City Of Lakewood, V David Koenig

Opinion

FILED COUNT OF APPEALS D1 j,TI 2013 SEP -4 AM 10: 14

S RR E OF WASHINGTON

TY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CITY OF LAKEWOOD, a municipal No. 42972 1 II - -

corporation of the State of Washington,

Respondent,

V.

DAVID KOENIG, individually, PUBLISHED OPINION

BRINTNALL, J. — David Koenig appeals from the trial court's order denying his QUINN-

request for costs and attorney \fees under former RCW 42. 6.2005).Koenig originally 550(

4

5 ) ( filed a request for records under the Public Records Act ( RA), 42. 6 RCW, with the City of P ch. 5 Lakewood (City); City's response to the request included some documents with driver's the license numbers redacted. After Koenig refused to confirm that the City had complied with his

request, the City sued for declaratory judgment. The trial court granted summary judgment in favor of the City and denied Koenig's request for costs and attorney fees. In this appeal, Koenig

argues that because the City's response was deficient, he is entitled to costs and attorney fees

No.42972 1 II - -

regardless of whether the driver's license numbers are exempt. We hold that Koenig is entitled

to costs and attorney fees because the City failed to provide Koenig with a brief explanation of

the basis for not providing the records requested and thereby violated RCW 42. 6.the ( 210(

3

5 )

brief explanation" requirement). Accordingly, we reverse the trial court's denial of Koenig's

attorney fee request and remand for entry of an award of attorney fees in accord with this

opinion. Former RCW 42. 6.

550(

4

5 ).

FACTS

On October 6,2007, Koenig submitted three public records requests to the City. The first

request included "all records about the arrest and prosecution of a Lakewood Police Detective." Clerk's Papers (CP)at 10. Koenig's second request included "all records about the arrest and

prosecution of a Tacoma Police Officer by the name of Michael Justice." CP at 12. The third request included " ll records about an auto accident that occurred in the City of Fife." at 14.

a CP The City responded to Koenig's request on November 30, 2007. The City's response

included a list of all the withheld documents and any redactions in the documents produced. In

the records pertaining to the Lakewood detective's arrest, the City redacted the detective's driver's license number. In its response to Koenig's request, the City also stated,

U] nless you have notified the City — in writing — by the close of business on December 21, 2007, that its responses satisfy your requests, the City is prepared to take appropriate legal action to determine that it has fully complied with each of these requests. Of course, if you believe that the City's redactions and or / withholding of documents to be in error, we ask that you advise the City ( gain, in

a

writing)of the grounds for which you believe the City's decisions to be in error so that we may reevaluate our decisions in light of your stated concerns.

0)

No. 42972 1 II - -

CP at 77. In the records pertaining to the Tacoma police officer's arrest, the City redacted the

Tacoma police officer's driver's license number. In the records pertaining to the Fife accident, the City redacted the "driver's license numbers ... of ( ) involved officer; 2) alleged 1 the ( the

victim; and (3) listed eyewitnesses."CP at 76.

the

On March 5,2008, the City filed a declaratory judgment action in Pierce County Superior

Court. The City sought an order declaring that it had fully complied with Koenig's public

3, 2011, the City filed motion for summary In records requests.' On November a judgment.

response, Koenig filed a cross motion for partial summary judgment and a request for costs and

attorney fees under the PRA for the City's failure to include in its response a brief explanation

for its redactions. The trial court granted the City's motion for summary judgment and denied

Koenig's request for costs and attorney fees. Koenig timely appeals only the order denying his

request for costs and attorney fees.

ANALYSIS

Koenig argues that because the City failed to provide an adequate explanation for the redaction of driver's license numbers in its original response, the City committed a violation of

the PRA entitling him to costs and attorney fees regardless of whether the driver's license

numbers are exempt. Koenig relies on Sanders v. State, 169 Wn. d 827, 240 P. d 120 (2010), 2 3

Prior to filing the motion for summary judgment, Koenig and the City had a dispute regarding discovery which we resolved in City ofLakewood v. Koenig, 160 Wn. App. 883, 250 P. d 113

3

2011).

2 Former RCW 42. 6.

550(

4

5 ).

No.42972 1 II - -

for the proposition that failure to provide an explanation for refusing to produce documents is a

free -standing PRA violation that entitles him to costs and attorney fees. The City argues that

under Sanders, a "brief explanation" violation is not a separate violation and that lack of a brief

explanation can only aggravate penalties for improperly withheld records. Koenig is correct,

under our Supreme Court's interpretation of the plain language in former RCW 42: 6.

550( 4a 5 ),

requester is entitled to costs and attorney fees when the responder fails to provide a brief

explanation of the exemption authorizing it to redact driver's license numbers.

Here, we must determine whether the City violated the plain language of RCW

210( 42. 6. failing to provide a brief explanation for the redactions contained in the response 3 by 5 ) to Koenig's public records request. We hold that it did. Furthermore, we must determine

whether Koenig is entitled to costs and attorney fees based on the City's violation of the brief

explanation requirement. We hold that he is.

in statute is to carry out the legislature's intent. Sprint Our objective interpreting a

Spectrum, LP v. Dep't ofRevenue, 174 Wn.App. 645, 658, 302 P. d 1280 (2013)citing Lake v.

3 ( Woodcreek Homeowners Ass'n,169 Wn. d 516, 526, 243 P. d 1283 (2010)). begin with the 2 3 We

statute's plain meaning. Sprint, 174 Wn. App. at 645 (citing Lake, 169 Wn. d at 526). We 2 "

discern the plain meaning from the ordinary meaning of the language at issue, the statute's

context, related provisions, and the statutory scheme as a whole."Sprint, 174 Wn. App. at 658

citing Lake, 169 Wn. d at 526). When a statute's language is unambiguous, we determine the

2

M

5

No. 42972 1 II - -

legislature's intent from the plain language of the statute alone. Sprint, 174 Wn. App. at 658

citing Waste Mgmt. of Seattle, Inc. v. Util. & Transp. Comm'n,123 Wn. d 621, 629, 869 P. d 2 2

1034 (1994)).

The PRA's brief explanation requirement provides that an agency response to a PRA

request "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." RCW

42. 6. A statement that is limited to identifying the information that is withheld and 210( 3 5 ).

baldly citing a statutory exemption violates the brief explanation requirement. Sanders, 169

Wn. d at 845 46. Here, the City's response to Koenig's PRA request as it related to the driver's 2 -

license numbers stated,

The Lakewood police detective's] s License number has been redacted Driver'

pursuant to RCW 46. 2.and RCW 46. 2.

120 5 130.

5

The City has redacted the dates of birth, driver's license numbers and social security numbers of ( )the involved officer; 2)the alleged victim; and (3)

1 ( the listed eyewitnesses [ in the Fife collision records]. These redactions are made pursuant to RCW 42. 6. RCW 42. 6. RCW 46. 2. and RCW 050, 5 240, 5 120,

5

130. 46. 2.

5

The driver's license number of Michael Justice has been redacted pursuant to RCW 42. 6.46. 2.and 46. 2.

050, 5 120, 130.

5 5

CP at 75 76. The City did no more than identify the information that was withheld and cite the -

statutes that it believed exempted the information. The City's response violated the brief

explanation requirement in RCW 42. 6. Sanders, 169 Wn. d at 845 46; RCW 210(

3

5 ). 2 -

210( 42. 6.

3 5 ).

No. 42972 1 II - -

Because the City violated the brief explanation requirement, the plain language of former RCW 42. 6.mandates 550(

4

5 ) an award of costs and attorney fees to Koenig. Former RCW

550( 42. 6.

4 states, 5 )

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 less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.

Our Supreme Court recognized the difference between costs and attorney fees referenced in the

statute's first sentence and penalties referenced in the second sentence. Sanders, 169 Wn. d at

2

860. A prevailing party is entitled to costs and attorney fees "for vindicating `the right to inspect or copy' or `the right to receive a response. "' Sanders, 169 Wn. d at 860 (emphasis added)

2

quoting RCW 42. 6.

550(

4

5 )).

As we explained above, an adequate response to a public records request must include a

brief explanation of how the claimed exemption applies. We hold that the City failed to comply

with the brief explanation requirement and Koenig prevails on this issue. Under former RCW

550( 42. 6.Koenig was entitled to costs and attorney fees when the City violated,the brief 4 5 ),

explanation requirement. Therefore, the trial court erred by denying Koenig's request for costs and attorney fees. Accordingly, Koenig is entitled to an award of reasonable attorney fees,

including fees on appeal, pursuant to former RCW 42. 6. RAP 18. .

550( 4 and 5 ) 1

r

7

No.42972 1 II - -

We reverse the trial court's denial of Koenig's attorney fee request and remand for entry

of an award of attorney fees in accord with this opinion.

We concur:

TJI T J IT

JOHANSON, A. 1

C

3 Although we do not resolve the question of whether the City properly redacted driver's license numbers in the disclosed records (an issue not before us in this appeal), note our concern over we the legislature's failure to expressly provide adequate protection for personal identifying information in the PRA statute. We recognize that the legislature has rejected a general personal privacy exemption. RCW 42. 6. However, we use the phrase " personal identifying 050. 5 information"to mean information such as Social Security numbers, driver's license numbers, tax identification numbers, employee numbers, or any other identifying information that would allow a private individual to be identified and subjected to inappropriate scrutiny or harm. See RCW 42. 6.

590( 5 RCW 005( 5 );9.5. 3 RCW 010( 3 ); 19. 15.Tacoma Pub. Library v. Woessner, 5);

2

90 Wn. App. 205, 221 22,951 P. d 357, 972 P. d 932 (1998)..

- 2 2 The legislature has acknowledged that disclosure of such personal identifying information can be harmful to private citizens. See ch. 9.5 RCW.

3 In other statutes, the legislature has recognized that driver's license numbers are personal identifying information needing protection from public disclosure to guard against harm to private citizens, such as identity theft. See, e. ., g RCW 42. 6. RCW 19. 15. However, it has not yet b), 2 590( 5)( 005. ( 5 6);

expressly provided a specific provision for the exemption of personal identifying information in the PRA.

The PRA exists to ensure government transparency and accountability. RCW 42. 6.

030.

5

Allowing the release of a private citizen's personal identifying information exposes private citizens to the risk of harm such as identity theft without furthering this purpose. See Tacoma Pub. Library, 90 Wn. App. at 221 22 (disclosure of personal identifying information can be -

highly offensive because it " ould lead to public scrutiny of individuals concerning information

c

unrelated to any governmental operation "). The legislature has expressed obvious concern over the release of personal identifying information and recognized that the release of personal identifying information serves no legitimate purpose under the PRA. Accordingly, we believe that the failure to include an express PRA exemption that impedes the crime of identity theft and protects the release of personal identifying information appears to be an unfortunate oversight but that it is up to the legislature not the courts, to address.