Theodore Roosevelt Hikel, Jr. v. City Of Lynnwood ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THEODORE ROOSEVELT HIKEL,
JR., an individual, resident, citizen, No. 74536-1-1
and registered voter, in the City of
Lynnwood, Washington, DIVISION ONE
Appellant,
PUBLISHED OPINION
CITY OF LYNNWOOD, a non-charter,
municipal code city,
Respondent. FILED: December 27, 2016
Leach, J. — Theodore Roosevelt Hikel Jr. appeals the trial court's
dismissal of his Public Records Act (PRA or Act)1 lawsuit against the City of
Lynnwood (City). Hikel claims the City violated the PRA with its communications
to him about his records request and its failure to tell him that one installment
was ready for his review. Hikel also claims that the City had inadequate rules
and procedures in place for dealing with records requests.
The City's first response to Hikel's request violated the PRA because it did
not include any reasonable estimate when records would be provided. Its other
communications did not violate the Act. The City diligently responded to Hikel's
request, and its failure to notify him when the first installment was ready did not
1 Ch. 42.56 RCW.
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violate the PRA. Because Hikel first raised the inadequate rules argument in a
reply brief to the trial court, the trial court properly declined to consider the issue,
except in the context of the City's diligence.
Hikel asks for a per diem penalty, plus attorney fees and costs. Because
the City never denied Hikel any records, the PRA does not provide for a penalty
award. But the PRA does authorize an award of those attorney fees and costs
incurred for the one issue on which Hikel has prevailed.
We affirm in part and reverse in part. We remand this case to the trial
court for determination of the fees and costs incurred in litigating the issue about
the City's response.
FACTS
On June 22, 2015, Hikel submitted a public records request to the City of
Lynnwood. The request asked for "[a]ll electronic and hard copy communications
sent by and received by Council President Loren Simmonds and Council
Assistant Beth Morris from Jan. 1, 2014 to June 22, 2015." Jerry Vogel, who
worked in the City's Information Technology (IT) Department, conducted a
search for the requested records and identified 137,000 responsive e-mails.
Five business days after the request, Debbie Karber, the deputy city clerk,
e-mailed Hikel, acknowledging receipt of the request, asking for clarification due
to the large volume of responsive records, and informing him that the City might
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need to produce the records in installments. The e-mail stated, "Once we
receive your reply we will notify you of an anticipated date of completion." We
refer to this communication as the "June 29 letter."
Hikel replied, "I do wish to view all e-mails as requested. I understand this
may take some time and I am amenable to dealing with these e-mails in batches.
I would prefer to have them available in date sequence beginning with the most
recent."
On July 10, Vogel discovered that his original calculation was mistaken
and the correct number of responsive records was 27,500. This was still one of
the largest requests the City had ever received. The same day, Karber told Hikel
of this new calculation and that the City would have the first installment available
by August 6, 2015. We refer to this communication as the "July 10 letter."
The City assigned to Karber primary responsibility for responding to public
records requests. While Karber worked on Hikel's request, she was also
responding to 114 other requests, including 7 other requests from Hikel. To
prepare City e-mails for public disclosure, Karber reviewed the records for
exempt material and converted them to a format that the requester can view.
This can be accomplished by printing the documents or converting the record to
a PDF (portable document format) file and storing it on a DVD (digital video disk)
or CD (compact disk). The City maintained the requested records in PST
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(personal storage table) format, the format used for the Microsoft Outlook e-mail
program. Viewing the records in the PST format was not originally an option for
Hikel because he did not have access to a program that could view this format
and using the City's own network to view the files posed a security risk. But
converting the records from PST to PDF format requires additional steps in
preparing the records and is more time consuming.
The City had an installment of 138 records ready for Hikel's review on
August 6, 2015. But Hikel did not come to City Hall to pick up the first installment
until September 1, 2015. At City Hall, Hikel spoke with Debbie Hodgson.
Hodgson was not aware of any records available for Hikel's review. Hikel left a
letter with Hodgson asking about the delay in processing his request.
On September 11, 2015, Hikel filed this lawsuit. The City continued to
work on Hikel's request, developing strategies to expedite the process of
preparing records. The IT Department eventually discovered a way to quickly
convert PST files to PDF files. All evidence indicates that the City continued to
produce installments until it had fully responded to Hikel's request.
On October 2, 2015, Hikel filed an amended motion to show cause and
compel disclosure. On December 10, 2015, the trial court denied Hikel's motion
and dismissed the case. Hikel appeals.
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STANDARD OF REVIEW
Washington appellate courts review de novo an agency action challenged
under the PRA.2 "While agencies have some discretion in establishing
procedures for making public information available, the provision for de novo
review confirms that courts owe no deference to agency interpretations of the
[PRA]."3
ANALYSIS
The PRA "'is a strongly worded mandate for broad disclosure of public
records.'"4 The PRA requires every government agency to produce for
inspection and copying any public record upon request unless it falls within a
specific exemption.5 Within five days of receiving a public record request, an
agency must either (1) provide the record, (2) provide an Internet address and
link to the requested records, (3) acknowledge receipt of the request and provide
a reasonable estimate of the time the agency will require to respond, or (4) deny
the request.6
2 RCW 42.56.550(3).
3 Zink v. City of Mesa. 140 Wash. App. 328, 335, 166 P.3d 738 (2007).
4 Soter v. Cowles Publ'q Co., 162 Wash. 2d 716, 731, 174 P.3d 60 (2007)
(quoting Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 127, 580 P.2d 246 (1978)).
5 RCW 42.56.070(1).
6 RCW 42.56.520.
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Reasonable Estimate
Hikel contends that the City violated the PRA because it did not provide
him with a reasonable estimate of the time it would take to respond to his
request.7 He claims that neither the June 29 letter nor the July 10 letter provided
the reasonable estimate required by the PRA.
June 29 Letter
First, Hikel claims that the June 29 letter violated the PRA because it did
not provide any estimate of the time the City needed to respond. The City
asserts that the Act permits an agency to ask for clarification before providing a
reasonable estimate. The City claims that because it asked for clarification in its
first response, the June 29 letter, it complied with the PRA. We disagree.
The PRA requires an agency to respond to a records request within five
days. A response that does not either include access to the records or deny the
request must contain the agency's estimate of the time it will take to respond. No
statute or case provides for an extension of the five-day period. The City
acknowledged Hikel's request within the five-day period, but that
acknowledgement was deficient because it did not contain any time estimate.
The PRA recognizes that an agency may not be able to respond fully to a
request if that request is unclear. Therefore, RCW 42.56.520 allows an agency
7 Hikel challenges only whether the City provided a timely estimate and
not the reasonableness of any estimate given.
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additional time either to provide the records or deny the request. For example, in
Forbes v. City of Gold Bar.8 we concluded that the City was not bound by its
original estimate and was permitted additional time to provide the records. The
PRA does not, however, allow additional time to properly acknowledge a request.
This acknowledgement must include a reasonable estimate of the time it needs
to respond. By failing to provide a reasonable estimate in its June 29 letter, the
City violated the PRA.
The City asks this court to interpret the clarification provision to excuse its
duty to provide a reasonable estimate until it receives clarification. Hikel
responds that requesting clarification does not alter the deadline for providing a
reasonable estimate. To decide if a clarification request extends the time for
providing a reasonable estimate, we look to the text of the statute.
RCW 42.56.520 states,
Within five business days of receiving a public record request, an
agency... must respond by either (1) providing the record;
(2) providing an internet address and link on the agency's web site
to the specific records requested . . . ; (3) acknowledging that the
agency. . . has received the request and providing a reasonable
estimate of the time the agency. . . will require to respond to the
request; or (4) denying the public record request. Additional time
required to respond to a request may be based upon the need to
clarify the intent of the request.... In acknowledging receipt of a
public record request that is unclear, an agency. . . may ask the
requestor to clarify what information the requestor is seeking.
8 171 Wash. App. 857, 863, 288 P.3d 384 (2012).
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The language and structure of the statute do not identify requesting
clarification as a fifth alternative to the four choices listed. In interpreting
RCW 42.56.520, Division Two has stated that courts "'must not add words where
the legislature has chosen not to include them.'"9 We agree and decline the
City's invitation to add language to the statute. The statute does not provide an
agency with the option of asking for clarification of a request as a substitute for
one of the four enumerated actions to be completed within five days. While the
PRA permits an agency to ask for clarification, the agency must also complete
one of the four enumerated options within five days.
Here, the facts support finding a violation. Hikel's request identified clearly
the requested records. "At a minimum, a person seeking documents under the
PRA must identify the documents with sufficient clarity to allow the agency to
locate them."10 The City had no difficulty identifying the records Hikel requested,
all communications between two specific individuals within a specific date range.
Based on the request, the City calculated an initial number of responsive
records—albeit a very large number. The City makes no claim that it could not
estimate the time it needed to produce these records. It requested clarification
only to reduce the number of records it had to provide Hikel.
9 Hobbs v. Wash. State Auditor's Office, 183 Wash. App. 925, 943, 335 P.3d
1004 (2014) (internal quotation marks omitted) (quoting Lake v. Woodcreek
Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d 1283 (2010)).
10 Hobbs, 183 Wash. App. at 944 (citing Hanqartner v. City of Seattle. 151
Wash. 2d 439, 447, 90 P.3d 26 (2004)).
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Further, the PRA provides an agency with some protection from an
inaccurate estimate because it can amend its estimate when it has better
information. The Public Records Act Deskbook notes,
With some larger requests, the completion date will be fairly
speculative at an early stage, and therefore an exact date is not
required. Nevertheless, some time range should be included. The
agency may want to highlight the speculative nature of the estimate
and provide a date when it would expect to have a more accurate
estimate. For any large request, however, original estimates may
be revised frequently.'11]
The City identifies no reason it could not provide an initial estimate in its first
response and then amend if necessary. Under these circumstances, the PRA
required the City to provide a reasonable estimate within five days, and its failure
to do so violated the Act.
July 10 Letter
Hikel claims that the City's July 10 letter also violated the PRA because it
did not provide an estimate of the time when Hikel would receive access to all the
documents he requested. Instead, this letter told Hikel that the first installment
would be ready on or before August 6, 2015. Citing Hobbs v. Washington State
Auditor's Office,12 the City asserts that the PRA required that it provide only a
reasonable estimate of the time for the first installment. In Hobbs. the requester
11 Wash. State Bar Ass'n, Public Records Act Deskbook: Washington's
Public Disclosure and Open Public Meetings Laws §6.5(1) cmt. at 6-22
(2014).
12 183 Wash. App. 925, 335 P.3d 1004 (2014).
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asked the court "to interpret RCW 42.56.520 as requiring the agency to provide
an estimate of the reasonable amount of time needed to fully or completely
respond to the request."13 The court declined to adopt this interpretation
because the legislature had not included that language in the statute.14 It
decided that the plain language of RCW 42.56.520 requires only a reasonable
estimate of time until the first installment. Following Hobbs, we find that the
City's second letter satisfied the Act's requirements by providing an estimate for
the first installment.
Clarification
Hikel also claims that the City was not entitled to ask for clarification
because the request was objectively clear.15 He contends that the size of a
disclosure does not provide a legitimate reason for asking for clarification.16
Hikel did not raise this argument before the trial court. "Under RAP 2.5(a),
appellate courts may refuse to hear any claim of error not raised at trial."17 We
do not consider Hikel's clarification argument.
13 Hobbs, 183 Wash. App. at 943.
14 Hobbs. 183 Wash. App. at 943.
15 Hikel cites WAC 44-14-04003(7) ("An agency can only seek a
clarification when the request is objectively 'unclear.' Seeking a 'clarification' of
an objectively clear request delays access to public records.").
16 See RCW 42.56.520 (listing "need to clarify the intent of the request, to
locate and assemble the information requested, to notify third persons or
agencies affected by the request, or to determine whether any of the information
requested is exempt" as reasons a request "may be based upon").
17 State v. O'Hara. 167 Wash. 2d 91, 94, 217 P.3d 756 (2009).
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Notification
Hikel claims that the PRA required that the City notify him when some
records were ready to view on August 6. In its July 10 letter, the City told Hikel
that the first installment would be ready on August 6, but the City did not notify
him when it completed the installment. Hikel acknowledges that no statute
requires this notification, but he contends that based on his past experience with
the City, he was entitled to notification.
Hikel does not cite any authority to support his claim that an agency must
abide by its past practice. In fact, case law suggests otherwise. An agency does
not violate the PRA merely by failing to meet its own self-imposed deadlines as
long as it was acting diligently in its attempts to respond to the PRA request.18
As the trial court noted, when Hodgson told Hikel on September 1 that no records
were available for him to view, she was mistaken. A single employee's mistake
is not evidence that the City did not diligently respond to Hikel's request. To the
contrary, the record shows that City employees worked diligently to respond to
this request, as well as others, some by Hikel himself. Karber converted many
records to a form convenient to Hikel and consulted with the IT Department
multiple times to develop a way to respond to requests faster.
18 Hobbs. 183 Wash. App. at 940; see also Andrews v. Wash. State Patrol.
183 Wash. App. 644, 651-53, 334 P.3d 94 (2014), review denied. 182 Wash. 2d 1011
(2015).
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Further, Hikel does not establish that the City had a past practice of
notifying requesters when records were ready. Hikel claims that a series of
letters from Karber, notifying him that installments were ready for pick up, show
that the City regularly provides predelivery notification. Karber began providing
these notifications to Hikel after he failed to pick up the first installment on August
6 and was misinformed that no records were ready. Because Hikel began
receiving these notifications after this initial installment, he cannot reasonably
assert that he relied on a past practice for the first installment. The City told
Hikel when the first installment would be ready, and the installment was ready
then. The City had no duty to confirm that it met the August 6 date.
Inadequate Rules
Finally, Hikel contends that the trial court should have considered his
claim that the City violated the PRA because it did not have adequate rules and
procedures in place to handle records requests. The PRA requires agencies to
"adopt and enforce reasonable rules and regulations."19 Because this claim first
appeared in Hikel's trial court reply brief and nowhere else, the trial court
appropriately limited its consideration of the argument to the narrow issue of
whether the City acted reasonably and diligently. The trial court acted within its
19 RCW 42.56.100.
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discretion when it declined to consider whether the City's alleged failure to
promulgate rules was an independent violation of the PRA.
Hikel asserts that he made this rules argument earlier. He points to his
complaint, his original motion and memorandum to show cause, and his
amended motion and memorandum to show cause. Hikel's complaint cited
RCW 42.56.100 and its requirement "to adopt and enforce reasonable rules and
regulations" but made no argument or allegation about any failure to promulgate
rules and described no claim based on inadequate rules in the section of the
complaint labeled "claims and causes of action." Hikel's original motion merely
mentioned RCW 42.56.100 and did not include any claim that the City's rules
were inadequate. Rather, Hikel cited to the City's policies to support his
argument that the City's actions did not conform to its written procedures. Hikel's
amended motion also cited to RCW 42.56.100 for the argument that the City did
not comply with its own policy but did not suggest that the City's rules were
inadequate. None of these documents alleged that the City failed in its duty to
adopt rules and procedures.
Because the argument was not properly raised below, we also decline to
consider it.
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Remedy
Finally, we must decide the remedy available to Hikel for the City's failure
to provide a reasonable estimate within five days. Hikel claims that he is entitled
to fees and costs, as well as a penalty for each day of the violation. We disagree
about the daily penalty. The PRA authorizes an award of reasonable fees and
costs incurred in litigating that single issue. The PRA does not provide for
penalties for this violation, however.
The PRA provides,
Any person who prevails against an agency in any action in the
courts seeking the right to inspect or copy any public record or the
right to receive a response to a public record request within a
reasonable amount of time shall be awarded all costs, including
reasonable attorney fees, incurred in connection with such legal
action. In addition, it shall be within the discretion of the court to
award such person an amount not to exceed one hundred dollars
for each day that he or she was denied the right to inspect or copy
said public record.1201
The PRA does not provide for penalties unless some "final agency action" denies
inspection or copying of a public record.21 The PRA does not provide a
freestanding penalty for procedural violations like the one that occurred here.22
Rather, courts consider this kind of violation as an aggravating factor when
20 RCW 42.56.550(4).
21 Cedar Grove Composting. Inc. v. City of Marvsville. 188 Wash. App. 695,
715, 354 P.3d 249 (2015).
22 Sanders v. State. 169 Wash. 2d 827, 849, 859, 240 P.3d 120 (2010)
(finding that the attorney general's office violated the PRA when it failed to
provide a brief explanation of its claimed exceptions).
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setting penalties for withholding records.23 Here, the City never denied Hikel the
right to inspect any records; therefore, he is not entitled to a penalty.
Hikel is, however, entitled to attorney fees for issues on which he prevails.
"The plain language of the PRA provides that costs and reasonable attorney fees
shall be awarded to a requester for vindicating 'the right to receive a response.'"24
In Hobbs, the court held that a requester could not recover any penalty or fees
for PRA violations if the agency cured the violation before taking final action to
deny the requested records.25 We disapprove of this view to the extent that it
denies fees for procedural violations.
The Supreme Court has observed that an interpretation where
the only remedy for the State's insufficient withholding index was to
compel an explanation of the exemptions . . . would contravene the
PRA's purpose because an agency would have "no incentive to
explain its exemptions at the outset" and "[t]his forces requestors to
resort to litigation, while allowing the agency to escape sanction of
any kind."'26]
The same principle applies here: if the only remedy for failing to provide a
reasonable estimate is to treat the violation as an aggravating factor in
calculating a penalty, where the agency does not withhold the records, and is
therefore subject to no penalty, it has no incentive to provide a reasonable
23 See Sanders. 169 Wash. 2d at 835.
24 City of Lakewood v. Koenig. 182 Wash. 2d 87, 97, 343 P.3d 335 (2014)
(quoting RCW 42.56.550(4)).
25 Hobbs. 183 Wash. App. at 940-41.
26 Koenig. 182 Wash. 2d at 97-98 (second alteration in original) (quoting
Sanders. 169 Wash. 2d at 847).
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estimate. For these reasons, we conclude that the legislature intended always to
provide for an award of fees and costs when an agency fails to comply with
RCW 42.56.520.
Hikel prevails solely on his claim that the City did not provide a reasonable
estimate of the response time it needed within five days of his request, and he is
entitled to only those fees and costs incurred litigating that issue in the trial court
and on appeal.
CONCLUSION
We affirm in part and reverse in part. Because the City's initial reply to
Hikel's records request did not include a reasonable estimate of the time required
to respond to the request, the City violated the PRA. All of Hikel's other claims
fail because he did not properly present them to the trial court or they lack merit.
Hikel is entitled to fees incurred in litigating the issue on which he
prevailed, but Hikel is not entitled to a penalty award. We remand this case for
the trial court to determine the amount of the fees and costs to be awarded.
WE CONCUR:
Apf^/AA^J, ^X,J
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