HUNT, J.
¶ 1 Arthur S. West appeals the superior court's memorandum opinion ruling that certain attorney fee invoices of Thurston County's insurer-appointed defense counsel did not meet the Public Records Act's (PRA)
¶ 2 Thurston County contracts with the Washington Counties Risk Pool for self-insurance coverage. The Risk Pool "is a public agency created by interlocal agreement in 1988, to provide coverage for liability exposures of counties."
¶ 3 In 2001, several former prosecutors sued the County for discrimination (the Broyles litigation). The County's contract with the Risk Pool covered the County's potential liability. The Risk Pool appointed at least five law firms to represent the County.
¶ 4 Between October 2001 and November 2002, five Risk Pool-appointed firms billed the Risk Pool for approximately $280,000 in services. Between November 2002 and December 2006, four of the original five Risk Pool-appointed firms
¶ 5 On December 17, 2006, a local newspaper reported that Michael Patterson, one of
CP at 163.
¶ 6 In a letter dated January 26, Patterson, still representing the County, denied West's PRA request.
RCW 42.56.290. Patterson also cited RCW 42.56.070(1), which exempts documents that "fall[] within the specific exemptions of ... other statute[s] which exempt[] or prohibit[] disclosure of specific information or records." For the "other statute," Patterson relied on RCW 5.60.060(2)(a), which reads,
¶ 7 On February 12, 2007, West filed a PRA action against the County in Mason County Superior Court. On February 24, Patterson wrote another letter to West, maintaining that RCW 42.56.290 exempted defense counsel's invoices from disclosure. Patterson also wrote that, nevertheless, the County would provide "redacted copies" of the invoices the County had in its "possession." CP at 165.
¶ 8 On the same day that Patterson wrote his February 24 letter to West, the County turned over to West 243 pages of redacted documents, comprising 46 individual invoices from five Risk Pool-appointed firms, even though West's PRA request had asked only for "records of billings from the firm of Lee, Smart, Cook, Martin and Patterson." CP at 163. These invoices' dates ranged from October 1, 2001, through November 22, 2002. The invoices
CP at 182. The cumulative total of these invoice amounts was $255,030.95.
¶ 9 On March 26, the superior court dismissed West's PRA action, apparently because the County had disclosed the requested invoices; West appealed.
West, 144 Wash.App. at 584, 183 P.3d 346. We remanded with instructions for the superior court to determine (1) "whether the County has, in fact, disclosed all of the invoices in its possession"; (2) "whether [the County's] redactions are justified as work product or privileged information"; and (3) "the costs and penalties to be assessed against the County for resisting disclosure until West filed this lawsuit." West, 144 Wash.App. at 584, 183 P.3d 346.
¶ 10 On July 9, 2008, apparently in response to our court's decision, the County disclosed 303 pages of documents to West. This 303-page disclosure comprised numerous individual invoices, two of which the County had not included in its previous February 24, 2007 disclosure.
¶ 11 On August 11, 2008, approximately one month after the County provided West with this second disclosure, we mandated West v. Thurston County back to the superior court. On September 8, West moved the superior court to order the County to "show cause ... why [the County] should not be compelled to comply in all respects with" our decision in West v. Thurston County. CP at 740. On October 17, the County sent the superior court two sets of documents: (1) "[u]nredacted copies of all Broyles v. Thurston County attorney fee invoices provided to [West] on February 24, 2007"; and (2) "[u]nredacted copies of all Broyles v. Thurston
¶ 12 On January 6, 2009, counsel entered appearance for West. The superior court held the show cause hearing on February 6. West argued that the County had violated the PRA by failing to disclose Risk Pool-appointed defense counsel invoices in excess of the County's $250,000 deductible.
¶ 13 West asked the superior court to "issue an order requiring Thurston County to produce immediately the invoices above $250,000.00, subject to appropriate redactions for attorney-client privilege and work product that should be isolated and only to information that this action would be privileged." VRP (Feb. 6, 2009) at 15. After the County responded to West's arguments, the superior court advised the parties that it would review both sets of documents and "issue a memorandum decision." VRP (Feb. 6, 2009) at 52.
¶ 14 After about 10 months, the County had not disclosed the invoices for amounts exceeding the deductible and the superior court still had not issued its memorandum opinion.
CP at 577-78.
¶ 15 One week later, on October 14, the County sent West an email stating:
CP at 580.
¶ 16 In a letter dated October 16, filed with the superior court on November 12, West wrote to the superior court:
CP at 571. On November 30, West filed a "brief to outline the issues remaining for determination by [the superior court] in this matter and to recalculate the requested penalties based on Thurston County's October 15, 2009, production of invoices for legal fees over $250,000 and the time that has passed since the last hearing." CP at 554.
¶ 17 On December 21, the superior court conducted a telephonic hearing and advised the parties that it (1) had compared the redacted version of the County's February 2007 disclosure with the unredacted version of the February 2007 disclosure; (2) had compared the redacted version of the February 2007 disclosure with the redacted version of the July 2008 disclosure; (3) had compared the redacted version of the July 2008 disclosure with the unredacted version of the July 2008 disclosure; and (4) had compared the redacted version of the July 2008 disclosure and the unredacted version of the July 2008 disclosure with "the privilege log[
¶ 18 Three days later, in an eight-page letter dated December 24, the superior court explained the results of its document comparisons, which process it described as "both tedious and exacting." CP at 206. The superior court attached a 90-page spreadsheet containing highly detailed descriptions of each document. The superior court's most important findings were that the July 2008 disclosure contained two invoices that the February 2007 disclosure did not contain and that the July 2008 contained 60 more pages and fewer redactions than the February 2007 disclosure.
¶ 19 On January 6, 2010, the superior court conducted a telephonic status conference, the purpose of which, it advised the parties, was to "see what the next steps might be, and
¶ 20 Three months later, on April 6, the superior court issued a memorandum opinion:
CP at 181. The superior court concluded that, "by July 9, 2008, Thurston County had produced for Mr. West[ ] copies of all invoices in its possession regarding the defense of the Broyles case." CP at 178. The superior court also ruled that (1) the County's redactions from its February 2007 disclosure were not justified, (2) the County's redactions from its July 2008 disclosure "were justified,"
¶ 21 On April 16, 2010, West moved the superior court to reconsider (1) its ruling that the post-deductible invoices were not public records; (2) its daily penalty amount, which West believed was too low; and (3) "grouping the wrongfully withheld records" (West did not elaborate on this request). CP at 69. On April 30, West asked the superior court to award him $2,281.86 in costs and $24,073.00 in attorney fees. On May 10, the County filed a response, stating that it did not object to either amount.
¶ 22 On July 28, the superior court denied West's motion for reconsideration. The next day, in a letter dated July 29, but filed on July 30, the superior court advised the parties that they should forward an agreed order to the superior court for an award of $24,073.00 in attorney fees and $2,281.86 in costs.
¶ 23 On August 4, West, now acting pro se, filed a notice of appeal of the superior court's "final order of ... August 2, 2010."
¶ 24 On August 26, West filed an amended notice of appeal from (1) "the final order of the Court of July 28, 2010," which denied West's motion for reconsideration of the superior
¶ 25 On September 20, the superior court issued an order stating, "The Court holds that Thurston County violated the Public Records Act and is required to pay [West] a penalty amount of $16,020.00." CP at 944. That same day, the superior court issued a judgment awarding West $16,020.00 in PRA penalties, $24,073.00 in attorney fees, and $2,281.86 in costs. The superior court ordered the County to pay attorney fees and costs to West's former counsel, who had by then withdrawn from representing West.
¶ 26 On September 28, West filed a second motion to reconsider. CP at 974. He argued that the superior court should "reconsider and amend" its September 20 order "in light of newly discovered evidence which indicates that counsel suppressed disclosure of Broyles['] related records in the possession of Thurston County." CP at 974. In addition, West asked the superior court to "vacate the relief granted to [West's former counsel] pursuant to [the former counsel's] secret negotiations with opposing counsel ... to disregard [West's] interests in return for an immediate and possibly excessive attorney fee award." CP at 974-75. Also on September 28, West's former counsel filed a notice of attorney's fees lien "on the judgment entered or to be entered in the ... action for services rendered to Arthur West" for $24,073.00 in attorney fees and $1,752.84 in litigation expenses. CP at 937.
¶ 27 On October 25, the superior court conducted a telephonic conference. The County's counsel
¶ 28 On November 24, West filed a "final notice of appeal" from the superior court's September 20, 2010 judgment, from "[a]ll interlocutory and supplementary orders," and from "[t]he order on reconsideration of November 22.[
¶ 29 On December 13, because of a fee dispute between West and his former counsel, the superior court ordered the County to pay the PRA penalty amounts and the attorney fees and costs award into the Mason County Superior Court registry. On December 21, West signed a document acknowledging his receipt of a check from the Mason County Clerk for $16,020.00, the amount the superior had ordered the County to pay in PRA fines. On January 24, 2011, the superior court ordered the Mason County Clerk to disburse $26,354.86 to West's former counsel.
¶ 30 We now address the issue that West raises in his third notice of appeal.
¶ 31 West's primary argument involves an issue of first impression: whether the definition of a Thurston County "public record" under the PRA includes attorney fee invoices for amounts greater than the County's $250,000 deductible, which invoices the County's Risk Pool-appointed defense attorneys prepared and never provided to the County (because these invoices properly were submitted to and paid by the County's Risk Pool). We hold that it does not.
¶ 32 Following West's previous appeal, in 2008, we instructed the superior court to decide on remand "whether the County has, in fact, disclosed all of the invoices in its possession." West, 144 Wash.App. at 584, 183 P.3d 346. On remand, the superior court ruled that invoices exceeding the County's $250,000 deductible were not "public record[s]" under the PRA and the County had no obligation to disclose them. CP at 181. West argues that this ruling was erroneous because the invoices that exceeded the County's deductible were public records and the PRA required the County to disclose them. This argument fails.
¶ 33 We review de novo a public agency's decision to withhold records. Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 201, 172 P.3d 329 (2007). In reviewing a PRA request, we stand in the same position as the superior court. Lindeman, 162 Wash.2d at 200, 172 P.3d 329. Where the record consists of only affidavits, memoranda of law, and other documentary evidence, the superior court's factual findings on disputed issues do not bind us. DeLong v. Parmelee, 157 Wn.App. 119, 143, 236 P.3d 936 (2010).
¶ 34 "The PRA is a `strongly worded mandate for broad disclosure of public records.'" Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768 (2011) (quoting Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007) (internal quotations omitted)). "The purpose of the PRA is to `ensure the sovereignty of the people and the accountability of the governmental agencies that serve them' by providing full access to information concerning the conduct of government." Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn.App. 110, 118, 231 P.3d 219 (2010) (quoting Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997)). An agency must respond within five business days of receiving a public records request. RCW 42.56.520. Under the PRA, all state and local agencies must disclose public records upon request unless the records fall under a statutory exemption. RCW 42.56.520, .550(1); Wood v. Lowe, 102 Wn.App. 872, 876, 10 P.3d 494 (2000). If the agency fails to do so, then the requestor may move for an order to show cause why the public agency refused disclosure. RCW 42.56.550(1).
¶ 35 The PRA requires the agency to respond to a PRA request within five business days, however, only if the request seeks "public records." The PRA defines "public records" as
RCW 42.56.010(2). Again, whether a public agency's insurer-appointed defense counsel's invoices (which the public agency never physically received and which the public agency was not responsible to pay) are "public records" under the PRA is an issue of first impression. We consider this issue by analyzing the four ways that an agency's "writing[s]" may satisfy the PRA's definition of "public records."
¶ 36 An agency's "writing" is a public record if the agency "prepare[s]" it. RCW 42.56.010(3). West's theory is that the County's
¶ 37 We recognize that the attorney-client relationship is generally a type of principal-agent relationship. See Fite v. Lee, 11 Wn.App. 21, 28, 521 P.2d 964 (1974); see also Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978). But West cites no Washington authority
¶ 38 The County urges us to adopt the superior court's reasoning, which relied on Division One's decision in O'Neill v. City of Shoreline, 145 Wn.App. 913, 925, 187 P.3d 822 (2008)
CP at 179. Agreeing with the superior court's adoption of the O'Neill court's definition of "to own" as "[t]o have or posses as property," we hold that the County did not "own" the invoices that exceeded its deductible. CP at 179.
¶ 39 Next, the County argues that "the [superior] court ... properly determined that the County had not `used' the invoices over the deductible." Br. of Resp't at 25. The superior court discussed Concerned Ratepayers Ass'n. v. Public Utility Dist. No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999), which held that an agency "use[s]" a public record if the record contains information that the agency either "(1) employ[s] for; (2) applie[s] to; or (3) ma[k]e[s] instrumental to a governmental end or purpose."
Concerned Ratepayers, 138 Wash.2d at 960-61, 983 P.2d 635 (internal citations omitted) (emphasis added).
¶ 40 Applying Concerned Ratepayers here, the superior ruled:
CP at 180-81. In our view, the superior court properly applied Concerned Ratepayers in its "use" analysis. Accordingly, we hold that the County did not "use" the invoices that exceeded its deductible. RCW 42.56.010(2).
¶ 41 West does not argue that the County "retained" the requested records. Based on the dictionary definition of "retain"—"to hold or continue to hold in possession or use,"
¶ 42 West also asserts that the superior court erred in "allowing and approving Thurston County's assertion of over 300 new (post appeal) exemptions" to the County's July 9, 2008 disclosure.
¶ 43 Such "[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland v. City of Tacoma, 90 Wn.App. 533, 538, 954 P.2d 290 (1998). We do not consider conclusory arguments that do not cite authority. See RAP 10.3(a)(6), 10.4; State v. Marintorres, 93 Wn.App. 442, 452, 969 P.2d 501 (1999). In making bald assertions lacking cited factual and legal support,
¶ 44 West next contends that the superior court set the PRA penalty too low in light of what he characterizes as the County's "manifest bad faith." Br. of Appellant at 38. This argument fails.
¶ 45 We review the superior court's determination of daily penalties for abuse of discretion. Yousoufian, 168 Wash.2d at 458, 229 P.3d 735. The superior court abused its discretion if its decision was manifestly unreasonable or based on untenable grounds or reasons. Yousoufian, 168 Wash.2d at 458, 229 P.3d 735. The superior court's decision was manifestly unreasonable if the court, "`despite applying the correct legal standard to the supported facts, adopts a view `that no reasonable person would take."'" Yousoufian, 168 Wash.2d at 458, 229 P.3d 735 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (internal citations omitted)). Such is not the case here.
¶ 46 RCW 42.56.550(4) provides:
¶ 47 A PRA penalty determination involves a two-step inquiry: (1) determining the appropriate daily penalty amount; and (2) calculating the number of days the public agency denied the party access to the records. See Yousoufian, 168 Wash.2d at 459, 229 P.3d 735. We address each in turn.
¶ 48 The superior court imposed a daily penalty amount of $30. West argues that the superior court "erred and committed an abuse of discretion in failing to properly weigh the Yousoufian factors [in] its penalty determination," asserting that the daily amount should be higher. Br. of Appellant at 37. This argument fails.
¶ 49 The Yousoufian court announced three categories of factors: (1) "principal" factors, (2) "mitigating" factors, and (3) "aggravating" factors. Yousoufian, 168 Wash.2d at 460-63, 467, 229 P.3d 735. These factors
Yousoufian, 168 Wash.2d at 468, 229 P.3d 735.
¶ 50 In Yousoufian our Supreme Court established four "principal" factors for determining an appropriate daily penalty: (1) the existence or absence of a public agency's bad faith; (2) the economic loss to the party requesting the documents; (3) the public importance of the underlying issues to which the request relates, and whether "the significance of the issue to which the request is related was foreseeable to the agency"; and (4) the degree to which the penalty is an "adequate incentive to induce further compliance." Yousoufian, 168 Wash.2d at 460-63, 229 P.3d 735. Here, the superior court applied these "principal factors" and found that (1) the "issue of disclosure of private attorney fees billings had significant public importance" but that "the foreseeability of the
¶ 51 Mitigating factors that may serve to decrease the penalty include: (1) a lack of clarity in the PRA request; (2) the public agency's prompt response or legitimate follow-up inquiry for clarification; (3) the agency's good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions; (4) proper training and supervision of the agency's personnel; (5) the reasonableness of any explanation for noncompliance by the agency; (6) the helpfulness of the agency to the requestor; and (7) the existence of agency systems to track and receive public records. Yousoufian, 168 Wash.2d at 467, 229 P.3d 735.
¶ 52 Applying these mitigating factors here, the superior court found that (1) West's PRA request lacked clarity and the County responded in a "broad manner";
¶ 53 West contends that the superior court "f[ound] mitigating factors to be present when such findings were not supported in the record." Br. of Appellant at 37. But again, West provides no citations to the record in support of his argument; nor does he even specify with which mitigating factors he disagrees. Again, we do not consider West's bald assertions. See Holland, 90 Wash.App. at 538, 954 P.2d 290; see also RAP 10.3(6), 10.4; Marintorres, 93 Wash.App. at 452, 969 P.2d 501. Moreover, we hold that the record adequately supports the superior court's findings and that the superior court, in applying the mitigating factors, did not "adopt[] a view that no reasonable person would take." Yousoufian, 168 Wash.2d at 459, 229 P.3d 735 (internal quotations omitted).
¶ 54 Aggravating factors that may support increasing the penalty include: (1) a delayed response by the agency, especially in circumstances making time of the essence; (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions; (3) lack of proper training and supervision of the agency's personnel; (4) unreasonableness of any explanation for noncompliance by the agency; (5) negligent, reckless, wanton, bad faith, or intentional
¶ 55 Contending that the superior court "fail[ed] to find that all of the aggravating factors were present,"
¶ 56 We hold, however, that the superior court did not "adopt[] a view that no reasonable person would take" by finding only one aggravating circumstance. Yousoufian, 168 Wash.2d at 458, 229 P.3d 735 (internal quotations omitted). The County's delay in disclosing invoices for law firms' billings both below and above its deductible amount was due in large part to difficult and unresolved legal issues concerning the PRA, not bad faith. Accordingly, we do not disturb the superior court's aggravating factors findings.
¶ 57 Because the law firms' invoices exceeding the County's deductible were not public records under the PRA, the County had disclosed all required public records by July 9, 2008. The superior court imposed a $30 per day penalty between January 22, 2007, and July 9, 2008, for a total of 534 days. Thus, the superior court correctly calculated the number of days that the County had improperly denied West access to public records to which he was entitled and had thereby subjected itself to penalties. Accordingly, we affirm both the amount of the daily penalty and the number of days to which the penalty applies.
¶ 58 West further argues that the superior court erred in "failing to rule" on "newly discovered records" that the County allegedly "deliberately suppressed." Br. of Appellant at 31, 34. He contends that these "newly discovered records" are (1) "[a] January 23, 2007 communication discussing responses to plaintiff West and the [Building Industry Association of Washington]"; and (2) "[a]n email message of December 30, 2008." Br. of Appellant at 31-32. As the County correctly notes, (1) these documents are not responsive to West's PRA request because they are not invoices from the Broyles litigation; and (2) in the alternative, the documents did not exist as of the date of West's PRA request, January 22, 2007. Smith v. Okanogan County, 100 Wn.App. 7, 13-14, 994 P.2d 857 (2000) (holding that the PRA does not require agencies to disclose a record that does not exist at the time of the request). Thus, West's "newly discovered records" argument fails.
¶ 59 West assigns error to the superior court's "fail[ure] to ... promptly follow the Order of Remand," criticizing the superior court's taking "over two years" after our remand.
¶ 60 RCW 2.08.240 and article IV, section 20, of our constitution require the superior courts to decide cases "within ninety days from the submission thereof." But "[t]he mere fact that the judgment was not rendered within 90 days does not of itself constitute error upon which the judgment may be reversed." Moylan v. Moylan, 49 Wn. 341, 344, 95 P. 271 (1908). Here, the superior court's protracted processing of the case was not error. The parties filed numerous briefs and motions throughout the 21-month period between our mandate's issuance and the superior court's decision, requiring the superior court to rule on additional ancillary matters before it could reach the three ultimate issues on remand.
¶ 61 West argues that "the Court erred in its Order awarding costs and fees when it made an award to [West's] former counsel." Br. of Appellant at 43. West contends that the superior court should have awarded RCW 42.56.550(4) attorney fees to him, rather than to his former counsel. This argument fails.
¶ 62 First, West provides no case law supporting his contention that superior courts should award PRA attorney fees and costs to a pro se litigant; nor is there any such case law available of which we are aware. Instead, West simply cites the PRA's attorney fee provision, which reads:
RCW 42.56.550(4) (emphasis added). West contends that this statutory provision required the superior court to "award[] all costs, including reasonable attorney fees" to the "person who prevails against an agency" in a PRA action, namely him. Reply Br. of Appellant at 17 (emphasis added). Although West is correct that he, and not his former counsel, prevailed against the County, West ignores the plain language of RCW 42.56.550(4), which awards "reasonable attorney fees," not fees in lieu of attorney fees to non-attorneys who represent themselves in PRA actions.
¶ 63 Second, and more importantly, we have recently addressed and rejected the argument that West advances here. In Mitchell v. Washington State Dept. of Corrections, ___ Wash.App. ___, ___ P.3d ___ (2011), we held that a non-lawyer defendant litigating a PRA action pro se incurs no attorney fees and is not entitled to receive an attorney fee award himself under RCW
¶ 64 West further asserts that "[t]he [superior] [c]ourt also erred in [its] pos[t]judgment proceedings by allowing the filing and execution of a post judgment attorney's lien by counsel in violation of the precedent of [Ross v. Scannell], 97 Wn.2d 598[, 647 P.2d 1004 (1982)]." Br. of Appellant at 44. But West provides no analysis of how Scannell might apply here. On the contrary, our reading of Scannell leads us to conclude that it does not apply: In Scannell our Supreme Court held that professional misconduct may be grounds for denying attorney fees to an attorney. Scannell, 97 Wash.2d at 610, 647 P.2d 1004. West having citing no authority to support this argument, we do not further consider it. See Holland, 90 Wash.App. at 538, 954 P.2d 290 ("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration."); see also RAP 10.3(6), 10.4; Marintorres, 93 Wash.App. at 452, 969 P.2d 501.
¶ 65 We affirm.
I concur: ARMSTRONG, P.J.
I concur in result only: QUINNBRINTNALL, J.
By June 2007, Michael Patterson, who played a central role in the facts underlying this appeal, was no longer an attorney at the firm of Lee, Smart, Cook, Martin and Patterson. After June 2007, Patterson was with the firm of Patterson Buchanan Fobes Leitch & Kalzer.
LAWS OF 2007, ch. 391, § 1 (emphasis added). RCW 42.56.904 became effective on July 22, 2007.
