Kamal Mahmoud, / V.snohomish County ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KAMAL MAHMOUD, NO. 70757-4-1
Appellant, DIVISION ONE
UNPUBLISHED OPINION
SNOHOMISH COUNTY, a political
subdivision of Washington state,
FILED: October 27, 2014
Respondent.
Leach, J. — Kamal Mahmoud appeals trial court orders dismissing his
claims against Snohomish County (County) arising from five of six Public
Records Act1 (PRA) requests. He contends that because the County's
responses violated the PRA, no statute of limitations bars his claims. Mahmoud
also appeals the court's attorney fee award and denial of his motion for
reconsideration. The County cross appeals, arguing that the statute of limitations
bars all six of Mahmoud's claims. The County's responses to each of
Mahmoud's public records requests triggered the one-year PRA statute of
limitations, which bars all six of Mahmoud's claims. Accordingly, we affirm the
trial court as to the dismissal of five claims on the basis of the PRA statute of
limitations and reverse the trial court's order and penalties relating to the sixth
Ch. 42.56 RCW.
NO. 70757-4-1 / 2
claim. We affirm the trial court's denial of Mahmoud's motion for reconsideration
and reverse the trial court's award of costs and attorney fees.
FACTS
Mahmoud worked as a civil engineer for Snohomish County from July
2006 to December 31, 2009. In May 2009, he filed an internal Equal
Employment Opportunity (EEO) complaint, alleging unlawful discrimination
and/or retaliation. Mahmoud later made six requests to the County under the
PRA, seeking documents related to his termination.2 The County claimed a
categorical exemption for one request and produced responsive records for five
requests.
1. 09-05374
On August 3, 2009, Mahmoud requested a copy of the County's EEO
investigation file "to include all interview notes, documents, emails, and findings
related to my complaint." On August 7, the County notified Mahmoud that
responsive records were exempt from production "at this time" under RCW
42.56.250(5).3 In letters dated October 20, 2009, and February 11, 2010,
2 Mahmoud made a seventh request (10-08644) not at issue in this
appeal.
3 Former RCW 42.56.250(5) (2005) exempts from public inspection and
copying"[i]nvestigative records compiled by an employing agency conducting a
current investigation of a possible unfair practice under chapter 49.60 RCW or of
a possible violation of other federal, state, or local laws prohibiting discrimination
in employment."
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NO. 70757-4-1 / 3
Mahmoud's attorney wrote "to follow up" and "check on the status" of
Mahmoud's request for the investigation file and of a second request filed the
same day. The County did not respond to either of these letters. The EEO
investigation closed in late March 2010.
2. 09-05375
Also on August 3, 2009, Mahmoud requested "all emails sent to and from"
six county employees, "including any archived emails on the individuals [sic] C
drive, P drive, or any other county network drive," from January 1, 2008, to the
present. The County first responded on August 5, 2009, and next on October 21,
2009, when Department of Public Works Manager Pamela Miller produced a CD
(compact disc) of "approximately 4,700 emails." On April 2, 2010, Miller notified
Mahmoud that a DVD (digital video disk) with a second installment was ready for
him, along with a redaction log for both installments. On June 4, 2010, Mahmoud
e-mailed Miller that the records did not include "most of the info I requested." On
June 7, Miller responded that the County's Department of Information Services
(DIS) captured "all emails within the parameters you specified," but that due to
earlier deletions and the "state recommended archive schedule ... it may very
well be that many of the emails were not required to be retained."
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3. 10-01666
On March 15, 2010, Mahmoud requested all e-mail sent or received by
four county employees between January 1, 2009, and March 1, 2009. Mahmoud
also requested "policies or procedures related to preservation, back-up, and/or
archiving of emails by the Department of Information Services." On May 20, the
County produced an installment of records. It produced four more installments
and an exemption log on June 11, June 29, July 12, and November 22, 2010.
4. 10-05383
On July 23, 2010, Mahmoud requested
any and all entries made by [supervisor] Max Phan from January
2008 to August 2009 in his "journal" and/or other notes and files,
concerning Kamal Mahmoud. This request is intended to include
but not be limited to any entries regarding alleged complaints
regarding Mr. Mahmoud received by Mr. Phan from [certain county
employees], or any other individual.
After initially responding on July 28, the County attached to an August 16
e-mail "all documents responsive to your request." The e-mail noted that there
were no redactions and that the County withheld one document: a memorandum
from Phan to Steven Bladek "exempt from disclosure pursuant to RCW
5.60.060(2)(a)."4 The e-mail concluded, "This request is now considered closed."
In March 2012, in response to Mahmoud's discovery requests, the County
produced additional journal entries that it had not provided previously or claimed
4 RCW 5.60.060(2)(a) concerns the attorney-client privilege.
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NO. 70757-4-1 / 5
as exempt. Phan conceded in a declaration that he had "additional journal
entries related to Mr. Mahmoud and his work with the County," but that because
these were not directly related to complaints about Mahmoud, he "did not
understand his request to be seeking those records. As a result, I did not
produce those records in response to PDR #10-05383. This was a mistake on
my part."
5. 10-05392
On December 5, 2010, Mahmoud requested all e-mail sent or received by
three county employees between October 1, 2008, and January 31, 2009,
"including any archived emails on the individuals [sic] C drive, P drive, or any
other county network drive," as well as copies of policies related to e-mail
preservation. On December 9, 2010, the County produced records related to e-
mail preservation. On January 19, 2011, Miller notified Mahmoud that DIS had
completed the search and found no e-mail responsive to his request. In
response to Mahmoud's question about what happened to the e-mail, she said
that "since its [sic] 2 years ago it would be my assumption that they have been
deleted since they weren't located."
6. 10-08593
On January 14, 2011, the County produced records in response to
Mahmoud's request for e-mail records of two county employees from September
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NO. 70757-4-1 / 6
1, 2009, to December 31, 2009. On February 25 and 28, 2011, the County
produced two more installments and an exemption log.
On June 30, 2011, Mahmoud filed a complaint against the County in King
County Superior Court, alleging discrimination and retaliation.5 On August 30,
2012, sometime after receiving the County's discovery responses, Mahmoud
amended his complaint to add claims for PRA violations.
The trial court denied the County's motion for summary judgment, ruling
that Mahmoud's claims were not time barred. The court granted in part the
County's motion for reconsideration, ruling that Mahmoud's claims arising from
request 09-05374 were barred by either the one-year PRA statute of limitations,
RCW 42.56.550(6), or the general two-year statute, RCW 4.16.130. But the
court denied the County's motion for reconsideration as to Mahmoud's other five
claims, again ruling that they were not time barred.
On April 17, 2013, after a show cause hearing, the court dismissed with
prejudice Mahmoud's claims arising from requests 09-05375, 10-01666, 10-
08592, and 10-08593, ruling that the County had complied with the PRA. But the
court held that the County violated the PRA when it "failed to provide seven
journal entries and one note responsive to public records request #10-05383."
5The parties resolved these claims through mediation, and they are not at
issue in this appeal.
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The court imposed penalties of $18,0006 and awarded Mahmoud $18,055 in
attorney fees: one seventh of his request.
Mahmoud appeals the court's dismissal of five of his claims, the attorney
fee award, and denial of his motion for reconsideration. The County cross
appeals the trial court's denial of its motion for summary judgment, contending
that the trial court should have dismissed all six claims on the basis of the statute
of limitations. Mahmoud has also filed a motion to strike a portion of the County's
reply brief under RAP 10.1(c). Mahmoud seeks attorney fees and costs for his
appeal, as well as fees, costs, and sanctions for the motion to strike.
STANDARD OF REVIEW
We review agency actions under the PRA and questions of statutory
interpretation de novo.7 We also review de novo a trial court's summary
judgment decision.8 Although a party generally may not appeal denial of
summary judgment,9 we may consider this issue when it involves a purely legal
question.10 A court should grant summary judgment only if
6 The court assessed a penalty of $30 a day for a period of 600 days.
7 Neigh. Alliance of Spokane County v. County of Spokane. 172 Wash. 2d
702, 715, 261 P.3d 119 (2011); Rental Hous. Ass'n of Puqet Sound v. Citv of
Pes Moines, 165 Wash. 2d 525, 536, 199 P.3d 393 (2009); RCW 42.56.550(3).
8 Walston v. Boeing Co., 173 Wash. App. 271, 279, 294 P.3d 759 (2013),
aff'd, No. 88511-7, 2014 WL 4648090 (Wash. Sept. 18, 2014).
9 Waller v. State, 64 Wash. App. 318, 338, 824 P.2d 1225 (1992).
10 See Walston, 173 Wash. App. at 288; McKasson v. Johnson, 178 Wn.
App. 422, 423-24, 315 P.3d 1138 (2013).
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NO. 70757-4-1 / 8
"after considering all the pleadings, affidavits, depositions or
admissions and all reasonable inferences drawn therefrom in favor
of the nonmoving party, it can be said (1) that there is no genuine
issue as to any material fact, (2) that all reasonable persons could
reach only one conclusion, and (3) that the moving party is entitled
to judgment as a matter of law."[11]
Whether to award costs and attorney fees is a question of law reviewed de novo,
while this court reviews the reasonableness of attorney fee awards for abuse of
discretion.12 An abuse of discretion standard also applies to a trial court's denial
of a motion for reconsideration.13 A court abuses its discretion when its decision
is manifestly unreasonable or based upon untenable grounds or reasons.14
ANALYSIS
The PRA
The PRA "'is a strongly worded mandate for broad disclosure of public
records.'"15 Courts liberally construe the PRA in favor of disclosure and narrowly
construe its exemptions.16 The PRA requires every government agency to
produce for inspection and copying any public record upon request unless it falls
within a specific, enumerated exemption.17
11 Walston, 173 Wash. App. at 279 (quoting Baker v. Schatz, 80 Wash. App.
775, 782, 912 P.2d 501 (1996)).
12 Sanders v. State, 169 Wash. 2d 827, 866-67, 240 P.3d 120 (2010).
13 Brinnon Grp. v. Jefferson County, 159 Wash. App. 446, 485, 245 P.3d 789
(2011).
14 State v. Stenson, 132 Wash. 2d 668, 701, 940 P.2d 1239(1997).
15 Soter v. Cowles Publ'g 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)).
16 RCW 42.56.030.
17 Sanders, 169 Wash. 2d at 836; RCW 42.56.070(1).
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NO. 70757-4-1 / 9
A party must file a PRA action "within one year of the agency's claim of
exemption or the last production of a record on a partial or installment basis."18
The PRA does not require an agency to "'create or produce a record that is
nonexistent,'"19 and so an agency response may also include notice that the
requested documents do not exist.20
The agency has the burden to establish that a specific exemption
applies.21 An agency response withholding any public record "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."22 This "brief explanation" should cite the statute granting an exemption
and "'should provide enough information for a requestor to make a threshold
determination of whether the claimed exemption is proper.'"23 An insufficient
18 RCW 42.56.550(6).
19 Fisher Broad.-Seattle TV LLC v. Citv of Seattle, 180 Wash. 2d 515, 522,
326 P.3d 688 (2014 (internal quotation marks omitted) (quoting Gendler v.
Batiste 174 Wash. 2d 244, 252, 274 P.3d 346 (2012)); WAC 44-14-04004(4)(a).
20 see Greenhalgh v. Dep't of Corr., 170 Wash. App. 137, 148, 282 P.3d
1175 (2012); WAC 44-14-04004(4)(a) ("An agency is only required to provide
access to public records it has or has used. An agency is not required to create
a public record in response to a request.").
21 Neioh. Alliance, 172 Wash. 2d at 715.
22 RCW 42.56.210(3).
23 Rental Hous. Ass'n, 165 Wash. 2d at 539 (quoting WAC 44-14-
-04004(4)(b)(ii)).
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claim of exemption does not trigger the one-year statute of limitations under
RCW42.56.550(6).24
County's Cross Appeal
In its cross appeal, the County argues that the trial court erred by not
dismissing all six of Mahmoud's claims on summary judgment based on the
statute of limitations. Mahmoud argues that because the County violated the
PRA, no statute of limitations began to run. We agree with the County. In
response to each of Mahmoud's six requests, the County claimed an exemption,
produced records, or both. For each request, Mahmoud filed his PRA claim
more than one year later.
Reouest 09-05374
Mahmoud argues that the County's incomplete categorical exemption
claim for the EEO file and its failure to respond to his two "re-requests" prevented
the PRA statute of limitations from beginning to run. Citing Rental Housing Ass'n
of Puget Sound v. Citv of Des Moines,25 Mahmoud challenges the sufficiency of
the County's exemption claim because it did not "explain which individual
exemption applied to which individual record rather than categorically asserting
the investigative process exemption as to all withheld documents." Thus, he
24 Rental Hous. Ass'n. 165 Wash. 2d at 539.
25 165 Wash. 2d 525, 539-40, 199 P.3d 393 (2009).
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NO. 70757-4-1 /11
claims, just as in Rental Housing Ass'n, the County's response did not to trigger
the PRA statute of limitations.
We disagree. In Rental Housing Ass'n, the City did no more than
"generally assert[ ] the controversy and deliberative process exemptions as to all
withheld documents."26 Here, the County cited the applicable portion of the
statute, which exempts "[investigative records compiled by an employing agency
conducting a current investigation of a possible unfair practice under chapter
49.60 RCW or of a possible violation of other federal, state, or local laws
prohibiting discrimination in employment."27
Mahmoud also cites Sargent v. Seattle Police Department28 to support his
assertion that our Supreme Court "recently declined to recognize a similar
categorical exemption as proper under the PRA." But Mahmoud
mischaracterizes Sargent. In Sargent, the plaintiff requested records from the
Seattle Police Department (SPD) about criminal and internal investigations into
his confrontation with an SPD officer.29 The SPD claimed a categorical
exemption under RCW 42.56.240(1), the effective law enforcement exemption.30
26 Rental Hous. Ass'n. 165 Wash. 2d at 539-40.
27 Former RCW 42.56.250(5) (2005).
28 179 Wash. 2d 376, 314 P.3d 1093 (2013).
29 Sargent, 179 Wash. 2d at 383.
30 This provision exempts "[s]pecific intelligence information and specific
investigative records compiled by investigative, law enforcement, and penology
agencies" where nondisclosure "is essential to effective law enforcement or for
the protection of any person's right to privacy."
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The court held in Sargent that once the police referred the case to the
prosecutor, "nondisclosure [was] not categorical and automatic"31 because
"referral to prosecutors signals the police's conclusion of its investigation and is a
bright line for termination of the categorical exemption."32 But the court
reaffirmed its holding in Newman v. King County33 that to protect the integrity of
an ongoing police investigation, a categorical exemption may apply to an "'open
active police investigation file.'"34 In Newman, the court concluded that the
requested documents pertained to an open case, their production would have
placed a burden on the agency's ability to perform its given role, and the agency
still contemplated enforcement proceedings.35 Although the County did not
conduct a criminal investigation of Mahmoud's EEO claim, as in Newman the
relevant records pertained to an open case, future remedial proceedings were
possible, and production before the case was closed would have impaired the
investigating agency's ability to perform its given role. The County's explanation
provided Mahmoud with sufficient information to make a threshold determination
about the County's exemption claim and if he had a cause of action under the
PRA.
31 Sargent, 179 Wash. 2d at 388 (citing Cowles Publ'g Co. v. Spokane Police
Dep't, 139 Wash. 2d 472, 479-80, 987 P.2d 620 (1999)).
32 Sargent. 179 Wash. 2d at 389.
33 133 Wash. 2d 565, 947 P.2d 712 (1997).
34 Sargent, 179 Wash. 2d at 392 (quoting Newman, 133 Wash. 2d at 575).
35 Newman, 133 Wash. 2d at 575.
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Mahmoud also argues that his attorney's letters to the County on October
20, 2009, and February 11, 2010, "re-issued" his request for the investigation file
and that the County failed either to claim an exemption or to produce a
responsive record, as the statute requires. But on August 7, 2009, the County
responded to Mahmoud's request for the investigation file by claiming an
exemption. We disagree that these letters constitute two new public records
requests that the County improperly ignored. Additionally, in the letters, the
attorney appears to confuse request 09-05374 with Mahmoud's second request,
09-05375, for which the County had provided time estimates for production.
Mahmoud's contention that the County made no response ignores the fact that
the County produced records for 09-05375 on October 21, 2009, and April 2,
2010: one installment following each of the letters.
Under RCW 42.56.550(6), the limitations period for request 09-05374
expired on August 7, 2010. Because Mahmoud did not amend his complaint to
include his PRA claims until August 30, 2012, his claims are time barred under
the PRA.
Reouests 09-05375. 10-01666. 10-08592. and 10-08593
Mahmoud also contends that the County's exemption logs for 09-05375,
10-01666, and 10-08593 were "deficient and violated the PRA" and thus did not
trigger the one-year limitations period. Again citing Rental Housing Ass'n, he
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argues that an agency does not make a sufficient exemption claim unless the
claim includes the number of pages of each withheld document. This argument
fails. In Rental Housing Ass'n. the court found the City's response deficient
because it lacked not only the number of pages but also the type of record, date,
author, recipient, or any explanation of which specific exemption applied to each
record.36 Such a response would not give a requester enough information to
know if the claimed exemptions were proper. Here, the fact that the County did
not list each record's number of pages does not "defeat[ ] the very purpose of the
PRA to achieve broad public access to agency records."37 To the contrary, the
County's logs satisfied the "brief explanation" requirement of RCW 42.56.210(3)
by including the date, citation to statutory exemption, author, recipient, and type
and description of each record. This triggered the one-year statute of limitations,
which expired for the last of these three requests no later than late February
2012.
Mahmoud also argues that the County's single production in response to
request 10-08592 was incomplete and therefore could not trigger the limitations
period. But "it would be an absurd result to conclude that the legislature intended
no statute of limitations for PRA actions involving the production of a single
36 Rental Hous. Ass'n. 165 Wash. 2d at 539-40.
37 Rental Hous. Ass'n, 165 Wash. 2d at 540.
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NO. 70757-4-1/15
volume of documents."38 Courts avoid a literal reading of a statute if it would
result in "'unlikely, absurd, or strained consequences.'"39 The County's single
production of records on December 9, 2010, or, alternatively, its final response
on January 19, 2011, triggered the one-year statute of limitations, which expired
at least seven months before Mahmoud filed his PRA claims.
Request 10-05383
For request 10-05383, the County produced records and claimed a partial
exemption on August 16, 2010. The County concedes it did not produce all
responsive records. But we do not reach the merits of this claim because the
PRA statute of limitations also bars this claim.
Finally, Mahmoud argues that under a common law discovery rule, any
statute of limitations should have been tolled until March 2012, when he
"discovered the responsive records" during the course of litigation. He contends
that until this point, he was "forced to rely upon the County's multiple false
assurances," not realizing that he had a cause of action.
ss Bartz v. Dep't of Corr. Pub. Disclosure Unit, 173 Wash. App. 522, 536, 297
P.3d 737 review denied, 177 Wash. 2d 1024 (2013); see also Johnson v. Dep't of
Corr 164 Wash. App. 769, 777, 265 P.3d 216 (2011). But see Tobin v. Worden,
156 Wash. App. 507, 514, 233 P.3d 906 (2010).
39Johnson, 164 Wash. App. at 777-78 (quoting Cannon v. Dep't of Licensing,
147 Wash. 2d 41, 57, 50 P.3d 627 (2002)).
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The discovery rule provides an exception to the general rule that a
plaintiff's cause of action accrues at the time that the act or omission occurred.40
"Under the discovery rule, a cause of action accrues when the plaintiff knew or
should have known the essential elements of the cause of action."41 Washington
courts have applied the rule to claims "in which the plaintiffs could not have
immediately known of their injuries due to professional malpractice, occupational
diseases, self-reporting or concealment of information by the defendant."42 But
courts "continue[ ] to emphasize the exercise of due diligence by the injured
party."43 The rule postpones the running of a statute of limitations only until a
plaintiff, through the exercise of due diligence, "knows or should know the
relevant facts" of a cause of action.44
As a threshold matter, we note the incompatibility of Mahmoud's discovery
rule argument with his argument that the County's responses never triggered the
PRA statute of limitations. A statute that never began to run cannot be tolled.
We also note that no Washington state court has applied the discovery rule in the
40 In re Estates of Hibbard, 118 Wash. 2d 737, 744-45, 826 P.2d 690 (1992).
41 Allen v. State, 118 Wash. 2d 753, 757-58, 826 P.2d 200 (1992) (footnote
omitted).
42 Hibbard. 118 Wash. 2d at 749-50.
43 Hibbard. 118 Wash. 2d at 746; Reichelt v. Johns-Manville Corp., 107
Wash. 2d 761, 772, 733 P.2d 530 (1987).
44 Allen. 118Wn.2dat758.
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context of the PRA.45 But even if the discovery rule applies to PRA claims, we
decline to apply it here. The record shows that Mahmoud and his counsel
repeatedly asserted the existence of records he now claims the County silently
withheld. Given that many of the requested documents came from Mahmoud's
own files, he had reason to know of their existence. Even the diary entries the
County concedes it improperly withheld concerned interactions between
Mahmoud and his supervisor, not communications between parties unknown to
Mahmoud. Mahmoud knew or should have known the relevant facts of his cause
of action within the PRA limitations period, and his arguments to the contrary are
unpersuasive.46
The PRA statute of limitations contains triggering events that enable a
requester to know if a cause of action has accrued, and the legislature enacted
no discovery rule exception.47 For all of Mahmoud's requests, the County
45 Two federal district courts have applied an "inherent discovery rule" to
PRA claims. See Anthony v. Mason County. No. C13-5473, 2014 WL 1413421,
at *4-5 (W.D. Wash. Apr. 11, 2014) (order granting motion to amend and strike);
Reed v. Citv of Asotin, 917 F. Supp. 2d 1156, 1166-67 (E.D. Wash. 2013).
46 See Gevaart v. Metco Constr., Inc.. 111 Wash. 2d 499, 502, 760 P.2d 348
(1988) (personal injury claim time barred because plaintiff knew injury-causing
step sloped downward and could have determined by exercise of due diligence
that step did not conform to code and was a construction defect); Reichelt, 107
Wash. 2d at 770-73 (because of his own knowledge, consultations with an attorney,
and Occupational Safety and Health Act training, plaintiff reasonably should have
known the essential elements of his negligence claim before three-year
limitations period ran).
47 See O'Neil v. Estate of Murtha. 89 Wash. App. 67, 73-74, 947 P.2d 1252
(1997).
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claimed an exemption, produced records, or both. This triggered the one-year
statute of limitations under RCW 42.56.550(6). For each request, Mahmoud filed
his PRA claims more than a year after this limitations period expired.
Because Mahmoud's claims fail under the one-year PRA statute of
limitations, we do not analyze them under RCW 4.16.130, the two-year "catchall"
statute of limitations that applies to claims "not otherwise provided for," as two
Division Two cases have done for certain PRA claims.48 But we agree that "it
would be an absurd result to contemplate that in light of two arguably applicable
statutes of limitations, the legislature intended no time limitation" for PRA actions
where the agency's response is a single production or incomplete.49
Our state legislature recently enacted a law requiring training in PRA
compliance for public officials after finding that "inadvertent error or a lack of
knowledge on the part of officials and agencies regarding their legal duties to the
public" has resulted in PRA violations as well as burdensome litigation and
administration costs for state and local governments.50 Among the legislature's
goals are "improving citizen access to public records and encouraging public
48 See Bartz. 173 Wash. App. at 536-38; Johnson, 164 Wash. App. at 778
n.14.
49 Johnson, 164 Wash. App. at 777; see also Bartz. 173 Wash. App. at 537
(also absurd to conclude that legislature intended different statutes of limitations
for different categories of PRA requests, given its deliberate shortening of
limitations period from five years to one year).
50 Engrossed S. B. (E.S.B.) 5964, at § 1, 63d Leg., Reg. Sess. (Wash.
2014).
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NO. 70757-4-1/19
participation in governmental deliberations."51 These goals do not include
promoting gamesmanship or the exploitation of stale claims in order to exact
cumulative penalties and attorney fees from shorthanded local governments.
"[T]he rights of citizens to observe the actions of their public officials and
to have timely access to public records are the underpinnings of democracy and
are essential for meaningful citizen participation in the democratic process."52
But citizens have the responsibility not to sleep on those rights. Here, Mahmoud
knew or could have known the relevant facts related to his cause of action within
the one-year PRA statute of limitations. Because he filed his PRA claims outside
that period, his claims are time barred.
We may affirm the trial court on any ground the record supports.53 On the
basis of the PRA statute of limitations, we affirm the trial court's dismissal of
claims related to requests 09-05374, 09-05375, 10-01666, 10-08592, and 10-
08593 and reverse the trial court's order and penalties related to request 10-
05383. We affirm the trial court's denial of Mahmoud's motion for
reconsideration.
51 E.S.B. 5964, at §1.
52 E.S.B. 5964, at§1.
53 Otis Hous. Ass'n v. Ha, 165 Wash. 2d 582, 587, 201 P.3d 309 (2009).
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Attorney Fees
The PRA entitles a prevailing party to "all costs, including reasonable
attorney fees."54 Because Mahmoud is not a prevailing party under the PRA, we
reverse the trial court's award and deny Mahmoud's request for appellate fees
and costs.
Mahmoud's Motion to Strike
The County filed a reply brief containing sections "related to the County's
cross appeal" and "related to Mr. Mahmoud's appeal." Mahmoud asks us to
strike the latter section as an improper surreply under RAP 10.1(c). Mahmoud
also requests attorney fees and costs for bringing the motion, as well as
sanctions against the County under RAP 10.7.
Under RAP 10.1(c), a respondent seeking review may file a brief in reply
"to the issues presented by respondent's review." While the first half of the
County's reply addresses Mahmoud's response to its cross appeal, the second
half consists of additional arguments related to Mahmoud's appeal, exceeding
the scope of the rule. We grant Mahmoud's motion to the extent of disregarding
54 RCW 42.56.550(4). Our Supreme Court has interpreted this provision
to include fees and costs on appeal. Sanders, 169 Wash. 2d at 869.
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the material not related to the cross appeal55 but do not award sanctions or
attorney fees related to the motion.
CONCLUSION
Because Mahmoud filed his PRA claims outside the one-year PRA
limitations period, all of his claims are time barred. On this basis, we affirm the
trial court's dismissal of five claims and reverse the trial court's order and
penalties relating to the sixth claim. We also reverse the trial court's award of
costs and attorney fees, affirm the trial court's denial of Mahmoud's motion for
reconsideration, and grant Mahmoud's motion to strike to the extent of
disregarding the portion of the County's reply that exceeds the scope of its cross
appeal. We decline to award sanctions or attorney fees related to the motion to
strike.
U*fit s.
WE CONCUR:
£a t ft/v^.. ( ,\)
ss see Yousoufian v. Office of Ron Sims. 168 Wash. 2d 444, 469-70, 229
P.3d 735 (2010) (granting motions to strike portions of amicus briefs as
noncompliant).
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