354 P.3d 249
Wash. Ct. App.2015Background
- Cedar Grove, a composting company, faced public complaints about odors and believed a campaign (involving Strategies 360 and citizen Mike Davis) spread disinformation about it.
- An attorney (Cappel) submitted broad PRA requests to the City of Marysville seeking communications and agreements among the City, Strategies, Davis, and others; Cedar Grove later filed suit under the PRA after perceived wrongful withholdings.
- Marysville produced many records in installments but redacted and withheld e-mails claiming attorney-client privilege and later conceded some withholdings were improper; additional responsive e-mails were obtained from Strategies and the Mayor’s computer.
- The trial court found Marysville wrongfully withheld records in three groups (15 privileged e-mails, 19 stipulated-but-withheld records, and 173 documents created by Strategies), assessed daily PRA penalties totaling $143,740, awarded Cedar Grove attorney fees and costs (reduced from its request), and denied reconsideration.
- On appeal, the court addressed standing, whether records held/created by a private contractor are public records when the contractor acted as the functional equivalent of a city employee, privilege assertions, penalties, exclusion of declarations on reconsideration, and the fee award.
Issues
| Issue | Plaintiff's Argument (Cedar Grove) | Defendant's Argument (Marysville) | Held |
|---|---|---|---|
| Standing to sue under PRA | Cedar Grove had a personal stake despite requests made by its agent; it may sue. | Requests were made by a nonparty (Cappel), so Cedar Grove lacks standing. | Cedar Grove has standing; agency cannot narrowly read the statute to bar client suits when agent made requests. |
| Are contractor records public when contractor acts as functional equivalent of employee? | Records created by Strategies while acting for Marysville are public records subject to PRA. | Contractor is private; PRA does not reach records it created and never possessed by City. | Yes: where a contractor functions as the equivalent of a city employee (balanced factors), documents created in that role are public records used by the City. |
| Improper assertion of attorney-client privilege | Withholding e-mails as privileged was improper and supports penalties. | City corrected prelitigation by producing records; correction prevents penalties. | Withholding was wrongful; subsequent production only stops (but does not erase) penalty accrual — penalties remain appropriate. |
| Penalties, fees, and reconsideration (fee reduction) | City’s conduct warranted significant penalties and full fee recovery; Cedar Grove seeks more fees. | Penalties excessive; trial court abused discretion; declarations on reconsideration should have been considered; fee reductions appropriate. | Trial court did not abuse discretion: penalties and fee reductions justified under Yousoufian factors and lodestar adjustments; exclusion of late declarations proper. |
Key Cases Cited
- Hearst Corp. v. Hoppe, 90 Wn.2d 123 (Wash. 1978) (PRA construed liberally in favor of disclosure)
- Eleven v. City of Des Moines, 111 Wn. App. 284 (Wash. Ct. App. 2002) (requester’s client has standing when agent makes PRA request)
- Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702 (Wash. 2011) (daily PRA penalties mandatory once violation found; subsequent disclosure stops penalty accrual)
- Burt v. Department of Corrections, 168 Wn.2d 828 (Wash. 2010) (requester is necessary/adversely interested party when privacy claims affect release)
- Telford v. Thurston County Bd. of Comm’rs, 95 Wn. App. 149 (Wash. Ct. App. 1999) (functional-equivalent test for treating private entities as public agencies/employees under PRA)
- Concerned Ratepayers Ass’n v. Public Utility Dist. No. 1 of Clark County, 138 Wn.2d 950 (Wash. 1999) (agency “uses” information when it bears nexus to decision-making)
- Yousoufian v. Office of Ron Sims, 168 Wn.2d 444 (Wash. 2010) (multifactor guidance for setting PRA daily penalty amounts)