16-2-05416-7 51536?89 CTD 06-26?1 8

 

 

 

IN THE SUPERIOR COURT OF WASHINGTON, COUNTY OF PIERCE

ARTHUR c. BANKS, an individual, TONEY

MONTGOMERY, an individual, WHITNEY

BRADY an individual Case No. 16-2-05416-7
Plaintiff(s) . COURT DECISION

VS.

CITY OF TACOMA, a municipalcorporation
Defendant(s)

 

 

 

 

THIS MATTER having come on regularly before the above-entitled Court on April 13,
2018 Plaintiffs? Motion for Partial Summary Judgment and Defendant?s Motion for Summary
Judgment and on May 17, 2018 for Jury Trial. The Court heard oral arguments and reviewed the
following pleadings submittedl:

Defendant?s Motion for Summary Judgment; Af?davit of Margaret Elofson in support of
Defendant?s Motion for Summary Judgment; Plaintiffs? Motion for Partial Summary Judgment;
Declaration of John Midgley in support of Plaintiffs? Motion for Partial Summary Judgment;
Plaintiffs? Opposition to Defendant?s Motion for Summary Judgment; Motion to allow filing of
two Exhibits under Seal; Defendant?s Response to Plaintiffs? Motion for Partial Summary
Judgment; Affidavit of Margaret Elofson in support of Defendant?s Response to Plaintiffs?
Motion for Partial Summary Judgment; Af?davit of Michael Smith in support of Defendant?s
Response to Plaintiffs? Motion for Partial Summary Judgment Af?davit of Detective ChristOpher
Shipp; Af?davit of Captain Fred Scruggs in support of Defendant?s Motion for Summary
Judgment; Supplemental Statement of Interest of the United States; Expert Report Exhibit 6 7;

 

Pleadings as identi?ed in the Court?s LINX system I:

DORIGINAL

1 P2rte

 

 


Af?davit of Benjamin Inman; Supplemental Declaration of Marcia K. Sowles; Plaintiffs? Reply
in support of Motion for Partial Summary Judgment; Af?davit of Catherine Journey in support
of Defendant?s Reply Re: Defendant?s Motion for Summary Judgment; Af?davit of Margaret
Elofson in support of Defendant?s Reply Re: Defendant?s Motion for Summary Judgment;
Defendant?s Reply regarding Defendant?s Motion for Summary Judgment; Af?davit of Michael
Smith in support of Defendant?s Reply Re Defendant?s Motion for Summary Judgment;
Declaration of Terry Krause in support of Defendant?s Reply on Defendant?s Motion for
Summary Judgment; Plaintiffs? Brief in support of Proposed Order on Cross Motions for
Summary; Judgment and for Penalties, Fees, and Costs; Defendant?s Response to Plaintiff
request for Penalties and Fees; Af?davit of David Nash-Mendez in support of Defendant?s
Response to Plaintiff Motion for Penalties and Fees; Af?davit of Lisa Anderson in support of
Defendant?s Response to Plaintiff Motion for Penalties and Fees; Af?davit of Margaret Elofson
in support of Defendant?s Response to Plaintiff Motion for Penalties and Fees; Supplemental
Af?davit of Detective Christopher Shipp; Plaintiffs? Reply Brief in support of Proposed Order
on Cross Motions for Summary Judgment and for Penalties, Fees, and Costs; Declaration of
Captain Charles P. Taylor in support of Defendant?s Response to Plaintiff Motion for Fees and
Penalties and the Supplemental af?davit of Margaret Elofson in support of Defendant?s

Response to Plaintiff Motion for Penalties and Fees.

DECISION

Strict enforcement of the Public Records Act (PRA) discourages improper denial of
access to public records and Washington law is clear that a court shall award attorney fees to a
person who prevails against an agency in an action seeking the disclosure of public records.2
Records are never exempt from disclosure, only production so an adequate search is requiredin
order to properly disclose responsive documents.3 The PRA ?treats a failure to properly respond

as a denial.?4 The burden of proof shall be on the agency to establish that refusal to permit

 

2 Amren City of Kaiama, 13 Wn.2d 25, 929 P.2d 389 (1997); American Civii Liberties Union of Washington v.
Blaine Schooi Dist. No. 503, 786 Wn.App. 688, 937 P.2d 176 (1997)

3 ofSpokane County v. Spokane County, 172 Wn.2d 702, 261 P.3d 119 (201 1), (citing)
Sanders v. State, 169 Wn.2d 827, 240 P.3d 120 (2010)

4 Soier v. Cowles Pub/?2 Co.. 162 Wn.2d 716, 750, 174 P.3d 60 (2007)

 

151public inspection and copying is in accordance with a statute that exempts or prohibits disclosure
in whole or in part of speci?c information or records.5 PRA is a forceful reminder that agencies
remain accountable to the people of the State.6

The basic policy of the PRA is prompt access to non-exempt public
records and penalizing an agency failing to do so.7 Purpose of the PRA's penalty provision is to
deter improper denials of access to public records.8 Penalty for violation of PRA (PRA) must be
an adequate incentive to induce future compliance. When determining the amount of the penalty
to be imposed on government agency that violated PRA, the existence or absence of an agency?s
bad faith is the principal factor which the trial court must consider, however, no showing of bad
faith is necessary before a penalty is imposed on a government agency that violates the PRA9.
Agency culpability, mitigating and/or aggravating is key.10

In the present case the City asserts that there is no evidence of bad faith and that
mitigating factors weigh in favor of no penalty or a minimal penalty. The City describes its
noncompliance with the PRA violations as ?overlooking several random documents,? or as
?misunderstanding? of the Plaintiff requests. For example, to prove its point theICity states it did
not see the Plaintiffs? requests as seeking the ?blank form that TPD personnel complete when
obtaining a warrant for pen trap and trace or cell site simulator use? and that ?the blank form\
does not re?ect any actual use of the cell site simulator, so the City had no reason to interpret this
request as seeking the blank form.? This assertion is not persuasive as the City found the
requested documents, failed to produce the documents in its entirety as found, did not identify an
exemption and did not seek clarification. Instead to justify its noncompliance the City asserts that
it also ?did not provide blank forms for invoices, blank templates for loan agreements, blank
templates for grant applications, blank templates for emails, or any other of the many forms or

templates used by the City in relation to the cell site simulator or to conduct other City business,?

 

 

5 RCW 42.56.080

6Fatdicner v. Washington Dept. of Corrections, 183 Wn.App. 93 332 P.3d 1136 (2014); Yousoufian v. O?ce of King
County Exec. 168 Wn.2d 444, 229 P.3d 735 2010

71? ousou?an v. O?ice of King County ExecRlpane

response to the public records requests. Under the PRA the City?s failure to produce these
documents was deliberate and is treated as a denial.

The PRA establishes a positive duty to disclose public records unless they fall within
speci?c exemptions. This mandates that the City upon receiving a request for documents must
?rst do an adequate search and then must produce the documents requested if there is not an
exemption?. The PRA does not require the City to analyze the reasons for why the document is
requested or to determine the relevance of the documents requested even if they are blank forms.
The blank form taken in context of the other forms may have meaning to the requestor and it is
not for the City to analyze its relevance. To adopt the City?s interpretation of the PRA would
defeat the broad mandate of the PRA to allow access to public records12 not covered by an
exemption.

Pertaining to Plaintiffs? request Exhibit 4, the City?s argument is unreasonable as after
conducting its search and after seeking clari?cation from the Plaintiffs? prior attorney the City
then decided that it was not producing the entire 2015 spreadsheet with the pen trap and trace
entries ?because production of the billing spreadsheet led to misunderstandings in the past.? The
City failed to cite an exemption yet argues that it ?believes that the billing spreadsheet accurately
provided what the plaintiffs requested.? Therefore, the City violated the PRA and many
aggravating factors are present. Plaintiffs are awarded $13,440.00 ($70 multiplied by 192
days?) for the denial of the right to inspect or copy Exhibit 4.

As to Plaintiffs? request Exhibit 5, the City identi?ed 37 prior requests and produced all
the documents provided to those 37 requesters. Exhibit 5 is an email the City described as

?among the documents produced to prior requesters. Stating that ?the
email has no retention value; it is a ?for your information? email from the FBI
with an attachment that was irrelevant to the City. The City argues that ?the

City is not required to retain such an email though if it is the City?s possession at
the time of a records request, the City must produce it. The City believes that it
had the email at the time of previous requests but that it had been deleted by the
time of these plaintiffs? request. Plainti?fs have not presented any evidence that
the City was in possession of the actual email, other than as one of many
documents contained in the production of documents to previous requesters. To
that extent, the City still had it in its possession. However, it is not reasonable to

 

Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978)
'2 RCW 42.56.010(4)
'3 The dates used by the Plaintiff were not disputed by the Defendant and will be deemed agreed.

AlPr?ine

 

 3.ask the City to search every prior request for public records to locate documents
that have since been deleted from employees? computers and no longer exist on
employees? computers at the time a request is received. The City receives over
2,500 requests per year. A search of all previous PRA requests and responses, in
addition to a search of currently existing documents on individual computers, is
simply not possible. Under these circumstances, the City?s not providing this
email to these plaintiffs is understandable.?

The City?s failure to produce Exhibit 5 for inspection or copying was unreasonable as the
document was provided to 37 prior requestors, therefore it should have been foreseeable that the
document was not irrelevant to the public even though it may have been to the City. Failure to
retain this document is indicative of a lack of proper training and/or supervision as absent an
exemption strict compliance with the PRA is required. At a minimum this document should have
been placed on the City?s website for retention purposes. The City violated the PRA and
Plaintiffs are awarded $9,600 ($50 multiplied by 192 days) for the denial of the right to
inspect or copy Exhibit 5.

Pertaining to Plaintiffs? request Exhibits 6-9 and 15, several emails with the FBI
concerning requests made by other entities and an invoice. The City asserts it non-disclosure
agreement with the FBI required noti?cation to the FBI when requests for records were received 
and that it received many requests for records about the cell site simulators. However, the City
violation is for not producing the nonexempt documents requested under the PRA. The City
concedes that it is ?unable to say whether these documents stillexisted at the time the City
responded to the Plaintiffs? request other than as part of production to previous requesters. It
is unknown for certain whether the City simply missed a few emails or whether they no longer
existed at the time of these plaintiffs? request.? Similar to Exhibit 5, the City?s failure to produce
Exhibits 6-9 and 15 for inspection or coming was unreasonable as the documents were provided
to other requestors, including the media (Muckrock, the Associated Press, and the Tacoma News
Tribune). Therefore, it should have been foreseeable that was not irrelevant and failure to retain
or locate these documents is indicative of a lack of proper training and/or supervision. Ata
minimum these documents should have been placed on the City?s website. The City violated
the PRA and Plaintiffs are awarded respectively $48,000 ($50 multiplied by 192 days
multiplied by 5) for the denial of the right to inspect or copy Exhibit 6-9 and 15.

Sanne

 

Pertaining to Plaintiffs? request number IQ, the City asserts that it understood this request
was for ?completed applications, not a blank template.? Under the PRA it is the City?s
responsibility to clarify any misunderstanding regarding a PRA request14 and therefore this
violation could easily have been remedied with a request for clari?cation from the Plaintiffs.
Instead the City states that it ?does not generally provide blank forms and it did not occur to the
City that these plaintiffs wanted one.? Similar, to the request for the ?blank warrant form?
discussed above, the City failed in responding to the PRA request. The City?s response when
reviewed in its totality in responding to these Plaintiffs PRA requests was not misguided or
mistaken but appeared to be deliberate as the City decided what it will produce citing to no
exemption. In addition, it is important to note that the documents if found are to be produced for
?inspection or Copying,? therefore it is for the requestor to decide if he or she will pay for the
produced documents and not for the City to decide the value in the requestor?s request even if it
is ?blank forms.? The City violated the PRA and Plaintiffs are awarded respectively $33,540
($60 multiplied by 559 days) for the denial of the right to inspect or copy Exhibit 10.

Pertaining to Plaintiffs? request number 11-13, the City?s failure to produce paper copies
of the minutes of two Citizen Review Panel meetings and the agenda for one meeting. According
to the City ?these documents were publicly available to the plaintiffs online at the time of their
request and remain available to them online to this day. The documents are easily obtainable
by any member of thepublic by doing a simple Google search. Alternatively, any person can visit
the City?s website and obtain these documents.? This response by the City is the most troubling
and runs afoul of the PRA. The PRA does require state and local agencies to ?make available for
public inspection and copying all public records, unless the record falls within the speci?c I
exemptions of the PRA. Placing a document on the City?s website does not alleviate the City of
its responsibility to produce the requested documents or at a minimum the City is required to
inform the requestor of where it has placed the requested documents. Additionally, the City?s
argument requiring any member of the public to do a google search is unpersuasive' as
documents found through a google internet search may have no level of authenticity as that
obtained from the guardian of the record - the governmental agency the City. Therefore, the

Plaintiffs were denied the ability to inspect or copy these records. The City violated the PRA

 

1? RCW 42.56.080

 

?lPane

and Plaintiffs are awarded respectively $77,760 ($80 multiplied by 324 days multiplied by
3) for the denial of the right to inspect or copy Exhibit 11-13.

In the Present case assuming the City?s assertions are true, it was the City?s responsibility
after doing an adequate search to produce the documents for the Plaintiffs. In this instance
noti?cation by the City of where the City had placed the requested documents so that it could be
easily retrieved by the public would have complied with the PRA requirements. The City -
knowing where the documents requested could be found admits to having produced the same
documents to other requestors but for 324 days failed to produce the documents to the Plaintiffs'
or notify them of where the documents could be found violated the PRA. The purpose of the
PRA's penalty provision is to deter improper denials of access to public records?. The penalty
must be an adequate incentive to induce future compliance. Strict enforcement of this provision

discourages improper denial of access to public records?6 and a showing of bad faith is not

required.

In this case, the City?s responses were troubling in many regards. To support its position
that that ?there was no public importance associated with these Plaintiffs? request? and ?that
there is no basis to assess a penalty, The City asserts

?it is significant that although the plaintiffs request related to an issue that was
of interest to the public, the City had already responded to many, many requests
about the cell site simulator when these plaintiffs made their request. In fact, the
City had already responded to over 30 other requests. These plaintijfs did not
seek any documents that had not already been provided to other requesters. All of
the documents at issue had been provided to other requesterspr had been
posted online. In fact, the local newspaper had already retrieved and publicized
almost all of the documents at issue. These plainti?fs? request came in a?er the
press release had been issued and the emails did not reveal any further detail
about the equipment ?s acquisition, use, or operation that had already been
publicized by the newspaper and the City?s voluntary press release. These
plainti?fs? request merely piggy-backed on other requests and on a story, that had
already been well-publicized. Thus, while the topic of cell site simulators may
have been of interest to the public at one point, the documents at issue in this
motion did not further that public interest in any way. ?i 7

 

'5 Yousoa?an H, 152 Wn.2d at 429?30, 98 P.3d 463.
'6 Amren v. City ofKalama, 31 Wn.2d 25, 929 P.2d 389 (1997)
'7 Defendant?s Response to Plaintiffs? Request for Penalties and Fees, Page 6 lines 10 to 19.

7 Pnne

 

The City?s responses to the Plaintiffs PRA requests resulted in delayed responses, lack of
compliance with PRA procedural requirements, showed a lack of proper training and/or
supervision, negligence, and unreasonableness in any explanations given for noncompliance. The
penalty awarded in this case is an amount necessary to deter future misconduct when considering
the City?s agency size and the facts of this case.

The Plaintiff?s requests attorney fees and costs. Strict'enforcement of fees and ?nes will
discourage improper denial of access to public records?. This rule promotes the PDA's broad
mandate for broad disclosure of public records.'9 The act?s declaration of policy states that it is to
be liberally construed to promote ?full access to public records so as to assure continuing public
con?dence [in] government processes, and so as to assure that the public interest will be fully
protected?. Therefore, the prevailing party is entitled to a ?reasonable? attorneys? fees award.21

In the present case the-Plaintiffs were the prevailing party regarding Exhibits 4-13 and
15. Therefore utilizing the ?lodestar? approach?, the requested Plaintiffs attorneys? fees are
adjusted23 to be comparable with those awarded in the Pierce County geographic area for PDA
cases. Attorney fees are awarded as follows:

John Midgley 103.4 hours at $450.00/hour, total $46,530
Lisa Nowlin 86.6 hours at $325.00/hour, total $28,145
Jennifer Campbell 28.6 hours at $400.00/hour, total $11,440
James Edwards- 43.5 hours}4 $260.00/hour, total $11,310
Jamila Johnson- 35.6 total $12,460

COURT ORDER

The Defendant?s Summary Judgment Motion is GRANTED in PART as to the
redactions of documents pertaining specifically to the cell site simulator documents. 25

The Plaintiff Motion for Summary Judgment is GRANTED

 

'3 Progressive Animal Welfare Soc. v. University of Washington, 1 14 Wn. 2d 677, 790 P. 2d 604 (1990)

191d

201d

211d

22 Bowers v. Transamerica Title Ins. Co., 100 Wn. 2d 581,675 P. 2d 193 (1983).

23 John Midgley? ?.$450 00 hour; Lisa Nowlin- $325. 00 hour; Jennifer Campbell- $400. 00 hour; James Edwards-
$250.00 hour; Jamila Johnson- $325. 00 hour

2? Adjustment made for pre- -?ling work

25 RCW 42.56.2400)

8113an

 

 1:23 1:5; '43Pursuant to this Court?s decision:

This Court ORDERS that Plaintiffs be awarded a Total for violations of
the PRA regarding Exhibits 4-13 and 15.

This Court ORDERS that Plaintiffs be awarded Attorney Fees in the amount of
$109,885.00.

This Court ORDERS that Plaintiffs be awarded Costs in the amount of $5,645.0426.

DATED this 251h day ofJune, 2018.

JUDGE G. HELEN WPHTENER

 

26 Adjustment made for deduction of 10/ 1 3/2014 charge totaling $26.50

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