Eric Hood v. City Of Langley ( 2019 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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ERIC HOOD, an individual, ) No. 77433-6-1
V.?
)
Appellant, ) DIVISION ONE 01
)
) UNPUBLISHED OPINION
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CITY OF LANGLEY, a public agency, )
)
Respondent. )
) FILED: January 28, 2019
ANDRUS, J. — Eric Hood appeals the summary judgment dismissal of his
Public Records Act claims against the City of Langley. Because there are issues
of fact as to the adequacy of the City's search and compliance with the PRA, we
reverse.
FACTS
Former Langley Mayor Fred McCarthy left office on December 31, 2015.
When his term ended, McCarthy left all of his records in his former office, including
six boxes and his City-issued laptop McCarthy informed the City Clerk, Debbie
Mahler, who was in charge of records requests, that he was leaving the records in
the office to comply with public records laws.
On January 5, 2016, Eric Hood e-mailed a public records request to the
City. The request sought:
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[A]ll journals, diaries, notebooks, daily calendars, the small pocket
notebooks, and any handwritten records or handwritten comments
or marginalia or transcribed comments on any records . . . kept or
created by former Mayor Fred McCarthy.
[A]ny comments dictated by Fred McCarthy, whether recorded by
himself or others, not to include videotapes or audiotapes of Council
meetings.
[A]ll city records ... that are or were maintained in the locked cabinet
in former Mayor McCarthy's locked office, at his home, or on his
personal computer or any other personal device, even if the records
in those locations contain both city and McCarthy's personal
information.
[A]ll records showing the retention schedule for the above requested
documents, and any records showing whether any of the above
documents or portions thereof have been destroyed.
The date range for this request extends from McCarthy's first day in
office to the present.
Please provide an exemption log for any records or portions of
records that you withhold.
CF 148.
On January 8, 2016, Mahler responded to Hood's request via e-mail.
We have received your request for records relating to Mayor Fred
McCarthy. He had no dictation or recordings other than recorded
Council meetings and no videotapes. All of Mayor McCarthy's City
records are contained in 6 boxes, 25 binders and on a laptop located
here at Langley City Hall. Due to the volume of documents, please
schedule a time to come into City Hall and review those files. Copies
can be made of any documents that you identify.
CF 147. Hood e-mailed Mahler on January 10, 2016, asking whether Mahler was
the records custodian and knew what the records contained, whether McCarthy's
pocket notebooks were among the available records, whether Mahler was
providing an exemption log, and whether any additional records were available or
if Mahler was closing the request. On January 11, Mahler replied:
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Yes, I am the records custodian, but I do not know what all is
contained in the Mayor's records. They were kept by him in his office
while he was Mayor and accessed if needed for a public disclosure
request. He then boxed them up and put them alphabetically into file
boxes and binders were kept from every meeting. Mayor McCarthy's
pocket notebooks are not included as he has stated that they were
personal notes and not related to city business. I have not redacted
or exempted anything from those files, so no exemption log is
provided. I have no other records than what we are making available
to you.
CP 146
Hood arranged to review the documents at City Hall on January 15, 2016.
The interactions between Hood and Mahler during this visit are in dispute. It is
undisputed, however, that Mahler would not allow Hood to search McCarthy's
laptop while he was there. Hood then e-mailed a specific request for "all electronic
files that reference Eric Hood or any of his dealings with the City of Langley." Hood
continued his review of documents at City Hall on January 22, 2016.
On January 27, 2016, Mahler responded to Hood's request for electronic
files and provided a redaction log. Hood later e-mailed Mahler asking to examine
McCarthy's laptop. Mahler refused, informing Hood that all electronic files
mentioning Hood had been produced. Hood again asked when he could examine
the laptop, and Mahler told Hood that, with supervision, he could view the contents
of the laptop but asked if there was something specific he was looking for, as she
did not have the time to supervise him at that time. Hood objected to the
restrictions Mahler placed on his access to the laptop, noting that in Mahler's
original reply on January 8, 2016, she had indicated all of McCarthy's records were
available for his inspection, including his laptop.
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Hood, representing himself, commenced the present action on February 16,
2016.1 Hood claimed the City withheld records in violation of the PRA. He argued
that the City had a duty to sort records according to his request and that Mahler
should have known what was contained in McCarthy's former office. He also
claimed failure to redact certain documents was a violation of the PRA. Hood
asked the court to order the City to disclose all documents, as well as an exemption
log, and asked for monetary damages, including attorney fees and statutory
penalties.
The City moved for summary judgment on May 10, 2017. The City filed
declarations from both McCarthy and Mahler. It later submitted a second
declaration from Mahler, as well as a declaration from the attorney for the City,
Jeffrey Myers, who was involved in communicating with Hood. Hood submitted a
responsive declaration challenging the City's version of events
The trial court granted summary judgment on July 11, 2017. The trial court
concluded the City provided Hood access to the requested records in a timely
manner without making any exemption claims. Furthermore, the trial court
concluded Hood modified his January 5 request on January 15, 2016, by asking
for electronic documents relating only to Hood. Finally, the trial court concluded
that while "not perfect," the City's search for the records was reasonably calculated
to uncover all relevant documents and was therefore adequate under the statute.
1 Hood had previously served the City with a summons and complaint on January 26, 2016, and
an amended complaint on February 10, 2016, but he "withdrew" service of the original complaint
and the amended complaint, citing improper service
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Hood appeals, contending that there are issues of fact as to the adequacy
of the City's search and its compliance with the PRA
ANALYSIS
Standard of Review
Judicial review of agency actions taken or challenged under the PRA is de
novo. RCW 42 56.550(3); see also Neigh. Alliance of Spokane County v. Spokane
County, 172 Wash. 2d 702, 715, 261 P.3d 119 (2011). Similarly, grants of summary
judgment are reviewed de novo. Id In a summary judgment motion, the moving
party bears the initial burden of showing there is no genuine issue of material fact.
If the moving party meets the initial showing, then the inquiry shifts to the
nonmoving party. Blocky. City of Gold Bar, 189 Wash. App. 262, 269, 355 P.3d 266
(2015). If the nonmoving party fails to make a sufficient showing of a genuine issue
of material fact, the trial court should grant summary judgment Id. A party may
not rely on allegations made in its pleadings; a party's response must set forth
specific facts showing that there is a genuine issue for trial. CR 56(e). see also
Block 189 Wn App. at 269.
Adequacy of the City's Search
Hood challenges the adequacy of the City's search. Our state Supreme
Court has held that the adequacy of a search for records under the PRA is the
same as the adequacy requirements of the Freedom of Information Act (FOIA).
"Under this approach, the focus of the inquiry is not whether responsive documents
do in fact exist, but whether the search itself was adequate." Neigh. Alliance of
Spokane County 172 Wash. 2d at 719-20. An adequate search is one that is
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No. 77433-6-1/6
reasonably calculated to uncover all relevant documents. Id at 720. Additionally,
an agency must make more than a perfunctory search and follow obvious leads as
they are uncovered. Id
An agency bears the burden of showing that its search was adequate. Id.
at 721. To establish an adequate search on summary judgment, an agency may
rely on reasonably detailed, non-conclusory affidavits submitted in good faith
Block 189 Wash. App. at 271. These affidavits should describe the search and show
that all places likely to contain responsive materials were searched. Id.
On appeal, this court examines the evidence presented by the City to
determine if it bore its burden of proof. Block 189 Wash. App. at 272. Although the
reasonableness of a search generally depends on the facts and circumstances of
each case, when reasonable persons could only conclude that the search was
reasonably calculated to uncover all relevant documents, summary judgment
would be appropriate. Id. at 274.
We reject Hood's argument that the City produced too many paper records
and failed to "search" through paper documents in McCarthy's office to pull out
those Hood does not deem responsive. Hood explicitly asked the City to produce
"all city records" maintained in a locked cabinet in McCarthy's locked office, at his
home, on his personal computer or on any personal device. Hood essentially
asked for every public record McCarthy ever had in his possession.
The trial court held, and we agree, there is no cause of action under the
PRA against an agency for producing documents to which it could have claimed
an exemption. RCW 42.56.550(1) merely provides a cause of action when a
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No. 77433-6-1/7
person is denied the opportunity to inspect or copy a requested public record.
None of the documents Hood claimed should have been withheld related to him.
Producing documents the City could have withheld does not establish the City's
search was inadequate.
Additionally, the City provided affidavits detailing the location of the
requested paper documents The City provided four declarations—one from
McCarthy, two from Mahler, and one from the City's attorney, Myers McCarthy
testified that his work-related notes were either filed in folders organized by topic,
or in one of three miscellaneous notes binders, one for each year he was in office
McCarthy also testified that before his departure, he searched his personal
computer and cell phone to ensure that no communications regarding City
business were on the devices. He informed Mahler that the records he left behind
in his office were all the public records he had.
Mahler testified that because she knew all of McCarthy's records were in
his former office at City Hall, and therefore, any available responsive documents
were inside, she did not perform a broader search for paper records in response
to Hood's January 5 request. This evidence is sufficient to demonstrate the City's
search for responsive paper documents was adequate. Partial summary judgment
was appropriate as to this element of Hood's PRA claim.
The record is less clear regarding the City's search for responsive electronic
documents. Hood requested copies of "daily calendars . . . kept or created by
former Mayor Fred McCarthy." This request included public records kept in
electronic format. Hood presented evidence that before McCarthy left the City,
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No. 77433-6-118
McCarthy informed counsel for the City that his calendars were maintained by his
administrative assistant in electronic format and that he considered the electronic
calendars to be public records. The city's attorney asked McCarthy to provide the
electronic calendars to the City Clerk to be processed and released to a prior PRA
requestor. On appeal, the City concedes the electronic calendars are public
records and accessible from McCarthy's laptop.2
Hood claims the City failed to search McCarthy's laptop and failed to
discover the responsive daily calendars. But Mahler testified she "searched the
City's computer records for responsive records" and set aside those responsive
documents for Hood to review. This testimony suggests Mahler printed copies of
responsive electronic records for Hood's review We cannot determine from
Mahler's statement whether a search of "the City's computer records" led to the
discovery or production of McCarthy's electronic calendars. We cannot find any
affirmative testimony from Hood that he was not given access to printouts of
McCarthy's electronic calendars.
Nor can we determine if a search of the City computer network would have
been duplicative of a search of McCarthy's laptop. It may be the records contained
in the City computer system are the same as those saved on the laptop. If so,
searching the laptop may have been unnecessary. There is a genuine issue of
fact as to whether the City performed an adequate search for responsive electronic
2 The City concedes that McCarthy's electronic calendars are public records subject to disclosure
under the PRA We decline, however, to establish a rule that daily calendars are always public
records subject to disclosure. See Yacobellis v City of Bellingham 55 Wn App 706, 712, 780
P.2d 272 (1989)(daily appointment calendars are not public records when created solely for
individual's convenience or to refresh writer's memory, are maintained in a way indicating a private
purpose, and are not circulated or intended for distribution within agency channels)
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No. 77433-6-1/9
documents before the City issued its January 8, 2016, response. Summary
judgment as to this element of Hood's PRA claim was error.
PRA Violations
Hood argues the City violated the PRA by failing to produce McCarthy's
electronic daily calendar records.3 As indicated above, we cannot find evidence to
substantiate one way or the other whether Hood was given access to paper copies
of these electronic records when he inspected documents at City Hall.
The City nevertheless contends it could not have violated the PRA in failing
to produce these electronic records because Hood "clarified" his January 5, 2016,
request on January 15, 2016, by asking only for electronic documents relating to
him. Hood challenges the factual assertion that his January 15, 2016, request
constituted a "clarification" of his January 5, 2016 request.4
We conclude there is a genuine issue of fact as to whether Hood intended
to narrow his January 5, 2016, request, as the City contends, or whether the
January 15, 2016, request was a new request, as Hood contends. First, when the
City sent Hood an email on January 8, 2016, it did not request a clarification
regarding the documents he sought to review on McCarthy's laptop. The City said
the documents were available for his inspection. One could reasonably assume if
the City needed clarification as to the scope of Hood's request for electronic
documents, it would have included such a request in the January 8 email.
3 Hood argued below that the City violated the PRA by failing to produce McCarthy's personal
journals The trial court held these journals were not public records subject to the PRA, and Hood
has not challenged that legal determination on appeal
Under RCW 42 56 520(1), a city has five business days in which to provide the requested records,
acknowledge the request and provide a date by which the city will respond, or request a clarification
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No. 77433-6-1/10
Second, according to Mahler, while Hood was at City Hall to review records
on January 15, 2016, Hood "orally clarified and narrowed his request to only those
records that concerned himself." Mahler testified she asked Hood to confirm this
clarification in writing and informed him it would take a couple of weeks to respond.
But Hood testified "I never altered my January 5, 2016 or January 15, 2016
requests either orally or in writing." Following his January 15 visit to City Hall, Hood
sent an email seeking "all electronic files that reference Eric Hood or any of his
dealings with the City of Langley" He did not limit this request to the contents of
McCarthy's laptop.5 Nor did Hood indicate in his January 15 email that it
constituted a modification of the January 5 request. There is nothing in the record
to indicate that after receiving the January 15 request, the City sought clarification
from Hood to confirm an intent to narrow the request for electronic records. Given
the disputed evidence, the trial court erred in granting summary judgment on
whether the City violated the PRA by failing to produce McCarthy's electronic
calendars.
Hood also argues the City violated the PRA by failing to give him unfettered
access to McCarthy's laptop to perform his own search We reject this argument.
While the purpose of the PRA is to provide "full access to public records so as to
assure continuing public confidence of fairness of elections and governmental
processes," RCW 42.17A.001, there is no right under the PRA to an "unbridled
search," Nissen v. Pierce County, 183 Wash. 2d 863, 885, 357 P.3d 45(2015).
5 Mahler and newly-elected Mayor Tim Callison, who had been reassigned the laptop, searched
the laptop for documents specifically mentioning Hood's name Mahler produced copies of records
responsive to the January 15, 2016, request on January 27, 2016, along with an exemption log
The adequacy of the search in response to the January 15 request is not an issue on appeal
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No. 77433-6-1/11
In Sperr v. City of Spokane this court rejected a requestor's claim that the
PRA entitled him to access the Spokane Police Department's computer to run his
own search for police records. 123 Wash. App. 132, 136-37, 96 P.3d 1012 (2004)
The court held that "the Act does not provide a right to citizens to indiscriminately
sift through an agency's files in search of records or information which cannot be
reasonably identified or described to the agency." Id. at 137 (internal quote marks
omitted) (citing Limstrom v. Ladenberq 136 Wash. 2d 595, 604-05. 963 P.2d 869
(1998)). The trial court correctly concluded Hood did not have the right under the
PRA to search McCarthy's laptop
Hood requests an award of appellate fees and costs. Given that a prevailing
party in a PRA action may be awarded costs and attorney fees at the discretion of
the trial court, Neigh. 172 Wash. 2d at 725, we reserve to the trial court the
appropriateness of such an award at the conclusion of the case.
For these reasons, we reverse summary judgment and remand for further
proceedings consistent with this opinion
WE CONCUR:
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