Washington State Tree Fruit Assoc. v. WA State Employment Security Dept. ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
August 20, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WASHINGTON STATE TREE FRUIT No. 58341-1-II
ASSOCIATION,
Appellant,
v. UNPUBLISHED OPINION
STATE OF WASHINGTON, EMPLOYMENT
SECURITY DEPARTMENT,
Respondent.
CHE, J. ⎯ Washington State Tree Fruit Association (“the Association”) appeals an order
dismissing its case brought under the Public Records Act (PRA), chapter 42.56 RCW. The
Association submitted a PRA request to the State of Washington Employment Security
Department (“the Department”) seeking information related to a lawsuit in federal court in which
the Department is a party. Subsequently, the Association filed the complaint in this case,
alleging that the Department had violated the PRA by improperly withholding records due to
improper redactions and by not producing the records within a reasonable time.
The trial court granted partial summary judgment against the Association, dismissing the
improper withholding claim without prejudice. The trial court subsequently dismissed the
remaining PRA claim. The Association appeals, arguing, among other things, that the improper
withholding claim is distinct from its improper redaction claim, and the trial court did not
dismiss the improper redaction claim in its summary judgment order.
We affirm the trial court’s written partial summary judgment order that disposed of the
improper withholding claim without prejudice, which includes the claim that the Department
No. 58341-1-II
made improper redactions. We decline to review the Association’s reasonable production time
argument because it is insufficiently briefed.
FACTS
On March 2, 2022, the Association submitted a PRA request to the Department seeking
information related to a lawsuit in federal court in which the Department is a party, including
records regarding changes in the methodology used to calculate the prevailing wage rate for
Washington agricultural workers. A week later, the Department responded that it would have an
installment of responsive documents ready by April 5. The installment, however, was not
provided on that date.
On June 7, the Association inquired as to the status of the installment. The Department
responded that they would provide an installment by June 17. After not receiving the
installment, the Association again inquired about it, and the Department said it would be
provided by June 30. On June 30, the Association again inquired about the installment, and the
Department said it would be provided by July 11. On July 13, the Department notified the
Association that an installment was available on compact disk, which the Association paid for.
On July 21, the Association received roughly 1,000 pages of heavily redacted documents; the
redactions were marked with “ACP”.
In a letter, the Department explained that “ACP” meant that the basis of the exemption
was a sealed order from the federal lawsuit. On August 2, the Association asked for clarification
on the redactions. On August 4, the Department clarified that ACP stood for “Attorney-Client
Privilege” between the Department and the State Attorney General’s Office. That same day, the
Department also informed the Association that it “would not rescind redactions on previously
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provided records as we produce records based on current exemption requirements. If something
were to change in the future, and a new public records request was made, then those records
would be produced and redacted per those current circumstances or legal standings.” Clerk’s
Papers (CP) at 84.
In a declaration filed in response to the Association’s PRA suit, the public records
manager for the Department explained the Department’s delay in responding to the Association’s
PRA request was due to issues with its electronic discovery software malfunctioning.1 “At
various times [the Department] believed that the software had been fixed, only to discover that
the software was producing errors in other areas.” CP at 162.
The public records manager further stated that the Department “receives and processes
more than 100,000 requests for records” annually. CP at 158. The public record manager also
stated that the Department records are subject to a variety of privacy requirements from the state
and federal governments, and that the Association’s request was broad and involved
consultations with subject matter experts and legal counsel to comply with confidentiality
requirements. After the July 21 production, the Department continued producing responsive
records in installments as it “identified potentially 20,000 responsive documents.”2 CP at 162.
In September 2022, the Association filed a complaint alleging that the Department
wrongfully withheld the requested records and did not produce the requested records in a timely
1
It is best practice to keep the PRA requester apprised of the reasons for a delay in producing the
requested records.
2
Eventually, the Department apparently provided unredacted versions of the requested records.
See Br. of Appellant at 14, 19.
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No. 58341-1-II
manner as required by statute. In November 2022, the Department moved for partial summary
judgment, arguing that the improper withholding claim was premature because the Department
was continuing to produce responsive records. The Association cross-moved for partial
summary judgment. The trial court granted the Department’s motion and denied the
Association’s motion.3
In its oral ruling, the court stated,
[W]hen installments are continuing to be provided and the agency is not completed
with its response, it is premature to make a claim that all documents have not been
responded to. But it is not premature to make a claim that the estimate of time is
not reasonable, that the timeliness of the response or even perhaps particular
exemptions that are claimed. There may be a situation where a particular response
could be changed even though the allegation of all responsive records haven’t been
provided is premature.
So the court is granting the motion only as to the claim that the agency has
not provided responsive records. That claim is premature based upon the Hobbs
case, but it appears to me that there are claims that are appropriate that remain.
....
I want to make clear that the language toward the bottom of page two [in the written
order] is clear in terms of the court’s ruling, that it only relates to a claim that all
documents have not been produced but other claims might remain.
CP at 388, 390.
At the summary judgment hearing, the Association stated that the improper redaction
allegation was part of the improper withholding claim: “we think that the redactions are a failure
to produce the records.” CP at 385.
3
After a hearing where the court stated that the partial summary judgment order dismissed the
improper withholding claim based on the improper redactions, the Association sought review of
the partial summary judgment order. But the Association voluntarily withdrew that appeal.
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The written partial summary judgment order provided that the Association’s improper
withholding claim is dismissed without prejudice. The Association moved for clarification
regarding the scope of the partial summary judgment, arguing that the dismissal of the improper
withholding claim did not dismiss the Association’s claim that the Department made improper
redactions. In making this argument, the Association relied extensively on the judge’s comments
at the partial summary judgment hearing. The trial court denied the motion.
In June 2023, after a hearing on the merits of the PRA claim, the trial court ruled that the
Department, given the complexity and volume of the request and the Department’s electronic
search software malfunction, (1) provided a reasonable time estimate for production of the first
installment and (2) produced the first installment of records in a reasonable time. To that end,
the PRA order included unchallenged findings that the Department’s electronic search software
was malfunctioning, the Department began working with a software vendor to repair the search
functionality, and the Department revised its production estimates several times with the
Association. The trial court did not specifically address the Association’s improper redaction
allegation in the PRA order.
The Association appeals both the partial summary judgment order and the PRA order.
ANALYSIS
I. INTERPRETATION OF THE WRITTEN PARTIAL SUMMARY JUDGMENT ORDER
The Association filed a notice of appeal regarding the partial summary judgment order.
But the Association did not assign error to the partial summary judgment. And in its reply brief,
the Association stated, “To be clear, [the Association] does not believe that the trial court erred
in its ruling on summary judgment, but rather that the subsequent trial judge erred in failing to
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No. 58341-1-II
include the issue of ‘particular exemptions’ or ‘particular responses’ in the merits hearing.”
Reply Br. of Appellant at 3. Thus, it appears that the Association is arguing that the trial court
erred in interpreting the summary judgment order as dismissing without prejudice its improper
redaction claim, which, the Association argues, is distinct from its improper withholding claim.
“The PRA is a ‘strongly worded mandate for broad disclosure of public records.’”
Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013)
(quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)). A party may bring a
cause of action under the Public Records Act when (1) an agency wrongfully denies “an
opportunity to inspect or copy a public record by an agency,” or (2) an agency “has not made a
reasonable estimate of the time that the agency requires to respond to a public record request.”
RCW 42.56.550(1)-(2).
“The interpretation of a court order is a question of law, which we review de novo.”
State v. Ayala-Pineda, 23 Wn. App. 2d 863, 870, 520 P.3d 463 (2022). “If an order is
unambiguous, we interpret it as written.” Id. A written order controls the scope of the court’s
ruling when it conflicts with the court’s earlier oral ruling. Pham v. Corbett, 187 Wn. App. 816,
831, 351 P.3d 214 (2015).
Here, the Association brought two claims in this action: that the Department improperly
withheld responsive records and that the Department failed to timely respond to the PRA request.
The trial court dismissed the Association’s “claim for improper withholding of records . . .
without prejudice.” CP at 334 (boldface and capitalization omitted).
The Association appears to argue that it should be able to proceed with its improper
redaction claim because of ambiguity in the judge’s oral comments from the summary judgment
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No. 58341-1-II
hearing. But, at the summary judgment hearing, the Association stated that its improper
redaction claim was a failure to produce records claim.
The partial summary judgment order unambiguously disposes of the improper
withholding claim. And the written order controls over any conflict with the trial court’s oral
ruling. Pham, 187 Wn. App. at 831. Thus, the improper redaction allegation was disposed of as
part of the improper withholding claim; as the Association expressly stated, “the redactions are a
failure to produce the records.” CP at 385. Therefore, the only claim left in the complaint is the
timeliness claim, which is unrelated to the improper withholding/redaction allegation. The trial
court’s comments at the summary judgment hearing cannot add a new claim to the complaint
based on improper redactions, and, representation to the trial court. See Id.The partial summary judgment order disposed of the improper withholding/redaction
allegation without prejudice. “To be clear, [the Association] does not believe that the trial court
erred in its ruling on summary judgment.” Reply Br. of Appellant at 3. Thus, the Association’s
argument that it should be allowed to proceed with its improper redaction claim fails.
II. REASONABLE PRODUCTION TIME
The Association argues that the Department violated the PRA by failing to produce the
unredacted records within a reasonable time. The only reference to this argument in the
Department’s brief is that “[the Department] produced unredacted emails seven months later,
after suit was filed and just prior to the hearing on the merits.” Br. of Appellant at 18. The
Department argues that the Association does not provide meaningful argument on this point. We
agree with the Department.
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No. 58341-1-II
Unchallenged findings of fact are treated as verities on appeal. Real Carriage Door Co.
v. Rees, 17 Wn. App. 2d 449, 457, 486 P.3d 955 (2021). RAP 10.3(a)(6) provides that the brief
of the appellant should contain “argument in support of the issues presented for review, together
with citations to legal authority and references to relevant parts of the record.” We are not
required to “‘consider arguments that are unsupported by pertinent authority, references to the
record, or meaningful analysis.’” Paddock v. Port of Tacoma, 27 Wn. App. 2d 132, 150-51, 531
P.3d 278 (2023) (quoting Cook v. Brateng, 158 Wn. App. 777, 794, 262 P.3d 1228 (2010)).
The Association included a section in their brief titled, “Eventual disclosure is not
reasonable disclosure.” Br. of Appellant at 17 (boldface omitted). The analysis in this section
states, “[the Department] does not provide an explanation for the delay in producing the
unredacted documents. [The Department’s] delay in prov[id]ing the records [] is not
reasonable.” Br. of Appellant at 19.
The PRA order included three unchallenged findings: the Department’s electronic search
software was malfunctioning; the Department began working with a software vendor to repair
the search functionality; and the Department revised its production estimates several times with
the Association. The trial court found that the Department gave a reasonable time estimate for
production of the first installment.
The Association does not challenge either the first installment or any of the
aforementioned findings. Instead, the Association’s fleeting argument appears to be based on the
lack of explanation for the delay in producing unredacted records. The Association does not
substantively develop an argument regarding whether the first installment, or any other
installments, were not produced in a reasonable time frame.
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No. 58341-1-II
The Association does not cite the record in regard to which unredacted records it is
discussing. Nor does the Association develop an argument that the Department’s time estimates
for production of responsive records were unreasonable. Thus, the Association has failed to
provide meaningful argument on this point, and we decline to review it under RAP 10.3(a)(6).4
III. APPELLATE FEES AND COSTS
The Association requests an award of reasonable attorney fees on appeal for being the
prevailing party in a PRA action. The Association further requests that we remand to the trial
court for a determination of penalties and fees. The Department requests statutory attorney fees
of $200 and costs under RAP 14.3.
We may award reasonable attorney fees or expenses if applicable law grants a right to
such recovery and the party properly requests it. RAP 18.1(a)-(b). RCW 42.56.550(4) provides:
Any 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.
In addition, it shall be within the discretion of the court to award such person an
amount not to exceed one hundred dollars for each day that he or she was denied
the right to inspect or copy said public record.
Because the Association did not prevail against the Department, we decline their request for
attorney fees.
4
The Association also argues that the Department’s actions constitute a final agency action, a
prerequisite to obtaining penalties under the PRA. Hikel v. City of Lynnwood, 197 Wn. App.
366, 379, 389 P.3d 677 (2016). The Association had only two claims under the PRA, the
improper withholding claim and the untimely production claim. Both of these claims fail for
these reasons discussed above. We do not address whether those claims also fail for not being
based on a final agency action.
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No. 58341-1-II
“Under RAP 14.2 and RAP 14.3(a), the substantially prevailing party may be awarded
statutory attorney fees and certain reasonable expenses actually incurred such as the costs for
preparing the report of proceedings, the clerk’s papers, and the briefs.” In re Pers. Restraint
Bailey, 162 Wn. App. 215, 219, 252 P.3d 924 (2011); see also RCW 4.84.080(2). The Department,
as the prevailing party, may recover its costs allowed under RAP 14.3(a) and statutory attorney
fees.
CONCLUSION
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Che, J.
We concur:
Lee, J.
Cruser, C.J.
10