Ron Gipson v. Snohomish County ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RON GIPSON, )
) No. 76826-3-1
Appellant, )
) DIVISION ONE
v. )
)
SNOHOMISH COUNTY, ) UNPUBLISHED OPINION
a municipal corporation, )
)
Respondent. ) FILED: July 9, 2018
)
LEACH, J. — Ron Gipson appeals a summary judgment dismissing his
Public Records Act (PRA)1 claim against Snohomish County (County). In
December 2014, Gipson requested records related to an open investigation
involving him. The investigation concluded in February 2015. After the
investigation closed, the County produced the substantially redacted records in
installments, claiming the exemption under RCW 42.56.250(6)2 for records
related to an active and ongoing investigation applied to Gipson's request.
Gipson challenges this exemption claim because the County produced the
records after the investigation ended. But an agency makes its determination of
1 Ch. 42.56 RCW.
2 In 2017, the relevant exemption was renumbered. As a result, the
exemption for records related to an active and ongoing investigation into
employment discrimination that was previously numbered RCW 42.56.250(5) is
now numbered RCW 42.56.250(6). LAWS OF 2017, Reg. Sess., ch. 16 § 1.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RON GIPSON, )
) No. 76826-3-1
Appellant, )
) DIVISION ONE
v. )
)
SNOHOMISH COUNTY, ) UNPUBLISHED OPINION
a municipal corporation, )
)
Respondent. ) FILED:
)
LEACH, J. — Ron Gipson appeals a summary judgment dismissing his
Public Records Act (PRA)1 claim against Snohomish County (County). In
December 2014, Gipson requested records related to an open investigation
involving him. The investigation concluded in February 2015. After the
investigation closed, the County produced the substantially redacted records in
installments, claiming the exemption under RCW 42.56.250(6)2 for records
related to an active and ongoing investigation applied to Gipson's request.
Gipson challenges this exemption claim because the County produced the
records after the investigation ended. But an agency makes its determination of
1 Ch. 42.56 RCW.
2 In 2017, the relevant exemption was renumbered. As a result, the
exemption for records related to an active and ongoing investigation into
employment discrimination that was previously numbered RCW 42.56.250(5) is
now numbered RCW 42.56.250(6). LAWS OF 2017, Reg. Sess., ch. 16 § 1.
No. 76826-3-1/ 2
whether a record is exempt at the time that it receives the request. So the
exemption applied. We affirm.
FACTS
The County employs Gipson as a corrections officer at the Snohomish
County Juvenile Justice Center. In 2014, the County employed Marcella Fleming
Reed (MFR), an outside investigator, to investigate select female corrections
officers' allegations of sexual harassment and sexual discrimination against
Gipson. The investigation continued until February 2, 2015.
Gipson made a public records request (PRR) on December 1, 2014. He
requested 30 categories of records. The request's preamble limited it to records
"'which in any way mention[]the name Ron Gipson." The documents requested
included a "'copy of all MFR's paid invoices and legers [sic] to date emails &
phone/cell records in native format with all metadata, attachments including all
folders, junk mail & sent items on CD in electronic form from the dates of
December 27, 2013 to November 5, 2014." Gipson also requested records
contained in the e-mail accounts of various employees related to an ongoing
investigation into the allegations against him.
The County produced five installments of records in response to Gipson's
request. It heavily redacted documents in installments two, three, and five, which
it provided after the investigation concluded. The responses described the
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No. 76826-3-1/ 3
withheld information as records related to an "active and on-going" investigation
into employment discrimination and cited RCW 42.56.250(6). The County closed
Gipson's request on May 4, 2015.
On February 18, 2016, Gipson submitted two more public records
requests, which the County consolidated. Gipson claims that on May 31, 2016,
the County produced unredacted copies of all the billing invoices he had
previously received in response to his December 2014 request.
Gipson filed this lawsuit on April 25, 2016. The trial court dismissed the
lawsuit on summary judgment, finding that the County met its burden of showing
that RCW 42.56.250(6) applied to the records at issue. Gipson appeals.
STANDARD OF REVIEW
The PRA allows the public access to records for inspection and copying.3
But it exempts some records from disclosure.4 This case involves the exemption
for records related to an "active and ongoing" investigation into employment
discrimination under RCW 42.56.250(6).5 An appellate court reviews de novo an
3 Sargent v. Seattle Police Dep't, 167 Wash. App. 1, 9, 260 P.3d 1006
(2011), rev'd in part on other grounds, 179 Wash. 2d 376, 314 P.3d 1093(2013); ch.
42.56 RCW.
4 Sargent, 167 Wash. App. at 9; ch. 42.56 RCW.
5 RCW 42.56.250(6) exempts the following employment and licensing
information from public inspection and copying: "Investigative records compiled
by an employing agency conducting an active and ongoing 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. 76826-3-1 /4
agency's compliance with the PRA.6 It liberally construes the PRA and narrowly
construes its exemptions.7 The agency bears the burden of proving that an
exemption applies.8
In reviewing an order of summary judgment, an appellate court engages
in the same inquiry as does the trial court.9 It should affirm a summary judgment
"only if the pleadings, affidavits, depositions, and admissions on file demonstrate
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law."19 It considers the facts in a light most favorable to
the nonmoving party," in this case, Gipson.
ANALYSIS
Gipson claims that because the MFR investigation into the allegations
against him had concluded before the County responded to his December 2014
PRR, it improperly claimed the exemption for records related to an "active and
ongoing" investigation into employment discrimination. We disagree.
In Sargent v. Seattle Police Department,12 this court held that there are no
standing requests under the PRA. This means that after an agency has properly
6 RCW 42.56.550(3); Sargent, 167 Wash. App. at 10.
7 Sargent, 167 Wn. App. at10.
8 Sargent, 167 Wash. App. at 10.
9 Reid v. Pierce County, 136 Wash. 2d 195, 201, 961 P.2d 333(1998).
10 Reid, 136 Wash. 2d at 201.
11 Reid, 136 Wash. 2d at 201.
12 167 Wash. App. 1, 6, 260 P.3d 1006 (2011), rev'd in part on other
grounds, 179 Wash. 2d 376, 314 P.3d 1093(2013).
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No. 76826-3-1 /5
responded, it is irrelevant whether a claimed exemption ceases to apply because
"[a]n agency is not obligated to supplement responses.'"13 Instead, the
requester may submit a "refresher" request.14 To support its decision, this court
cited WAC 44-14-04004(4),15 which states, in part, that "if a public record is
created or comes into the possession of the agency after the request is received
by the agency, it is not responsive to the request and need not be provided." The
court explained that the no-standing-requests rule is consistent with the PRA's
policy to provide public access to existing, nonexempt records: "The legislature
requires agencies of government to respond to requests in a timely and clear
fashion. But it does not require that agencies provide updates to previous
responses, or monitor whether documents properly withheld as exempt may later
become subject to disclosure."16
The Washington State Bar Association's Public Records Act Deskbook
reiterates the no-standing-requests rule and states, similarly,
[T]he determination of whether a record is exempt is made at the
time the request is received. If, for example, a temporal exemption
expires after the request is made, the agency is not required to
produce the record; but the record must be identified on an
13 Sargent, 167 Wash. App. at 11 (quoting WAC 44-14-04004(4)).
14 Sargent, 167 Wash. App. at 11.
15 The Office of the Attorney General promulgated the model rules at the
request of the legislature to provide guidance to agencies and the public. RCW
42.56.570; Sargent, 167 Wash. App. at 11 n.11.
16 Sargent, 167 Wash. App. at 10-11.
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No. 76826-3-1 /6
exemption log, and as a practical matter it may be advisable for the
agency to produce the record if it has not yet closed the request.E171
This case does not involve a standing request because the County had
not yet produced the installments containing the requested records when the
relevant exemption ceased to apply. But this court's reasoning in Sargent still
applies. Sargent reasoned that the PRA does not permit standing requests
because, as the WAC and deskbook indicate, an agency determines whether a
record exists or is exempt at the time that it receives the request.
Although the County provided installments two, three, and five containing
heavily redacted records after the close of the investigation, Gipson submitted
the PRR providing the basis for his claim on December 1, 2014, two months
before the investigation ended on February 2, 2015. Because he submitted his
request while the investigation into the allegations against him for employment
discrimination was ongoing, the exemption for records related to an "active and
ongoing" investigation into employment discrimination under RCW 42.56.250(6)
applied. To receive records subject to this exemption after the investigation
ended, the PRA requires that Gipson's submit a refresher request. He did this in
February 2016 and ultimately received unredacted copies of the records in
BAR ASS'N PUBLIC RECORDS ACT DESKBOOK: WASHINGTON'S
17 WASH. STATE
PUBLIC DISCLOSURE AND OPEN PUBLIC MEETINGS LAWS § 5.1(4) at 5-8 (2d ed.
2014).
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No. 76826-3-1/ 7
dispute. Gipson has not shown the existence of any genuine issue of material
fact about his PRA claim or that the trial court misapplied the PRA.
Gipson also makes an equitable estoppel claim. He asserts that the
County misrepresented that the investigation was ongoing by claiming the
exemption after the investigation's conclusion. He contends that the County
should thus be estopped from claiming that it did not have to produce the records
based on the no-standing-requests rule and the requester's obligation to submit a
refresher request. But because Gipson's trial counsel did not make an adequate
record to preserve this issue for review, we decline to consider it. The trial court
properly granted summary judgment.
CONCLUSION
We affirm.
WE CONCUR:
4.4
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