IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANNE K. BLOCK, No. 71425-2-1
Appellant, DIVISION ONE o Wo
—1 i m .O '•V
CITY OF GOLD BAR, UNPUBLISHED wmL' Respondent. FILED: June 22. 2015 3C
CO
ro O — crv
Cox, J. — The Public Records Act (PRA) requires a government agency
to conduct an adequate search for responsive records to a public records
request. The agency must then disclose records responsive to the request and
either produce such records for inspection and copying or withhold them. The
agency may lawfully withhold a record only if it is exempt.1
1We use the words "disclose," "produce," "withheld," and "exempt" as they are used in the PRA:
1. Records are either 'disclosed' or 'not disclosed.' A record is disclosed if its existence is revealed to the requester in response to a PRA request, regardless of whether it is produced.
2. Disclosed records are either 'produced' (made available for inspection and copying) or 'withheld' (not produced). A document may be lawfully withheld if it is 'exempt' under one of the PRA's enumerated exemptions. A document not covered by one of the No. 71425-2-1/2
In this case, Anne Block made two public records requests to the City of
Gold Bar. The City produced certain records and either completely or partially
withheld others, which it identified as exempt in two separate privilege logs.
Block commenced this action, claiming the City violated the PRA and seeking an
award of attorney fees and costs.
Because there were no genuine issues of material fact and the City was
entitled to judgment as a matter of law, the trial court properly granted the City's
cross-motion for summary judgment. Likewise, the court properly denied Block's
motion for partial summary judgment. We affirm.
Block made two public records requests to the City that are the subjects of
this action, one on December 9, 2008 and the other on February 13, 2009. In
her first request, Block sought records about Karl Majerle, a former city employee
who was fired for malfeasance. He threatened to sue the City, and the City
settled his claim. Block requested that the City produce records relating to his
discharge and threatened a lawsuit.
exemptions is, by contrast, 'nonexempt.' Withholding a nonexempt document is 'wrongful withholding' and violates the PRA.
3. A document is never exempt from disclosure; it can be exempt only from production. An agency withholding a document must claim a 'specific exemption,' i.e., which exemption covers the document. The claimed exemption is 'invalid' if it does not in fact cover the document.
Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120 (2010) (citations omitted). No. 71425-2-1/3
The City produced 675 pages of public records in response to this first
request. The City also withheld as exempt 66 pages of records. These latter
records were disclosed in a log titled "Privileged/Exemption/Redaction Log."2
This log stated they were exempt under the PRA, as attorney-client privilege or
attorney work product.
In her second request, Block sought records about how the City gathered
public records in response to her first request. The City produced 75 pages of
records. The City also redacted and produced 29 pages of e-mail messages,
providing the headers and signatures of the documents. The City provided a
second log titled "Privileged/Exemption/Redaction Log" with supporting
explanations.3 The City claimed attorney-client privilege or attorney work product
under the PRA for the redacted content of these records.
Block commenced her first PRA action against the City on February 12,
2009. The City completed its production of records for both of Block's requests
on February 27, 2009, while that first action was pending. Shortly before
stipulating to dismissing her first action, she commenced this second PRA action
against the City on February 1, 2010.
Following the City's production of records and its two exemption logs to
Block on February 27, 2009, she obtained additional responsive records to the
requests she made in December 2008 and February 2009. Her declaration
2 Clerk's Papers at 534-38.
3 Id. at 539-44. No. 71425-2-1/4
states that she received these documents either from other sources or from later
requests for records from the City.
Block moved for partial summary judgment. She argued that the City had
violated the PRA by failing to produce responsive records, by entirely withholding
several records in response to her first request, and by failing to provide
adequate explanations for why it withheld or redacted records in response to
both her requests. She also asked the court to review in camera the redacted
documents that the City produced in response to the second request to
determine if they were exempt. She did not seek any in camera review in
connection with her first records request.
The City's cross-motion for summary judgment followed.
The trial court reviewed in camera the records redacted in response to
Block's second request, as she sought. The court determined that the redacted
content was exempt under the work product or attorney-client privilege doctrines.
Thereafter, the court granted the City's cross-motion for summary
judgment and denied Block's motion for partial summary judgment.
Block appeals.
SUMMARY JUDGMENT
A threshold issue is whether the trial court properly applied CR 56 to the
respective summary judgment motions of the parties in this PRA action. For the
reasons we explain, we hold that it did. No. 71425-2-1/5
In a summary judgment motion, the moving party bears the initial burden
of showing the absence of a genuine issue of material fact.4 Ifthe moving party
is a defendant and meets this initial showing, then the inquiry shifts to the
nonmoving party.5 If the nonmoving party fails to make a showing sufficient to
establish the existence of a genuine issue of material fact, then the trial court
should grant the motion.6 In making this responsive showing, the nonmoving
party cannot rely on the allegations made in its pleadings.7 CR 56(e) requires
that the response, "'by affidavits or as otherwise provided in [CR 56], must set
forth specific facts showing that there is a genuine issue for trial.'"8
At that point, the court considers the evidence and all reasonable
inferences therefrom in the light most favorable to the nonmoving party.9
Under the PRA, agencies must prove that they adequately responded to
record requests:
The PRA is a strongly worded mandate for broad disclosure of public records. Passed by popular initiative, it stands for the proposition that "full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society." Agencies are required to disclose any public record on request unless it falls within a specific, enumerated exemption. The burden is on the agency to show a withheld record falls within an
4 Young v. Key Pharm.. Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989).
5 Id,
6|d,
7 See id.
8 Id, at 225-26 (quoting CR 56(e)).
9 Id, at 226. 5 No. 71425-2-1/6
exemption, and the agency is required to identify the document itself and explain how the specific exemption applies in its response to the request.1101
With these principles of law in mind, we now address Block's contentions
on appeal.
ADEQUACY OF SEARCH
Block first essentially argues that the City failed in its burden to establish
that it conducted adequate searches in response to her public records
requests.11 More specifically, she contends that the City's searches were
inadequate because she subsequently obtained responsive records either "from
other sourcefs]" or "from the City in response to other requests ten months to two
years after the City told [her] all responsive records had been produced."12 Because there are no genuine issues of material fact on the adequacy of the
City's searches, the trial court properly granted the City summary judgment.
In Neighborhood Alliance of Spokane County v. Spokane County, the
supreme court held that the adequacy of a search for public records under the
PRA is the same as exists under the federal Freedom of Information Act.13
Under this approach, the focus of the inquiry is not whether responsive documents do in fact exist, but whether the search itself was adequate. 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. What will be considered reasonable will depend on the facts of each case.
10 Neigh. Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 714-15, 261 P.3d 119 (2011) (quoting RCW42.17A.001) (citations omitted).
11 Brief of Appellant at 22-27.
12 Id, at 23.
13 172 Wn.2d 702, 719,261 P.3d 119(2011). 6 No. 71425-2-1/7
When examining the circumstances of a case, then, the issue of whether the search was reasonably calculated and therefore adequate is separate from whether additional responsive documents exist but are not found.
Additionally, agencies are required to make more than a perfunctory search and to follow obvious leads as they are uncovered. The search should not be limited to one or more places if there are additional sources for the information requested. Indeed, "the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested." This is not to say, of course, that an agency must search every possible place a record may conceivably be stored, but only those places where it is reasonably likely to be found.[14]
To establish that its search was adequate in a motion for summary
judgment, "the agency may rely on reasonably detailed, nonconclusory affidavits
submitted in good faith."15 This evidence should describe the search and
"establish that all places likely to contain responsive materials were searched."16 Whether a search is adequate "is separate from whether additional
responsive documents exist but are not found."17
Here, the City relied on evidence that it submitted in support of its motion
for summary judgment to show that its searches were adequate. This evidence
included the declaration of Laura Kelly, the public records officer for the City.18
14 jd, at 719-20 (emphasis added) (emphasis omitted) (citations omitted) (quoting Oglesbv v. U.S. Dep't of Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (1990)).
15 jd, at 721.
16 id,
17 jd, at 720.
18 Clerk's Papers at 28. No. 71425-2-1/8
The evidence also included two declarations of Crystal Hill Pennington, the
mayor of the City at the time of Block's two requests.19 The court also
considered the declarations of Block and her counsel.
We examine this evidence to determine whether the City bore its burden
under the criteria stated in Neighborhood Alliance.
The Kelly declaration evidences the City's understanding that the scope of
Block's December 2008 request was "broader in its scope [than her previous
request concerning Karl Majerle] and required the City to conduct a thorough
search."20 The declaration goes on to document where responsive documents
were likely to be found. Specifically, Kelly identified Public Works Director John
Light, Mayor Crystal Hill Pennington, and Eileen Lawrence, the City's attorney, as
the persons likely to have responsive records.21 This declaration describes the
gathering of the documents, review of them, preparation of an exemption log,
and production of responsive documents to Block.22 There are also two declarations from the former mayor. The most relevant
declaration is titled Declaration of Crystal Hill Pennington Regarding Cross-
Motions for Summary Judgment.23 In this declaration, she testifies that she
19 id,
20 id, at 201.
21 Id, at 199, 203.
22 id, at 200-04.
23 Id. at 167-72. No. 71425-2-1/9
searched Majerle's personnel file for responsive records. She also directed Kelly
to search the City's e-mail system for responsive documents. Further, she
instructed John Light, the City Public Works Director, and a councilmember to
search their e-mails and notes for responsive records. Additionally, she
contacted the Snohomish County Sheriff's Department for responsive records
because she had filed a theft report with that agency regarding the Majerle
matter.
Significantly, the former mayor also detailed her search for responsive e-
mails in her various e-mail accounts. These included an AOL account, her
Blackberry device, and her professional e-mail for her outside employment. She
further described the names and other search terms used in her searches.
Thereafter, she reviewed all of her e-mails from the date of notification of the
Majerle issue until the date the first request was received. She expressly
testified:
[I] reviewed all of my e-mails from the date that Iwas first notified of the Majerle credit card use issue until the date that the request was received. I had no e-mails to or from Majerle and do not recall Majerle ever using his City-provided e-mail account. Upon completion of my search, I provided all of the responsive records to City Attorney Cheryl Beyerfor review prior to release to Block. Idid not withhold any responsive records.[24]
This declaration goes on to describe similar actions in response to Block's
second request in February 2009. These actions included a directive to Kelly to
search again for e-mail to verify all responsive records were provided.
24 Id. at 169. No. 71425-2-1/10
We note that this declaration also describes technology difficulties that she
had with some devices that she used. The following excerpt of her declaration
describes the specifics:
In order to preserve City records, I saved e-mails in my e-mail accounts under various City folders. I also sometimes sent e-mails to myself in order to save a copy and then would forward those e- mails to the City Clerk. I did this specifically to ensure that the e- mails would be properly retained and in order to provide a backup of records of particular importance.
At various times before, during and after my tenure with the City, I experienced numerous incidents with my AOL e-mail and Blackberry accounts where I lost data and e-mails through no fault of my own. I have no way of knowing what specific data and records were lost during these incidents other than my vague recollection of e-mails I may have sent or received over the years. I am certain that at least two hundred e-mails, if not more, were lost from my AOL account based on my recollection of the amount of messages I had ....
During the times relevant to this suit, AOL e-mail account users including myself did not have the ability to search for or within e-mail attachments. The search capability was limited to the e-mail itself. w
The question before us is whether this record established that the City's
searches were "reasonably calculated to uncover all relevant documents," as the
law requires.26 We hold that it does.
Whether a search is reasonable generally depends on the facts and
circumstances of each case.27 In this case, however, reasonable persons could
25 Jd, at 171-72.
26 Neigh. Alliance of Spokane County, 172 Wn.2d at 720.
27 Jd,
10 No. 71425-2-1/11
only conclude that the City's searches were reasonably calculated to uncover all
relevant documents. Thus, the searches were adequate.
The declarations that we just described are both "reasonably detailed" and
"nonconclusory," as the law requires.28 Kelly's declaration establishes that, as
the public records officer, she understood that the request required searching a
broad scope of records. And it details whom she contacted to gather responsive
documents. Further, this nonconclusory declaration supports the view the City
searched "all places likely to contain responsive materials."29 Of particular interest here are the declarations of the former mayor, who
was in office at the time of the two requests. The declaration titled "Declaration
of Crystal Hill Pennington Regarding Cross-Motions for Summary Judgment" documents, in detail, her identification of who might have responsive documents.
It further evidences her instructions to those people to search their records for
responsive documents. This declaration also evidences her search of her
various e-mail accounts.
As for her search for e-mails, this declaration specifies her search for
responsive documents. Notably, this testimony specifies the names and other search terms used in her search. It also describes the second search following
receipt of Block's February 2009 second request, including her directive to Kelly
to search again for responsive e-mails.
28 id, at 721.
29 Id.
11 No. 71425-2-1/12
This declaration also describes the technology difficulties that the former
mayor had with certain devices she used. Among them were lost data and e-
mails from her AOL account and Blackberry device.30 Moreover, her AOL
account had limited search ability.
Notably, Block fails to point to any evidence in this record that refutes any
of this evidence of technical difficulties that Hill Pennington testified that she
experienced. We must assume that there is no such evidence.
Block argues that the City failed in its burden to show that its searches
were adequate. Specifically, she states, in part, in her opening brief:
Block has proven the existence of several responsive records that existed on the date of her request, were not identified or produced to her by the City, and that Block subsequently obtained in response to other record requests [to the City] or from other sources showing they existed on the date of her request. Thus, Block need not show whether or not the search was reasonable to establish the City in fact did not produce a responsive record to her when it claimed it had given her all the records.1311
At oral argument ofthis case, Block clarified her position. She argued that the fact that other responsive documents existed on the dates of her requests,
documents that she obtained after the City produced documents and privilege
logs in response to her two requests, is dispositive of the question ofthe adequacy of the City's searches. But that is not the law. We start with the governing principle that the supreme court stated in
Neighborhood Alliance. There, the court stated that "the issue of whether the
30 Clerk's Papers at 171.
31 Brief of Appellant at 25-26 (emphasis added). 12 No. 71425-2-1/13
search was reasonably calculated and therefore adequate is separate from
whether additional responsive documents exist but are not found."32 Thus, "'a
search need not be perfect, only adequate.'"33 That Block later obtained
responsive documents either from the City or from other sources following the
City's February 27, 2009 responses does not create a genuine issue of material
fact for trial. The City was entitled to summary judgment on this issue.
Turning to Block's declaration that was before the court on the cross-
motions of the parties, we see nothing in that document that creates a genuine
issue of material fact regarding the adequacy of the City's search. The document
generally evidences that she received either from the City or from other sources
documents the City did not provide in response to her two requests. But, as we
just stated, that does not create a genuine issue of material fact regarding the
adequacy of the City's searches.
Significantly, Block's declaration does nothing to challenge the former
mayor's testimony regarding the technical difficulties to which she testified in her
declaration. Thus, to the extent Block could have argued that there was some
lack of reasonableness with respect to the City's efforts to search all locations
where documents were likely to be found, such an argument would be
unsupported by any evidence in this record.
32 Neigh. Alliance of Spokane County, 172 Wn.2d. at 720 (emphasis added).
33 jd, (quoting Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 956(1986)). 13 No. 71425-2-1/14
Block also complains that this record is "clear that the City has never
produced any email obtained from Hill or from her Blackberry responsive to these
two PRA Requests."34 She further complains that "it is equally clear that the City
has not shown [that] it searched for or produced any of those records before it
responded in February 2009."35
The former complaint appears to be nothing more than a variation on her
argument that the fact that a document existed when a request was made means
that the City's search for the document was inadequate. Not true, as we
explained earlier in this opinion.
The latter complaint is simply untrue, as evidenced by testimony in the
record specifying the former mayor's searches of her devices. Given there is no
contrary evidence in this record, we must assume such evidence does not exist.
In sum, the City bore its burden to show that its searches for public
records were adequate. Under CR 56, the burden then shifted to Block to show
otherwise. She failed to do so. Accordingly, the trial court properly granted
summary judgment to the City, as it was entitled to judgment as a matter of law.
Block argues that under Neighborhood Alliance, when an agency performs
an adequate search, but fails to produce a responsive record, it violates the PRA.
In Neighborhood Alliance, the scope of discovery in a PRA case was also an
34 Brief of Appellant at 23.
35 Id. at 24.
14 No. 71425-2-1/15
issue before the court.36 The court explained that an agency's reason for failing
to comply with the PRA was relevant when determining sanctions.37 It stated:
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. Discovery is required to differentiate between these situations.1381
Block argues that this statement means that "[an] agency that performed
[a] reasonable search but 'mistakenly' overlooked a record would still be
sanctioned." Thus, Block argues that if a responsive record existed, but was not
disclosed, the agency committed a per se PRA violation, even if the agency
adequately searched for the record.
We disagree. As we discussed earlier, the Neighborhood Alliance court
explicitly stated that "the issue of whether the search was reasonably calculated
and therefore adequate is separate from whether additional responsive
documents exist but are not found."39 If the failure to disclose an existing record
were a per se violation, regardless of whether the agency's search was
adequate, the court would have said so. Dictum in the opinion's discussion
about the scope of discovery does not persuade us to adopt the argument that
Block makes.
36 Neigh. Alliance of Spokane County. 172 Wn.2d at 715-16.
37 Id, at 717.
38 id, at 718.
39 id, at 720. 15 No. 71425-2-1/16
WITHHELD AND REDACTED RECORDS
Block argues that the City failed in its burden to show that records that it
withheld or redacted were exempt. We again disagree.
Agencies must produce any requested public record unless it falls within a
specific, enumerated exemption.40 The PRA states that these exemptions should
be "narrowly construed."41 Additionally, agencies must produce redacted
versions of exempt documents, if "'redaction renders any and all exemptions
inapplicable.'"42
It is the agency's burden to show that a redacted or withheld record was
exempt.43
In this case, the disputed exemptions are the work product exemption and
the attorney-client privilege.
Under RCW 42.56.290, an agency does not have to disclose attorney
work product. Documents are attorney work product ifthey "are relevant to a
controversy to which an agency is a party but which records would not be
available to another party under the rules of pretrial discovery for causes pending
40 id, at 715; RCW 42.56.070(1).
41 RCW 42.56.030.
42 City of Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014) (quoting Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 433, 327 P.3d 600 (2013)).
43 Gendler v. Batiste. 174 Wn.2d 244, 252-53, 274 P.3d 346 (2012) (quoting RCW 42.56.550(1)). 16 No. 71425-2-1/17
in the superior courts."44 Work product includes information gathered by
attorneys and attorneys' legal research, theories, opinions, and conclusions.45
Under RCW 5.60.060(2)(a), the attorney-client privilege protects
communications between a client and her attorney and the attorney's
professional advice to the client.
Block's First Request
Block argues that the City failed to establish that the records it withheld in
response to her first request were exempt. We disagree.
Here, the City withheld and claimed as exempt 66 pages of documents,
which it disclosed in its first "Privileged/Exemption/Redaction Log." The log
specifies the date, author, recipient, and subject matter of each document
claimed to be exempt. The log also cites authority for its claimed exemptions—
the attorney-client privilege and work product doctrines.
For example, the log shows that the City claimed exemption for a
November 7, 2008 e-mail from the City's insurance defense counsel on the
Majerle matter to her legal assistant. Similarly, the City claimed exemption for a
November 6, 2008 e-mail with handwritten notes from insurance defense counsel
to the same legal assistant. The log notes that these e-mails regard "Majerle v.
City of Gold Bar." It is self-evident that these e-mails fall within the work product
doctrine. Ifthere is a legitimate claim they do not, Block has failed to make it.
44 RCW 42.56.290.
45 Limstrom v. Ladenburg, 136 Wn.2d. 595, 609, 611, 963 P.2d 869 (1998).
17 No. 71425-2-1/18
Any reasonable reading of the privilege log shows that the claim to these
exemptions is proper. Thus, the burden to show otherwise shifted to Block for
summary judgment purposes.
Block failed in her burden to show any genuine issue of material fact
regarding these records. If she believed the claims of exemption were invalid,
she could have sought in camera review of these records. But she did not.
Moreover, she has failed to call to our attention anything in this record where she
provided evidence, not mere allegations, to show the existence of any genuine
issue of material fact that the records were not exempt.
Block argues that the trial court should have ordered the City to provide
redacted copies of the withheld records. Specifically, she argues that once she
had received redacted copies, she could have determined whether to seek in
camera review of the redacted portions. But Block fails to cite any authority
indicating that this request is a necessary predicate to requesting an in camera
review. And it is undisputed that she failed to request an in camera review of the
documents the City withheld in response to her first request for public records.
Block argues that entirely withholding rather than redacting the records
"was presumptively too great a withholding." She also argues, without citation to
authority, that "[r]arely will every portion of a record be exempt, particularly in the
context of attorney-client privilege or work product."
But if Block believed that the City's claimed exemptions were invalid
because they were overbroad, she could have sought in camera review of the withheld documents. That would have allowed the court to determine whether
18 No. 71425-2-1/19
the documents contained any non-privileged information. But without in camera
review, or any other support in the record, Block's arguments are mere
speculation, insufficient to avoid summary judgment.
In sum, Block failed to show any genuine issue of material fact regarding
claims of exemption. The City was entitled to summary judgment.
Block's Second Request
Block also argues that the City failed to establish that the portions of
records it redacted in response to her second request were exempt. We
disagree.
For Block's second request, the City did not entirely withhold records but
rather provided redacted copies of them. Block believed that the City's claimed
exemptions were invalid or overbroad and sought in camera review of the
documents.
The trial court reviewed the unredacted version of these records and
determined that the redactions were proper as work product or attorney client
privilege. The court further determined that "the exemption logs correctly
reflected the applicable exemptions."
Our review of the unredacted documents confirms that the redacted
portions were privileged under either the attorney-client privilege or the work
product doctrine. Thus, the City established that the redacted portions of the
documents were privileged. And it is entitled to summary judgment on this issue.
19 No. 71425-2-1/20
ADEQUACY OF EXEMPTION LOGS
Block next argues that the City failed to establish that its privilege logs
were sufficient. Specifically, she argues that the privilege logs lacked a brief
explanation of the claimed exemptions. We disagree.
"When an agency withholds or redacts records, its response 'shall include
a statement of the specific exemption authorizing the withholding of the record
(or part) and a brief explanation of how the exemption applies to the record
withheld.'"46 "The plain language of RCW 42.56.210(3) and our cases
interpreting it are clear that an agency must identify 'with particularity the specific
record or information being withheld and the specific exemption authorizing the
withholding.'"47
The agency must do more than identify the record and the specific
exemption—it must explain how the exemption applies to the record.48 If merely identifying the record and the exemption were sufficient, it "would render the
brief-explanation clause superfluous."49
46 Citv of Lakewood, 182 Wn.2d at 94 (quoting RCW 42.56.210(3)).
47 Jd, (quoting Rental Hous. Ass'n of Puget Sound v. Citv of Pes Moines, 165 Wn.2d 525, 537-38, 199 P.3d 393 (2009)) (emphasis omitted).
48 Sanders. 169 Wn.2d at 846.
49 Id.
20 No. 71425-2-1/21
There are limited circumstances where a brief explanation is unnecessary.
Some exemptions categorically "exempt 'without limit a particular type of
information or record.'"50 "[W]hen it is clear on the face of a record what type of
information has been redacted and that type of information is categorically
exempt, citing to a specific statutory provision may be sufficient."51
For example, RCW 42.56.230(5) exempts "Credit card numbers, debit
card numbers, electronic check numbers, card expiration dates, or bank or other
financial account numbers" from disclosure. If an agency states that a debit card
number has been redacted and cites this provision, no further explanation is
necessary.52
But the agency must not shift the burden "to the requester to sift through
the statutes cited by the [agency] and parse out possible exemption claims."53
Instead, "the agency must provide sufficient explanatory information for
requestors to determine whether the exemptions are properly invoked."54 In other words, "The log should include the type of information that would enable a
50 Citv of Lakewood. 182 Wn.2d at 95 (quoting Resident Action Council, 177Wn.2dat434).
51 jd,
52 id,
53 id,
54 id,
21 No. 71425-2-1/22
records requester to make a threshold determination of whether the agency
properly claimed the privilege."55
An agency violates the PRA by failing to provide an adequate
explanation.56
As described earlier, the City produced two privilege logs in response to
Block's requests. The first log deals with the 66 pages of records withheld from
the response to Block's first request.57 The second log describes the 29 pages of
documents that the City redacted in response to Block's second request.58 Both
logs adequately allowed Block to make threshold determinations about the
validity of the claimed exemptions.
Withheld Documents
This record shows the City's claim of exemption for each of the withheld
documents at Clerk's Papers 535 to 538. As described earlier, the log shows
that the City claimed exemption for e-mails that its counsel sent to her legal
assistant. Similarly, the City claimed exemption for a document described as
"undated typed notes of City Insurance Defense Attorney Eileen Lawrence re
Case analysis."59 These descriptions allow a requester to make a threshold
55 Gronguist v. Dep't of Licensing, 175 Wn. App. 729, 744, 309 P.3d 538 (2013).
56 Sanders. 169 Wn.2d at 846.
57 Clerk's Papers at 534-38.
58 id, at 539-44.
59 Id. at 536.
22 No. 71425-2-1/23
determination that the documents are exempt as claimed because they are
We have carefully examined each of the other descriptions contained in
the log at Clerk's Papers 535 to 538. Similarly to the descriptions that we just
discussed, they all allow a requestor to make a threshold determination whether
the claim of exemption is proper. Thus, the City's privilege log is adequate.
Block argues that further explanation of the basis of the claim for
exemption was required. In doing so, she relies on Sanders v. State.60 That
case is distinguishable.
There, the court found that the agency failed to offer a sufficient
explanation for the claimed exemption.61 That case involved RCW 42.56.290,
which exempts documents relating to a "controversy" that the agency is a party
to, if the records would not be discoverable. A "controversy" is litigation or
anticipated litigation.62 This exemption includes attorney work product and
attorney-client privilege.63
In Sanders, the agency claimed that it had offered a brief explanation by
"identifying each withheld document's author, recipient, date of creation, and
broad subject matter along with [citing the controversy exemption]."64 But the
60 169 Wn.2d 827, 240 P.3d 120 (2010).
61 jd, at 845-46.
62 Soterv.CowlesPub.Co., 162 Wn.2d 716, 732, 174 P.3d 60 (2007).
63 id, at 734.
64 Sanders, 169 Wn.2d at 845.
23 No. 71425-2-1/24
agency's response lacked a true explanation. The supreme court noted, "[t]he
identifying information about a given document does not explain, for example,
why it is work product under the PRA's 'controversy' exemption."65 The court
also noted that the log did not specify which controversy caused the document to
fall under the controversy exemption.66 The court held that this was insufficient.67
The privilege log in this case does not resemble the log in Sanders. In
Sanders, one flaw with the agency's response was that it did not specify the
controversy that caused the document to be exempt.68 In contrast, the privilege
log here does identify the specific controversy. The log frequently states
documents pertain to "Majerle v. City of Gold Bar" or makes other references to
that controversy.
For example, the description in the log of the November 2008 e-mails
makes it patently clear that they were communications among counsel on the
Majerle claim. This information allowed Block to make a threshold determination
about whether the e-mails were privileged. That is distinguishable from the log in
Sanders, where Sanders could not make a threshold determination whether the
claim of exemption was proper.
65 jd, at 846.
66 id,
67 Id,
68 Id.
24 No. 71425-2-1/25
Block argues that the City did not explain how any of the claimed
exemptions applied to records that existed but that it did not disclose by February
27, 2009. This argument is based on the false legal premise that the City's
search was inadequate. We rejected that assertion earlier in this opinion.
Accordingly, we need not address this argument any further.
In sum, the City bore its burden to show that its privilege log for the 66
items claimed as exempt in its first log was adequate. There was no genuine
issue of material fact for trial. Summary judgment in favor of the City on this
issue was proper.
Redacted Documents
The City's privilege log for the documents it redacted in response to
Block's second request is also adequate. The second privilege log is similar to
the first, but it contains additional brief explanations.
For example, the log notes that the City redacted content in a January 15,
2009 e-mail from the City's attorney to the City Clerk. Apart from citing the
exemption, it also includes a brief explanation, stating "content is attorney advice
to client." Similarly, when the City redacted content from an e-mail the mayor
sent to the City's attorney, the log notes that the "content is requesting attorney
advice," and thus privileged.
Thus, the log's descriptions of the redacted content and its brief
explanations allowed Block to make threshold determinations about whether the
claimed exemptions were valid. Accordingly, the log was adequate, and the City
is entitled to summary judgment on this issue.
25 No. 71425-2-1/26
ATTORNEY FEES
Block argues that she is entitled to attorney fees on appeal. Because she
does not prevail on appeal, we disagree.
The PRA awards "[a]ny person who prevails against an agency ... all
costs, including reasonable attorney fees."69 The attorney fees awardable under
the PRA include appellate fees.70
Here, we reject all of Block's arguments on appeal. Accordingly, she is
not entitled to recover attorney fees.
We affirm the trial court's grant of summary judgment to the City and its
denial of partial summary judgment to Block. We deny Block's request for
attorney fees on appeal.
6p*,J, WE CONCUR:
Beckett.
69 RCW 42.56.550(4).
70 Resident Action Council, 177 Wn.2d at 447.