Eric Hood, V. City Of Nooksack

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ERIC HOOD, No. 82081-8-I
Appellant, DIVISION ONE
v.
CITY OF NOOKSACK, UNPUBLISHED OPINION
Respondent.
CHUN, J. — Eric Hood appeals the trial court’s dismissal of his Public
Records Act1 (PRA) claim against the City of Nooksack. Hood contends the City
violated the statute when it responded to his records request by referring him to
the State Auditor’s Office’s website, failing to conduct a search for responsive
records, and failing to disclose certain documents it received from the auditor.
For the reasons discussed below, we reverse the trial court’s order dismissing
Hood’s lawsuit and remand for further proceedings consistent with this decision.
I. BACKGROUND
This lawsuit arises from Eric Hood’s request for records from the City of
Nooksack, located in Whatcom County. In January 2019, Hood sent an e-mail
message to Virginia Arnason, the City’s clerk treasurer:
I heard the City was recently audited by the state. Can I please have
all records that the City got from the auditor and all records of the
City’s response to the audit or to the auditor’s report? Please send
the records in electronic format by email or I can make a dropbox.
1
Chapter 42.56 RCW.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82081-8-I/2
Four days later, Arnason responded,
That information is available online on the Washington State
Auditor’s office website. Any audit they do the [sic] all the information
is posted on their site.
Hope this helps.
Hood later replied,
Thanks for referring me to the State Auditor’s office website. Please
let me know if you have any other records.
Arnason’s final response stated,
It was a clean audit so the city didn’t have any responses to the audit,
or vice versa.
Almost a year after this exchange, Hood, representing himself, initiated a
lawsuit against the City. Among other things, Hood alleged that the City violated
the PRA by failing to adequately search for responsive documents, failing to
properly respond to his request, and withholding documents he requested. He
sought an order requiring the City to produce the requested records and explain
any documents withheld. He also sought an award of costs and penalties under
RCW 42.56.550.
The City moved for summary judgment. The City claimed that it fully
complied with the PRA when it referred Hood to the Washington State Auditor’s
Office website, where Hood could access the only documents the City “believed
to be responsive” to his request—two reports the Auditor published following its
2018 audit of the City.
The City provided Arnason’s declaration in support of its motion. Arnason
explained that in August 2018, the Auditor conducted a legally-mandated
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seasonal audit of the City for the years 2015-2017. She described the audit
process as follows:
In keeping with the practice of these audits, the City provided the
auditors with open, on-site access to its records at City Hall. Boxes
of our records were pulled for the relevant years and made available
to the auditors who manually reviewed these documents at City Hall
during business hours. If the auditors had any questions, we
assisted them as needed. The auditors operated independently and
the City did not monitor them or otherwise track which documents
they were reviewing, or monitor any other aspect of their work.
According to Arnason, upon completing the audit in September 2018, the
Auditor conducted an “exit interview” with the City and then published two
reports, a “Financial Statements Audit Report” and an “Accountability Audit
Report,” on September 24, 2018. Arnason indicated that the City was able to
access the reports by going to the Auditor’s website. Arnason stated that the
City paid the Auditor $15,207 for the audit.
As to Hood’s January 2019 request, Arnason believed that Hood “was
seeking the auditor’s reports themselves.” Presumably because she was aware
of those documents and where to locate them, she did not say that she
conducted any search of the City’s records in response to Hood’s inquiry.
Arnason also believed there were no City responses to the audit because the
City merely made documents available and after the auditors issued a “clean”
audit, the City had no response. Arnason’s declaration included attachments,
including portions of the audit reports and invoices documenting the City’s
payments to the Auditor.
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Hood opposed the City’s motion, contending that the City violated the PRA
by “improperly direct[ing] [him] to another agency’s website and fail[ing] to
produce a single record.” Hood challenged the City’s interpretation of his request
and pointed out that attachments to Arnason’s declaration showed that the City
had received invoices and payment receipts from the auditor.
After retaining counsel, Hood filed a second response and cross motion
for summary judgment. Hood asked the court to deny the City’s motion because
undisputed facts showed that the City violated the PRA by withholding
responsive records. Hood urged the court to grant partial summary judgment in
his favor on the same basis. In the declaration supporting his motion, Hood
identified a September 2018 letter the Auditor sent to the City, which the City had
not mentioned or provided. Hood also noted the City’s failure to provide receipts
or other records of payment until after he initiated his complaint.
The trial court heard argument on the motions, and on August 26, 2020
issued an “Opinion and Order Granting Summary Judgment Dismissal” of Hood’s
lawsuit.2 The court found, as a factual matter, that the “City had no
correspondence directly with the State Auditor’s office regarding the audit” and
“no communication with the State Auditor’s office after the audit.” The court also
found that the City properly “conducted a search and referred [Hood] to the
responsive record.”
2
The order effectively resolved both motions by dismissing Hood’s lawsuit,
without expressly denying his cross motion.
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The court concluded that the City did not violate the PRA:
[T]he City responded to Hood’s PRA request in an adequate manner.
The request sought “all records that the City got from the auditor” and
“all records of the City’s response to the audit or the auditor’s report.”
The City’s response was accurate: it had received no records from
the auditor other than the auditor’s report, posted on the auditor’s
website, and it have not made a response to the audit or the auditor’s
report.
In reaching this conclusion, the court observed the City did not provide a
hyperlink to the Auditor’s website, as required by RCW 42.56.520(1)(b), but
characterized the PRA violation as “de minimis” because it caused “no confusion
or prejudice to anyone.” And finally, the court concluded that in asking for “all
records the City got from the auditor,” Hood made a “specific and narrow”
request that did not encompass all records “related” to the audit.
On September 8, 2020, 13 days after the court issued its order, Hood
moved for reconsideration. The court heard argument and denied the motion in
an October 7, 2020 order. The court denied the motion as untimely and “for the
reasons stated” in its order of dismissal. Hood appeals.
II. ANALYSIS
A. Timeliness of Appeal
As a jurisdictional and threshold matter, the City moves to dismiss Hood’s
appeal as untimely. It says that Hood did not timely move for reconsideration
and therefore, his motion failed to extend the time to file a notice of appeal. The
City thus contends that the time to appeal ran from the date the court entered the
order granting summary judgment, and not from the date the trial court denied
reconsideration.
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We review de novo the application of court rules to a particular set of
facts. State v. Branstetter, 85 Wn. App. 123, 127, 935 P.2d 620 (1997). To
establish appellate jurisdiction, a party must timely file their notice of appeal.
Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974); O’Neill v.
Jacobs, 77 Wn. App. 366, 369, 890 P.2d 1092 (1995). A party typically has 30
days after entry of a trial court decision to seek review in this court. RAP 5.1(a);
RAP 5.2(a). “[C]ertain timely motions,” including a motion for reconsideration
under CR 59, may extend the deadline. RAP 5.2(e). But an untimely motion for
reconsideration does not extend the 30-day time limit. Schaefco, Inc. v.
Columbia River Gorge Comm’n, 121 Wn.2d 366, 367-68, 849 P.2d 1225 (1993)
(untimely service of motion for reconsideration that was timely filed with the court
did not extend the 30-day deadline).
CR 59(b) requires a party to move for a new trial or for reconsideration not
later than 10 days after the entry of the judgment, order, or other decision. The
parties agree that the deadline for filing Hood’s motion for reconsideration was
September 8, 2020, as adjusted for the Labor Day holiday in accordance with CR
6(a). It is undisputed that Hood moved for reconsideration on that date. But
Hood’s motion included only his digital signature –“/s/ Eric Hood”– and not his
physical signature.
The City relies solely on GR 17(b)(3) to contend that court rules do not
allow a process server to certify an “unsigned court filing.” The City says that
because Hood’s motion only has his digital signature, it was incomplete and
therefore, not timely. GR 17(b)(3) pertains to “facsimile transmission” and
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provides, in pertinent part, that a “document transmitted to another for filing with
the clerk of the court will be deemed filed when presented to the clerk in the
same manner as an original document.” But the rule does not address the
validity of a document that bears an electronic or digital signature, which a party
files or arranges for filing with the court clerk.3 Other General Rules allow
attorneys and nonattorneys to sign electronically-filed documents with a digital
signature or an “s/.” GR 30(d)(2).4
Even assuming that without Hood’s physical signature, his motion for
reconsideration was untimely, Hood filed, on the same date, a separate signature
page that bore a physical signature.5 In these circumstances, we conclude that
Hood timely moved for reconsideration and reject the City’s argument that this
court lacks appellate jurisdiction. We deny the request to dismiss Hood’s
appeal.6
3
The parties did not address timeliness at the hearing on Hood’s motion for
reconsideration and nothing in the record appears to indicate the basis for the court’s
ruling.
4
RCW 1.80.010(10) defines “electronic signature” as a “sound, symbol, or
process” that is associated with a record and “executed or adopted by a person with the
intent to sign the record.”
5
The signature page was attached to a certificate of service. A few days later,
on September 11, Hood filed a second declaration, with another attached signature page
that also included his physical signature.
6
The City alternatively contends that we must dismiss Hood’s appeal because he
failed to provide a complete record on review. The party seeking appellate review has
the burden of providing an adequate record for review. Stevens County v. Loon Lake
Prop. Owners Ass’n, 146 Wn. App. 124, 131, 187 P.3d 846 (2008); RAP 9.2(b)). This
includes “those portions of the verbatim report of proceedings necessary to present the
issues raised on review.” RAP 9.2(b). The record on review does not include the
transcript of the summary judgment hearing or every document listed in the RAP 9.12
order designating the record on review. But our review is de novo, and the record
appears to include all substantive filings related to the parties’ motions for summary
judgment. We thus decline to dismiss the appeal on this basis.
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B. Compliance with the PRA
Turning to the merits, Hood says the City violated the PRA when it
(1) responded to his request by directing him to another agency’s website, and
(2) “silently” withheld records that were responsive to his request. Amici curiae,
Washington’s Coalition for Open Government, Allied Daily Newspapers of
Washington, and Washington State Association of Broadcasters, submitted
briefing in support of Hood’s appeal. They urge us to adhere to the standard of
strict compliance for responses to PRA requests, as set forth in Zink v. City of
Mesa, 140 Wn. App. 328, 340, 166 P.3d 738 (2007), and to reject the City’s
invitation to review its response under a “reasonableness” standard.
We review de novo a state entity’s or agency’s compliance with the PRA.
RCW 42.56.550(3); see also Neigh. All. of Spokane County v. Spokane County,
172 Wn.2d 702, 715, 261 P.3d 119 (2011). And in such a matter, we are not
bound by the trial court’s factual findings. Cornu–Labat v. Hosp. Dist. No. 2, 177
Wn.2d 221, 229, 298 P.3d 741 (2013).
Ordinary summary judgment burdens and standards apply in PRA cases.
Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 735-36, 218 P.3d
196 (2009). We review de novo a trial court’s summary judgment ruling and
apply the same standard as the trial court. Neigh. All., 172 Wn.2d at 715.
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.”
CR 56(c). We review all evidence and reasonable inferences in the light most
favorable to the nonmoving party and consider only the evidence that was
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brought to the trial court's attention. Keck v. Collins, 184 Wn.2d 358, 370, 357
P.3d 1080 (2015); RAP 9.12.
Well-established principles govern our review of PRA actions. The PRA
“is a strongly-worded mandate for broad disclosure of public records.” Hearst
Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The purpose of the
act is “‘nothing less than the preservation of the most central tenets of
representative government, namely, the sovereignty of the people and the
accountability to the people of public officials and institutions.’” Wade’s Eastside
Gun Shop, Inc. v. Dep’t of Labor & Indus., 185 Wn.2d 270, 277, 372 P.3d 97(2016) (quoting Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wn.2d
243, 251, 884 P.2d 592 (1994) (PAWS)). The PRA effectuates the policy that
“free and open examination of public records is in the public interest.” Neigh. All.,
172 Wn.2d at 715. We interpret and apply the PRA so as “to enforce the law’s
overall purpose.” Rental Hous. Ass’n of Puget Sound v. City of Des Moines, 165
Wn.2d 525, 536, 199 P.3d 393 (2009). Thus, we construe the PRA “liberally . . .
to assure that the public interest will be fully protected.” RCW 42.56.030.
RCW 42.56.080 requires agencies to make “identifiable public records”
available for public inspection and copying. A public record subject to disclosure
under the PRA includes (1) any writing, (2) containing information relating to the
conduct of government, or the performance of any governmental or proprietary
function, that is (3) prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics. RCW 42.56.010(3). Upon
receipt of a request for public records, an agency must respond within five
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business days in one of the following ways by: (a) providing the record,
(b) providing “an internet address and link on the agency’s web site to the
specific records requested,” (c) acknowledging the request and providing an
estimate of the time it will take to respond, (d) acknowledging the request and
seeking clarification, or (e) denying the request. RCW 42.56.520(1) (emphasis
added).
Below, Hood focused on the City’s conclusion that the audit reports
themselves were the only documents responsive to his request and its failure to
disclose other documents related to the audit. He stated, in passing, that the City
“improperly direct[ed] [him] to another agency’s website.” But he did not quote
the language of RCW 42.56.520(1)(b) that requires the agency to provide an
“internet address and link on the agency’s web site” or otherwise call attention to
the discrepancy between the City’s response and the manner in which the statute
allows an agency to provide records by directing a requester to the internet. Still,
the trial court addressed the City’s noncompliance with RCW 42.56.520(1)(b)
when it referred Hood to the Auditor’s website without providing the hyperlink.
But the court concluded that the City’s violation of the statute was technical and
excusable because it did not prejudice Hood.
Contrary to the trial court’s ruling, our courts have long-recognized strict
enforcement of the PRA’s mandates to disclose public records. Hearst, 90
Wn.2d at 131-32. As amici point out, in Zink, 140 Wn. App. at 332, Division
Three of this court expressly rejected a substantial compliance standard to
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evaluate compliance with similar provisions of the PRA’s predecessor statute. 7
In Zink, a former mayor of a small city submitted 172 records requests over a
period of two and a half years that mainly related to a cancelled building permit.
Id. at 333. The trial court dismissed Zink’s lawsuit alleging violations of the
former statute after determining that, given the number of requests and the city’s
limited resources, strict compliance was impractical and the city had substantially
complied with the requests. Id. at 335. On appeal, the court reversed the
dismissal because “‘substantial compliance’ is an incorrect standard by which to
judge an agency’s compliance with its statutory duties.” Id. at 333. The court
held that neither “administrative inconvenience or difficulty will not excuse strict
compliance” with the statute. Id. at 337. The court explained what while “good
faith” may be relevant to the penalty assessed, neither the good faith nor
“reasonableness” of the responding agency determines its compliance with the
statute. Id. at 340. Later cases confirm the requirement of “strict compliance
with the public disclosure obligations” of the PRA. See Gendler v. Batiste, 174
Wn.2d 244, 252, 274 P.3d 346 (2012); see also Rental Housing Ass’n, 165
Wn.2d at 535.
Under this standard, we do not consider whether it was reasonable to
refer Hood to the Auditor’s website. Likewise, the issues of whether Hood
objected, whether the response enabled Hood to obtain the requested reports, or
7
Washington voters enacted the Public Disclosure Act by initiative. LAWS OF
1973, ch. 1 (Initiative 276, approved Nov. 7, 1972). The legislature later amended and
recodified the public disclosure act as the Public Records Act (PRA) in 2005, moving it
from chapter 42.17 RCW to chapter 42.56 RCW. LAWS OF 2005, ch. 274.
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whether he demonstrated prejudice of any kind are not relevant to our analysis.
The only consideration is whether the City responded to Hood’s request in any of
the ways the statute prescribes. The City did not. It did not respond by providing
any documents or by providing an internet address and link to documents on the
City’s website. The trial court erred in concluding as a matter of law that the City
did not violate the PRA and granting the City’s motion on that basis.
Hood also claims that the City violated the PRA when it did not search for
records and, without claiming any exemptions, produced no responsive
documents. Specifically, Hood points to the City’s failure to mention or disclose
(1) three invoices from the Auditor, which the City produced in support of its
motion for summary judgment and (2) a September 18, 2018 letter to City
management that one of the audit reports references.8
“Agencies must make a sincere and adequate search for records.” Fisher
Broadcasting-Seattle TV v. City of Seattle, 180 Wn.2d 515, 522, 326 P.3d 688(2014). “The adequacy of a search is judged by a standard of reasonableness,
that is, the search must be reasonably calculated to uncover all relevant
documents.” Neigh. All., 172 Wn.2d at 720. “[T]he focus of the inquiry is not
whether responsive documents do in fact exist, but whether the search itself was
adequate.” Neigh. All., 172 Wn.2d at 719-20. Where the agency possesses
undisclosed responsive records, it “must explain and justify any withholding, in
8
Hood mainly argued below that “boxes of records” the City “pulled” and made
available to auditors were responsive records. But these records were neither records
the Auditor provided to the City nor City “responses” to the audit, they were not
responsive to Hood’s request. In any event, Hood appears to have abandoned this
claim on appeal.
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whole or in part, of any requested public records.” Resident Action Council v.
Seattle Hous. Auth., 177 Wn.2d 417, 432, 327d P.3d 600 (2013). The statute
prohibits “[s]ilent withholding.” Id. 177 Wn.2d at 432; PAWS, 125 Wn.2d at 270.
The record does not support the trial court’s findings that the City
“conducted a search,” “had no correspondence directly with the State Auditor’s
Office,” and “had no communication with the State Auditor’s office after the report
was posted.” 9 According to Arnason’s sworn statement, she “did not believe that
there were any documents that were responsive” to Hood’s request, apart from
the audit reports. She did not indicate that she searched or otherwise attempted
to verify her assumption and the City conceded as much. Documents in the
record indicate that there was some correspondence or communication between
the City and the Auditor at the conclusion and following the audit.
Although not dispositive, the record suggests the existence of some
limited number of records outside of the reports themselves that appear
responsive to Hood’s request. Considering that Hood’s request for “all records”
was not confined to the audit reports, there are questions of fact as to whether it
was reasonable or adequate to conduct no search or inquiry to determine what
records, if any, fell within the scope of Hood’s request. See RCW 42.56.100
(requiring agency to provide “fullest assistance” to requesters).
9
The trial court declined to address whether the City’s failure to disclose invoices
or payment receipts violated the PRA, based on the misperception that Hood raised the
issue for the first time on reconsideration.
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The record does not support the court’s determination that the City
complied with the PRA by conducting an adequate search and disclosing all
records responsive to Hood’s request.
Also, the factual record is not sufficiently developed as to what records the
City would have uncovered if the City had conducted a search in response to
Hood’s request. Genuine issues of material fact preclude summary judgment in
Hood’s favor as to the extent and nature of documents the City withheld as a
result of the failure to search its records upon receiving Hood’s request.
III. Attorney Fees and Costs
Under the PRA, a person who prevails “in any action in the courts seeking
the right to inspect or copy any public record” is entitled to an award of “all costs,
including reasonable attorney fees” incurred in connection with the legal action.
RCW 42.56.550(4).
Consistent with RAP 18.1(i), we direct the trial court to determine the
appropriate cost and attorney fee award for those costs Hood incurred in the trial
court. 10 We also reserve to the trial court an appropriate award of costs on
appeal at the conclusion of the case, subject to Hood’s submission of an itemized
cost affidavit in the trial court. See RAP 14.2. In addition, RCW 42.56.550(4)
10
We note that counsel represented Hood during only a portion of the
proceedings below and we have held that nonlawyers litigating PRA actions pro se incur
no attorney fees and are not entitled to receive attorney fee awards under RCW
42.56.550(4). Mitchell v. Wash. State Dep’t of Corrections, 164 Wn. App. 597, 608, 277
P.3d 670 (2011) (“[P]ro se litigants are generally not entitled to attorney fees for their
work representing themselves.”). See also In re Marriage of Brown, 159 Wn. App. 931,
938–39, 247 P.3d 466 (2011) (citing Leen v. Demopolis, 62 Wn. App. 473, 486-87, 815
P.2d 269 (1991)) (Washington courts have awarded attorney fees to pro se litigants only
when those litigants were themselves attorneys because they must take time from their
practices to prepare and to appear like any other lawyer would).
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gives the court discretion to award a per diem penalty for withheld records. “The
trial court is in the best position to make an individual, fact-driven inquiry into
what PRA penalties are necessary to achieve the penalty provision's goal of
deterring unlawful nondisclosure.” Wade’s, 185 Wn.2d at 280; Yousoufian v.
Office of Ron Simms, 168 Wn.2d 444, 467-68, 229 P.3d 735 (2010).11 We defer
this discretionary award to the trial court.
We reverse the opinion and order granting summary judgment dismissal.
We remand for further proceedings consistent with this opinion.
WE CONCUR:
11
The PRA does not authorize a separate penalty for conducting an inadequate
search. RCW 42.56.550(4); see Sanders v. State, 169 Wn.2d 827, 860-61, 240 P.3d
120 (2010) (“although the PRA does not expressly sanction a separate penalty for a brief
explanation violation, the violation may aggravate the penalty for wrongfully withholding
a record”).
15