Rebecca A. Rufin, Appellant, v. the City of Seattle, Respondent , 199 Wash. App. 348 ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
REBECCA A. RU FIN, an individual
No. 74825-4-1
Appellant,
DIVISION ONE
V.
CITY OF SEATTLE,a municipality, PUBLISHED OPINION
Respondent. FILED: June 26, 2017
SPEARMAN, J. — An agency must respond to a Public Records Act(PRA),
chapter 42.56 RCW request within five days by providing the records, denying
the request, or sending a letter estimating the date of production. Rebecca Rufin
challenges the City of Seattle's response to three of her PRA requests, arguing
that records were delayed or the search was inadequate. We conclude that with
respect to one of those requests, the trial court erred in finding no PRA violation
because the City failed to give Rufin a five-day letter with a reasonable estimate
of production. We also conclude that the trial court erred in finding that CR 68
offers of judgment do not apply in PRA proceedings. We affirm in all other
respects.
FACTS
Rebecca Rufin worked for Seattle City Light from 1990 to 2006. While
there and shortly after leaving, she was involved as a potential witness in an
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investigation and in a separate lawsuit related to gender discrimination
allegations by other City Light employees.
In August 2011, Rufin applied for a civil and mechanical engineer
manager(CME) position with City Light. She was interviewed three times, but not
hired. When City Light relisted the CME position in April 2012, Rufin e-mailed
Mike Haynes, the director of Power and Production, and asked,"[s]o Mike, is
there any point in applying for this? I still don't understand how I failed to
measure up with the last lengthy process." CP at 298. Haynes forwarded the e-
mail to City Light employees Gary Maehara, DaVonna Johnson, and Steve Kern.
Rufin filed a complaint against City Light and its Director alleging gender
discrimination and retaliation for her involvement in the above mentioned
investigation and lawsuit. She began making numerous PRA requests to City
Light in connection with her retaliation case. Three of her requests, those made
on September 28, 2012, March 4, 2014, and March 17, 2014, are at issue in this
appeal.
On August 15, 2012, Rufin e-mailed a public disclosure request to
Maehara, City Light's Public Disclosure Officer. Rufin requested, among other
things, lap e-mails , attachments to e-mails, written correspondence, and/or
notes, to or from any employee or entity at Seattle City Light, dated January 1,
2004 or later, containing the name 'Rufin' or referring to Rebecca (Becky) Rufin."
CP at 140. The City's e-mails are automatically deleted after 45 days unless they
are saved to an archive folder or a litigation hold is placed on the account. Josh
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Walter, who worked on PRA requests, conducted a broad search and found that
there were thousands or tens of thousands of responsive records. He did not
review all the e-mails, and instead asked Rufin to refine her request. On
September 28, 2012, Rufin agreed to narrow the request to the e-mails of Jorge
Carrasco, Johnson, Kern, and Haynes that mention her name (September 28,
2012 request). Walter searched the e-mail accounts of these individuals, and
provided the responsive documents to Rufin. He did not find, and therefore did
not provide, the April 2012 Rufin e-mail that Haynes forwarded to Johnson, Kern,
and Maehara.
With her retaliation trial set to begin in April 2014, Rufin made additional
requests for documents. On March 4, Rufin requested various payroll records for
at least 49 City Light employees(March 4, 2014 request). She wrote that"TIME
IS OF THE ESSENCE, as these items may become important exhibits in a trial
scheduled for the end of March 2014." CP at 180. Walter acknowledged the
request, as well as another that Rufin had sent the day before, and estimated
that the first installment of records would be available in 20 days. Walter provided
the records on May 8.
On March 17, Rufin made another PRA request for various partial hiring
files (March 17, 2014 request). She again indicated that time was of the essence.
Walter did not send a five-day letter acknowledging the request and estimating a
time for production. But he provided the first installment of records on May 30,
2014, and completed the request on July 30, 2014.
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Meanwhile, at trial, Rufin did not have the benefit of the documents she
requested on March 4, 2014 and March 17, 2014. She also did not have the
forwarded e-mail responsive to her September 28, 2012 request. The City
prevailed at trial.
In November 2014, Rufin filed a claim alleging six violations of the PRA. In
discovery, RUfin requested e-mails bearing her name that may exist among
public disclosure officers. The City produced the forwarded e-mail. It was located
in Maehara's e-mail account, which was not searched for the September 28,
2012 request.
In June 2015, the City made Rufin a CR 68 offer of judgment for $40,000
plus reasonable attorney fees for her PRA claims. At that point, Rufin had
incurred only $12,966.11 in fees and costs. She did not accept the offer of
judgment. The City moved for summary judgment on all six PRA claims and
prevailed on two claims that were not appealed. In January 2016, the trial court
conducted a bench trial on the remaining four claims. On a CR 41(b)(3) motion,
the court dismissed the March 4, 2014 claim. At the close of trial, the court found
that the City did not violate the PRA with respect to the September 28, 2012 and
March 17, 2014 requests.
Rufin received a judgment for $1,688 for one PRA violation. She
requested $168,038.96 in fees and costs, but was awarded $33,229.12. The
court declined to shift attorney fees or costs under CR 68,finding that CR 68
does not apply in PRA cases. The court reasoned that
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it would undermine the statutory purpose of the PRA to limit Plaintiffs
recovery of costs and attorney fees. The purpose of the PRA is to
protect the sovereignty of the people of this State. RCW 42.56.020.
To assure that the public interest will be fully protected, the PRA is a
strongly worded mandate for broad disclosure of public records and
should be liberally construed to promote full access to public records,
and its exemptions are to be narrowly construed. . . . Application of
CR 68 in this context would have a chilling effect on this public policy.
CP at 1763.
Rufin appeals the dismissal of three of her PRA claims arising from the
September 28, 2012, March 4, 2014, and March 17, 2014 requests. The City
cross-appeals the trial court's finding that CR 68 does not apply to the PRA.
DISCUSSION
September 28, 2012 Request
Rufin argues that the search in response to her September 28, 2012
request was not reasonable because it did not follow an "obvious lead" to search
Maehara's e-mail account.
When the trial court has weighed the evidence in a bench trial, we review
whether the court's findings of fact are supported by substantial evidence and, if
so, whether the findings support the conclusions of law. Panorama Vill.
Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wash. App. 422, 425, 10
P.3d 417(2000); Zink v. City of Mesa, 140 Wash. App. 328, 337, 166 P.3d 738
(2007). Whether the findings of fact support the conclusions of law is a question
of law that we review de novo. Sunnyside Valley Irr. Dist. v. Dickie, 149 Wash. 2d
873, 880, 73 P.3d 369(2003). The City bears the burden to establish that it
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No. 74825-4-1/6
responded adequately to record requests.' Block v. City of Gold Bar, 189 Wn.
App. 262, 270, 355 P.3d 266(2015) rev. denied, 184 Wash. 2d 1037 (2016).
Government agencies must disclose public records upon request.
The PRA is a strongly worded mandate for broad disclosure of
public records. Passed by popular initiative, it stands for the
proposition that 'full access to information concerning the conduct
of government on every level must be assured as a fundamental
and necessary precondition to the sound governance of a free
society.' Agencies are required to disclose any public record on
request unless it falls within a specific, enumerated exemption.
Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wash. 2d
702, 714-15, 261 P.3d 119(2011)(quoting Progressive Animal Welfare Soc'y v.
Univ. of Wash., 125 Wash. 2d 243, 251, 884 P.2d 592(1994)(citations omitted)). To
adequately disclose documents, the agency must conduct an adequate search
for records.
[T]he focus of the inquiry is not whether responsive documents do
in fact exist, but whether the search itself was adequate. The
adequacy of a search is judged by a standard of reasonableness,
that is, the search must be reasonably calculated to uncover all
relevant documents. What will be considered reasonable will
depend on the facts of each case. When examining the
circumstances of a case, then, the issue of whether the search
was reasonably calculated and therefore adequate is separate
from whether additional responsive documents exist but are
not found.
1 In their appellate briefs, the City and Rufin each argue that the other bore the burden of
proof at trial. But neither party clearly presented this issue to the trial court to rule on, and the trial
court did not make such a ruling. In addition, the appellant does not assign error to a decision on
the burden of proof. It does appear that the burden of proof is on the City in a trial for PRA
violations. RCW 42.56.550; Block, 189 Wash. App. at 270. It also appears that the trial court may
have placed the burden on Rufin. But, even if a trial court errs in its ruling on the burden of proof,
its judgment may be sustained if it is supported by the record. Curtiss v. Young Men's Christian
Ass'n of Lower Columbia Basin, 82 Wash. 2d 455, 465, 511 P.2d 991 (1973). We conclude that to
the extent that the trial court did err in placing the burden on Rufin, the error is harmless. We
have reviewed all the evidence, and it clearly establishes that there were no PRA violations
except where indicated otherwise herein.
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No. 74825-4-1/7
Additionally, agencies are required to make more than a
perfunctory search and to follow obvious leads as they are
uncovered. The search should not be limited to one or more places
if there are additional sources for the information requested.
Indeed,'the agency cannot limit its search to only one record
system if there are others that are likely to turn up the information
requested.' This is not to say, of course, that an agency must
search every possible place a record may conceivably be
stored, but only those places where it is reasonably likely to
be found.
Id. at 719-20 (quoting Oglesby v. U.S. Dep't of Army, 287 U.S. App. D.C. 126,
920 F.2d 57,68(D.C. Cir. 1990)(emphasis added)(citations omitted)).
Rufin's September 28, 2012 request asked for "all e-mails by or between
Davonna [sic] Johnson, Jorge Carrasco, Steve Kern, Mike Haynes, and/or any
individual in the Law Department that mention my name or the[CM E] manager
hiring process." CP at 151. Rufin sent this request to Walter, who then searched
the e-mail accounts of Johnson, Carrasco, Kern, and Haynes. Walter did not
search Maehara's e-mails (where the forwarded Rufin e-mail was eventually
found in discovery) because he was not among the individuals listed, nor was he
in the Law Department. This search was reasonably calculated to uncover any e-
mails by Johnson, Carrasco, Kern, or Haynes, which were the subject of the
September 28, 2012 request.
Rufin argues that the trial court erred in concluding that the search was
adequate. She contends that because Maehara received the original August 15,
2012 request, and the forwarded Rufin e-mail in April 2012, he should have
known that his account was an obvious lead that must be searched
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No. 74825-4-1/8
under Neighborhood Alliance. But Rufin failed to present any evidence that
Maehara remembered, or even saw, the e-mail in question. Maehara's account
was not a place reasonably likely to find e-mails by or between Johnson, Kern,
Carrasco, Haynes, and/or the Law Department.
To determine whether a search is reasonable, we focus not on whether a
document exists that is responsive to the request, but on the nature of the search
process. We conclude that the trial court did not err in finding that the City
conducted a reasonable search in response to the September 28, 2012 request.
March 4, 2014 Request
Rufin argues that the trial court erred in finding that City Light responded
to her March 4, 2014 request in reasonable time. She contends that the court
should have considered whether City Light acted diligently to meet their self-
imposed deadline, rather than looking only at its diligence after the deadline.
If the trial court dismisses a claim as a matter of law on a CR 41(b)(3)
motion to dismiss, we review de novo whether the plaintiff presented a prima
facie case, viewing the evidence in the light most favorable to the plaintiff. In re
Dependency of Schermer, 161 Wash. 2d 927, 939-40, 169 P.3d 452 (2007). An
agency must respond to a request for public records within five business days by
providing the records, denying the request, or providing a reasonable timeframe
within which to respond to the request. RCW 42.56.520. An agency need not
meet its estimated time of responding to a PRA request so long as it responds
with "reasonable thoroughness and diligence." Andrews v. Wash. State Patrol,
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No. 74825-4-1/9
183 Wash. App. 644, 653, 334 P.3d 94(2014). Whether an agency responded
diligently to a PRA request is a fact-specific inquiry decided on a case by case
basis. Id.
Rufin asked for various City Light payroll records in her March 4, 2014
request. She had made another PRA request the day before. On March 7, Walter
acknowledged the March 4 request and estimated that he would provide the
records within 20 days. He contacted Human Resources on March 21,
requesting that payroll start pulling records to fulfill the request. Human
Resources provided the records on April 8. Walter completed review and gave
them to Rufin 65 days after her request.
Rufin contends that Walter's dilatory request for payroll records violated
the PRA. But during this time, Walter was also working on two other requests by
Rufin. Walter testified that he put the request "in the queue along with any other
requests that I was receiving at the time." Verbatim Report of Proceedings(VRP)
at 128. He testified that at the time, he was also working on a number of other
requests, one of which was very complex. Under these circumstances, producing
records within 65 days is not unreasonable. While Rufin is correct that the trial
court should have included the period before Walter's self-imposed deadline in its
diligence analysis, we review de novo whether there is prima facie evidence of a
violation and conclude that the trial court did not err in this regard. The City
responded diligently to Rufin's March 4, 2014 request.
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March 17, 2014 Request
Rufin argues that the trial court erred in concluding that the City
responded to her March 17, 2014 request in a reasonable amount of time
because she did not get documents before her trial. She also points out that
RCW 42.56.520 requires a response from the agency within five days, and the
City did not provide such a five-day response. The City contends that Rufin
waived the five-day response argument. But we find that Rufin briefed the issue
sufficiently to allow the City the opportunity to respond.
An agency must respond promptly to a public records request.
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."
RCW 42.56.520. The trial court found, and substantial evidence supports, that
the City did not comply with this provision because it did not provide records,
deny the request, or acknowledge the request with a time estimate within five
days. Given this finding of fact, the trial court's conclusion of no PRA violation
does not flow. The City's failure to provide a response under RCW 42.56.520
violates the PRA.
In spite of this violation, the record supports the trial court's conclusion
that the City produced the documents within a reasonable amount of time. The
trial court found that the City provided the records 74 days after the request,
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No. 74825-4-1/11
while also fielding Rufin's March 4 request. It also found that to fully satisfy her
request, the City was required to find records in storage and to conduct additional
inquiries through the Human Resources Department.2 It is true that the records
were produced after Rufin's trial, and that the City was aware of her trial date.
But a "delayed response by the agency, especially in circumstances making time
of the essence" is an aggravating factor in the penalty phase, after a violation of
the PRA is established. Yousoufian v. Office of Ron Sims, 168 Wash. 2d 444, 467,
229 P.3d 735 (2010). The trial court did not err in concluding that the City's
response to the March 17, 2014 request was reasonable.
RCW 42.56.550(4) authorizes a penalty for the denial of the right to
inspect or copy a public record, but does not authorize a freestanding penalty for
lack of a five-day letter. Sanders v. State, 169 Wash. 2d 827, 860, 240 P.3d 120
(2010). Therefore, there was no error as to imposition of a penalty. But we
nevertheless remand the case for recalculation of attorney fees, as Rufin is
entitled to fees for the March 17, 2014 request.
CR 68 Offer of Judgment
On cross appeal, the City argues that the trial court erred in ruling that CR
68 offers of judgment do not apply to the PRA.
A trial court's interpretation of a statute is a question of law that we review
de novo. In re Det. of Williams, 147 Wash. 2d 476, 486, 55 P.3d 597(2002)
2 This finding of fact is set out in the trial court's conclusions of law. But we review a
finding of fact erroneously labeled as a conclusion of law as a finding of fact. Scott's Excavating
Vancouver, LLC v. Winlock Properties, LLC, 176 Wash. App. 335, 342, 308 P.3d 791 (2013)(citing
Willener v. Sweetinci, 107 Wash. 2d 388, 394, 730 P.2d 45(1986)).
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No. 74825-4-1/12
(citing Western Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash. 2d 599,
998 P.2d 884 (2000)).
CR 68 is a means by which litigating parties may settle and have judgment
entered on a pending claim.
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party
an offer to allow judgment to be taken against the defending
party for the money or property or to the effect specified in the
defending party's offer, with costs then accrued. If within 10
days after the service of the offer the adverse party serves
written notice that the offer is accepted, either party may then
file the offer and notice of acceptance together with proof of
service thereof and thereupon the court shall enter judgment.
CR 68. "If the judgment finally obtained by the offeree is not more favorable than
the offer, the offeree must pay the costs incurred after the making of the offer."
Id. This provides a tactical advantage intended to encourage settlement.
The civil rules "govern the procedure in the superior court in all suits of a
civil nature" except "where inconsistent with rules or statutes applicable to special
proceedings. . . ." CR 1; CR 81(a). An action under the PRA is not a special
proceeding. Spokane Research & Def. Fund v. City of Spokane, 155 Wash. 2d 89,
104, 117 P.3d 1117 (2005). Courts consistently apply the civil rules to PRA
proceedings. Id. at 105("normal civil procedures are an appropriate method to
prosecute a claim under the liberally construed PDA."); Neighborhood Alliance,
172 Wash. 2d at 716 ("the civil rules control discovery in a PRA action."); John Doe
G v. Dep't of Corr., 197 Wash. App. 609, 391 P.3d 496, 506(2017), petition for rev.
granted, Wn.2d. , 397 P.3d 1009(2017)("the normal civil rules apply to
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No. 74825-4-1/13
PRA proceedings. Thus, the rule governing class certification, CR 23, controls
here."). Because caselaw clearly establishes that an action under the PRA is not
a special proceeding, the civil rules apply.
Rufin argues, however, that CR 68 is inapplicable to the PRA because the
statute's attorney fee provision mandates an award of costs and reasonable
attorney fees to a prevailing person. That provision states:
[a]ny 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.
RCW 42.56.550(4). Rufin argues that CR 68 conflicts with this fee provision
because it would require a plaintiff to bear her own fees and costs incurred after
rejecting an offer of judgment if she did not achieve a more favorable result at
trial. The vital public policy of the PRA is to promote access to public records.
Am. Civil Liberties Union of Wash. v. Blaine Sch. Dist. No. 503, 95 Wash. App. 106,
115, 975 P.2d 536(1999). To that end, the PRA "provides for a more liberal
recovery of costs. . ." Id. But liberal recovery is not unlimited, as has been made
clear by recent cases affirming significant reductions of PRA fee awards. See
Sanders, 169 Wash. 2d at 865-68; Cedar Grove Compostinci, Inc. v. City of
Marysville, 188 Wash. App. 695, 731, 354 P.3d 249 (2015). Costs and attorney
fees are subject to a reasonableness requirement. ACLU, 95 Wash. App. at 117;
Cedar Grove, 188 Wash. App. at 729.
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No. 74825-4-1/14
Applying CR 68 to the PRA is a reflection of this reasonableness
requirement: if a plaintiff fails to improve her position at trial, the costs and
attorney fees associated with the additional litigation are not reasonable, and
may be limited pursuant to CR 68. The reasonableness requirement inherent in
CR 68 is not in conflict with the PRA provision that the prevailing party "shall be
awarded all costs, including reasonable attorney fees, incurred in connection with
such legal action." RCW 42.56.550(4).
In addition, Rufin fails to distinguish the language in the PRA attorney fee
provision from similar statutes that are subject to CR 68 and provide for attorney
fees to the prevailing plaintiff. The Washington Law Against Discrimination
(WLAD), chapter 46.60 RCW,employs similar mandatory language regarding
imposition of attorney fees, and CR 68 has been applied to such disputes.3
Minger v. Reinhard Distrib. Co., 87 Wash. App. 941, 947, 943 P.2d 400 (1997);
Lietz v. Hansen Law Offices, P.S.C., 166 Wash. App. 571, 584, 271 P.3d 899
(2012).
Rufin also argues that the trial court correctly reasoned that applying CR
68 would have a chilling effect on actions to access public records. The City
argues that CR 68 is good public policy because it promotes the settlement of
PRA disputes. In spite of concerns about a chilling effect on litigation brought in
3 The WLAD states:"Any person deeming himself or herself injured by any act in violation
of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further
violations, or to recover the actual damages sustained by the person, or both, together with the
cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by
this chapter. .. ." RCW 49.60.030(2).
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No. 74825-4-1/15
the public interest, courts have nevertheless applied CR 68 to other remedial
statutes such as the Consumer Protection Act, chapter 19.86 RCW,and the
WLAD. Critchlow v. Dex Media West, Inc., 192 Wash. App. 710, 368 P.3d 246, rev.
denied, 186 Wn.2d 1012(2016)(CPA); Johnson v. State, Dep't of Trans., 177
Wash. App. 684, 313 P.3d 1197(2013)(WLAD). The public policy goal of
encouraging settlement of lawsuits is equally applicable to the disputes under the
PRA.
Rufin argues that CR 68 would discourage an individual from bringing a
claim for a PRA violation that does not support a freestanding penalty because in
such a case, a plaintiff can be a prevailing party but not improve her financial
position at trial. This may be so, but CR 68 is nonetheless an appropriate tool for
resolving such violations of the PRA. It does not discourage a citizen from
bringing an enforcement action. It promotes reasonable, prompt, and proportional
resolution of PRA violations.
We reverse the trial court's finding that CR 68 does not apply to actions
under the PRA.
Attorney Fees
Rufin requests attorney fees on appeal under RCW 42.56.550(4), which
provides that attorney fees and costs be awarded for "[a]ny 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
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No. 74825-4-1/16
within a reasonable amount of time." Rufin prevails on appeal and therefore is
awarded her reasonable attorney fees.
Reversed and remanded for further proceedings consistent with this
opinion.
WE CONCUR:
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