contentions on review. Assuming the narrow view of the attorney-client privilege advocated by Justice Sanders, and applying the work product privilege as set forth above, we affirm almost all of the trial court's rulings. However, we reverse the trial court's rulings that four documents were exempt:
We reverse the trial court's rulings and deny AGO's claim of exemption as to these four documents—except as to the redactable material in SPD 52—and assess costs and fees accordingly. See infra Part 7. Denying the claimed exemptions for these documents also affects the award of penalties. Because we affirm the trial court's penalty determination, we apply that determination to these four documents. See infra Part 5.e. We affirm the trial court's rulings on all of the other documents.
¶ 51 The trial court imposed an $8 per day per record penalty against AGO for wrongful withholding. CP at 1847. This penalty consisted of a $5 per diem penalty for the wrongful withholding itself—the statutory minimum, in light of the trial court's finding of AGO's good faith—plus a $3 per diem aggravator for failure to provide a brief explanation of its claimed exemptions. Id. For purposes of its calculation, the trial court categorized the wrongfully withheld documents into two "records" and included the number of days that the trial court took to decide the case. Id.
¶ 52 Each side contests some aspect of the trial court's imposition of penalties. Justice Sanders argues that the trial court abused its discretion in setting the amount per diem for both the wrongful withholding and the brief explanation violation, by not assessing penalties for all of the SPDs, and by grouping the documents into only two records. The State argues that the court correctly calculated penalties except for its inclusion of the length of adjudication in its calculation and its imposition of any penalty for the brief explanation violation.
¶ 53 Importantly, we recently announced a multifactor test for determining the amount per diem of a penalty for wrongful withholding. Yousoufian II, 168 Wash.2d at 467-68, 229 P.3d 735. The trial court did not apply this new test because it did not exist when this case was litigated below. Nevertheless, we conclude that the trial court's method of analysis adequately anticipated our decision in Yousoufian II and so affirm its penalty award as an appropriate exercise of discretion.
¶ 54 AGO failed to explain any of its claimed exemptions in the EDI. The trial court imposed penalties for the brief explanation violation as an aggravator for the penalty for wrongfully withholding records. The State argues that no aggravator for a brief explanation violation is permissible. In contrast, Justice Sanders treats the brief explanation violation as deserving of a freestanding penalty under the PRA, meaning that the penalty must be within the statutory range of $5-$100 per diem.
¶ 55 We hold that the trial court's view of the matter is correct. The PRA provision authorizing awards of costs, fees, and penalties reads:
RCW 42.56.550(4).
¶ 56 Because of this difference, the penalty section does not expressly authorize a free-standing penalty for the failure to provide a brief explanation. It is the "response" that is insufficient when the brief explanation is omitted. See RCW 42.56.210(3)
¶ 57 Nevertheless, although the PRA does not expressly sanction a separate penalty for a brief explanation violation, the violation may aggravate the penalty for wrongfully withholding a record.
¶ 58 This understanding of the penalty calculation answers Justice Sanders's contention that the amount of penalty for the brief explanation violation must be within the statutory range of $5-$100. Because the aggravator for a brief explanation violation is merely one factor in the calculation of penalties for wrongful withholding, it need not itself be within the statutory range. It is the total penalty for wrongful withholding that must fall within that range.
¶ 59 The trial court correctly treated the brief explanation violation as an aggravating factor in the penalty calculation for wrongfully withholding records.
¶ 60 Justice Sanders challenges the trial court's decision to impose almost the statutory minimum penalty, predicated on a finding of AGO's good faith throughout the PRA process. Justice Sanders argues that this award is inappropriate because AGO did not act in good faith. He characterizes several aspects of AGO's behavior during this case as sharp practices and asks us to impose a higher penalty.
¶ 61 In our recent Yousoufian II opinion, we explained the trial court's discretion to set the per diem penalty as follows. The trial court must consider the entire statutory range of $5-$100. 168 Wash.2d at 466, 229 P.3d 735. There is no presumptive starting point, not even the midpoint of this range; the trial court should use its discretion in determining where to begin. Id. at 466-67, 229 P.3d 735. The mitigating factors are:
Id. at 467, 229 P.3d 735 (footnotes omitted). The aggravating factors are:
Id. at 467-68, 229 P.3d 735 (footnotes omitted).
¶ 62 Reviewing the trial court's penalty assessment in this case, we find nothing inconsistent with the Yousoufian II test. The trial court did not presume any starting point, but considered the full statutory range. It determined that AGO acted in good faith and did not credit any of Justice Sanders's arguments to the contrary. However, the trial court noted that, despite proceeding in good faith, AGO had not strictly complied with the PRA's brief explanation requirement, which aggravated the penalty. See id. at 467, 229 P.3d 735 (aggravating factor 3). Thus, the trial court did not expressly examine all of the Yousoufian II factors—we had not yet announced them. But, clairvoyance is not a necessary qualification for the bench. In all, we find no abuse of discretion in the trial court's selection of $8 per day per record as the appropriate penalty amount.
¶ 63 AGO attempted to persuade the trial court that it should omit from the penalty calculation the number of days the court took to decide the case. The trial court believed that it had no discretion to do so, relying on Yousoufian I, 152 Wash.2d at 438, 98 P.3d 463. CP at 1847. AGO asks us to reverse this holding because it forces an agency to "run[] the risk of being severely penalized for delays that are not of its making." Resp't Br. at 47.
¶ 64 In Yousoufian I, the plaintiff delayed suing for 647 days but ultimately prevailed on the issue of production. 152 Wash.2d at 426-28, 98 P.3d 463. The trial court held that 120 days was the longest the plaintiff should reasonably have delayed, and so reduced the number of days for purposes of calculating the penalty by 527 days (647 minus 120). Id. The Court of Appeals upheld the calculation under an abuse of discretion
¶ 65 AGO tries to distinguish Yousoufian I because, in that case, the delay was attributable to the plaintiff and not to the court. This misses the point. Regardless of who delayed in Yousoufian I, the agency was not the party at fault. Consistent with Yousoufian I, we should hold that the PRA requires the agency to pay a penalty for each day the requester is unable to inspect or copy a nonexempt record, regardless of whether the agency created the delay. This rule may seem harsh, but it is the unambiguous meaning of the statute. See id. at 437, 98 P.3d 463 ("`If the statute's meaning is plain on its face, then courts must give effect to its plain meaning as an expression of what the Legislature intended.'" (quoting State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001))). The trial court did not abuse its discretion on this point.
¶ 66 The trial court divided the documents into two "records," one pertaining to Justice Sanders's PRA request itself and one pertaining to the CJC complaint against Justice Sanders and the ensuing investigation. CP at 1847. Justice Sanders argues that dividing the documents into two records was unprincipled. The documents were created at separate times and have content relevant to different matters. Furthermore, they were produced in four batches. He maintains that there should be more than two "records."
¶ 67 In Yousoufian I, the trial court grouped the documents withheld into 10 records based on time of production and subject matter. 152 Wash.2d at 427, 98 P.3d 463. We approved of this grouping and held that a trial court has discretion not to impose penalties for each wrongfully withheld document individually. Id. at 435-36, 98 P.3d 463. Here, the trial court interpreted the PRA request as seeking two records, as grouped broadly by subject matter. This is consistent with the discretion we elucidated in Yousoufian I.
¶ 68 In part 4.e above, we reversed the trial court's ruling that four documents (SPDs 44, 50-52) were exempt. These four wrongfully withheld documents all relate to the same topic, screening procedures at AGO during Justice Sanders's CJC proceeding, and were produced at roughly the same time. Consistent with our affirmance of the trial court's grouping of the other documents in this case, we consider these four documents a single "record." Thus, in addition to the penalty assessed by the trial court, which we have affirmed, we impose an additional penalty of $8 per day ($8/day/record × 1 record) for the number of days that elapsed between Justice Sanders's PRA request and the date on which AGO produced the last of these four SPDs to him.
¶ 69 Justice Sanders argues that the trial court abused its discretion by awarding him only 37.5 percent of his costs and attorney fees and by not multiplying the award by a lodestar multiplier of 1.5.
¶ 70 The PRA awards the prevailing party "all costs, including reasonable attorney fees." RCW 42.56.550(4).
¶ 71 To determine the extent to which Justice Sanders "prevailed," the trial court separated the case into four issues: (1) whether the documents withheld by AGO were exempt, (2) the remedy for a violation of the "brief explanation" requirement,
¶ 72 Justice Sanders argues that the trial court incorrectly subdivided and assigned weight to the issues. Justice Sanders believes the "issue" of the AGO's search for documents was collateral at best. Also, the trial court counted the SPDs as a separate issue on which the State prevailed, despite the fact that the court ruled that some of the SPDs were wrongfully withheld. Furthermore, he contends, the trial court held that AGO prevailed on the "brief explanation" claim despite the fact that the court found the State to be in violation of the PRA on that requirement. This issue should have received more than 10 percent weight. Finally, the propriety of withholding the disputed documents was assigned only 50 percent weight, and the trial court considered Justice Sanders to have prevailed on only 5 percent of that, despite the fact that Justice Sanders showed that some of the documents were nonexempt and could not have obtained this ruling without expending all of the attorney fees requested. Justice Sanders maintains that he is entitled to all of his requested costs and fees because his total expenditure was indivisible.
¶ 73 Whether to award costs and attorney fees is a legal issue reviewed de novo. See Spokane Research, 155 Wash.2d at 103-04 & n. 10, 117 P.3d 1117. We have not articulated a standard of review for how much to award, however. Some Court of Appeals cases have concluded that the amount should be reviewed for abuse of discretion.
¶ 74 It is clear that a court has the discretion to apportion an award of costs and fees so that it does not relate to any exempt documents. Limstrom v. Ladenburg, 136 Wn.2d 595, 616, 963 P.2d 869 (1998) (requiring that an award "relate only to that which is disclosed and not to any portion of the requested documents found to be exempt"); Dawson, 120 Wash.2d at 800, 845 P.2d 995 (same), abrogated on other grounds by PAWS II, 125 Wash.2d at 257-58, 884 P.2d 592. Whether the trial court had authority to apportion the award based on other issues in the case—i.e., besides the propriety of withholding each document—is a more difficult question. We have held that the "`prevailing'" inquiry under RCW 42.56.550(4)
¶ 75 On the other hand, the trial judge also considered one of the issues to be the sufficiency of AGO's search for documents. This search issue does not appear in the costs and fees provision and so perhaps should not be considered when awarding costs and fees. But, we need not decide the question. As indicated above, the real issue was whether there was a genuine issue of fact precluding summary judgment. No party "prevailed" on the nonissue of the sufficiency of the search.
¶ 76 The issues relevant to the apportionment of costs and fees, then, were (1) the ultimate validity of the claimed exemptions, (2) the brief explanation violation, (3) the remedy for a brief explanation violation, and (4) the effect of subsequent production on AGO's claims of exemption. The first issue was primary, while the other three were secondary. The trial court assigned no weight to the brief explanation violation because it was obvious. This is unusual: Justice Sanders's attorneys established the violation by suing. By way of analogy, one would not deny costs and attorney fees to a prevailing party in an action under 42 U.S.C. § 1983 just because it was "obvious" that the party's constitutional rights were violated. We give the existence of the brief explanation violation the same weight as the remedy for the violation.
¶ 77 Viewing the issues in this light, the chief question in the case was the propriety of withholding the documents AGO claimed were exempt. Around 95 percent of the claimed exemptions proved valid, suggesting that Justice Sanders's fees and costs should be deeply discounted. Limstrom, 136 Wash.2d at 616, 963 P.2d 869. Justice Sanders prevailed on one secondary issue, his brief explanation claim, but did not prevail on the other two secondary issues. Under these circumstances, the trial court's award of 37.5 percent of Justice Sanders's requested costs and fees appears reasonable. While we may quibble with some of the trial court's reasoning, on the whole its award of fees and costs was within its discretion.
¶ 78 Justice Sanders asked the trial court to multiply his attorney fees award by a lodestar multiplier of 1.5 because his attorneys worked on contingency. CP at 1858. The trial court declined to do so because the rate times hours calculation of the award already exceeded the fee under the contingency contract. Id. Justice Sanders assigns error to this decision.
¶ 79 The lodestar method is appropriate for calculating attorney fees under the PRA. West v. Port of Olympia, 146 Wn.App. 108, 123, 192 P.3d 926 (2008) (applying Mahler v. Szucs, 135 Wn.2d 398, 433-34, 957 P.2d 632, 966 P.2d 305 (1998), in the public records context), review denied, 165 Wn.2d 1050, 206 P.3d 657 (2009). A court using this method multiplies a reasonable attorney rate for the prevailing party by a reasonable number of hours worked,
¶ 80 Justice Sanders requests costs and attorneys fees from this appeal. See PAWS II, 124 Wash.2d at 271, 877 P.2d 187 (interpreting RCW 42.56.550(4)
¶ 81 There is no reason why the definition of "prevailing" under the PRA on appeal should differ from the definition at trial. We therefore focus on issues bearing on either the "right to inspect or copy" or the "right to receive a response."
¶ 82 With this understanding in mind, the issues relevant to the apportionment of costs and fees on appeal are (1) whether Justice Sanders's agreed not to challenge what AGO produced in response to his PRA request, (2) whether AGO violated the PRA by not providing a "brief explanation," (3) what remedy follows from that violation, (4) whether AGO waived claiming exemption on the SPDs, and (5) whether each claimed exemption ultimately was valid. To assess the extent to which Justice Sanders prevailed on appeal, we summarize our disposition of these issues:
¶ 83 As the trial court concluded, the fourth of these issues is the most important because the PRA's ultimate purpose is the production of public records. Justice Sanders therefore prevailed on only a small percentage of the most important issue, making it appropriate to discount his costs and fees. Considering the amount of work during this appeal allocated to the issues on which Justice Sanders prevailed, we find it appropriate to award Justice Sanders 25 percent of his total costs and fees on appeal.
¶ 84 This case presented unique legal and factual complexities, which the trial court carefully considered. We affirm the trial court's decisions on all issues except (1) the interpretation of the attorney-client privilege and (2) the rulings on the claimed exemptions for SPDs 44 and 50-52. We do not reach the first issue because we assume, without deciding, that the attorney-client privilege protects communications only if they pertain to
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, GERRY L. ALEXANDER, SUSAN OWENS, MARY E. FAIRHURST, Justices, WILLIAM W. BAKER, MARY KAY BECKER, and J. ROBERT LEACH, Justices Pro Tem.
