Andrea Cantu v. Yakima School District No. 7
This text of Andrea Cantu v. Yakima School District No. 7 (Andrea Cantu v. Yakima School District No. 7) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED AUGUST 2, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
ANDREA CANTU, ) ) No. 37996-5-III Appellant, ) ) v. ) ) YAKIMA SCHOOL DISTRICT NO. 7, ) PUBLISHED OPINION ) Respondent. )
STAAB, J. — Andréa Cantu believed her daughter was being bullied at school.
Over the course of two years she made three requests for records from the Yakima
School District. Her first request was made in October 2016. In January 2017, Ms.
Cantu clarified this request. In April 2018, Ms. Cantu made two requests seeking more
records. The District failed to adequately respond to these requests. In September 2018,
Ms. Cantu filed a complaint seeking damages for violating the Public Records Act
(PRA), ch. 42.56 RCW. Over the course of several motions, the court denied most of her
claims. Ultimately, the court determined that 85 “emails” responsive to her January 2018
clarification were wrongfully withheld for 631 days and assessed a per diem penalty of
$10 per day, or a total penalty of $6,310. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37996-5-III Cantu v. Yakima School Dist. No. 7
On appeal, Ms. Cantu raises five issues. We affirm the trial court’s interpretation
of her October 2016 request, but we reverse and remand on the other four issues.
First, we hold that the District failed to meet its burden of showing that its search
for records in response to Ms. Cantu’s January 2017 clarification was reasonably
calculated to uncover all relevant records. The inadequate search not only failed to
discover responsive records, but it constituted an aggravating factor that the court did not
consider when calculating the per diem penalty.
Second, we reverse the trial court’s summary judgment order dismissing Ms.
Cantu’s claim for denied records. We hold that when an agency ignores a request for an
extended period of time, such inaction may constitute the constructive denial of records.
In this case, the evidence establishes that the District ignored one of Ms. Cantu’s April
2018 requests for an extended period of time, thus wrongfully denying her the records
she had requested.
Third, we hold that the District’s narrow interpretation of Ms. Cantu’s April 2018
requests was based on an unreasonable assumption. Consequently, the District
wrongfully withheld at least 75 email attachments on the basis that they were
nonresponsive to Ms. Cantu’s April 2018 requests. To the extent that any exemptions
apply to those email attachments, the records can be redacted and provided.
Finally, we find that the $10 per diem penalty imposed for wrongfully withholding
85 email records for 631 days was inadequate and constitutes an abuse of discretion. On
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
remand, the court will need to recalculate how many records have been wrongfully
withheld and determine the appropriate per diem penalty for those wrongfully withheld
records.
BACKGROUND
During 2016, Ms. Cantu’s daughter, AM, suffered multiple incidents of
harassment, intimidation, and bullying at Davis High School in Yakima. Ms. Cantu
sought assistance from the school but ultimately petitioned for protection orders from the
court. In an attempt to gather records to support her petition for a protection order, Ms.
Cantu requested records from the Yakima School District. The District’s response was
inadequate, which lead Ms. Cantu to request additional documents over the next several
years. The lengthy chronology of her communications with the District is set forth
below.
A. MS. CANTU’S OCTOBER 2016 RECORDS REQUESTS
On October 27, 2016, Ms. Cantu submitted her first records request on a form
created by the District. Her request read: “Description of records requested: All
incidences/incident reports where [A] was a victim of bullying, threats, harassment, etc.
Dates: April 2016-present.” Clerk’s Papers (CP) at 438. She indicated that the intended
use of the records was to support a petition for an anti-harassment order.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On November 7, the District’s public records officer, Kirsten Fitterer,1 responded
to Ms. Cantu by email, apologizing for not seeing the request, and indicated that she
would “get back to you with a timeline.” CP at 639. Ms. Fitterer indicated that Ms.
Cantu would be receiving “a formal letter acknowledging your request was received,” but
did not provide a time estimate for responding to Ms. Cantu’s request. CP at 639. A 5-
day letter was not sent.
On November 9, Ms. Fitterer contacted the Davis High School Vice Principal,
Bob Stanley, about the records request. He provided “several records” the same day from
his “hard copy file,” including emails, and indicated that others would come from the
Skyward system and the “Harassment, Intimidation, Bullying (HIB) system” operated by
the Office of Student and Family Services. CP at 571, 643. He indicated that additional
statements needed to be obtained from another staff member who was out of the office
and he emailed this staff member. Ms. Fitterer also contacted the office manager of the
Department of Student and Family Services, who provided three reports that same day,
November 9.
1 Ms. Fitterer began working as the District’s PRA officer in 2016. Although she had no prior experience with PRA requests, Ms. Fitterer indicated that she read some online resources and participated in 45 minutes of PRA training in November 2016. Her supervisor received PRA training 10 years prior to the lawsuit but did not refresh this training until after Ms. Cantu’s lawsuit was filed.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED AUGUST 2, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
ANDREA CANTU, ) ) No. 37996-5-III Appellant, ) ) v. ) ) YAKIMA SCHOOL DISTRICT NO. 7, ) PUBLISHED OPINION ) Respondent. )
STAAB, J. — Andréa Cantu believed her daughter was being bullied at school.
Over the course of two years she made three requests for records from the Yakima
School District. Her first request was made in October 2016. In January 2017, Ms.
Cantu clarified this request. In April 2018, Ms. Cantu made two requests seeking more
records. The District failed to adequately respond to these requests. In September 2018,
Ms. Cantu filed a complaint seeking damages for violating the Public Records Act
(PRA), ch. 42.56 RCW. Over the course of several motions, the court denied most of her
claims. Ultimately, the court determined that 85 “emails” responsive to her January 2018
clarification were wrongfully withheld for 631 days and assessed a per diem penalty of
$10 per day, or a total penalty of $6,310. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37996-5-III Cantu v. Yakima School Dist. No. 7
On appeal, Ms. Cantu raises five issues. We affirm the trial court’s interpretation
of her October 2016 request, but we reverse and remand on the other four issues.
First, we hold that the District failed to meet its burden of showing that its search
for records in response to Ms. Cantu’s January 2017 clarification was reasonably
calculated to uncover all relevant records. The inadequate search not only failed to
discover responsive records, but it constituted an aggravating factor that the court did not
consider when calculating the per diem penalty.
Second, we reverse the trial court’s summary judgment order dismissing Ms.
Cantu’s claim for denied records. We hold that when an agency ignores a request for an
extended period of time, such inaction may constitute the constructive denial of records.
In this case, the evidence establishes that the District ignored one of Ms. Cantu’s April
2018 requests for an extended period of time, thus wrongfully denying her the records
she had requested.
Third, we hold that the District’s narrow interpretation of Ms. Cantu’s April 2018
requests was based on an unreasonable assumption. Consequently, the District
wrongfully withheld at least 75 email attachments on the basis that they were
nonresponsive to Ms. Cantu’s April 2018 requests. To the extent that any exemptions
apply to those email attachments, the records can be redacted and provided.
Finally, we find that the $10 per diem penalty imposed for wrongfully withholding
85 email records for 631 days was inadequate and constitutes an abuse of discretion. On
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
remand, the court will need to recalculate how many records have been wrongfully
withheld and determine the appropriate per diem penalty for those wrongfully withheld
records.
BACKGROUND
During 2016, Ms. Cantu’s daughter, AM, suffered multiple incidents of
harassment, intimidation, and bullying at Davis High School in Yakima. Ms. Cantu
sought assistance from the school but ultimately petitioned for protection orders from the
court. In an attempt to gather records to support her petition for a protection order, Ms.
Cantu requested records from the Yakima School District. The District’s response was
inadequate, which lead Ms. Cantu to request additional documents over the next several
years. The lengthy chronology of her communications with the District is set forth
below.
A. MS. CANTU’S OCTOBER 2016 RECORDS REQUESTS
On October 27, 2016, Ms. Cantu submitted her first records request on a form
created by the District. Her request read: “Description of records requested: All
incidences/incident reports where [A] was a victim of bullying, threats, harassment, etc.
Dates: April 2016-present.” Clerk’s Papers (CP) at 438. She indicated that the intended
use of the records was to support a petition for an anti-harassment order.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On November 7, the District’s public records officer, Kirsten Fitterer,1 responded
to Ms. Cantu by email, apologizing for not seeing the request, and indicated that she
would “get back to you with a timeline.” CP at 639. Ms. Fitterer indicated that Ms.
Cantu would be receiving “a formal letter acknowledging your request was received,” but
did not provide a time estimate for responding to Ms. Cantu’s request. CP at 639. A 5-
day letter was not sent.
On November 9, Ms. Fitterer contacted the Davis High School Vice Principal,
Bob Stanley, about the records request. He provided “several records” the same day from
his “hard copy file,” including emails, and indicated that others would come from the
Skyward system and the “Harassment, Intimidation, Bullying (HIB) system” operated by
the Office of Student and Family Services. CP at 571, 643. He indicated that additional
statements needed to be obtained from another staff member who was out of the office
and he emailed this staff member. Ms. Fitterer also contacted the office manager of the
Department of Student and Family Services, who provided three reports that same day,
November 9.
1 Ms. Fitterer began working as the District’s PRA officer in 2016. Although she had no prior experience with PRA requests, Ms. Fitterer indicated that she read some online resources and participated in 45 minutes of PRA training in November 2016. Her supervisor received PRA training 10 years prior to the lawsuit but did not refresh this training until after Ms. Cantu’s lawsuit was filed.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On January 20, 2017, Ms. Cantu sent a follow up email to Ms. Fitterer inquiring
about the status of her request because she had “not received ANY info regarding this
request submitted over 2 months ago.” CP at 649. On January 24, Ms. Fitterer emailed
Ms. Cantu to apologize for the delay and admitted she “dropped the ball” and requested
Ms. Cantu come by the school to review the records. CP at 648. Ms. Fitterer realized
that she had not kept Ms. Cantu informed. “Dropped the ball” meant that she had not
followed up with the vice principal for additional records. CP at 1158.
On January 30, a phone call took place between Ms. Fitterer and Ms. Cantu. Ms.
Cantu verbally extended her October request through January 30, 2017, and clarified that
she wanted emails. Ms. Fitterer sent two follow-up emails that day. The second email
indicated that if the email system search did not yield additional records that the request
would be closed.
Ms. Fitterer proceeded to email the vice principal and other staff about the
expanded request, and they provided one new HIB report from the three previously sent.
Ms. Fitterer also emailed the District’s technology director, Andy Gonzalez, requesting
an email search and attached Ms. Cantu’s October 2016 request where Ms. Fitterer wrote
“Revised to 1/30/17” and included her initials. CP at 667.
Ms. Fitterer provided three redacted HIB reports and “other records” to Ms. Cantu
by email. The email stated “Our tech department is performing a formal search of our
email system. If that search produces additional records (through today’s date), I will
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
forward them to you. If it does not, I will advise you and this request will be closed.” CP
at 663. No exemption log was provided for the redactions from the HIB reports.
On February 2, the District’s technology director ran two searches of the District
email archive system for the date range of April 1, 2016 through February 2, 2017, using
the following search terms:
• [A] AND bullying OR HIB • [A] AND harassment OR intimidation OR bullying • [A] AND [M]
CP at 538-39. The search identified 85 email records as potentially responsive. The
District’s technology director was not confident that all emails related to the incidents
were provided, given the search terms used.
On February 2, the technology director emailed his search results to Ms. Fitterer
for review in the form of a link to PST2 files on the District’s network along with
directions on how to open the PST files. Ms. Fitterer could not open them except to view
the “headers” which merely showed “Sender,” “Recipient,” “Message-Id,” and “Subject,”
but did not display content. CP at 3232. She needed technical assistance but did not ask
even though she knew “tech” services could have opened them. School board member
emails were not searched even though they were aware of the issues with Ms. Cantu’s
daughter.
2 Personal Storage Table file, which is a file format Microsoft programs use to store items like email messages.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On February 3, Ms. Fitterer emailed Ms. Cantu that “Our tech services department
has completed their search of our email system and there are over 80 email records.” CP
at 673. She indicated a need for additional time for review but estimated that she could
“have them to you by Wednesday February 15, 2017 or will contact you will [sic] an
updated fulfillment date.” CP at 673.
At an unknown date, Ms. Fitterer provided hard copies of the email headers to Ms.
Cantu. Ms. Fitterer apparently assumed, based on a phone conversation, that Ms. Cantu
would review the headers and specifically identify which emails she wanted from the
headers. Ms. Fitterer did not confirm this assumption in writing. Ms. Cantu denied
agreeing to this limitation and indicated that Ms. Fitterer only told her during the call that
she was redacting the headers, but Ms. Cantu did not understand what she meant. Ms.
Cantu did not agree to accept or review only headers in lieu of requested emails.
No communication between the District and Ms. Cantu occurred for the next 10
months. Ms. Fitterer “assumed that Ms. Cantu had all the email records she wanted
because I had not heard back from her.” CP at 575.
B. MS. CANTU’S APRIL 2018 RECORDS REQUESTS
On April 5, 2018, Ms. Cantu submitted two records requests to the District. In the
first request, she asked for “ALL HIB forms from December 2017 Re: [AM].” CP at
679. In her second request, she requested: “ALL emails including the text of the
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
messages Re: [AM] from April 2016 to present.” CP at 680. Ms. Fitterer responded to
Ms. Cantu by email the same day, stating “Thank you for your email. I will be out of the
office March 30 through April 6th. I will get back to you asap.” CP at 1590.
On April 9, Ms. Fitterer responded to the new records request and indicated “I do
not have my files with me but it seems we have provided this information previously.
Can you remind me?” CP at 441. Ms. Cantu responded: “I did request copies of my
emails in the past, however they did not contain any messages . . . . I would like ALL
emails with the messages.” “Also, a lot more incidences have occurred since my last
request, therefore I am in need of past emails to the present.” “Please contact me if you
need further clarification on my request.” CP at 556. Ms. Fitterer did not forward the
April 5 requests to anyone else for assistance. No formal five-day letter with a response
time estimate was sent.
On April 23, Ms. Fitterer emailed Ms. Cantu asking “On the emails, I need further
clarification. My memory of your last request was that you had a lot of the emails
already and wanted to look through a list of email headers so you could determine if any
were missing. Once you told me which ones you needed I would do the redaction and
send them to you. Are you now saying you want all redacted emails from the date you
specified? Depending on the quantity of emails that could take 30-120 days. Please
clarify your preference.” CP at 556.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
That same day, Ms. Fitterer produced 9 HIB reports to Ms. Cantu “in response to
one of the April 5, 2018, public records requests.” Ms. Fitterer’s email to Ms. Cantu
indicated: “The following records are responsive to your recent HIB public record
request. They have been redacted for student and staff names. This will close your
public record request.” CP at 762.
On April 25, Ms. Cantu thanked Ms. Fitterer for the HIB reports and reiterated her
request for “all emails in their entirety, of course I understand some things need to be
redacted.” CP at 757.
On April 26, Ms. Fitterer emailed a search request to the technology director, who
estimated that he could not get to it until after May 18 or May 24. Sometime thereafter,
the technology director and Ms. Fitterer discussed refining the search terms.
On May 3, Ms. Fitterer emailed a letter to Ms. Cantu estimating that a response to
her second April 5 request may be available by July 16, 2018, and it may be necessary to
produce records in installments.
On June 8, Ms. Fitterer emailed Ms. Cantu’s attorney, who had now taken over
Ms. Cantu’s records requests, along with several unrelated requests. Ms. Fitterer
indicated that due to the large scope of the responsive records, “we are suspending all
outstanding response deadlines and postponing our production of responsive records to
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
you for a three-week evaluation period.” CP at 535.3 The District indicated it would
“reassess the amount of time reasonably necessary to respond without causing excessive
interference with District operations.” CP at 535. “We invite you to please let us know
by June 22 which of your requests you would like the District to prioritize. We will also
continue providing you periodic progress updates regarding your requests and look
forward to sending you the updated response timeline.” CP at 535.
During this same period of time, Ms. Fitterer requested help from supervisors 10
times due to increasing numbers of PRA requests in 2017 and 2018, but the District
declined to provide assistance claiming lack of available resources.
On June 11, Ms. Cantu’s attorney responded to Ms. Fitterer by citing: the delays
since April 2018, missing attachments, and demanding authority for the suspension of
efforts. The attorney then submitted a significant number of additional PRA requests
unrelated to Ms. Cantu’s requests. Ms. Fitterer responded to Ms. Cantu’s attorney saying
“Suspension is not the correct term. I apologize.” “To clarify, the District is not
suspending its efforts to respond to your Public Records Act requests. As indicated in my
email from Friday, the District is evaluating how best to process your multiple records
requests so as to provide complete and accurate responses in compliance with the PRA
while at the same time not unduly disrupting District operations.” “We will follow up by
3 We impute communications sent or received by the parties’ attorneys to the parties themselves.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
June 29th with a revised schedule and revised installment deadlines.” CP at 2613. No
follow-up occurred.
On July 2, the District’s technology department searched the email archive system
using terms “[A] AND [M]” for the period between “4/1/2016 and 4/1/2018.” CP at 490.
The search yielded 3,200 potential results, which were provided to Ms. Fitterer on the
same day in the “RFI”4 folder and email notification. Ms. Fitterer did not produce these
emails to Ms. Cantu at this time, as she did not finish reviewing them until October 6.
The District failed to meet its estimated response date of July 16, 2018, and failed
to provide any communication to Ms. Cantu about her April 5 request for emails. In her
declaration, Ms. Fitterer indicated that she was primarily occupied by other projects
during the summer and occasionally working on other public records requests.
On August 3, Ms. Cantu emailed Ms. Fitterer asking the status of her record
request. Ms. Fitterer did not respond.
On August 28, Ms. Cantu asked again for a status update from Ms. Fitterer. Ms.
Fitterer emailed back that the public records office “was closed for the summer so opened
yesterday.” CP at 579, 766. During discovery, the District clarified that while Ms.
Fitterer and her secretary were out of the office for a time, the office was not closed. Ms.
4 Request for information.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Fitterer later admitted that she owed Ms. Cantu an explanation “but didn’t have time to
give [it] to her.” CP at 1178. No updated response time estimate was provided.
On September 13, as a record response, Ms. Fitterer emailed Ms. Cantu’s attorney
a web link to an empty “Google Drive” electronic file directory.
On September 24, Ms. Cantu filed a complaint in the Yakima County Superior
Court against the District.
On October 1, Ms. Fitterer emailed Ms. Cantu that she was reviewing and
redacting the email records with an anticipated production date of October 6. She
promised to “have an installment to you even sooner.” CP at 768. Ms. Fitterer “started
working immediately” on the emails sometime during the week of October 1, although
she also vaguely indicated reviewing them sometime after August 28.
On October 4, Ms. Fitterer produced 68 pages of emails to Ms. Cantu as an
“installment.” CP at 580. “In reviewing your public record requests form (attached) and
some emails we exchanged for clarification (also attached) I am interpreting that you
want the text in the emails versus just the email headers.” CP at 770.
On October 6, Ms. Fitterer informed the District’s technology services director
that she had reviewed the 3,200 emails from the July 2 search and requested an additional
search be done for emails with new search terms since “many are missing.” CP at 562.
Ms. Fitterer characterized Ms. Cantu’s request as her “top priority” because of the
lawsuit. “The lawsuit definitely made me go back and review.” CP at 1182.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The same day, Ms. Fitterer emailed Ms. Cantu that the review of the 3,200 emails
was “completed” but that “the search efforts undertaken in July 2018 may have missed
some potentially responsive records.” CP at 580. Ms. Fitterer extended her production
estimate date to October 13, and attached 63 pages of responsive emails.
On October 9, Ms. Fitterer provided “another installment” of 48 pages to Ms.
Cantu, and indicated that further searches of the network were being performed.
On October 10, the technology services director performed another email search
using the date range of “09/01/2016-09/28/2018” and terms of “1999@yahoo.com” and
“[A] AND [Stanley].” CP at 508. This search produced 401 emails, which were
delivered to Ms. Fitterer that same day.
On October 11, the technology services director performed a search, which
produced another 11,000 results. These were reduced to 3,365 potentially responsive
email records that were provided to Ms. Fitterer the same day. Ms. Fitterer stated that
she received 400 additional email records on October 10 and 3,350 on October 11. She
reviewed the records over the next several days, including the weekend.
C. 75 EMAIL ATTACHMENTS
On October 13, 2018, Ms. Fitterer emailed Ms. Cantu that she could pick up the
thumb drive with 398 email records responsive to the April 2018 request for emails
because the records were too large to provide by email. Some of the records included
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
duplicate copies of the “records provided on October 4, 6 and 9, 2018.” CP at 581.
While the thumb drive contained copies of emails, it did not contain thousands of pages
of attachments associated with the 398 email records. A redaction and exemption log
was not included. The attached letter read “The District considers this request complete.
No further action will be taken by the Yakima School District related to this request.”
CP at 782. Ms. Fitterer chose to exclude attachments and did not confirm the exclusion
with Ms. Cantu. She was also aware that the technology services director had searched
the wrong time frame.
On October 19, the District provided Ms. Cantu with an exemption log for the
redacted HIB reports turned over January 30, 2017, citing FERPA5 personal information.
Prior to this date, exemption logs had not been provided.
On October 26, the District provided additional emails previously withheld related
to Ms. Cantu’s request for emails on January 30, 2017. The exemption log that was
attached, identified personal information redactions per FERPA.
In November, Ms. Fitterer received a three hour PRA group training from an
attorney. According to Ms. Fitterer, the District’s technology services director, received
PRA training at the November 2018 group session. Mr. Gonzalez’s subordinate in the
5 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
technology services department never received any PRA training despite being tasked
with developing the new District public records response application.
In late December, the District ran another search that yielded no new records.
On January 10, 2019, the District claimed it provided Ms. Cantu a spreadsheet
documenting the emails provided on October 13, 2018, and the missing attachments to 56
of the emails along with an exemption log for another 75 emails. The log cites FERPA
for personally identifiable information as the same explanation for redacting all 75
attachments.
On the same day, the District ran another search with expanded parameters using
“[A]” and wildcards for the words “threat,” “harass,” “bull,” “intimidate,” a witness’s
name, AM’s nickname and “HIB,” for the date range of “4/1/2016-5/1/2018.” CP at 542.
On January 17, Ms. Cantu reasserted her demand for attachments for the
previously produced emails. During Ms. Cantu’s deposition, she clarified that her April
2018 request was for any email that had “anything that had to do with my daughter”
regardless of whether the email pertained to bullying or anything else. CP at 3691. Ms.
Cantu would not agree to the District withholding any documents or attachments.
On January 18, the District’s attorney sent Ms. Cantu’s attorney a letter clarifying
its request to withhold the 75 email attachments instead of redaction due to size, volume,
and a lack of responsiveness to harassment. The District admitted that attachments were
not disclosed on October 13, 2018, and claimed discovery remained incomplete. Ms.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cantu refused to agree to withholding, re-asserting “ALL means all” to the District. CP
at 391.
On January 28, the District sent a letter to Ms. Cantu with an attached exemption
log supposedly highlighting the 75 emails in dispute asserting FERPA personally
identifiable information. The District provided an estimated timeline for production of
the remaining attachments.
D. CONTINUING SEARCHES AND RECORDS PRODUCTION
On January 30, 2019, the District sent a letter to Ms. Cantu outlining the search
terms used on January 10, 2019, and providing additional redacted records along with an
exemption log. Each record was responsive to Ms. Cantu’s January 2017 request for
emails pertaining to the harassment, intimidation, and bullying of Ms. Cantu’s daughter.
On January 31, Ms. Cantu emailed the District, reasserting her request for all
emails.
On February 12, the District performed another search for emails responsive to
Ms. Cantu’s April 5 request to include shortened versions of names along with wildcards:
“A[M]* AND Nancy OR Mchenry” and “A[M]* AND Amanda OR jewel*” for
“4/1/2016-5/1/2018.” CP at 543.
On February 19, the District produced the 13 new records relating to the April 5,
2018 request, with an exemption log. Most of the records, both emails and HIB reports
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
dating from 2016, discussed harassment incidents involving AM and are highly
responsive.
On March 1, 2019, the District modified 778 records with previous redactions
from the October 13, 2018 production. It also provided 7 new emails not previously
released in October 2018.
In September 2019, the District hired new in-house counsel to handle PRA
requests. The in-house counsel was able to clear the backlog and process an additional
110 requests by September, 2020.
ANALYSIS
Ms. Cantu raises several substantive issues pertaining to the District’s responses to
her multiple records requests. We consider the policy and presumptions of the PRA
before addressing her specific issues.
A. WASHINGTON’S PUBLIC RECORDS ACT6
The PRA mandates full disclosure of public records except for limited exemptions
provided by the Act. Washington Pub. Employees Ass’n v. Wash. State Ctr. for
Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 491, 450 P.3d 601 (2019). The
PRA requires all state and local agencies to disclose any requested public record, unless
6 The former Public Disclosure Act (PDA), ch. 42.17 RCW (2005), was recodified as the Public Records Act (PRA), ch. 42.56 RCW. Soter v. Cowles Pub. Co., 162 Wn.2d 716, 750, 174 P.3d 60 (2007) (affirming and clarifying procedure). The text of the acts are substantially the same.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the record falls within a specific exemption. Progressive Animal Welfare Soc’y v. Univ.
of Wash., 125 Wn.2d 243, 250, 884 P.2d 592 (1994) (plurality opinion) (PAWS II). There
is a strong presumption in favor of full disclosure. Zink v. City of Mesa, 140 Wn. App.
328, 337, 166 P.3d 738 (2007) (Zink I) (citing Amren v. City of Kalama, 131 Wn.2d 25,
31, 929 P.2d 389 (1997)). Washington courts have long held that the PRA must be
liberally construed to promote full access to public records. Progressive Animal Welfare
Soc’y v. University of Wash., 114 Wn.2d 677, 682, 790 P.2d 604 (1990) (PAWS I) (citing
former RCW 42.17.251 (2005)). Interpretations of the Freedom of Information Act are
helpful in construing the PRA. Id. To serve the goal of transparent government, agencies
are required to adopt rules and regulations that “provide for the fullest assistance to
inquirers and the most timely possible action on requests for information.” RCW
42.56.100.
The procedures for responding to a PRA request were outlined in Soter v. Cowles
Pub. Co., 162 Wn.2d 716, 750, 174 P.3d 60 (2007):
The [PRA] requires agencies to respond to public records requests within five business days. RCW 42.56.520. . . . The agency must either provide the records, provide a reasonable estimate of the time the agency will take to respond to the request, or deny the request. Id. Additional time may be required to respond to a request where the agency needs to notify third parties or agencies affected by the request or “to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.”
Id.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The PRA does not limit the number of requests an individual can make. Zink I,
140 Wn. App. at 340. Strict enforcement promotes adherence to the goals of the statute.
Id. at 338.
Procedures and Standard of Review
Ms. Cantu filed suit under the PRA to address her dispute with the District without
moving for a show cause hearing under RCW 42.56.550. The District brought motions
for declaratory judgment and summary judgment. Both parties dispute the procedures
available to resolve PRA claims. We review the available procedures to address these
issues and determine the appropriate standard of review.
There are several procedures available for determining the merits of a PRA claim.
RCW 42.56.550 provides for a show cause hearing under two circumstances. A requester
can move for a show cause hearing to determine if an agency has wrongfully denied a
request or has provided an unreasonable estimated time of production. RCW 42.56.550(1),
(2). The show cause hearing is generally an evidentiary hearing. And while it may be
conducted entirely on affidavits or declarations, the agency carries the burden to establish
that its actions are reasonable and comply with the PRA. RCW 42.56.550.
The procedures outlined in RCW 42.56.550 are not exclusive. Spokane Research
& Defense Fund v. City of Spokane, 155 Wn.2d 89, 104-05, 117 P.3d 1117 (2005). Other
“normal civil procedures” such as intervention, declaratory judgment and writ are
appropriate methods to prosecute a claim under the PRA. Id. at 105. An agency seeking
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
adjudication that it is in compliance with the PRA can file a complaint for declaratory
judgment. Benton County v. Zink, 191 Wn. App. 269, 277-78, 361 P.3d 801 (2015) (Zink
II) (affirming by declaratory judgment that no duty exists under the PRA to provide a
record response in electronic versus paper format). Injunctive relief may be sought if the
agency or person named in the responsive records would be harmed by the release of
those records. RCW 42.56.540; Soter, 162 Wn.2d at 751-52.
If the underlying facts are not in dispute, either party may move for summary
judgment. CR 56(c). While similar in appearance to an evidentiary hearing on affidavits,
there are material differences to a summary judgment hearing. For instance, in
considering a motion on summary judgment, the facts are considered in a light most
favorable to the nonmoving party and summary judgment is generally appropriate only if
there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
We review all questions regarding an agency’s obligations under the PRA de
novo. RCW 42.56.550(3); Zink I, 140 Wn. App. at 337 (citing PAWS II, 125 Wn.2d at
252-53). Fact-finding hearings on PRA claims are unique. When the trial court enters
findings on disputed evidence presented solely in the form of affidavits, the reviewing
court is not bound by the trial court’s findings on disputed factual issues. PAWS II, 125
Wn.2d at 252-53 (citing Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969)). In
such circumstances, the reviewing court stands in the same position as the trial court. Id.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Penalty calculations under the PRA are reviewed for abuse of discretion.
Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 430-31, 98 P.3d 463 (2004)
(Yousoufian I).
We turn now to the specific issues raised by Ms. Cantu on appeal.
B. SCOPE OF OCTOBER 2016 RECORDS REQUEST
The first issue we address is the scope of Ms. Cantu’s October 2016 records
request. Ms. Cantu’s first request for records was submitted on a school District form
that read: “Description of records requested” and Ms. Cantu filled in the form with the
language “All incidences/incident reports where [AM] was a victim of bullying, threats,
harassment, etc. Dates: April 2016-present.” CP at 438. The District interpreted this as
a request for incident reports. In January 2017, Ms. Cantu clarified that she wanted all
records, including emails, regarding her daughter and incidences of bullying, threats, and
harassment. These records were eventually provided, but the District acknowledges that
its response was untimely.
Determining the appropriate penalty for a PRA violation involves two steps: “(1)
calculating the number of days the agency improperly denied access to records and (2)
determining the appropriate daily penalty, depending on the agency’s actions.” Cedar
Grove Composting, Inc. v. City of Marysville, 188 Wn. App. 695, 724, 354 P.3d 249
(2015). In this case, the trial court’s calculation of the number of days the District denied
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
responsive records is based on a finding that Ms. Cantu’s October request was for
incident reports and not all records of incidences. On de novo review, we agree with this
interpretation of Ms. Cantu’s request.
The PRA requires agencies to produce “identifiable public records.” RCW
42.56.080. If a request is too vague, an agency may request clarification. RCW
42.56.520. “While there is no official format for a valid [public disclosure act] PDA
request, a party seeking documents must, at a minimum, provide notice that the request is
made pursuant to the PDA and identify the documents with reasonable clarity to allow
the agency to locate them.” Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d
26 (2004) (citing Wood v. Lowe, 102 Wn. App. 872, 878, 10 P.3d 494 (2000)). Agencies
are not required to read minds. Bonamy v. City of Seattle, 92 Wn. App. 403, 409, 960
P.2d 447 (1998).
The trial court did not err in finding that Ms. Cantu’s original request was for HIB
incident reports and the term “incidences/incident” modifies the request for reports.
There is no question that had Ms. Cantu simply requested “incident reports” that her
request would be for a specific type of public record. As the District points out, it is
statutorily required to address allegations of harassment, intimidation and bullying. See
RCW 28A.600.477. The District meets its requirement by creating and making available
to students and the public specific HIB reports. Thus, a request for incident reports
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
concerning harassment, intimidation and bullying of a named person would be a request
for HIB reports concerning this person.
Ms. Cantu argues that her use of the “virgule” slash symbol created ambiguity.
Under different circumstances, courts have interpreted the virgule to mean a disjunctive
construction, indicating that the words may be used in the alternative. See Mumma v.
Rainier Nat’l Bank, 60 Wn. App. 937, 940, 808 P.2d 767 (1991). Under this construction
to Ms. Cantu’s October 16 request, the trial court did not err in determining that Ms.
Cantu was requesting certain types of reports about harassment, intimidation, or bullying
involving her daughter. The terms “incidences” and “incidents” could still reasonably be
construed to modify “reports.”
Under a reasonable interpretation of Ms. Cantu’s October 2016 search, the District
was required to provide her with all reports of incidences or incidents where AM was a
victim of bullying, threats, harassment, etc. from April 2016 to the date of the request.
C. ADEQUACY OF THE DISTRICT’S FEBRUARY 2017 SEARCH
Next, Ms. Cantu appeals the trial court’s determination that the District’s search
for records responsive to Ms. Cantu’s January 2017 records request was adequate. In
January 2017, after a phone call with Ms. Fitterer, Ms. Cantu clarified that she wanted all
email records discussing harassment, intimidation, and bullying incidences involving her
daughter. Ms. Cantu also expanded the dates of her request through January 2017.
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
After this clarification, the District conducted another search for responsive
records in February 2017. The District ran two searches of the District’s email archives
for the date range of April 1, 2016 through February 2, 2017. The search disclosed 85
emails records as potentially responsive. Ms. Cantu argues that the search was
unreasonable and that an adequate search would have identified additional records. On
January 14, 2019, after Ms. Cantu had filed her lawsuit, the District conducted another
search with expanded parameters using “[A] OR” wildcards for the words threat, harass,
bull, intimidate, [H] and “[A’s nickname] and HIB,” for the date range “4/1/2016-
5/1/2018.” This search produced additional records that were highly responsive to Ms.
Cantu’s January 2017 request for emails pertaining to the harassment, intimidation, and
bullying of Ms. Cantu’s daughter.
When public records are properly requested, the PRA requires an adequate search
that is reasonably calculated to uncover all relevant records. RCW 42.56.070, .520;
Neighborhood All. of Spokane County v. Spokane County, 172 Wn.2d 702, 720, 261 P.3d
119 (2011). What is reasonable depends on the facts and circumstances of each case. Id.
A search does not need to be perfect and the “failure to locate and produce a record is not a
per se violation of the PRA.” O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 79, 493 P.3d
1245 (2021) (published portion); O’Dea, No. 53613-7-II, slip op. at 24 (unpublished
portion) https://www.courts.wa.gov/opinions/pdf/D2%2053613-7-II%20Published
%20Opinion.pdfhttps://www.courts.wa.gov/opinions/pdf/D2%2053613-7-II %20Published
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
%20Opinion.pdf. Instead, an agency must follow leads and search sources that are likely
to produce responsive records. Neighborhood All., 172 Wn.2d at 720.
“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.” Id. When the
adequacy of a search is raised on summary judgment our Supreme Court has held that “the
agency bears the burden, beyond material doubt, of showing its search was adequate.” Id.
at 721. In attempting to meet its burden, the agency may submit reasonably detailed,
nonconclusory affidavits prepared in good faith that include the search terms, the type of
search performed and the locations searched. Id. The court’s focus should be on the
adequacy of the search, not on whether responsive records exist. Id. at 719-20. A search
may be adequate and still fail to identify responsive records. See West v. City of Tacoma,
12 Wn. App. 2d 45, 79, 456 P.3d 894 (2020) (“The mere fact that a record is eventually
found does not itself establish the inadequacy of an agency’s search.”).
As the Supreme Court has noted, “records are never exempt from disclosure, only
production, so an adequate search is required in order to properly disclose responsive
documents.” Neighborhood All., 172 Wn.2d at 721. Thus, the failure to perform an
adequate search is tantamount to a denial of the request. Id. While the court has not
determined if an inadequate search is grounds for an independent penalty, if an
inadequate search fails to discover responsive records, the records have been wrongfully
denied and a per diem penalty is appropriate. In addition, an inadequate search is an
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
aggravating factor in determining the penalty for records not produced, and constitutes a
violation of the PRA for purposes of imposing costs and attorney fees. Id. at 724.
Ms. Cantu’s October 2016 request reads as follows “Description of records
requested: All incidences/incident reports where [A] was a victim of bullying, threats,
harassment, etc. Dates: April 2016-present.” In January, Ms. Cantu clarified that she also
wanted emails and extended the search period through January 30. On January 30, 2017,
the District’s public records officer sent the District technology department director an
email requesting he perform a search for emails and attached a copy of Ms. Cantu’s
October 2016 written request with the date modified to January 30, 2017. On February 2,
2017, the District’s technology services director ran two searches of the District email
archive system for the date range of April 1, 2016 through February 2, 2017 using the
following search terms:
• [A] AND bullying OR HIB • [A] AND harassment OR intimidation OR bullying • [A] AND [M]
CP at 538-39.
Because the District’s system requires very specific search terms or intentional use
of wildcards,7 the above searches would not pick up individual terms, misspellings, any
7 A “wildcard” is a search technique that can be used to maximize database search results by using an asterisk (*) to specify zero, or one, or more than one other character. Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/wild %20card (last visited Jul. 25, 2022).
26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
shortened version of the student’s name, the student’s initials, or student ID number. Nor
would the searches capture alternate suffixes for the searched terms such as “bully” or
“bullied.” Id. The search did not include the term “threat,” even though that term was
used in the records request. The search identified 85 email records as potentially
responsive which the technology director provided to Ms. Fitterer. Had the search
included the term “threat” or used wildcards in its search, a few more records would
possibly have been discovered. CP at 2997.
We review the search as a whole to determine if it was reasonably calculated to
produce responsive records. West, 12 Wn. App. 2d at 79. We focus on the search
conducted, not on whether the requester can think of alternative search terms that may
produce more records. Id. Nonetheless, a search that is unnecessarily narrower than a
request is generally not adequate. Id. In West, the court found that the city attorney’s
interpretation of the records request unreasonably narrowed the search. Because the
attorney interpreted the request to be for records, he did not search communications, even
though a record is any writing and a writing includes emails. Id. at 81. Moreover, the
attorney’s interpretation of the records request was narrower than the actual wording of
the request, thus amounting to an inadequate search. Id. at 81-82.
In this case, the technology director provided a declaration stating that he
reviewed Cantu’s October records request and considered the search terms calculated to
27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
return all the records responsive to the request.8 The technology director did not explain
why he did not include the term “threat” in his search. Instead, he justified his search by
focusing on the outcome; pointing out that including the term would have only produced
one additional record. Nor did the technology director explain why he did not use
wildcards when conducting the initial searches.
The District contends that its search as a whole was reasonable and is not
dependent on alternative search terms suggested by Ms. Cantu such as “threat.” In Hobbs
v. State, the plaintiff complained that the State had not searched for particular terms
included in his request, or other terms he subsequently suggested. 183 Wn. App. 925,
943, 335 P.3d 1004 (2014). The Court of Appeals affirmed the adequacy of the search
clarifying that “we inquire into the scope of the agency’s search as a whole and whether
that search was reasonable, not whether the requestor has presented alternatives that he
believes would have more accurately produced the records he requested.” Id. at 944.
This case is more analogous to West than Hobbs. Ms. Cantu’s request specifically
asked for emails of incident reports where her daughter was the victim of threats. The
term “threat” is not an alternative search term suggested during litigation; it is a specific
part of Cantu’s records request. More importantly, the District’s failure without
8 While Ms. Cantu criticized his failure to use a wildcard on her daughter’s name, there was no way for the director to know that the daughter had a nickname or used a shortened version of her name.
28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
explanation, to use wildcards when it is known that they are necessary to locate
alternative word forms also unreasonably restricted the District’s search. In West, the
court found that the city failed to prove beyond a reasonable doubt that its search was
reasonable when its interpretation of the records request was narrower than the language
of the request. West, 12 Wn. App. 2d at 81.
We conclude that the District’s search in February 2017 was inadequate to
reasonably produce responsive records to Ms. Cantu’s request. On remand, the court will
need to determine which records would have been produced using a reasonable search
and set a penalty for the late disclosure of those records. The court shall also consider the
inadequate search as an aggravating factor in determining the daily penalty amount.
D. WHETHER A DELAYED RESPONSE CAN AMOUNT TO A DENIAL The next issue we address is whether the District’s delay in responding to one of
Ms. Cantu’s April 2018 records requests amounted to a constructive denial of records.
On April 5, 2018, 18 months after her first records request, Ms. Cantu submitted
another request for “All emails including the text of the messages Re: [AM] from April
2016 to present.” The District requested clarification but did not provide a formal five-
day response. After further clarification, the District estimated it would be able to
respond by July 16. On June 8, the District emailed Ms. Cantu’s attorney and indicated
that it was “suspending” all outstanding response deadlines and postponing its response
to evaluate how to respond to multiple records requests. The District did not provide
29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
records by its July 16 estimated deadline and did not provide any meaningful
communication to Ms. Cantu until the end of August when the District’s PRA officer
misrepresented that the District’s public records office had been closed for the summer.
On September 13, the District emailed Ms. Cantu a web link to an empty Google
directory. On September 24, 172 days after submitting her request, Ms. Cantu filed her
complaint against the District, claiming that her April 5 records request had been
effectively denied.
The superior court dismissed Ms. Cantu’s claim for denied records on summary
judgment. The court found that Ms. Cantu’s April 2018 request was neither denied nor
completely ignored. Report of Proceedings (July 10, 2020) (RP) at 13-14; CP at 3408.
Specifically, the court found:
In this case Ms. Fitterer has established that the plaintiff’s request was never completely ignored. There may have been delays. There was certainly times when she was overwhelmed with other requests and so on. But there is really nothing from which I can find that the request was ever completely ignored. And, again, the term completely ignored seems like a fairly high bar that any plaintiff is going to have to get over. It’s not a matter of you set it on a desk maybe and leave it for three days and go to do something else and then come back to it and even wait a week and come back to it. If the intent was to always come back to it, then you haven’t completely ignored it. And there’s no evidence that Ms. Fitterer or anyone else in the school District ever completely ignored it.
RP at 13-14. The court also found that any violation was cured by the District’s eventual
production of the records requested. We review this decision de novo. RCW 42.56.550(3);
Neighborhood All., 172 Wn.2d at 715.
30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
As more fully explained below, we hold that an agency’s inaction, or lack of
diligence in providing a prompt response to a records request can ripen into constructive
denial for purposes of fees, costs, and penalties under the PRA. We also hold that
whether a constructive denial has occurred is based on an objective standard from the
requesters’ perspective and will depend on the circumstances of each case. Finally, we
conclude that whether an agency was reasonably diligent in responding to a records
request or ignored a request for an extended period of time is a factual issue.
In this case, while the court decided this issue on summary judgment, it also made
oral findings of fact to support its decision. Because disputed issues of fact in a PRA
case can be decided on competing affidavits, and the evidence was fully presented in this
case, we exercise our discretion to decide this factual question, sitting in the same
position as the trial court.
(1) Agency’s inaction can ripen into the constructive denial of records
Upon a request for identifiable public records, an agency shall make them
“promptly available.” RCW 42.56.080(2). Under the PRA, an agency must provide “the
fullest assistance to inquirers and the most timely possible action on requests for
information.” RCW 42.56.100. When a records request is received, the agency must
respond within five business days either by (1) providing the records, (2) providing a link
to the records requested, (3) providing a reasonable estimate of the time it will take to
respond, (4) ask for clarification along with an estimated time to respond, or (5) deny the
31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
request. RCW 42.56.520(1). Under RCW 42.56.080, an agency may produce records in
installments.
The District contends that a lawsuit claiming denial of records under RCW
42.56.550(1), cannot be brought until the agency has denied and closed a records request.
Br. of Resp’t at 39-40. Citing Freedom Foundation v. Department of Social & Health
Services, 9 Wn. App. 2d 654, 664, 445 P.3d 971 (2019), as its authority, the District
implies that a “denial” requires an affirmative step by the agency. We disagree.
In Hobbs, the plaintiff made a request to the Department of Social and Health
Services (DSHS) for records regarding a whistleblower complaint. 183 Wn. App. at 925.
DSHS responded within five days indicating that it would provide the records in
installments, with the first expected installment to be available for inspection within two
weeks of the request. When DSHS was unable to reach the plaintiff’s attorney, the
agency made the first installment of records available electronically. Two days after the
first installment of records was provided, Hobbs filed suit against DSHS alleging PRA
violations. Id. at 930 n.3. Despite the lawsuit, DSHS continued to provide records in
installments over the next several months. Over the course of approximately three
months, DSHS sent 10 emails with records, estimated time lines and requests for
clarification. Id. at 925.
The superior court ruled that the redactions complied with the PRA and that
Hobbs did not have a cause of action for denial of records because DSHS was still
32 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
providing records in installments when he filed his lawsuit. Id. at 932. On appeal, the
Hobbs court held that a claim for denial of an opportunity to inspect or copy under RCW
42.56.550(1) does not accrue until there is “some agency action, or inaction, indicating
that the agency will not be providing responsive records.” Id. at 936 (emphasis added).9
While the term “denial” is not defined within the PRA, the court held that “a denial of
public records occurs when it reasonably appears that an agency will not or will no longer
provide responsive records.” Hobbs, 183 Wn. App. at 936.
The Hobbs court noted that there was “no dispute” that DSHS was continuing to
provide Hobbs with responsive records when he filed his lawsuit. Id. Because the
agency was diligently making reasonable efforts to comply with the records request,
Hobbs could not show a violation of the PRA. Id. at 940-41. The Hobbs court noted
specifically, however, that it was not addressing “the situation where an agency
completely ignores a records request for ‘an extended period.’” Id. at 937 n.6. At least
one scholar has suggested that “If an agency has failed to produce records for an
extended period after missing an estimated deadline, the requester may treat the agency’s
9 In Freedom Foundation the court took it one step further and declared that “If an agency has not yet produced the requested records but has not stated that it will refuse to produce them, the agency has not denied access to the records for purposes of judicial review.” Freedom Found., 9 Wn. App. 2d at 664 (citing Hobbs, 183 Wn. App. at 936- 37). We decline to follow this narrower reading of RCW 42.56.550(1) in part because this statement in Freedom was dicta; the plaintiff was not claiming denial of records under RCW 42.56.550(1).
33 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
silence as a denial and file suit.” WASH. STATE BAR ASS’N, PUBLIC RECORDS ACT
DESKBOOK: § 16.2, at SU-16-2 (2d. ed 2014 & Supp. 2020) (citing Hobbs, 183 Wn. App.
at 936 & n.6). A fair reading of Hobbs does not support the District’s position that an
agency must affirmatively deny a request before a cause of action for wrongful denial
accrues. See also WAC 44-14-04004(4)10 (“A ‘denial’ of a request can occur when an
agency . . . [w]ithout justification, fails to provide the record after the reasonable estimate
of time to respond expires.”).
Contrary to the District’s position, we have previously held that a requester is a
prevailing party under the PRA if “suit was reasonably necessary to obtain the records
requested and caused the release of the records.” Violante v. King County Fire Dist. No.
20, 114 Wn. App. 565, 567, 59 P.3d 109 (2002). In Violante, the plaintiffs made several
requests for the fire district’s budget. A fourth request was submitted on May 25. When
the fire district failed to respond to this request, the plaintiff filed its lawsuit on June 21.
The fire district ultimately provided the records on August 3. After the trial court denied
costs and penalties, the plaintiff appealed. The issue on appeal was whether the lawsuit
was necessary to cause the release of the records. The fire district argued that it had a
10 The model rules in chapter 44-14 WAC are advisory, but the legislature has instructed agencies to consult the model rules when establishing local ordinances for PRA compliance. RCW 42.56.570(4).
34 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
history of prompt responses to other requests and at no time denied the plaintiff’s request
for documents.
After considering the undisputed facts from the point of view of the requesting
party, the court held that the lawsuit was necessary to produce the records and the
plaintiff was entitled to costs and penalties. Id. at 571. Specifically, the court noted:
[A]fter four attempts to obtain the same information, the likelihood of inadvertent agency error was obviously low, the likelihood of a timely response was obviously nil, and there was nothing to indicate the Association’s request would ever be honored. Viewed objectively from the Association’s point of view, this lawsuit was reasonably regarded as necessary.
Here, the District acknowledges Violante in its brief, but fails to analyze or
distinguish its relevant holding. Instead, the District supports its position by arguing that
under the PRA, there are only two causes of action as set forth in RCW 42.56.550.
According to the District, a claim for denial of records under RCW 42.56.550(1) requires
final action by the agency. But a cause of action for failing to make a reasonable estimate
of time to comply under RCW 42.56.550(2) does not require a final action. Since the
District did not affirmatively deny Ms. Cantu’s April 2018 request for emails, the District
claims that her only option was to seek a show cause hearing for failing to provide a
reasonable estimate under RCW 42.56.550(2).
35 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
This logic fails for several reasons. First, the District’s limited reading of the PRA
has been previously rejected in Spokane Research & Defense Fund v. City of Spokane,
155 Wn.2d 89, 104, 117 P.3d 1117 (2005). In Spokane Research, the city argued that the
requester’s “failure to obtain a show cause order eliminated his entitlement to fees and
penalties.” Id. at 104. The Supreme Court disagreed, noting that a show cause hearing is
discretionary, not mandatory. Id. at 106. On the other hand, fees, costs, and penalties are
awarded for “any action in the courts.” RCW 42.56.550(4). The language allows for any
kind of civil action. See Asotin County v. Eggleston, 7 Wn. App. 2d 143, 150, 432 P.3d
1235 (2019) (requester was prevailing party entitled to attorney fees even though he did
not commence the lawsuit).
In addition, the District’s narrow interpretation of the PRA would flip the purpose
of the chapter on its head. Under the District’s interpretation, an agency could avoid
liability for denying records by doing nothing. In this case, by mid-September there was
no estimate of time to challenge as unreasonable. The only estimate given was for July
16, two months prior. There had been no effective communication from the District and
no new estimated time for responding. The District’s position is not a liberal
interpretation of the PRA and does not promote the purpose of full disclosure.
The District also argues that allowing Ms. Cantu to pursue a claim for constructive
denial is “unworkable.” Br. of Resp’t at 41. The District contends that in order to
resolve such a claim the court would have to make determinations on how an agency was
36 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
allocating resources and determine what a reasonable response time would be. We reject
this argument because it would give agencies too much autonomy in deciding how and
when to respond to a records request. We note that had Ms. Cantu sought a show cause
hearing under RCW 42.56.550(2), the District would need to prove that its response time
was reasonable under the same framework it now claims is unworkable.
The issue is not whether the District missed its self-imposed estimate for
responding to the records request. The issue is whether the District can show that it was
working diligently to promptly provide the records requested.
(2) Factual findings on diligent efforts
Having decided the legal issue, we consider its application to this case. Whether
an agency’s lack of diligence amounts to a constructive denial is a question of fact. See
Freedom Found., 9 Wn. App. 2d at 673 (“Whether the agency responded with reasonable
thoroughness and diligence is a fact-specific inquiry.”). The trial court decided this
factual issue on summary judgment. As we noted above, PRA hearings are unique
because evidentiary hearings may be conducted on affidavits. Although these hearings
may appear like a motion for summary judgment, evidentiary hearings require findings of
fact and conclusions of law. In this case, the superior court made findings as part of its
oral decision. As the reviewing court, we are not bound by these findings. PAWS II, 125
Wn.2d at 252-53. Instead, we review the evidence from “‘the same position as the trial
court.’” Id. at 252 (quoting Smith v. Skagit County, 75 Wn.2d at 718).
37 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In determining whether the District was diligently working on Ms. Cantu’s
request, we apply an objective standard from the viewpoint of the requester. Violante,
114 Wn. App. at 571. This means taking into account prior requests by the plaintiff and
communication between the requester and the agency. Id. at 569. We consider the
totality of circumstances to determine if the District was providing “the fullest assistance
to inquirers and the most timely possible action on requests for information.” RCW
After considering the evidence, we determine that the District was not diligently
working on Ms. Cantu’s records requests and the District’s lack of diligence amounted to
a denial of Ms. Cantu’s April 2018 request. Initially, the District failed to respond to Ms.
Cantu’s April 2018 request within five days. When it did respond, it provided nine HIB
reports and indicated an estimated response time of July 16. Not only did the District
miss its estimated compliance date of July 16, but it provided no communication between
July 9 and August 23, despite inquiry from Ms. Cantu. When the District did finally
respond, it provided false information that the public records office was closed for the
summer. The next communication was an email with a link to an empty Google
directory. By this time, five months had passed from the last record provided. Ms.
Cantu’s emails had been ignored and there were no estimates given about when the
District would produce the records.
38 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The District argues that it was simultaneously responding to “numerous large
public records requests,” even if it was not “making significant progress” on Ms. Cantu’s
request. Br. of Resp’t at 43. This argument fails for two reasons. First, administrative
inconvenience or difficulty in producing records does not excuse lack of diligence. Zink
I, 140 Wn. App. at 337 (citing Hearst Corp. v. Hoppe, 90 Wn.2d 123, 131-32, 580 P.2d
246 (1978); RCW 42.56.550(3)). Second, the District’s own evidence suggests that the
delay in responding to Ms. Cantu’s request was not due to overwhelming requests, but
rather insufficient allocation of resources and lack of priorities.
In her declaration, Ms. Fitterer avers that the District had received two other large
records requests during the same time period as Ms. Cantu’s April 2018 request.11
However, she also acknowledges that she was “extremely busy with a new pilot program
. . . [that] ended up consuming much of my summer.” CP at 578. While Ms. Fitterer
admits receiving 3,200 emails on July 2, 2018, that were potentially responsive to Ms.
Cantu’s request, she did not perform any work on Ms. Cantu’s request until September or
October. CP at 578-79. Ms. Fitterer indicated that she spent “some” of her summer
working on the other two requests, but she acknowledged that her ability to focus on
records requests was “limited due to other essential duties of my position. I was
11 Ms. Fitterer states that she was responding to more than 40 public records requests between April 2018 and May 2019, but the majority of these requests were received after Ms. Cantu’s request.
39 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
particularly busy during July coordinating the training of staff, coordinating excursions,
and arranging housing in connection with the pilot program to bring 30 Chinese middle
school students to Yakima for two weeks.” CP at 578. During this time, the District
declined Ms. Fitterer’s numerous requests for assistance, claiming lack of available
resources despite a significant contingency fund. The District’s new in-house counsel
was able to clear the request backlog and process an additional 110 requests by
September, 2020.
In Andrews v. Washington State Patrol, 183 Wn. App. 644, 334 P.3d 94 (2014),
we held that an agency would not be held strictly liable for missing its own self-imposed
deadline when it was diligently working to respond to the plaintiff’s records request.
Notably, in Andrews, the Washington State Patrol (WSP) properly responded to the
plaintiff’s request and initially estimated it would provide a response in 20 days despite
addressing over 2000 other requests. Id. at 647. Shortly after this deadline passed, the
Patrol emailed the requester again, indicating it would take another 20 days to collect the
records, notify involved parties, and redact exempt portions. Two days after the second
deadline (approximately 60 days after the request was made), the requester filed a
complaint alleging PRA violations. We noted that the PRA does not require an agency to
strictly comply with its estimated time of production. Id. at 651. The WSP needed to
extend its deadlines because it had underestimated the amount of responsive records and
the need for redaction. While working diligently to respond, the WSP missed its second
40 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
deadline without sending another extension letter. We affirmed dismissal of the
plaintiff’s action because the “uncontested facts” established that the WSP was acting
diligently to respond to the request.
Unlike Andrews, the District was not working diligently to respond to Ms. Cantu’s
request. And despite claiming that it was overwhelmed with requests that were received
after Ms. Cantu’s request, it does not appear that the District was diligently working on
any of them. We conclude that as of July 16, 2018, it reasonably appeared from Ms.
Cantu’s perspective that the District would not provide responsive records. Hobbs, 183
Wn. App. at 936.
(3) Producing records after a constructive denial does not cure the violation
Relying on Hobbs, the trial court also held that the District’s eventual production
of records in response to Ms. Cantu’s lawsuit cured any violations. In Hobbs, after
determining that a denial was a prerequisite to claiming a violation of the PRA under
RCW 42.56.550(1), the court acknowledged, “that agencies can cure PRA violations by
voluntarily remedying the alleged problem while the records request is open and the
agency is actively working to respond to it.” Id. at 939. “When an agency diligently
makes every reasonable effort to comply with a requester’s public records request, and
the agency has fully remedied any alleged violation of the PRA at the time the requester
has a cause of action (i.e., when the agency has taken final action and denied the
41 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
requested records), there is no violation entitling the requester to penalties or fees.” Id. at
940-41.
This holding does not apply in situations when the agency is not diligently making
reasonable efforts to comply with a records request. In other words, if the District’s
inaction amounted to a constructive denial before it eventually provided records, then the
court should find a violation and consider a per diem penalty. “[T]he remedial provisions
of the PRA are triggered when an agency fails to properly disclose and produce records,
and any intervening disclosure serves only to stop the clock on daily penalties, rather than
to eviscerate the remedial provisions altogether.” Neighborhood All., 172 Wn.2d at 727.
On remand, the superior court will need to calculate the number of days
responsive records were withheld after July 16, 2018, and assess a per diem penalty for
the wrongful withholding of those records.
E. INTERPRETATION OF MS. CANTU’S APRIL 2018 REQUEST AND THE 75 EMAIL ATTACHMENTS
The next issue we address is whether 75 email attachments identified by the
District but not produced were responsive to Ms. Cantu’s April 2018 request and
otherwise nonexempt.
Ms. Cantu’s April 2018 records request asked for all emails regarding her
daughter from April 2016 to April 2018 without qualification. Ms. Fitterer followed up,
requesting clarification because she thought she had previously provided this
42 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
information. Ms. Cantu responded: “I did request copies of my emails in the past,
however they did not contain any messages. . . . I would like ALL emails with the
messages.” “Also, a lot more incidences have occurred since my last request, therefore I
am in need of past emails to the present.” “Please contact me if you need further
clarification on my request.” CP at 441.
On October 13, 2018, after Ms. Cantu had filed her lawsuit against the District,
Ms. Fitterer provided Ms. Cantu with a thumb drive containing the text of 398 emails.
The thumb drive did not contain any of the email attachments, nor did it contain a
redaction and exemption log. The District included a letter indicating that it considered
its response complete.
On January 10, 2019, the District provided Ms. Cantu with an exemption log for
75 attachments to emails provided the previous October. The log cited the FERPA for
personally identifiable information as the same explanation for withholding all 75
attachments. The email attachments contain large spreadsheets of student data. The
District concedes that these spreadsheets likely contain Ms. Cantu’s daughter’s name, but
contend that the bulk of the spreadsheets are exempt and the spreadsheets themselves are
nonresponsive because they do not pertain to harassment, intimidation, or bullying.
In December 2019, the superior court considered the District’s motion for
declaratory relief, and found that the 75 emails (already provided) along with their
attachments were not responsive to Ms. Cantu’s April 2018 request. Based in part on Ms.
43 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cantu’s initial clarification to Ms. Fitterer, the trial court determined that “it was
reasonable for the school District to assume that Ms. Cantu was referring to emails
regarding incidents where her daughter was a victim of bullying, threats, and
harassment.” CP at 3418. Since the attachments did not pertain to HIB reports, the court
determined the attachments were not responsive. Alternatively, the court held that even
if the email attachments were responsive, they were exempt in their entirety under
FERPA.
Ms. Cantu appeals the denial of these records. On appeal, the parties do not
dispute that FERPA provides a valid exemption to withhold the records of other students.
Instead, the dispute over the 75 email attachments centers on whether the spreadsheets
fall within the scope of Ms. Cantu’s April records requests and if so, whether they can be
provided in redacted format.
We review de novo the District’s actions under the PRA. RCW 42.56.550(3).
The District’s declaratory motion was an evidentiary motion heard solely on affidavits.
For purposes of a PRA action, we stand in the same shoes as the superior court and
consider the factual determinations de novo. PAWS II, 125 Wn.2d at 252-53.
We set forth above the requirements for a valid PRA request. Generally, a request
for public records must be for an identifiable public record. RCW 42.56.080(1). Upon
the request for an identifiable public record, the agency shall make it promptly available.
44 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
RCW 42.56.080(2). “Agencies shall not deny a request for identifiable public records
solely on the basis that the request is overbroad.” Id.
Ms. Cantu requested all emails regarding her daughter. The request was not
qualified nor ambiguous. Given the strong presumption in favor of full disclosure, an
agency should not unreasonably assume a narrow interpretation of a request. See Zink I,
140 Wn. App. at 337. After applying a broad interpretation, if any ambiguity remains, it
is incumbent upon the District to clarify that ambiguity. See West, 12 Wn. App. 2d at 81
(City’s unreasonable interpretation of request was narrower than the clear language of the
request).
In this case, the District and the trial court applied a narrow interpretation to Ms.
Cantu’s request by assuming she meant to limit the request based on prior requests. This
is an unreasonable assumption and an unreasonable interpretation of the request. All
means all. The 75 email attachments are responsive to Ms. Cantu’s request if they
pertain in any way to her daughter.
Unsurprisingly, the District itself did not read Ms. Cantu’s request in this limited
manner until after it realized the extent of responsive documents. When the District
finally started responding to Ms. Cantu’s April request, it provided her with 398 emails
but did not include the email attachments and did not include an exemption log or
explanation for withholding the attachments. Several months later, the District provided
an exemption log, claiming that the attachments were exempt in their entirety. It was
45 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
only after the emails were provided, that the District claimed the emails and attachments
were nonresponsive.
The District also claims that even if the email attachments are responsive, they are
exempt in their entirety under FERPA. Where identified documents are withheld, “the
burden rests with the agency claiming exemption to prove the propriety of nondisclosure
to the trial court on a document-by-document basis.” Sargent v. Seattle Police Dept., 179
Wn.2d 376, 388, 314 P.3d 1093 (2013) (citing Cowles Publ’g Co. v. Spokane Police
Dep’t, 139 Wn.2d 472, 479-80, 987 P.2d 620 (1999)). “Exemptions under the Public
Records Act should be construed narrowly.” PAWS II, 125 Wn.2d at 260 (citing former
RCW 42.17.010(11)). Withholding or redacting a nonexempt document violates the
PRA. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120 (2010); RCW 42.56.210(3).
Portions of records that are not exempt must be produced. RCW 42.56.210(1). “In
general, the [PRA] does not allow withholding of records in their entirety” where a
redaction can be done. PAWS II, 125 Wn.2d at 261. An otherwise exempt record can be
transformed by redaction into a record that must be disclosed. Resident Action Council v.
Seattle Hous. Authority, 177 Wn.2d 417, 434, 327 P.3d 600 (2013).
Exemptions are established within the PRA itself and within other laws. West v.
TESC Bd. of Trust., 3 Wn. App. 2d 112, 118, 414 P.3d 614 (2018). FERPA qualifies as
one of these other laws because it exempts student education records like those redacted
and withheld by the District. Id. at 119.
46 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The District’s claimed exemption is unreasonable. Electronic media files can be
searched. They can also be redacted. If a spreadsheet contains thousands of names on
hundreds of pages, then the names of other students are exempt under FERPA. But the
remainder of the attachments must be provided whether those be single lines or pages that
include the nonexempt requested information.
On remand, the court will need to determine how many of the email attachments’
pages pertain to Ms. Cantu’s daughter, determine when they should have been produced,
calculate the number of days that they were wrongfully withheld, and consider the per
diem penalty for wrongfully withholding these records.
F. DAILY PENALTY
The final issue we address is whether the trial court abused its discretion when
setting the daily penalty for the District’s violation of the PRA where it found that there
were no Yousoufian aggravating factors.
In response to Ms. Cantu’s January 2017 clarification, the District identified 85
responsive emails. The District’s technology director sent these emails to Ms. Fitterer for
review in the form of a link to PST files on the District’s network along with instructions
on how to open PST files. Ms. Fitterer could not open the files except to view the
“headers,” which identify the “Sender,” “Recipient,” “Message-Id,” and “Subject,”, but
not the content. Instead of asking for help, Ms. Fitterer provided the email headers to Ms.
47 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cantu in hard copy form without the email contents. Ms. Fitterer assumed that Ms. Cantu
would identify the emails she did not already have based on the headers and request those
specific emails. When she did not hear from Ms. Cantu, Ms. Fitterer assumed that Ms.
Cantu was satisfied with the headers produced.
The District concedes that it failed to produce the 85 emails for 631 days. The
court grouped the 85 emails into one record for purposes of setting the per diem penalty,
found no aggravating factors, and set the per diem penalty at $10 per day for a total
penalty of $6,310. Ms. Cantu appeals this penalty raising several issues. She argues that
the trial court’s analysis of the Yousoufian mitigating and aggravating factors was not
supported by the record. She also contends that the court erred by grouping the emails
into one record. Ultimately, Ms. Cantu argues that the per diem penalty of $10 per day
was an abuse of discretion.
We review penalty assessments under the PRA for abuse of discretion. Hoffman
v. Kittitas County, 194 Wn.2d 217, 224, 228, 449 P.3d 277 (2019). While a party who
demonstrates a PRA violation is entitled to costs and attorney fees, the decision to impose
a penalty, and the amount of the penalty are within the trial court’s considerable
discretion.12 Id. The Yousoufian factors were articulated to help guide trial courts in
12 In 2011, the legislature amended RCW 42.56.550(4) and eliminated the mandatory minimum penalty, rendering the penalty discretionary in certain circumstances. See LAWS OF 2011, ch. 273, § 1 (effective July 22, 2011).
48 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
exercising their discretion, and provide a meaningful framework for appellate review. Id.
at 225. But the factors are for guidance; they are not exclusive, they may overlap and
they may or may not be important under the circumstances of individual cases. Id.
In asking us to review each individual factor, Ms. Cantu argues that we should
apply a de novo standard of review to the trial court’s factual findings and an abuse of
discretion standard to the application of these findings to the Yousoufian factors. Br. of
Appellant at 29. The Supreme Court rejected this standard of review in Hoffman.
Articulating the basis for a penalty award in terms of the Yousoufian II framework helps trial courts spell out their reasoning in a way that facilitates meaningful appellate review. [Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 468, 229 P.3d 735 (2010)]. But appellate review is undertaken using an abuse of discretion standard—not by engaging in piecemeal de novo review of individual Yousoufian II factors.
Hoffman, 194 Wn.2d at 228. Instead, a reviewing court should consider a more holistic
review of the overall penalty to determine whether a trial court’s assessment was
adequate in light of the totality of the circumstances. Id. As a reviewing court, our
function is not to exercise discretion, but rather to determine if the trial court abused its
discretion when determining the penalty.13 Id. at 227.
As noted above, the Supreme Court has promulgated seven mitigating factors and
nine aggravating factors to help trial courts exercise their discretion and help provide
13 Having concluded that our review of the penalty is more holistic, we decline to separately analyze each mitigating and aggravating factor such as whether the trial court erred in determining that the 85 emails constitute one record.
49 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
meaningful review by appellate courts. Yousoufian II, 168 Wn.2d at 467-68. We set
forth these factors here for guidance; not as a checklist. The mitigating factors are:
(1) a lack of clarity in the PRA request,
(2) the agency’s prompt response or legitimate follow-up inquiry for clarification,
(3) the agency’s good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions,
(4) proper training and supervision of the agency’s personnel,
(5) the reasonableness of any explanation for noncompliance by the agency,
(6) the helpfulness of the agency to the requestor, and
(7) the existence of agency systems to track and retrieve public records.
Id. at 467 (footnotes omitted). The aggravating factors are:
(1) a delayed response by the agency, especially in circumstances making time of the essence,
(2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions,
(3) lack of proper training and supervision of the agency’s personnel,
(4) unreasonableness of any explanation for noncompliance by the agency,
(5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency,
(6) agency dishonesty,
(7) the public importance of the issue to which the request is related, where the importance was foreseeable to the agency,
(8) any actual personal economic loss to the requestor resulting from the agency’s misconduct, where the loss was foreseeable to the agency, and
50 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
(9) a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.
Id. at 467-68 (footnotes omitted).
Being nonexclusive, not all factors apply equally and no single factor controls. Id.
at 468. Ultimately, overall agency culpability is the focus of the penalty determination
due to an overarching concern for deterrence. Id. at 460, 462-63. “An agency that sought
clarification of a confusing request and in all respects timely complied but mistakenly
overlooked a responsive document should be sanctioned less severely than an agency that
intentionally withheld known records and then lied in its response to avoid
embarrassment.” Neighborhood All., 172 Wn.2d at 718.
In this case, the trial court imposed a penalty of $10 per day after finding several
mitigating factors and no aggravating factors. Ms. Cantu argues that in light of the
record, the trial court abused its discretion by setting such a low daily penalty amount.
She contends that contrary to the trial court’s assessment, almost every one of the
aggravating factors existed in this case, thus supporting a higher penalty.
The District contends that the penalty was not an abuse of discretion. The District
points out that Ms. Fitterer did receive some training when she was hired. The District
also argues that Ms. Cantu did not demonstrate any harm, pointing to the trial court
finding that she “did not suffer any actual personal economic loss as a result of the PRA
51 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
violation.” CP at 3402. Finally, the District argues that deterrence is no longer a factor
since the District has already changed the manner in which it processes PRA requests.
We hold that the penalty in this case was inadequate in light of the circumstances
and constitutes a manifest abuse of discretion. The District’s failure to produce records
for 631 days was based on conduct that amounts to gross negligence.
Yakima School District No. 7 is the 15th largest school District in Washington
State. The District’s operating budget for 2017-2018 exceeded $200 million with a $20
million budget surplus which was consistent year after year. The District employs close
to 2,000 people and educates approximately 16,000 students. Given this size, Yakima
School District should be allocating sufficient resources to respond to public records
requests. Instead, the District failed to train its personnel, failed to provide adequate
staffing, and failed to make public records requests a priority.
Initially, the District did not provide a five-day response to the October 2016
request or provide any records for almost three months. There is no explanation for the
initial three month delay in producing records other than the PRA officer “dropped the
ball.” In response to Ms. Cantu’s January amendment, the District provided a five-day
response letter on February 3, 2017, with a production time estimated. Otherwise, the
District simply handed her hard copies of headers of the 85 emails and assumed Ms.
Cantu would narrow her previous request. While this may not have been an intentional
52 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
attempt to conceal, the response demonstrates a complete lack of understanding or
disregard of the District’s obligation under the PRA.
The District’s culpability for failing to comply with the PRA is clear. The PRA
officer’s failure to follow proper procedure and give the records request its due priority
was most likely caused by lack of experience, training, and support. Ms. Fitterer
assumed all duties as the District PRA officer in the summer of 2016. Her training
consisted of a few online resources and a 45 minute training course. The technology
director and staff were likewise not provided with adequate training. As we noted above,
the search for emails only used two search queries, no wildcard symbols, and did not
include all the terms in Ms. Cantu’s request, thereby unreasonably narrowing the search.
The District’s new in-house counsel opined that better training may have avoided the
situation entirely. Ms. Fitterer requested help from supervisors more than 10 times and
the District declined to provide assistance claiming lack of available resources despite a
budget surplus.
The District’s response to Ms. Cantu’s request failed to meet the letter and spirit of
the PRA. The District failed to communicate for long periods of time despite
acknowledging that it owed Ms. Cantu an explanation. The District engaged in
unnecessary clarifications and unreasonable justifications to further delay its response,
and failed to initiate searches for long periods of time without explanation. During the
summer of 2018, when two of Ms. Cantu’s requests remained pending, the District
53 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
claimed that reviewing large volumes of documents was too burdensome and
misrepresented that the office was closed for the summer.
In considering the Yousoufian factors, the trial court determined that there was no
need for deterrence because the District had recently changed its PRA procedures. We
disagree that deterrence is no longer an issue. While the District assured the trial court
that its policies had changed, the policies could just as easily revert if there is little
incentive to comply. Moreover, the District acknowledged that its policies changed to
comply with the law, which it should have been doing from the beginning. The District
is a large state agency. With great power, comes great responsibility. Yet, instead of
setting the standard for PRA requests, the District’s failure to allocate sufficient resources
suggests that it considered PRA requests a low priority. Given the totality of these
circumstances, the penalty imposed was disproportionately low to the grave misconduct
and was manifestly unreasonable. See Yousoufian II, 168 Wn.2d at 463; O’Dea, 19 Wn.
App. 2d at 84.
G. ATTORNEY FEES ON APPEAL
Ms. Cantu seeks attorney fees on appeal as the prevailing party under RCW
42.56.550(4). The District responds that since Ms. Cantu failed to improve her position
in superior court after the District’s CR 68 offer of judgment, Ms. Cantu “must bear her
own costs of litigating this lawsuit.” Br. of Resp’t at 49. The District argues that even if
54 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Ms. Cantu prevails on some of her issues on appeal, her entitlement to attorney fees
cannot be determined until a final penalty award is entered. Id.
The District’s argument conflates costs with attorney fees. Under CR 68, when a
plaintiff rejects an offer of judgment, the plaintiff must pay the costs incurred after the
making of the offer if the final judgment is not more favorable than the offer. “Costs” do
not include attorney fees unless the statute or agreement provide otherwise. Magnussen
v. Tawney, 109 Wn. App. 272, 275, 34 P.3d 899 (2001). Offers of judgment under CR 68
apply in actions to enforce the PRA. Rufin v. City of Seattle, 199 Wn. App. 348, 363, 398
P.3d 1237 (2017). While the PRA defines costs to include attorney fees, it only allows
costs (and fees) to be awarded to a person prevailing against an agency. RCW
42.56.550(4).
Ms. Cantu has prevailed on four of the five issues she raised on appeal. Under
RCW 42.56.550(4), she is entitled to a portion of her reasonable attorney fees incurred
pursuing this appeal. See Sanders, 169 Wn.2d at 869-70; RAP 18.1(d).
CONCLUSION
On remand, the court will need to recalculate the number of records wrongfully
withheld. Any records that would have been disclosed by an adequate search will need to
be included in the calculation. Pursuant to our finding that the District wrongfully denied
records requested in April 2018, the superior court will need to determine the per diem
penalty for the records provided after July 16, 2018. In addition, the court will need to
55 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
add the 75 email attachments to the records wrongfully withheld. After determining the
records withheld, the court can set a commensurate per diem penalty and determine
attorney fees and costs.
_________________________________ Staab, J. I CONCUR:
_________________________________ Siddoway, C.J.
56 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37996-5-III
FEARING, J. (concurring in part, dissenting in part) — I join in the majority’s
ruling that remands this appeal to the superior court for recalculation of the number of
records wrongfully withheld and for redetermination of the per diem penalty. To the
extent that the majority’s ruling directs the superior court to add to its recalculation only
the number of records that would have been disclosed by an adequate search, I dissent. I
would direct the superior court to add to its recalculation the number of records not
timely produced regardless of the reasonableness of the Yakima School District’s search
for requested records.
I hold the view, antagonistic to current Court of Appeals jurisprudence, that the
Public Records Act (PRA), chapter 42.56 RCW, imposes no free-standing duty on a
government agency to perform an adequate search for requested records. I will refer to
this ostensible duty as the reasonable search or adequate search rule. Under my
contrarian perspective, a court may not grant a public records requester relief for any
inadequate search by itself. Conversely, under my dissenting stance, a court may not
relieve a public agency from liability for failing to produce a requested record if the For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37996-5-III Cantu v. Yakima School District No. 7
agency exercised reasonable efforts to locate the record. I conclude that my
nonconforming viewpoint best effectuates the letter and the spirit of the PRA.
I begin with standard and familiar language heralding the purposes behind
Washington’s PRA. The PRA promotes open government. Neighborhood Alliance of
Spokane County v. Spokane County, 172 Wn.2d 702, 719, 261 P.3d 119 (2011). The
PRA seeks to increase governmental transparency and accountability by making public
records accessible to Washington citizens. John Doe A v. Washington State Patrol, 185
Wn.2d 363, 371, 374 P.3d 63 (2016). These objectives partially motivate my rejection of
the Washington reasonable search rule.
The operative provision of the PRA reads:
Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (8) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records.
RCW 42.56.070(1) (emphasis added). This section of the act seeks to render virtually
every document generated by an agency available to the public unless an exemption
applies. Ameriquest Mortgage Co. v. Office of the Attorney General, 177 Wn.2d 467,
485-86, 300 P.3d 799 (2013); Rental Housing Association of Puget Sound v. City of Des
Moines, 165 Wn.2d 525, 535, 199 P.3d 393 (2009); Hearst Corp. v. Hoppe, 90 Wn.2d
123, 128, 580 P.2d 246 (1978).
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The PRA creates a private cause of action for a requester when the government
agency fails to produce, in accordance with RCW 42.56.070(1), a public record not
subject to an exemption. RCW 42.56.550 declares:
(1) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records. The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records. .... (4) 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.
(Emphasis added.)
RCW 42.56.070(1), RCW 42.56.550, and all other sections of the PRA levy no
burden on a government agency to reasonably search for records. Creating such an
obligation violates principles of statutory construction. Courts may not read into a statute
a meaning that is not there. Burton v. Lehman, 153 Wn.2d 416, 422-23, 103 P.3d 1230
(2005). When interpreting a statute, we must not add words when the legislature has
chosen not to include them. Lake v. Woodcreek Homeowners Association, 169 Wn.2d
516, 526, 243 P.3d 1283 (2010).
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The majority correctly notes that Washington decisions, despite the absence of
statutory language demanding any form of a records search, promote the adequate search
rule. The Washington Supreme Court wrote in Neighborhood Alliance of Spokane
County v. Spokane County, 172 Wn.2d 702, 719 (2011), that the court focuses on the
adequacy of a search, not whether responsive documents exist but were not disclosed or
produced. Accordingly, a search need not be perfect, only adequate. Neighborhood
Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 720 (2011). The
Supreme Court compared an inadequate search to the denial of production of a record.
Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 721
(2011).
Despite its discussion of a reasonable search, the Washington Supreme Court, in
Neighborhood Alliance, recognized that the PRA falls silent about what constitutes an
adequate search. Neighborhood Alliance of Spokane County v. Spokane County, 172
Wn.2d 702, 719 (2011). The high court should have added that the PRA also does not
read that an agency holds an obligation to conduct a reasonable search.
The Washington Court of Appeals has followed the language from Neighborhood
Alliance and adopted a rule that the PRA requires a government agency to conduct an
adequate search in response to a public records request. West v. City of Tacoma, 12 Wn.
App. 2d 45, 78, 456 P.3d 894 (2020); Rufin v. City of Seattle, 199 Wn. App. 348, 356,
398 P.3d 1237 (2017); Block v. City of Gold Bar, 189 Wn. App. 262, 266, 355 P.3d 266
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
(2015); Hobbs v. State, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014); Forbes v. City of
Gold Bar, 171 Wn. App. 857, 866, 288 P.3d 384 (2012). The Supreme Court restated,
but did not apply, the reasonable search rule in Nissen v. Pierce County, 183 Wn.2d 863,
885, 357 P.3d 45 (2015).
According to the Court of Appeals, under the adequate search rule, the failure to
adequately search for responsive documents forms a violation of the PRA. West v. City
of Tacoma, 12 Wn. App. 2d 45, 78 (2020). The agency must conduct a search reasonably
calculated to uncover all relevant documents. West v. City of Tacoma, 12 Wn. App. 2d
45, 79 (2020). We conduct a fact-specific inquiry to determine if a search is reasonable.
West v. City of Tacoma, 12 Wn. App. 2d 45, 79 (2020). The mere fact that a record is
eventually found does not itself establish the inadequacy of an agency’s search. Kozol v.
Department of Corrections, 192 Wn. App. 1, 8, 366 P.3d 933 (2015).
Contrary to repeated analysis by the Washington Court of Appeals, the Supreme
Court, in Neighborhood Alliance, did not hold that an inadequate search forms an
independent cause of action. The court instead reserved for another day the question of
whether the PRA authorizes a penalty if the requester would otherwise have no remedy
for an unreasonable search. Neighborhood Alliance of Spokane County v. Spokane
County, 172 Wn.2d 702, 724 (2011). The court limited its holding to characterizing an
inadequate search as an aggravating factor to be considered in setting the daily penalty
amount.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The Washington PRA closely parallels the federal Freedom of Information Act
(FOIA), and thus judicial interpretations of the federal act usually assist in construing our
own. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128 (1978). In Neighborhood Alliance, the
Washington Supreme Court followed federal decisions that impose an enforceable duty,
under FOIA, on federal agencies to conduct an adequate search. Some of those decisions
now include Rojas v. Federal Aviation Administration, 927 F.3d 1046, 1052-53 (9th Cir.
2019), superseded on reh’g, 989 F.3d 666, 2021; Ancient Coin Collectors Guild v. U.S.
Department of State, 641 F.3d 504, 514 (D.C. Cir. 2011); Trentadue v. F.B.I., 572 F.3d
794 (10th Cir. 2009); Rein v. U.S. Patent & Trademark Office, 553 F.3d 353 (4th Cir.
2009); Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235 (11th Cir.
2008); Abdelfattah v. U.S. Department of Homeland Security, 488 F.3d 178 (3rd Cir.
2007); Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d. Cir. 1999);
Patterson v. Internal Revenue Service, 56 F.3d 832 (7th Cir. 1995); Miller v. U.S.
Department of State, 779 F.2d 1378 (9th Cir. 1985).
The imposition of an enforceable duty to search makes sense under FOIA because
the federal act expressly imposes such an onus on the government agency. 5 U.S.C. §
552(a)(3) declares:
(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. .... (C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system. (D) For purposes of this paragraph, the term “search” means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.
(Emphasis added). To repeat my theme, the Washington PRA admits no such language
regarding a search. Thus, Washington should not adopt the federal view. Washington
courts do not adopt the construction placed on a similar federal statute if the language of
the statute in Washington substantially differs from the language in the United States
statute. Everett Concrete Products, Inc. v. Department of Labor & Industries, 109 Wn.2d
819, 826, 748 P.2d 1112 (1988).
Advocates of government transparency may welcome an adequate search rule as
effectuating the values behind the PRA. The opposite result has ensued, however. The
Washington Court of Appeals has contorted and distorted the supposed duty of an
adequate search into a gift of immunity from liability when the agency conducts a
reasonable search but fails to produce an extant document. Thus, even if the public
records requester establishes that the government agency failed to produce a record
identified by him or her, the court grants the agency safe harbor if the court deems the
agency performed a reasonable search. Thrice, this court has affirmed summary
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
judgment dismissal of PRA claims because of an adequate search despite evidence that
the government agency failed to produce one or more requested record. Rufin v. City of
Seattle, 199 Wn. App. 348 (2017); Block v. City of Gold Bar, 189 Wn. App. 262 (2015);
Hobbs v. State, 183 Wn. App. 925 (2014). In the end, the reasonable search rule has
caused more harm than good to the public and has thwarted government accountability,
responsibility, and transparency.
Contrary to Rufin v. City of Seattle, Block v. City of Gold Bar, and Hobbs v. State,
no Washington statute grants immunity when the government agency fails to disclose a
record or produce an unexempted document. Instead, RCW 42.56.550 affords the
requester a cause of action for any failure to produce unexempted records, and the statute
grants the superior court discretion to impose sanctions up to $100 per day for a violation.
The adequate search rule conflicts with other principles pronounced by the
Washington Supreme Court. Withholding a nonexempt document constitutes wrongful
withholding and violates the PRA. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120
(2010). Even according to the Supreme Court, in Neighborhood Alliance of Spokane
County v. Spokane County, agencies must disclose any public record on request unless
the record falls within a specific, enumerated exemption. Neighborhood Alliance of
Spokane County v. Spokane County, 172 Wn.2d 702, 714-15 (2011).
I recognize that a regulation adopted by the Washington Attorney General,
WAC 44-14-04003(10), imposes on a government agency an obligation to “conduct an
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
objectively reasonable search for responsive records.” Nevertheless, regulations
inconsistent with or broader than a statute they implement are invalid. Washington State
Hospital Association v. Department of Health, 183 Wn.2d 590, 595, 353 P.3d 1285
(2015); Center for Biological Diversity v. Department of Fish & Wildlife, 14 Wn. App.
2d 945, 967, 474 P.3d 1107 (2020). When statutory language is plain and unambiguous,
a court will not construe the statute but will glean the legislative intent from the words of
the statute itself, regardless of a contrary interpretation by an administrative agency.
Burton v. Lehman, 153 Wn.2d 416, 422-23 (2005); Bravo v. Dolsen Companies, 125
Wn.2d 745, 752, 888 P.2d 147 (1995).
To fulfill the purpose behind the PRA, a government agency should be held liable
for failing to produce a requested record regardless of the extent of the search performed
by the agency. The PRA, absent an exemption, renders all records available for review
and reading by the public, not just those records that the government agency finds with a
reasonable search. The public deserves access to public records no matter the difficulty
behind a search. We must interpret the PRA liberally and in light of the people’s
insistence that they have information about the workings of the government they created.
Imposing strict liability on the agency for failure to produce a record will encourage
agencies to exert proactive steps to catalogue records into a system that facilitates the
ready production of all records on hand.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
I concede an anomaly could arise under my denunciation of the adequate search
rule. A government agency could fail to conduct an adequate search but fortuitously
produce all records requested. In such an instance, any reasonable search rule would
serve no purpose in penalizing the agency since it fulfilled the PRA by producing all
demanded documents.
I agree that a duty to reasonably search may facilitate the production of records
requested. Also, unless the government agency conducts a reasonable search, the
requester may never know whether the agency produced all requested documents. Going
further, the government agency may need to detail the actions taken pursuant to a public
records search in order to show the reasonableness of the search and to thereby convince
the court that it produced all requested documents. For this reason, the imposition of an
unattached duty, outside the confines of a duty to produce the records sought, will usually
lack any consequence in discrete cases.
Instead of shielding the government agency from liability for failing to produce a
requested record, the adequacy of the search should influence the penalty to be imposed
by the superior court in the event the government agency fails to produce a record. In
Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467-68, 229 P.3d 735 (2010), the
Supreme Court outlined seven mitigating and nine aggravating factors for a superior
court to consider when imposing a daily penalty. The aggravating factors generally are a
reverse image of the mitigating factors. None of the mitigating factors explicitly mention
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the adequacy of the search as a factor, but the reasonableness of the search would fall
within the abating categories of an agency’s good faith, honest, timely and strict
compliance with PRA procedures; the helpfulness of the agency to the public records
requester; and the existence of agency systems to track and retrieve public records. The
Washington Supreme Court recognized this limited approach to the relevance of an
inadequate search in its seminal decision, Neighborhood Alliance of Spokane County v.
Spokane County, 172 Wn.2d 702, 724 (2011).
In Andrea Cantu’s appeal, the majority rightly concludes that the Yakima School
District failed to adopt reasonable policies and practices and employ a knowledgeable
employee to perform sufficient and timely searches. In turn, the school district failed to
conduct a reasonable search to produce records sought by Cantu. Nevertheless, these
failures should not by themselves lead to liability or the imposition of penalties. Instead,
the superior court should impose penalties based on the number of records omitted in
production and the days of omission. Conversely, to the extent the school district
reasonably searched for an omitted record, the adequate search should impact the amount
of the penalty, not whether the school district violated the PRA.
I recognize the plight of government agencies, particularly small agencies, being
inundated by public records requests, including some requests filed in an attempt to win
awards in the event the agency fails to timely produce a record. Nevertheless, the
Yakima School District did not face this dilemma with Andrea Cantu’s request.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Regardless, any relief from harassment imposed by serial requesters should come from
the legislature or in the form of reduction of penalties when a violation occurs.
I concur in part and dissent in part:
____________________________ Fearing, J.
Related
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