275 P.3d 1200
Wash. Ct. App.2012Background
- Thurston County uses the Washington Counties Risk Pool for self-insurance and appoints defense counsel to handle covered matters.
- Risk Pool invoices for defense work are paid by the Risk Pool up to the $250,000 deductible, after which copies are sent to the County for reimbursement and the County is no longer responsible for payment.
- Arthur West requested under the Public Records Act (PRA) all records concerning attorney billings related to the Broyles v. Thurston County defense, including records from the Lee, Smart, Cook, Martin and Patterson firm.
- The County initially produced redacted invoices and later disclosed unredacted copies on remand, but only up to the deductible; invoices exceeding the deductible were not in the County’s possession or control.
- The superior court on remand concluded post-deductible invoices were not PRA public records and upheld redactions for some invoices, while imposing a PRA penalty and awarding West attorney fees and costs to his former counsel.
- On appeal, the Washington Court of Appeals affirmed, holding post-deductible invoices do not meet the PRA’s public records definition and affirming the penalties and fees ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do post-deductible invoices qualify as PRA public records? | West: post-deductible invoices are public records under PRA. | Thurston County: post-deductible invoices were not prepared, owned, used, or retained by the County and thus not public records. | No; post-deductible invoices are not public records. |
| Were redactions of February 2007 and July 2008 disclosures justified under PRA? | West contends some redactions were improper work-product or privileged information. | County asserts some redactions were proper; others may be justified. | February 2007 redactions were not justified; July 2008 redactions were justified. |
| Was the PRA penalty amount properly determined (daily rate and total days)? | West argues the daily penalty should be higher and that more days were improperly denied. | County contends the court applied correct factors and calculated days properly. | Daily penalty set at $30 with 534 days; decision affirmed. |
| Should West’s former counsel receive the PRA fee award instead of West personally? | West contends fees should be awarded to him as the prevailing party. | Mitchell v. Washington State Dept. of Corrections rejected awarding attorney fees to pro se litigants; fees awarded to counsel were proper. | Fees awarded to West's former counsel were proper; West, a non-attorney, is not entitled to attorney fees. |
| Did newly discovered records or delayed remedy require relief? | West argued newly discovered records existed and warrants relief. | Disputed items not responsive or did not exist at the time of request. | No relief; records not responsive or did not exist at request time. |
Key Cases Cited
- West v. Thurston County, 275 P.3d 1200 ((2012)) (Washington appellate decision on PRA public records for post-deductible invoices)
- West v. Thurston County, 144 Wash.App. 573, 183 P.3d 346, 144 Wash.App. 573 ((2008)) (remand to determine disclosure and redaction merits; work product/privilege)
- Concerned Ratepayers Ass'n. v. Public Utility Dist. No. 1 of Clark County, 138 Wash.2d 950, 983 P.2d 635 ((1999)) (defines 'use' and nexus to agency decision-making in PRA context)
- Yousoufian v. Office of Ron Sims, 168 Wash.2d 444, 229 P.3d 735 ((2010)) (sets factors for PRA penalties (principal, mitigating, aggravating))
- O'Neill v. City of Shoreline, 145 Wash.App. 913, 187 P.3d 822 ((2008)) (definition of 'own' for PRA purposes and related considerations)
- Mitchell v. Washington State Dept. of Corrections, Wash.App. , P.3d ((2011)) (pro se litigant cannot recover attorney fees; applies PRA fee rule)