Lori Shavlik v. City Of Gold Bar ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LORI SHAVLIK,
No. 78422-6-1
Appellant,
DIVISION ONE
V.
UNPUBLISHED OPINION
CITY OF GOLD BAR,
Respondent. FILED: September 16, 2019
APPELWICK, C.J. — Shavlik made a public records request for a 2009 e-mail
sent to the City's former mayor. She sued the City after it produced the e-mail,
alleging that it violated the Public Records Actl by withholding records not exempt
from public disclosure and refusing to produce the e-mail in its native format with
metadata. The trial court denied her motion to subpoena the City's former and
current mayors, and dismissed her claims on summary judgment. Shavlik argues
that the trial court violated her right to conduct discovery and erred in holding that
the City did not have to produce the e-mail in its native format with metadata. She
also contends that the City failed to provide an adequate exemption log. We affirm.
FACTS
On March 5, 2017, Lori Shavlik made the following public records request
to the City of Gold Bar (City): "Pursuant to [chapter]42.56!RCM please provide:
ef-lmail in native format with metadata sentfrom Barbara Johnson to Crystal
1 Chapter 42.56 RCW.
No. 78422-6-1/2
Hill on March 2, 2009, (only format acceptable would be fpersonal storage
table (PST)1)." Crystal Hill Pennington is the City's former mayor. The City
responded two days later, stating that her request would be ready by May 12,2017.
On April 17, 2017, the City produced several documents in response to
Shavlik's request. This production included a March 2, 2009 redacted e-mail from
Johnson to Hill Pennington, a document stating that there was no metadata, a key
to public record exemptions for the City, and an exemption log listing one redaction
in the e-mail string. The City sent the documents to Shavlik by e-mail in portable
document format(PDF). Once exempt information is redacted from an e-mail, the
e-mail cannot be provided in native format, or else the requester would be able to
view the exempt information.
Shavlik continued to request the e-mail in native or PST format with
metadata. In response, the City explained that, due to the redaction, "there is no
native format of this e-mail." On November 29, 2017, Shavlik sued the City,
alleging that it violated the Public Records Act (PRA), chapter 42.56 RCW. She
specifically alleged that the City withheld records not exemptfrom public disclosure
and refused to produce the e-mail "in native searchable format including metadata
as requested."
On January 22, 2018, Shavlik obtained a commissioner's signature ex parte
on a subpoena for Hill Pennington's deposition. Shavlik never served a copy of
the subpoena on the City. After learning of the subpoena from Hill Pennington, the
City moved to quash it. A commissioner granted the City's motion and ordered the
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No. 78422-6-1/3
parties to "obtain permission from this court for future depositions, requiring timely
notice to all counsel of record."
On March 15, 2018, Shavlik filed a motion for partial summary judgment as
to the City's alleged PRA violations, and a motion for in camera review. She asked
the trial court to review "the e[-]mail in native format with metadata .. . and in the
paper format provided to [Shavlik]."
Shavlik then filed a motion for subpoenas of three witnesses: (1) Hill
Pennington, (2) William Clem, the City's current mayor, and (3) Michael Meyers,
the City's information technology (IT) consultant. The City opposed Shavlik's
motion, arguing (1)that it was moot, given her pending summary judgment motion,
and (2) that Hill Pennington and Clem's depositions were not likely to lead to the
discovery of admissible evidence. On April 13, 2018, a commissioner denied
Shavlik's motion for subpoenas as to Hill Pennington and Clem.2
The same day, the City filed its own motion for summary judgment.3 Three
days later, Shavlik filed a motion to modify the commissioner's ruling regarding her
motion for subpoenas. The trial court denied the motion. Shavlik then filed, on
May 15, 2018, a second motion for partial summary judgment, and a second
motion for in camera review.
2 The commissioner reserved the motion as to Meyers, because his
deposition was not scheduled to occur until after the motion for summary judgment.
She stated that the motion could be reviewed at the hearing on the City's motion
for summary judgment.
3 It is unclear what happened to Shavlik's pending motions for partial
summary judgment and in camera review. The City notes that Shavlik struck her
motion for partial summary judgment after her motion for subpoenas was denied,
but it does not provide a citation to the record.
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No. 78422-6-1/4
The trial court heard the City's motion for summary judgment on May 22,
2018. At the hearing, Shavlik agreed that it would be appropriate for the trial court
to conduct an in camera review of the unredacted e-mail to determine whether it
was subject to attorney-client privilege. The City then provided the e-mail to the
trial court.
After conducting its in camera review, the trial court found that the redaction
contained an attorney-client communication,"and therefore the City's assertion of
attorney client privilege is well-founded." The trial court also granted the City's
summary judgment motion. It held:
While Ms. Shavlik asserts that the [City] had the ability to provide the
e[-]mail in native format, with metadata, she has submitted no
evidence to that effect. The [City] has submitted declarations to the
contrary. While . . . Shavlik finds the declarations not credible, it is
not appropriate for the Court to assess credibility at a summary
judgment hearing. Therefore, the City's position is unrefuted. The
City timely complied with the public records request. The City's
privilege log was sufficient. The in camera review reveals no
violation of the statutory attorney client exemption. Therefore,
summary judgment is appropriate in this case.
(Italics omitted.) Shavlik appeals.
DISCUSSION
Shavlik makes three arguments. First, she argues that the trial court
violated her right to conduct discovery in denying her motion to subpoena Hill
Pennington and Clem. Second, she argues that the trial court erred in holding that
the City did not have to produce the requested e-mail "in native format with
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No. 78422-6-1/5
metadata." Third, she argues that the City failed to provide an adequate exemption
log, thereby making her the prevailing party.4
The PRA mandates the broad disclosure of public records. Resident Action
Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013).
Agencies must disclose any public record on request unless it falls within a
specific, enumerated exemption. Neigh. Alliance of Spokane County v. Spokane
County, 172 Wn.2d 702, 715, 261 P.3d 119(2011). "The burden is on the agency
to show a withheld record falls within an exemption, and the agency is required to
identify the document itself and explain how the specific exemption applies in its
response to the request." Id.We review challenges to an agency action under the PRA de novo. RCW
42.56.550(3); Resident Council, 177 Wn.2d at 428. We review interpretations of
law de novo. Neigh. Alliance, 172 Wn.2d at 715. And, we review grants of
summary judgment de novo, engaging in the same inquiry as the trial court. Id.Summary judgment is appropriate only when no genuine issue exists as to
any material fact, and the moving party is entitled to judgment as a matter of law.
Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). If a plaintiff "'fails to
make a showing sufficient to establish the existence of an element essential to that
4 InShavlik's issue statements, she also appears to argue that the trial court
was required to review the requested e-mail "in native format with metadata" in
conducting its in camera review. However, she provides no authority to support
this proposition, and does not address it in the remainder of her brief. "Where no
authorities are cited in support of a proposition, the court is not required to search
out authorities, but may assume that counsel, after diligent search, has found
none." DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193(1962). Accordingly, we reject Shavlik's argument.
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No. 78422-6-1/6
party's case, and on which that party will bear the burden of proof at trial,"
summary judgment is proper. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d
216, 225, 770 P.2d 182 (1989)(quoting Celoiex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986)), overruled on other grounds by 130
Wn.2d 160, 922 P.3d 69(1996).
I. Discovery
Shavlik argues first that the trial court violated her right to conduct discovery
in denying her motion to subpoena Hill Pennington and Clem.
The civil rules control discovery in a PRA action. Neigh. Alliance, 172
Wn.2d at 716. Under CR 26(b)(1), "[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action." If information is relevant, "[l]t is not ground for objection that the
information sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence." Id. It is
within the trial court's discretion to narrow discovery, but "it must not do so in a way
that prevents discovery of information relevant to the issues that may arise in a
PRA lawsuit." Neigh. Alliance, 172 Wn.2d at 717. We review a trial court's
discovery orders for abuse of discretion. Cedell v. Farmers Ins. Co. of Wash., 176
Wn.2d 686, 694, 295 P.3d 239(2013).
A. Hill Pennington
Shavlik sought to depose Hill Pennington because she is the City's former
mayor and received the requested e-mail. Shavlik also noted that Hill Pennington
had the City's "[attorney] fill out her declaration in this case." The trial court denied
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No. 78422-6-1/7
Shavlik's motion to subpoena Hill Pennington because the City had already
stipulated that she received the e-mail. It held that her testimony was not likely to
lead to admissible evidence at trial.
Shavlik alleged the following in her complaint:
3.2 The City has violated [chapter 42.56 RCVV] by withholding
records that are not exempt from public disclosure or which should
have been redacted rather than withheld in their entirety.
3.3 The City has violated [chapter 42.56 RCVV] by refusing to
adequately respond to Plaintiff's public records request it labeled
PRR.
3.4 The City has violated [chapter 42.56 RCVV] by refusing to
produce responsive records in native searchable format including
metadata as requested.
3.5 The City has violated [chapter 42.56 RCW's] mandate that
it must provide the "fullest assistance to the []requester" when
Plaintiff requested that all records be e[-]mailed or sent by drop box.
Hill Pennington is the City's former mayor. She is not the City's public
records officer, nor is she responsible for responding to public records requests.
And, the City stipulated that she received the e-mail. Thus, whether she received
it is not at issue.
A party may obtain discovery through deposition if the information sought is
relevant to the pending action, and appears reasonably calculated to lead to the
discovery of admissible evidence. CR 26(a)-(b)(1). Because Hill Pennington was
not involved with the e-mail's production or redaction, it is unclear what other
information she has that would be reasonably calculated to lead to the discovery
of admissible evidence regarding Shavlik's allegations. Her motion for a subpoena
does not address this question, and she fails to address it on appeal.
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No. 78422-6-1/8
As the party seeking to depose Hill Pennington, it is Shavlik's burden to
establish that her deposition was reasonably calculated to lead to the discovery of
admissible evidence. The City explained factually why the deposition would not
do so. Shavlik offered no facts to rebut the City's argument. It was within the trial
court's discretion to weigh the evidence and deny her motion.
Accordingly, the trial court did not abuse its discretion in denying Shavlik's
request to subpoena Hill Pennington for a deposition.
B. Clem
Shavlik sought to depose Clem because he is the City's current mayor "and
has personal knowledge of the records and location in question." She also stated
that Clem "is relevant[because he has] knowledge, control[,] and power over these
records." The trial court denied Shavlik's motion to subpoena Clem because he
was not the City's mayor at the time of the e-mail, and the City had already
stipulated to receiving the e-mail. It held that his testimony was not likely to lead
to admissible evidence at trial.
Clem is the City's current mayor. He is not the City's public records officer,
nor is he responsible for responding to public records requests. He stated in a
declaration that he was not involved in Shavlik's request, and does not have
personal knowledge of it. And, the City stipulated that the e-mail is in its custody
and control. Thus, its location is not at issue.
Again, because Clem was not involved with the e-mail's production or
redaction, it is unclear what information he has that would be reasonably calculated
to lead to the discovery of admissible evidence regarding Shavlik's allegations.
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No. 78422-6-1/9
Shavlik failed to address this question in her motion, and does not address it on
appeal. As the party seeking to depose Clem, she had the burden to establish that
his deposition was reasonably calculated to lead to the discovery of admissible
evidence. The City provided a factual basis to rebut her assertion that Clem had
personal knowledge of the records or control over them. Shavlik offered no facts
to the contrary. It was within the trial court's discretion to weigh the evidence and
deny her motion.
As a result, the trial court did not abuse its discretion in denying her request
to subpoena Clem.
The trial court did not violate Shavlik's right to conduct discovery.
II. Native Format and Metadata
Shavlik argues second that the trial court erred in holding that the City did
not have to produce the e-mail "in native format with metadata" despite her
request. In doing so, she contends that it violated the holding in O'Neill v. City of
Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010).
In O'Neill, the State Supreme Court held that an electronic version of a
record, including its embedded metadata, is a public record subject to disclosure.
Id. at 147. The City argues that there was no metadata associated with the "sent"
e-mail that Shavlik requested. Meyers, the City's IT consultant, stated in a
declaration that "[o]nly once an e[-]mail is received by someone does it have
metadata attached to it." And, that is why the City attached a document to its
response stating that there was no metadata.
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No. 78422-6-1/10
But, in her request, Shavlik sought an e-mail "sent from Barbara Johnson
to Crystal Hill." She did not request a copy of the e-mail from the sender, Johnson.
She requested a copy of the e-mail sent to Hill Pennington. Necessarily, this
means that she sought a copy of the e-mail Hill Pennington received. Meyers
stated in a declaration that an e-mail has metadata attached to it once it is received
by someone. The City does not argue that it lacks a copy of the e-mail Hill
Pennington received or that the e-mail she received did not have metadata
attached.
While an electronic version of a record is subject to disclosure, "[n]othing in
the PRA obligates an agency to disclose records electronically." Benton County
v. Zink, 191 Wn. App. 269, 281, 361 P.3d 801 (2015). Rather,
Reasonableness and technical feasibility are the touchstones
for providing electronic records. An agency should provide
reasonably locatable public records in either their original generally
commercially available format (such as an Acrobat PDF® file) or, if
the records are not in a generally commercially available format, the
agency should provide them in a reasonably translatable electronic
format if possible.
WAC 44-14-05001.
The City provided the requested e-mail in PDF format. Jones explained in
her declaration that "[o]nce exempt information is redacted from an e[-]mail, the e[-
Jmail cannot be provided in the native format or the recipient would be able to
review the redacted information." Shavlik did not provide evidence that the City
could, in fact, produce the e-mail in native format without revealing the redacted
material. Nor does she cite authority requiring it to do so when the production will
reveal a privileged communication. The attorney client privilege in RCW
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No. 78422-6-1/11
5.60.060(2) protects confidential communications between an attorney and a client
from discovery or public disclosure. Mechlinp v. City of Monroe, 152 Wn. App.
830, 852, 222 P.3d 808 (2009).
The record does not indicate that the City was unable to produce a non-
native version, such as a PDF, of the received e-mail's metadata without revealing
the redacted material. But, Shavlik requested the e-mail in native (digital) format
with metadata, not in paper format. Accordingly, due to the presence of the
properly redacted material, the City was not required to produce the e-mail in
native format with metadata.
The trial court did not err in granting the City summary judgment on this
issue.
III. Exemption Log
Shavlik argues last that the City failed to provide an adequate exemption
log. Specifically, she asserts that the City "failed to explain why only paper was
provided and why only pages one and six were provided with no explanation [as
to] why pages two, three, four[,] and five were not provided . . . and were not
logged." She states that the City's failure to provide an adequate log makes her
the prevailing party.
"When an agency withholds or redacts records, its response 'shall include
a statement of the specific exemption authorizing the withholding of the record (or
part) and a brief explanation of how the exemption applies to the record withheld."
City of Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335(2014)(quoting RCW
42.56.210(3)). The plain language of RCW 42.56.210(3) requires that an agency
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No. 78422-6-1/12
identify with particularity the specific record information being withheld, and the
specific exemption authorizing the withholding. Id. "The log should include the
type of information that would enable a records requester to make a threshold
determination of whether the agency properly claimed the privilege." Gronguist v.
Dep't of Licensing, 175 Wn. App. 729, 744, 309 P.3d 538 (2013).
In Block v. City of Gold Bar, this court held that the City's privilege log for
redacted documents was adequate when, apart from citing an exemption, the City
included a brief explanation. 189 Wn. App. 262, 286, 355 P.3d 266 (2015). For
example, the City stated, "'content is attorney advice to client," and "'content is
requesting attorney advice." jçj. This court found that "the log's descriptions of
the redacted content and its brief explanations allowed Block to make threshold
determinations about whether the claimed exemptions were valid." Id. at 286-87.
Here, the City made one redaction on the second page of the e-mail. It
provided Shavlik with an exemption log, and a key to that log. In a column titled
"Redaction Key," the log states la." According to the City's key, code "la" means
"Medacted content is communication between client and attorney for the purpose
of obtaining or providing legal advice exempt from disclosure." This explanation is
almost identical to the City's explanation in Block, allowing Shavlik to make a
threshold determination about whether the claimed exemption is valid.
Shavlik's argument regarding missing page numbers implies that the City
withheld information from the requested e-mail, and failed to include those
withholdings in the exemption log. The March 2, 2009 e-mail string that the City
produced includes consecutive pages numbered "1" and "6."
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No. 78422-6-1/13
Meyers stated in his declaration that he viewed the e-mail in both native and
PDF formats, and that there is no missing information in the PDF version. The
original e-mail has no page numbers, and he "cannot explain definitively" why the
page numbers in the PDF version "go from [one to six]." He observed,
It is possible that several sheets of paper were stuck together and
the printer interpreted the second page as the sixth. It is my
understanding from the sworn testimony of former Mayor Joe
Beavers, who I have worked with for approximately [10] years, that
the City's former copier often skipped pages and had to be replaced
in August of 2009. This could very well explain the numbering
discrepancy.
Nonetheless, he maintained that "[t]here would not have been a page [two, three,
four, or five] printed out because there is no further information in the e[-]mail that
would have printed on those pages." Jones also verified that there is no missing
information or record that was withheld from disclosure.5
Shavlik did not provide any evidence to contradict Meyers and Jones's
declarations that there is no missing information in the PDF version. Having seen
both versions of the email, the trial court was in a position to determine factually
whether the version provided to Shavlik was missing information compared to the
version viewed in camera. Thus, there is no genuine dispute of material fact as to
whether the City failed to include any withholdings in its exemption log. The City's
exemption log was adequate.
5For the trial court's in camera review, the City provided it with a sealed
envelope containing an unredacted copy of the e-mail. There was no exhibit in the
record on review, but because the e-mail was contained in an envelope, we
presume that the trial court reviewed the e-mail in paper, not native, format.
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No. 78422-6-1/14
Accordingly, the trial court did not err in granting the City summary judgment
on this issue.6
We affirm.
WE CONCUR:
6 Shavlik requests "fees, cost[s], and expenses associated with her appeal."
"A prevailing party may recover attorney fees only if provided by statute,
agreement, or equitable principles." Tacoma Northpark, LLC v. NW,LLC, 123 Wn.
App. 73, 84, 96 P.3d 454(2004). Because Shavlik does not prevail on appeal, we
deny her request.
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