Derek E. Gronquist, V State, Dept. Of Licensing

Opinion

F iLED

COURT OF AP EA

DIVISION 141

4

2013 JUN -- AM 8:54 STNFE OF WASHINGTON. BY

0-u TY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

DEREK E. GRONQUIST, Appellant, No. 41897 5 II - -

V.

WASHINGTON STATE DEPARTMENT PUBLISHED OPINION OF LICENSING,

VAN DEREN J. —Derek E. Gronquist appeals from the trial court's summary

judgment order in favor of the Department of Licensing ( icensing)on Gronquist's

L

Public Records Act ( RA)claim. Gronquist argues that the trial court erred when it

P

granted Licensing's summary judgment motion because: 1)

( Licensing failed to respond

within five business days of his PRA request, thus entitling him to penalties; 2)

( the

information Licensing redacted from a master business license application was not

exempt from disclosure under the PRA; 3)' failed to provide explanations for ( Licensing

each redaction, also entitling him to penalties; and (4) trial court erred in failing to the

accept deposition transcripts for filing in support of his PRA claim.

We hold that ( )

1 Licensing failed to respond to Gronquist's request within the

statutory time frame, 2)

( none of the redacted information was exempt under.the statutes

1 Chapter 42. 6 5 RCW.

- -

cited by Licensing at the time Gronquist made his PRA request, 3)

( Licensing failed to

provide timely and adequate explanations for the redactions, and (4) trial court erred the

when it refused to file Gronquist's deposition transcripts.

The information Licensing redacted is now exempt from disclosure under RCW

115, 19. 2.the 2011 Department of Revenue (Revenue)confidentiality statute, and we do 0

not order Revenue to provide it. But we remand this matter to the trial court to determine

whether an award of costs and penalties to Gronquist is appropriate, and the amount

thereof, after considering: 1)

( Licensing's failure to timely respond to Gronquist's

request; 2)

( Licensing's proffered basis for some of the redactions, which exemptions we

hold did not apply; 3) period of time Licensing provided no explanation for its ( the

redactions from the application; and (4) fact that Licensing's 2009 redactions are in the

accord with the exemptions in effect beginning July 1, 2011. We also remand this matter

to the trial court for it to accept for filing,. for its consideration, the deposition and

transcripts Gronquist attempted to file in 20 10,, again in 2011, at our direction.

and

FACTS - -- - - - - - - --

In a letter dated July 20, 2009, Gronquist, who at the time was an inmate at the Monroe

Correctional Complex, submitted a request to Licensing under the PRA requesting the master

business license application for a company called " aureen's House Cleaning."Clerk's Papers

M

2 Master business license applications are administered by Washington's business license center. Chapter 19. 2 RCW. The center is responsible for d]

0 "[ eveloping and administering a computerized one stop master license system capable of storing, retrieving, and exchanging -

license information with due regard to privacy statutes, as well as issuing and renewing master licenses in an efficient manner."RCW 19. 2.The service collects license applicants'

a). 030( 2)(

0

information in an application and then seeks approval of the application from the agency that has authority to issue the license. RCW 19. 2. At the time Gronquist made his PRA request, 070. 0

Licensing administered the master license service, but on July 1, 2011,the service was

3

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CP)at 186. Licensing responded in a letter dated July 31, 2009, in which it provided Gronquist

with the requested application with certain information redacted 3 .

Licensing redacted much of the application without providing a statutory basis for the

redactions. These redactions included the: 1)

( business telephone number, 2)

( information about

whether the business was located within the Seattle city limits, 3)

( business's electronic mail

address, 4) s home address, 5) s date of birth, 6) s social security number, ( owner' ( owner' ( owner'

7) percentage of the business owned by the applicant, 8) s home telephone number, 9)

( owner' (

owner's marital status, 10)business's estimated gross annual income, 11)business activities ( (

performed, 12)products or services provided, 13)information about whether the owner bought, ( (

leased, or acquired an existing business, 14)information about whether the owner purchased or (

leased any fixtures or equipment on which he or she did not pay sales tax, 15)name of the (

owner's bank, and (16)existence of or plans to have employees.

In February or March 2010, Gronquist sued Licensing, alleging that Licensing violated

the PRA by providing a redacted copy of the application. He asked the trial court to compel disclosure of an unredacted copy of the application and asked:for costs and penalties

under the PRA. In a letter dated March 1, 2010, after Licensing received Gronquist's complaint,

Licensing to Revenue.

transferred from LAWS of 2011, ch. 298, § 1 ( included in the notes following RCW 19. 2.

020).0

3 The record does not clearly reflect when Licensing received Gronquist's request. The letter responding to his request stated that Licensing received the letter on July 31, 2009. But an administrator of the master licensing service stated in a declaration filed in support of Licensing's summary judgment motion that her office received the letter "[ n or about July 21, o]

2009."CP.at 115.

4

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Licensing wrote Gronquist a letter stating the reasons for redacting the information from the

application. The letter stated:

Applications contain some information that is exempt from public disclosure pursuant to the statutes governing the agencies on whose behalf the information is collected. The statutory basis for the exemptions is found at RCW 50. 3. 020 1 Employment Security [Department]), RCW 51. 6.Department of Labor and 070 (1

Industries) and RCW 82. 2. ([ 330 Revenue]). It was pursuant to the

3

requirement of these statutes that portions of the [ application] for Maureen's House Cleaning were redacted.

CP at 205.

On October 21,2010, Gronquist filed a motion to show cause why an unredacted copy of

the application should not be provided and why he should not be awarded costs and penalties .

under the PRA. On November 4,2010, Gronquist filed a motion for sanctions against Licensing,

alleging that it intentionally violated the PRA,lied to Gronquist, and failed to properly train and

supervise its employees. On November 19,Licensing filed a summary judgment motion

claiming that it properly redacted the information and ultimately provided Gronquist with an

explanation for the redactions; thus, Gronquist was not entitled to costs and penalties.

On October 15, 2010, Gronquist mailed three deposition transcripts to the trial court or

filing to support his show cause motion, his motion for sanctions, and his response to Licensing's

motion for summary judgment. The trial court clerk returned the transcripts to Gronquist with a

4 The timing of Gronquist's suit and the date Licensing provided an explanation for the redactions are not clear from the record. The date stamp on the complaint says it was filed on March 9,2010, but Licensing's brief, without citation, states that Gronquist filed his suit on February 19, 2010. The date above the signature on the complaint is February 1, 2010. But there is no dispute that Licensing failed to provide an explanation for its redactions until after Gronquist filed suit. 5 The legislature has amended RCW 82. 2.multiple times since July 28, 2009,the date 330

3

Licensing should have responded to Gronquist's PRA request. LAWS of 2011, ch. 174, §404; LAWS of 2010, ch. 112, § 13; LAWS of 2010, ch. 106, § 104; LAWS of 2009, ch. 563, §213. But because the changes are not relevant to our analysis,we cite the current version of the statute.

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letter stating that the depositions could not be filed, citing CR 32( ).

a Gronquist returned the

depositions to the clerk, asserting that the depositions should be filed under CR 32( ) that he a and

needed them to support his upcoming motions. The clerk responded that the depositions had

been forwarded to the presiding judge in Gronquist's case and clarified the clerk's office's

previous letter to Gronquist, CR 32( )

" a states, At the trial or upon the hearing of a motion ...'

`

y]u may, at the time of your hearing, request the judge to publish the deposition. If the judge o

grants your request, the deposition will be filed into the court file. It cannot, however, be filed

until such time."CP at 218.

On December 21, 2010, the trial court ordered Licensing to submit the unredacted

application for in camera review. Licensing submitted the document to the trial court

accompanied by the following " xplanation for redaction ":

e

The ... application in question has four pages. The first page is not redacted. On the second page, all identifying information is redacted except for business type, i.. sole proprietorship, starting date, name of business, owner and

e

business address. This is pursuant to Revenue statutes [RCW] 82. 2.

k) 330(

1

3 )(

attached for the court's convenience[)].Marital status and social security

6 CR 32( )

a provides in relevant part: Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with certain] provisions.

RCW 82. 2.

k)exist in any version of the statute; thus, it appears that 330( 1)(

3 does not

Licensing's reference to this statute was a typographical error. But RCW 82. 2.k)

330( 3)(

3

provides that RCW 82. 2.does not prevent Revenue from 330 3

d] isclosing, in a manner that is not associated with other tax information, the taxpayer name, entity type, business address, mailing address, revenue tax registration numbers, reseller permit numbers and the expiration date and status of such permits,North American industry classification system or standard industrial classification code of a taxpayer, and the dates of opening and closing of business.

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number were also withheld under the Employment Security general confidentiality statute RCW 50. 3.attached for the court's convenience). On 020 (1

the third page information about the owner's income, services sales tax, banking institution, and employee status is withheld pursuant to the strictures of [ CW]

R

330 referenced above. 82. 2.

3 Scrutiny of the unredacted and redacted document reveal[s] errors. No no

information was redacted that should have been included. Information about any employees is redacted pursuant to RCW 51. 6. the Labor and Industries 070 1

statute (attached for the court[']convenience). The last page is not redacted.

s

CP at 145.

The trial court granted Licensing's summary judgment motion and its order stated:

The court reviewed in camera the unredacted copies of documents that we[ e]provided to ... Gronquist with redactions. The court is satisfied that the

r

redacted material is not subject to disclosure, but is protected as confidential by RCW 50. 3.RCW 51. 6.and] RCW 82. 2.and the [PRA], 020,

1 070, [

1 330,

3 RCW

42. 6.

5 In this produced materials for [ Gronquist] with case, [ Licensing]

redactions. At the time of production, there was no accompanying brief explanation of the reason for the redactions. No request for an explanation was made. When the lawsuit was filed identifying [Gronquist]'

s issue, [Licensing]

provided an explanation for the redactions. The Court is aware of the recent decision in [Sanders v. State],169 Wn. d 827, 240 P. d 120 (2010).The Court 2 3

finds that no information was wrongfully withheld in this case. The court finds that the initial failure of [ icensing] to provide the explanation for the redactions

L

was not a violation of the [PRA] giving rise to penalties.

CP at 163 64.

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On March 18, 2011, Gronquist filed a notice of appeal. We informed Gronquist and

r0

7

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Licensing that the trial court's summary judgment order did not comply with RAP 9.2,which

1

requires that all evidence called to the attention of the trial court be specified in the order before

that order can be appealed. The letter directed Gronquist to obtain a complying order from the

trial court. On May 6,2011,the trial court issued a supplemental order granting Licensing's

motion for summary judgment that stated that two documents were called to its attention when

deciding Licensing's summary judgment motion: a redacted and an unredacted copy of the

application.

On June 6,2011, Gronquist filed a designation of clerk's papers asking the trial court to

transfer the deposition transcripts that he had sent to the superior court to this court. The trial

court did not transfer the deposition transcripts because they were not part of the court file.

Gronquist filed a motion asking us to compel the superior court to transfer the depositions to this

8 RAP 9.2 provides:

1 SPECIAL RULE FOR ORDER ON SUMMARY JUDGMENT On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.

9 The supplemental order provided:

THE DOCUMENTS CALLED TO THE COURT'S ATTENTION WERE:

Two copies of a[ application] for " aureen's Housecleaning."One copy n M

was provided to . . . Gronquist with redactions. Another copy of the same document was lodged with the court for confidential in camera review pursuant to Thurston County ( The court is satisfied that the Local Civil Rule 16 ( c)2).

redacted material is not subject to disclosure, but is protected as confidential by RCW 50. 3.RCW 51. 6.and] RCW 82. 2.and the [PRA], 020,

1 070, [

1 330,

3 RCW

42. 6.

5

CP at 167.

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court. We ruled that the depositions " re not on file with the clerk's office. Gronquist must seek

a

relief in the trial court, directing its clerk to file the depositions, before they can be part of the

record in this court. Gronquist is granted a 45 day extension of time to do the above and file an -

amended brief."

Ruling on Motion to Show Cause, Gronquist v. Dep't ofLicensing, No. 41897-

541 (Wash. Ct. App. Sept. 7,2011).

In October 2011, Gronquist filed a motion to settle the record in the trial court, asking

that the trial court allow him to file the deposition transcripts. The trial court denied the motion,

stating, T] e Plaintiff did not make deposition transcripts part of the record[,] the "[ h so

depositions were not considered by the court."CP at 221.

Gronquist timely appeals both the trial court's summary judgment in favor of Licensing

and the trial court's denial of his motion to settle the record by filing the deposition transcripts.

ANALYSIS

Gronquist argues that the trial court erred when it granted Licensing's summary judgment

motion because (1)Licensing failed to respond within five business days of his. RA request,

P

thus -entitling him to penalties; 2) information Licensing redacted from the application was ( the

not exempt from disclosure under the PRA; 3)

( Licensing failed to provide a proper explanation

for the redactions, also entitling him to penalties; and ( ) trial court failed to properly file the 4 the

deposition transcripts he submitted in support of his PRA claim.

We agree with Gronquist that some of the redacted information was not exempt when

Licensing answered his request and that Licensing did not timely respond and failed to provide

explanations for its redactions, thereby silently withholding the information until after Gronquist

filed his lawsuit. We remand to the trial court to consider the.

imposition of costs and penalties

after consideration of the entire record, including the depositions to be filed by the trial court at

9

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our direction. We do not hold that the withheld information must be produced because it is now

exempt from disclosure under the 2011 statute transferring responsibility for the master business

license service and all records pertaining to applications from Licensing to Revenue. RCW

19. 2.LAWS 115;

0 OF 2011, ch. 298, §2 (included in the notes following RCW 19. 2.

020).

0

I. STANDARD OF REVIEW

We review agency action under the PRA de novo. Neighborhood Alliance ofSpokane

County v. Spokane County, 172 Wn. d 702, 715, 261 P. d 119 (2011)citing RCW 2 3 (

550( 42. 6.In a PRA case, the trial court " ay conduct a hearing based solely on affidavits,"

3 5 )). m

and where, as here, the " ase presents a question of law which was decided by the trial court

c

solely on the basis of documentary evidence and legal arguments, review is de novo."RCW

550( 42. 6.

3 Confederated Tribes v. Johnson, 135 Wn. d 734, 744, 958 P. d 260 (1998). 5 ); 2 2

We review an order granting summary judgment de novo, engaging in the same inquiry

as the trial court. Weden v. San Juan County, 135 Wn. d 678, 689, 958 P. d 273 (1998).

2 2

Summary judgment is appropriate when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of aw. CR 5 c. Although we review agency action

under the PRA and summary judgment orders de novo,we review the amount of a trial court's

penalty award under the PRA for abuse of discretion. Double H, LP v. Dep't ofEcology, 166

Wn. App. 707, 712, 271 P. d 322, review denied, 174 Wn. d 1014 (2012).

3 2

Il. PUBLIC RECORDS ACT

The PRA " equires all state and local agencies to disclose any public record upon request,

r

unless the record falls within certain very specific exemptions."Progressive Animal Welfare

10

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10 "

2 2 1994)PAWS). The PRA is a Soc. v. Univ. of Wash.,125 Wn. d 243, 250, 884 P. d 592 ( (

strongly worded mandate for broad disclosure of public records."Neighborhood Alliance, 172

Wn. d at 714. In light of this purpose, the PRA is liberally construed in favor of disclosure and 2

its exemptions are narrowly construed. RCW 42. 6.

030.

5

Under the PRA, agencies must respond within five business days of receipt of a public

records request. RCW 42. 6.West v. Thurston County, 168 Wn. App. 162, 182, 275 P. d 520;

5 3

1200 (2012). an agency may withhold all or part of a record if it falls within an exemption But

under the PRA " r other statute which exempts or prohibits disclosure of specific information or

o

records."RCW 42. 6.T] e PRA's other statute' exemption allows for a separate 070(

1

5 ). "[

h `

statute to preclude disclosure of specific information'

` or records. "' Ameriquest entire ` Mortg.

Co. v. Office ofAttorney Gen.,170 Wn. d 418, 440, 241 P. d 1245 (2010)quoting RCW 2 3 (

070( 42. 6.But if another exemption statute and the PRA conflict, the exemption provisions 1 5 )).

of the PRA govern. RCW 42. 6.

030.

5

If an agency refuses to permit public inspection of particular records, t] burden of "[ he

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."RCW 42. 6.Part of this burden requires an agency withholding 550(

1

5 ).

records to "nclude a statement of the specific exemption authorizing the withholding of the

i

to In PAWS, our Supreme Court interpreted and applied former chapter 42. 7 RCW,the Public

1

Disclosure Act ( DA).Effective July 1,2006, the PDA was renamed the PRA and was

P

recodified as chapter 42. 6 5 RCW. LAWS of 2005, ch. 274, §§ 10203. Although our Supreme -

Court interpreted the former PDA in PAWS, we refer to the current PRA when discussing the case because the relevant provisions are identical.

11

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record (or part)and a brief explanation of how the exemption applies to the record withheld."

RCW 42. 6.

210(

3

5 ).

Our Supreme Court has characterized failure to provide an explanation as "silent

which

withholding," when " n agency ...

a retain[s] record or portion without providing

a

I occurs

the required link to a specific exemption, and without providing the required explanation of how

the exemption applies to the specific record withheld."PAWS, 125 Wn. d at 270. Providing the

2

required explanation is important not only because it informs the requester why the documents

are being withheld,but also because failure to provide the explanation " itiate[ v s]" "

the reviewing

court's ability to conduct the statutorily required de novo review."PAWS, 125 Wn. d at 270.

2

See also Sanders, 169 Wn. d at 846 ( Claimed exemptions cannot be vetted for validity if they 2 "

are unexplained. ").

To comply with the PRA,the agency must provide an explanation that specifically

describes how the claimed exemption applies to the withheld information because "[ a] llowing

the mere identification of a document and the claimed exemption to count as a `brief

the PRA's]

explanation'would render [ - explanation clause superfluous. Sanders, 169 brief- -

Wn. d at 846. One method by which an agency can properly identify withheld information is 2

with a privilege log. Rental Hous. Assn ofPuget Sound v. City ofDes Moines, 165 Wn. d 525,

2

538 39,199 P. d 393 (2009)citing WAC 44- 04004( - 3 ( 14-

b)(The log should include the ii)). 4)(

type of information that would enable a records requester to make a threshold determination of

whether the agency properly claimed the privilege. WAC 44- 04004( 14-

b)( ii);

4)(

Rental Hous.

Ass'n,165 Wn. d at 539.

2

The PRA requires the trial court to award attorney fees and costs to a party who "

prevails

against an agency in any action in the courts seeking the right to inspect or copy any public

12

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record or the right to receive a response to a public record request within a reasonable amount of

time."

RCW 42. 6.A PRA claimant " revails"against an agency if the agency 550(

4

5 ). p

wrongfully withheld the documents. Germeau v. Mason County, 166 Wn. App. 789, 811, 271

P. d 932, review denied, 174 Wn. d 1010 (2012). 3 2

In addition, it shall be within the discretion of the court to award .... an amount not to

exceed one hundred dollars for each day that he or she was denied the right to inspect or copy [a

wrongfully withheld] public record."RCW 42. 6.A PRA penalty determination 550(

4

5 ). "

involves a two step inquiry: 1)

- ( determining the appropriate daily penalty amount; and (2)

calculating the number of days the public agency denied the party access to the records."West,

168 Wn. App. at 188.

We review the trial court's penalty award for abuse of discretion. Double H, 166 Wn.

App. at 712 13. But because the penalty period is " trictly defined by the number of days a - s

person has been denied a record after it should have been produced," is a matter of law that we it

review de novo. Double H, 166 Wn. App. at 712 13. T] e.PRA requires the agency to pay a - "[ h

penalty for each day the requester is unable to inspect or copya nonexempt record"and the -

-

penalty period includes the amount of time that any suit relating to production of the records was

pending. Sanders, 169 Wn. d at 863 64.

2 -

11 Before July 22,2011,the PRA required courts to impose a minimum per day penalty of 5.

- $

Former RCW 550( 42. 6.

5 ) ( LAWS 4 2005); of 2011, ch. 273, § 1. Courts may now impose a daily penalty ranging from $ to $ 0 100. RCW 42. 6.

550(

4 West, 5 );168 Wn.App. at 188, n.9. RCW

2

565 42. 6.was also amended in 2011 and the following provision was added, A court shall not 5 " award penalties under RCW 42. 6. a person who was serving a criminal sentence in a 550( 4 to

5 )

state ... correctional facility on the date the request for public records was made, unless the court finds that the agency acted in bad faith in denying the person the opportunity to inspect or copy a public record. LAWS of 2011, ch. 300, § 1. The section " pplies to all actions brought

a

under RCW 42. 6.in which final judgment has not been entered as of July 22,2011]."

550 5 [ LAWS of 2011, ch. 300, §2 (included in the notes following RCW 42. 6.

565).

13

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A. Delayed Response to Gronquist's Public Records Request

Gronquist contends that Licensing violated the PRA because Licensing failed to respond

to his PRA request within five business days. Licensing responds that we should decline to

address Gronquist's claim because he raises it for the first time on appeal. Licensing also

contends that even if we were to address this issue, t] uncontroverted evidence in the record "[ he

is that Gronquist's letter arrived on the 31 st of July, and was responded to timely on that date."

Licensing misrepresents the record in both of these arguments.

First, the evidence surrounding Licensing's receipt of Gronquist's request was not

uncontroverted."Although the letter responding to Gronquist's request provides that Licensing

received it on July 31, 2009, Licensing attached the declaration of one of its senior

administrators to both its summary judgment motion and its response to Gronquist's show cause

motion that stated, On or about July 21, 2009, our office received a request for the business "

license application for Maureen's Housecleaning [sic]from ... Gronquist."CP at 115.

Second, Gronquist raised the timeliness issue at the trial court. Gronquist was not aware

ofthe declaration stating that Licensing actually received the letter on July 21 instead of July 31 -

until he received Licensing's response to his motion to show cause and Licensing's summary .

judgment motion. After receipt of that information, Gronquist addressed Licensing's late

response in both his reply in support of his show cause motion and his response to Licensing's

summary judgment motion.

RCW 42. 6.

520 requires agencies to respond to public records requests within five

5

business days. Here, Licensing responded after eight business days. Accordingly,Licensing

violated RCW 42. 6.

520 when it failed to provide Gronquist with the application within the

5

statutory time frame.

14

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B. Exemptions —Wrongful Withholding

Gronquist also argues that the trial court erred when it concluded that the information it

withheld was properly redacted from the application. Licensing responds that RCW 82. 2.

330,

3

RCW 50. 3.and RCW 51. 6.authorized its redacting the business license owner's home 020, 1 070

1

address, home telephone number, business telephone number, income information, employee

12

information, banking information, and marital status.

Licensing's letter to Gronquist after he filed his claim for violation of the PRA identified

Revenue statute RCW 82. 2.Employment Security Department ( mployment Security)

330,

3 E

statute RCW 50. 3.and Department of Labor and Industries (Labor and Industries) statute 020,

1

RCW 51. 6.as justification to support its redactions from the application without specifying 070 1

which statute justified each redaction. In Licensing's explanation to the trial court for the

redactions when it submitted the unredacted application for in camera review, Licensing

attempted to identify the particular portions of redacted information that correspond with the

cited statutes.

But Licensing has failed to meet its burden to show that the information was covered by

an exemption for at least two of the redactions. Licensing's explanation fails to mention two

pieces of redacted information: 1) type of business activities performed in Washington and ( the

2)whether the owner bought, leased, or acquired all or part of an existing business. Thus,the

information provided by Licensing is insufficient to enable a records requester to make a

threshold determination of whether the,agency properly claimed the privilege. WAC 4414– -

b)( 04004( ii); Ass'n, Wn. d at 539. Because Licensing has failed to assert 4)( Rental Hous. 165 2

12 Licensing fails to assert on appeal that any other information in the application was properly withheld.

15

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why any exemption applies to these redactions, it has failed to meet its burden of proving why it .

redacted that information, and the trial court erred by granting summary judgment to Licensing.

RCW 42. 6.

550( 1 5 ).

We turn to the remaining redactions to determine whether.the statutes cited by Licensing

support withholding that information.

1. RCW 82. 2.

330

3

Licensing's explanation to the trial court stated that RCW 82. 2.exempted the 330

3

following information: 1) business telephone number, 2)

( the ( whether the business was inside

the city limits, 3) owner's home address, 4) owner's date of birth, 5) owner's ( the ( the ( the

percentage of ownership of the business, 6) owner's home telephone number, 7)

( the ( the

owner's income, 8) services provided by the owner, 9)

( the ( whether the owner purchased or

leased any fixtures or equipment on which the owner did not pay sales tax, 10)the owner's (

banking institution, and (11)whether the owner had or planned to have employees.

RCW 82. 2.

330(

2 provides, Returns and tax information are confidential and 3 ) "

privileged, and except as authorized by this section,neither the department of revenue not any

other person may disclose any return or tax information."

E131 (

Tax information" means (i)taxpayer's identity, a ii) nature, source, or the

amount of the taxpayer's income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability deficiencies, overassessments, or tax payments, whether taken from the taxpayer's books and records or any other source, iii)

( whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, iv) part of a written determination ( a

that is not designated as a precedent and disclosed pursuant to RCW 82. 2.or 410, 3

a background file document relating to a written determination, and (v) other data

13 "` Taxpayer identity' means the taxpayer's name, address, telephone number, registration number, or any combination thereof, or any other information disclosing the identity of the taxpayer."RCW 82. 2.

e). 330(

1)(

16

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received by, recorded by, prepared by, furnished to, or collected by the department of revenue with respect to the determination of the existence, or possible existence, of liability, or the amount thereof, of a person under the laws of this state for a tax, penalty, interest, fine, forfeiture, or other imposition, or offense. However, data, material, or documents that do not disclose information related to a specific or identifiable taxpayer do not constitute tax information under this section. Except as provided by RCW 82. 2.

410,

3 nothing in this chapter requires any person possessing data, material, or documents made confidential and privileged by this section to delete information from such data, material, or documents so as to permit its disclosure.

RCW 82. 2.

c). 330( 1)( 3

Gronquist notes that the statute Licensing cited in support of the exemptions authorizes

disclosure of tax information that is also maintained by another Washington state or local "

governmental agency as a public record available for inspection and copying under the [PRA]."

RCW 82. 2. the time the information was redacted from the application, Licensing 1). 330( 3)( 3 At

was responsible for administering the application, not Revenue. LAWS of 2011, ch. 298, § 1

included in the notes following RCW 19. 2. Thus, even if the application contained " ax 020).

0 t

information,"

RCW 82. 2.

1) disclosure of the information by another agency, 330(

3)( 3 authorizes

in this case Licensing.

Although Licensing failed to cite the PRA in its explanations to Gronquist, it now argues

that the PRA itself authorizes application of the Revenue statute to the redacted information at

issue here. RCW 42. 6.

230(

4 found 5 ),within the PRA's list of exemptions for " ersonal

p

information,"

provides that the following information is exempt from public disclosure:

Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would: a)Be prohibited to such persons by RCW 84. 8. 82. 2. 84. 0.

210,330,020,

0 3 4 340, 84. 0.or any ordinance authorized under RCW 35. 02.or (b)

4 145; 1 violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

17

- -

Gronquist contends that the PRA i]

exemption applies only to "` [ nformation required of

any taxpayer in connection with the assessment or collection of any tax, "'and, thus, does not

apply to the information in the application because "[ aster [1] [a]

- m] icense pplications have no

connection with the assessment or collection of taxes."Br. of Appellant at 27 (quoting RCW

230( 42. 6.Gronquist is correct.

3)). 5

Our Supreme Court has held that business license applications are not a substitute for tax

returns. Ford Motor Co. v. City ofSeattle, Exec. Services Dep't, Wn. d 32, 56, 156 P. d 160 2 3

185 (2007).In Ford Motor Co., Ford sought to take advantage of a shorter statute of limitations

period for collection of taxes that could be used if a taxpaying entity had filed tax returns for the

payment period at issue. 160 Wn. d at 55. Ford argued that although it had not filed tax returns

2

for the years in question, it had filed annual business license applications; thus,the shorter statute

of limitations should apply. Ford Motor Co., Wn. d at 55. Our Supreme Court rejected 160 2

Ford's contention, holding that

the annual business license application is exactly thata license application, not a.

—

return. It is designed to license a company to engage in business, not to provide financial information for taxation purposes. . . [ A] lthough the license applications may request some financial data, they do not require the provision of sufficient financial data to allow for a computation of the appropriate tax.

Ford Motor Co., Wn. d at 56. Because business license applications do not " rovide 160 2 p

financial information for taxation purposes," hold that the information contained in the we

application was required not " ... in connection with the assessment or collection of any tax."

Ford Motor Co., Wn. d at 56; RCW 42. 6.Accordingly, Licensing failed to meet its 160 2 230(

4

5 ).

burden of proving that the information it redacted under RCW 82. 2.was exempt from

18

- -

14

disclosure.

2. RCW 50. 3.

020

1

Licensing's explanation to the trial court also stated that RCW 50. 3.exempted (1)

020

1

the owner's social security number and (2) owner's marital status. As a preliminary matter, the

Gronquist does not contest the redaction of the business owner's social security number from the

application. Thus, we need only determine whether RCW 50. 3.exempts the owner's 020

1

marital status from disclosure. RCW 50. 3.provides:

020

1

Any information or records concerning an individual or employing unit obtained by [Employment Security] pursuant to the administration of this title or other programs for which [Employment Security] has responsibility shall be private and confidential, except as otherwise provided in this chapter. ... Information or records may be released by [Employment Security when the release is:

1)Required by the federal government in connection with, or as a condition of funding for, a program being administered by [ Employment Security];

or

2) Requested by a county clerk for the purposes of RCW 9.

760.

94A.

The PRA also authorizes exemptions under this statute, although Licensing failed to cite

the PRA provision in its explanation to Gronquist or to argue it on appeal. One PRA exemption

provides, Records maintained by [Employment Security] and subject to chapter 50. 3 RCW if " 1

provided to another individual or organization for operational, research, or evaluation purposes

are exempt from disclosure under this chapter."RCW 42. 6. Thus, the PRA authorizes 410.

5

application of RCW 50. 3.to records "maintained by"Employment Security, and the 020

1

Employment Security statute protects information " btained by"Employment Security. RCW

o

14 Even if we were to hold that the information in the application was connected with the assessment or collection of taxes, Gronquist argues, and we agree, that RCW 82. 2.does not 330 3

exempt all of the information Licensing claims. Applying RCW 82. 2.

330'

s

3 definition of tax

"

information"to the claimed exemptions here reveals that only the owner's home and business telephone numbers, home address, and estimated gross annual income would be exempt if the statute applied. RCW 82. 2.Licensing fails to demonstrate how RCW 82. 2.

330(

2

3 ). 330

3

protects any of the other information it claims was exempt.

- -

410; 42. 6.RCW 50. 3. The application here was maintained and obtained by Licensing, 5 020.

1

not Employment Security. Accordingly, neither RCW 50. 3.nor the PRA statute 020,

1

authorizing its application, protect the owner's marital status in the application here.

Moreover, Gronquist argues, and we agree, that "[ r] of what agency maintains egardless

the record, RCW 50. 3.simply does not apply to the information contained in the 020

1

application]." of Appellant at 34. For the requirements of the Employment Security Act, Br.

Title 50 RCW,to apply, an entity must be employer, "'meaning that it must have " ersons an "` p

in ` employment. "' Language Connection, LLC v. Emp't Sec. Dep't, Wn. App. 575, 581,205 149

P. d 924 (2009)quoting RCW 50. 4. Here, Maureen's House Cleaning is a sole 3 ( 080).

0

proprietorship and its application states that it has no employees. Accordingly, the Employment

Security Act and the confidentiality statute therein do not apply to the application here.

3. RCW 51. 6.

070

1

Licensing's explanation to the trial court also provided that RCW 51. 6.

070,

1 related to

Labor and Industries, exempted information " bout any a employees."CP at 145. RCW

070( 51. 6.

2 provides, Information obtained from employing unit records under the provisions 1 ) "

of this title shall be deemed confidential and shall not be open to public inspection."

Although Licensing fails to provide the particular redaction that it claims is exempt from

disclosure under this statute, the only redacted information regarding employees on the

application is whether the business has employees. Assuming that RCW 51. 6.is 070

1

Licensing's justification for that redaction, Licensing has failed to meet its burden to prove that

an exemption applies under the PRA.

Gronquist argues, and we again agree, that Title 51 RCW does not apply to the

Maureen's House Cleaning application because Maureen's House Cleaning is a sole

W1

20

- -

proprietorship without employees. "Chapter 51 RCW governs all aspects of a worker's remedy

against his or her employer for injuries sustained in the course of employment."Rafn Co. v.

Dep't of Labor & Indus., 104 Wn. App. 947, 949, 7 P. d 711 (2001)citing RCW 51. 4.

1 3 ( 010).

0

RCW 51. 6.requires all employers, subject to some exceptions, to pay quarterly 060

1

premiums to the state industrial insurance fund. Rafn, 104 Wn. App. at 949. Sole proprietors are

exempted from this mandatory coverage. RCW 51. 2.Maureen's House Cleaning is a 020(

5

1 ).

sole proprietorship and declined optional industrial 'insurance coverage. Accordingly,Title 51

RCW and its confidentiality provision do not apply to the information in the application.

Moreover, even were we to apply the Labor and Industries confidentiality statute, it does

not apply to the information in the application. RCW 51. 6.

070(

2 provides that "[ 1 ) i] nformation

obtained from employing unit records"is confidential. But the application is not an "employing

unit record[ ]" because Maureen's House Cleaning is not an " mploying unit."

e RCW

090( 50. 4.

1 defines an "[ 0 ) e] mploying unit"as "any individual or any type of organization ...

which has or subsequent to January 1, 1937, had in its employ or in its `employment' one or

more individuals performing services within this state.

Because Licensing failed to meet its burden to show that it properly exempted any of this

particular information from the application, we hold that the trial court erred when it concluded

15

that Licensing's redactions were proper exemptions under the PRA.

is We do not hold that no federal, state, or local exemptions apply to requests for information from licensing applications. For example, the PRA contains multiple exemptions pertaining to licensing, none of which apply to the licensing application at issue here. RCW 42. 6.

240(4

5 )

concealed pistol licenses);RCW 42. 6.

250( 1 examination

5 ) ( data used to administer a license);

RCW 42. 6. ( licenses);

270( 5)1 5 fuel RCW 42. 6.membership lists in 340 (

5

timeshares condominiums regulated by Licensing);

/ RCW 42. 6.

430( 3 fish (

5 ) and wildlife

licenses); RCW 42. 6.check cashers and sellers licensing applications).

and 450 (5

21

- -

4. Subsequent LegislationRCW 19. 2.

— 115— License Center Act 0 Business

In 2011, the Legislature transferred responsibility for master license applications and all

records and personnel involved in the master license applications from Licensing to Revenue.

LAWS of 2011, ch. 298, §2 (included in the notes following RCW 19. 2. At the same time, 020).

0

the legislature adopted a confidentiality provision applicable to all information contained in

licensing applications handled by Revenue. RCW 19. 2. 2).

115(

2 020( 0 ), Neither parry cites this .

statute as it did not become effective until July 1, 2011, after Gronquist made his PRA request

and after the trial court granted Licensing's summary judgment motion. LAWS of 2011, ch. 298,

43 (included in the notes following RCW 19. 2.

020).

0

RCW 19. 2.

115(

2 provides: 0 )

Licensing information is confidential and privileged, and except as authorized by this section, neither [Revenue] nor any other person may disclose any licensing information. Nothing in this chapter requires any person possessing licensing information made confidential and privileged by this section to delete information from such information so as to permit its disclosure.

The new statute defines "[ licensing information"as

any information created or obtained by [ evenue] in the administration of this

R

chapter and chapters 19. 0 and 59. 0 RCW, which information relates to any 8 3

person who: i) applied for or has been issued a license or trade name; or (ii)

( Has

has been issued an assessment or delinquency fee. Licensing information includes master applications, renewal applications, and master licenses.

RCW 19. 2.

b). 115( 1)( 0

Licensing also appears to assert that its memoranda of understanding with Employment Security, Labor and Industries, and Revenue provide an independent basis for the redactions without argument or citation to authority. But the memoranda of understanding protect only information that Licensing obtains from other agencies, not information that Licensing obtains for other agencies. Moreover, Licensing cannot create its own exemptions to public disclosure through a multi-agency agreement. Hearst Corp. v. Hoppe, 90 Wn. d 123, 137, 580 P. d 246 2 2

1978) A] agency's promise of confidentiality or privacy is not adequate to establish the ( "[

n

nondisclosability of information; promises cannot override the requirements of the disclosure law.").

22

- -

But the confidentiality statute does not prohibit Revenue from

d] isclosing, in a manner that is not associated with other licensing information, the name of a license applicant or license holder, entity type, registered trade name, business address, mailing address, unified business identifier number, list of licenses issued to a person through the master license system established in chapter 19. 2 RCW and their ' issuance and expiration dates, and the dates of

0

opening of a business.

RCW 19. 2.Thus, under the current statute, Revenue is required to redact all g). 115( 3)( 0

information on the application except the date the business was opened and the owner's name,

entity type, registered trade name, business address, mailing address, and unified business

identifier number. RCW 19. 2. Although the statute was not in effect at the time of 115.

0

Gronquist's PRA request, the existence of the statute now limits the relief we can grant.

Under the confidentiality statutes cited by Licensing, the information redacted in the

application was largely not exempt. Thus, Gronquist should have been the prevailing party at the

trial court and, as such, may be entitled to costs and penalties. RCW 42. 6.But under 550(

4

5 ).

Revenue's current confidentiality statute pertaining to license applications,the information

cannot be disclosed. RCW 19. 2. We will not order Revenue to do what it is now 115.

0

prohibited to do under RCW 19. 2.

115.

0

C. No or Inadequate and Untimely Explanation for Redactions

Gronquist further argues that Licensing violated the PRA by failing to provide him with a

proper and timely explanation for its redactions. We agree.

An agency withholding records under a PRA exemption must "nclude a statement of the

i

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.Here,Licensing failed 210(

3

5 ).

to give any kind of explanation when it sent the redacted application to Gronquist. Clearly,

23

- -

failure to provide any of the information required by RCW 42. 6. a violation of the 210(

3 was 5 )

PRA. See Citizens for Fair Share v. Dep't of Corr., Wn.App. 411, 431, 72 P. d 206 (2003)

117 3

failure to provide requester with specific exemption and explanation " learly violated"former

c

RCW 42. 7.

310, 1 recodified as 2 10 RCW 42. 6.

5 by LAWS of 2005, ch. 274, § 103 (effective July

1, 2006)).

Licensing contends that although it failed to provide Gronquist with an explanation in its

response to his request for the application, it did not violate the PRA because it eventually

provided him with an explanation after he filed his lawsuit. But although Licensing provided

statutory authority for the exemptions after Gronquist sued Licensing, it failed to specify what

information had been redacted, which exemptions applied to each redaction, or how those

exemptions applied. Again, Licensing failed to comply with the requirements of RCW

210( 42. 6.Sanders, 169. n.846.

3 5 ). 2d W

Licensing's ultimate explanation for the redactions that it submitted with the unredacted

application for in camera review by the trial court also failed to meet the PRA requirements. In

this explanation, Licensing did connect some of the redacted information and the statutory

exemptions. But Licensing failed to identify each piece of redacted information it claims was

exempt under a particular statute. And Licensing gave no reason for withholding the type of

business activity performed in Washington and whether the owner bought, leased, or acquired all

or part of an existing business. Licensing's failure to provide the mandatory link between the

redacted information and a statutory exemption not only fails to comply with RCW 42. 6.

210(

3

5 ),

but also fails to provide this court with a record that we can meaningfully review. Sanders, 169

Wn. d 846.

24

- -

Moreover, Licensing's explanation of its redactions on appeal differs from the

explanation Licensing offered to the trial court in two ways. First, the particular redacted

information Licensing claims was exempt differs. At the trial court, Licensing claimed that all

redacted information was exempt under particular statutes except the type of business activities

performed in Washington and whether the owner bought, leased, or acquired all or part of an

existing business. In contrast, Licensing's argument on appeal claims that only the owner's

home address, home telephone number, business telephone number, income information,

employee information, banking information, and marital status are exempt, leaving the remaining

redacted information unexplained. Second, the statutes Licensing cited in support of the

redactions differ. Licensing claimed at the trial court that the information in the application was

exempt under RCW 82. 2.RCW 50. 3.and RCW 51. 6. On appeal, Licensing 330,

3 020,

1 070.

1

cited these statutes, but for the first time also cited the PRA's exemption for "[ p] ersonal

information,"

RCW 42. 6.

230.

5

And although marked as an "explanation"at the trial court, Licensing failed to explain

how any of the exemptions apply to the particular information redacted. Moreover, Licensing

did not independently provide this particular explanation to Gronquist,but submitted the

explanation to the trial court with the unredacted application for in camera review. Accordingly,

Licensing violated the PRA because it failed to provide an adequate explanation for the

redactions at any stage. Sanders, 169 Wn. d 846.

2

D. Costs and Penalties

Gronquist argues that he should be awarded costs and penalties because (1)Licensing

exceeded the statutory time frame for responding to his request, 2) redacted information in ( the

25

- -

the application was not exempt, thus, Licensing wrongfully withheld the information, and ( ) .

3

Licensing failed to properly explain the redactions.

The PRA requires the trial court to award attorney fees and costs to a parry who " revails

p

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

RCW time. ". 550( 42. 6.A PRA claimant " revails"against an agency if the agency

4

5 ). p

I

rongfully withheld the documents. Germeau, 166 Wn. App. at 811.

Here, Licensing was late responding to Gronquist's records request, provided no

explanation of the redactions until after being sued, failed to provide an adequate explanation of

the redactions at any stage, and redacted information from the application that was not exempt

from disclosure. Accordingly, applying the statutes in effect at the time of the PRA request,

Gronquist should have been the prevailing party below and was entitled to costs and penalties.

RCW 42. 6.

550( 4 Germeau, 166 Wn. App. at 811. 5 );

Our Supreme Court in Yousoufian v. Office ofRon Sims, 168 Wn. d 444, 460 63,467, 2 -

229 P. d 735 (2010)Yousoufian II)

3 ( specified three categories of factors for determining an

appropriate daily penalty: 1) "

( principal"factors, 2) "

( mitigating"factors, and ( ) "

3 aggravating"

factors. Principal factors are

1) existence or absence of a public agency's bad faith; 2) economic loss the ( the to the party requesting the documents; 3) public importance of the underlying ( the

issues to which the request relates, and whether "the significance of the issue to which the request is related was foreseeable to the agency "; and (4) degree to the

which the penalty is an " dequate incentive to induce further compliance."

a

West, 168 Wn.App. at 189 (quoting Yousoufian II,168 Wn. d at 460 63).

2 -

M] itigating factors that may serve to decrease the penalty are (1) lack of clarity

a

in the PRA request; ( )the agency's prompt response or legitimate follow up 2 -

inquiry for clarification; ( )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) reasonableness of any ( the

explanation for noncompliance by the agency; 6) helpfulness of the agency to ( the

the requestor; and ( ) existence of agency systems to track and retrieve public 7 the

records.

A] ggravating factors that may support increasing the penalty 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; ( )lack of proper training and supervision of the

3

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) public ( the

importance of the issue to which the request is related, where the importance was foreseeable to the agency; 8) actual personal economic loss to the requestor ( any

resulting from the agency's misconduct, where the loss was foreseeable to the agency; and (9)a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.

Yousoufian II,1.8 Wn. d at 467 68 (ootnotes omitted).

6 2 - f

RCW 42. 6.

520 requires agencies to respond "[ ithin five business days of receiving a 5 w]

public record request."An agency's failure to comply with the response requirements may serve

as both an aggravating factor in determining the amount of the daily penalty and a consideration

when calculating the penalty period. West, 168 Wn. App. at 191 92 ( pholding trial court's use - u

of delayed response to calculate penalty period and also as aggravating factor).Because the

amount of any penalty is within the trial court's discretion, we do not rule on appeal about the

delay for the purpose of an aggravating factor; we leave that for the trial court. But we

determine the penalty period de novo. Double H, 166 Wn.App. at 712 13.

-

T] e PRA requires the agency to pay a penalty for each day the requester is unable to h

inspect or copy a nonexempt record"and the penalty period includes the amount of time that any

suit relating to production of the records was pending. Sanders, 169 Wn. d at 863 64. Here, 2 -

Licensing received Gronquist's PRA request on July 21, 2009, but it failed to respond until July

31, 2009. This was a total of eight business days after Licensing received Gronquist's request.

I

27

- -

Because Licensing should have responded to Gronquist's request within five business days,

Licensing should have responded by July 28, 2009. RCW 42. 6. Thus, the trial court 520.

5

should use July 28,2009, as the starting date when determining any penalty period.

Gronquist also argues that Licensing's failure to provide an explanation for the redactions

violated the PRA and entitles him to penalties. Licensing responds that the trial court did not

abuse its discretion in failing to award penalties because (1)

Licensing eventually provided an

explanation and (2) information was not wrongfully withheld; thus, Gronquist is not entitled the

to penalties because Sanders does not authorize freestanding penalties for failure to properly

respond to a PRA request.

Licensing is correct that " he penalty section [of the PRA] does not expressly authorize a

t

freestanding penalty for the failure to provide a brief explanation."Sanders, 169 Wn. d at 860.

2

But although the PRA does not expressly sanction a separate penalty for a brief explanation "

violation,the violation may aggravate the penalty for wrongfully withholding a record."

Sanders, 169 Wn. d at 860 61. Moreover, failure to provide an explanation is " ilent 2 - s

g " which occurs withholding," when an agency. - retain s[a g Y... record or portion without p rovidin g

P

the required link to a specific exemption, and without providing the required explanation of how

the exemption applies to the specific record withheld."PAWS, 125 Wn. d at 270.

2

Licensing did not attempt to explain its redactions until after Gronquist sued Licensing

under the PRA. The purpose of the penalty provision in the PRA is to "` discourage improper

denial of access to public records. "' Yousoufian v. Office ofKing County Executive, 152 Wn. d

2

421, 429 30,98 P. d 463 (2004)Yousoufian I) ( - 3 ( quoting Hearst Corp. v. Hoppe, 90 Wn. d 123,

28

- -

140, 580 P. d 246 (1978).

2 Under these circumstances, on remand the trial court may review all the evidence, the timing of the response and lack of explanation of the redactions, to determine if

there improper was an "` denial of access to public records "' based on violation of the

requirements to timely and thoroughly reply to Gronquist's PRA request. Yousoufian I,152

Wn. d at 429 30 ( uoting Hoppe, 90 Wn. d at 140).

2 - q 2

The PRA authorizes penalties for each day the requester is unable to inspect or copy a "

nonexempt record."Sanders, 169 Wn. d at 864.

2 Here, although the redacted information may

have been " onexempt"at the time of Gronquist's PRA request, the information is now exempt

n

from disclosure under RCW 19. 2. Gronquist will not now be able to "

115.

0 inspect"the record,

thus, the penalty period, if any, ends no later than July 1, 2011,the date RCW 19. 2.became 115

0

effective and the date the information became exempt from disclosure. LAWS OF 2011, ch. 298, §

43.

III. MOTION TO SETTLE THE RECORD

Gronquist next argues that the trial court erred when it denied his motion to settle the

record. We agree.

On two occasions, Gronquist mailed deposition transcripts to the trial court clerk in

support of his show cause motion,his motion for sanctions, and his summary judgment motion.

He claimed that the depositions contained information important to his case because they

revealed that Licensing did not know why the redacted information was exempt.

The first time Gronquist attempted to file the depositions, the trial court clerk returned the

transcripts to Gronquist, and on the second occasion, the clerk refused to file them but

16 Our Supreme Court in Yousoufian I discussed former RCW 42. 7. the PDA, which 340( 4 in

1 )

was recodified as RCW 42. 6. the PRA, effective July 1, 2006. LAWS OF 2005, ch.

550( 4 in

5 )

274, § 103. Because the language is identical, we refer to the current PRA.

- -

transferred them to the trial court judge, who apparently did not accept them for filing since they

were not part of the trial court record that Gronquist asked that we review. At our direction,

Gronquist made a third request that the trial court file the deposition transcripts, but the court

again refused his request.

In refusing to file the depositions, the trial court clerk told Gronquist that under CR

32( ), " may, at the time of your hearing, request the judge to publish the deposition. If the a You

judge grants your request,the. deposition will be filed into the court file. It cannot, however, be

filed until such time." at 218. CR 32( )

CP a provides in relevant part:

Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with certain] provisions.

After Gronquist filed his appeal and asked that we review the deposition transcripts, we

directed Gronquist to seek relief in the trial court so they became part of the trial court's file for

our review. Gronquist complied, but the trial court denied his motion to settle the record, stating,

T] e plaintiff did not make deposition transcripts part of the record so the depositions were not h

considered by the court."CP at 221.

Gronquist argues that no authority supports the trial court's interpretation of CR 32( )

a to

require that Gronquist " ublish[ ]"the depositions. We recognize that RCW 2.2.

p 050(

4

3 )

requires the superior court clerk to " ile all papers delivered to him f or her ... in any action or

proceeding in the court as directed by court rule or statute."And although under CR 5( ),

i

depositions are generally not to be filed with the trial court,they may be filed " or use in a

f

proceeding or trial or on order of the court."Tegland has clarified the effect of CR 5( ): "

i The

IM

30

- -

rule eliminates any notion of publishing'

` a deposition and ... contemplate[s] when a that

deposition is filed,the clerk will simply place it in the same public file containing the pleadings and related documents." 15A KARL B.TEGLAND & DOUGLAS J.ENDS,WASHINGTON PRACTICE:

HANDBOOK ON CIVIL PROCEDURE ch. 2,author's cmts. §46. ,at 3 417 (2.12 13).

0 -

Tegland also notes that in the Washington State Bar Association's WSBA)comments to (

changes in the civil rules eliminating the " ublishing"requirement, the WSBA stated that

p

portions of the [deposition] transcript can be filed in support of a motion at any time."15A

Tegland, § 46. ,at 417 (nternal quotation marks omitted).Thus, we hold that the trial court 3 i

erred by refusing to file Gronqust's depositions.

Although the trial court erred by failing to allow Gronquist file the depositions, the

depositions are unnecessary for our review. Determining whether the exemptions applied to the

redacted information is a matter of statutory interpretation. And there were no disputed facts

regarding Licensing's explanations for the redactions; thus, we are required only to determine as

a matter of law whether those explanations were adequate. Finally, although there was a

disputed factual issue regarding the date Licensing received Gronquist's PRA request, that issue

was resolved by the record already before us.

But we order the trial court to file the depositions for two reasons. First, Gronquist

alleges that the transcripts contain evidence that Licensing admitted that there is no statute that

specifically exempts information contained in the application from public disclosure. Because

we remand to the trial court for consideration of penalties, the trial court must have the filed

depositions to address Gronquist's claim that Licensing did not redact the application in good

31

- -

faith. Second, we direct the trial court to file the depositions Gronquist has attempted to file to

17

provide a proper record should this matter require further review.

IV. COSTS

Gronquist also requests "the award of costs incurred on appeal"in the last line of his

brief. Br.of Appellant at 36. This is an inadequate request for expenses.

To receive an award of costs and attorney fees on appeal, a party must devote a section of

its opening brief to the request. RAP 18. ( b). Bldg. Co. v. An, 81 Wn. App. 696, 704—

1 Phillips

05, 915 P. d 1146 (1996).The court rule requires "

2 more than a bald request for attorney

expenses] on appeal."Phillips Bldg. Co. 81 Wn. pp. at 705. The party seeking costs and

A

attorney expenses must provide argument and citation to authority to establish that such awards

are warranted. Phillips Bldg. Co., Wn. pp. at 705. Gronquist has not done so, and we deny 81 A

his request for costs and attorney fees on appeal.

To summarize, we do not require Revenue, the agency now responsible for the

application at issue here, to produce the redacted information to Gronquist on remand because

Revenue is prohibited from doing so by RCW 19. 2.

115.

0

We remand this matter to the trial court to determine whether an award of costs

and penalties to Gronquist is appropriate, and the amount thereof, based on our holdings

that Licensing: 1)

( failed to timely respond to Gronquist's record request; 2)

( asserted

exemptions for many of the redactions, which exemptions we hold did not apply; 3)

(

withheld numerous portions of the requested application without providing any

17 Gronquist also argues that the trial court's failure to consider the evidence in his depositions and other evidence he submitted with his show cause motion was error and demonstrates that the trial court was " iased."Br. of Appellant at 20. He asks us to "

b remand the case back for a full and fair hearing before a different judge."Br.of Appellant at 20. But the trial court judge is now retired. Thus, Gronquist's case will presumptively be heard by a different judge on remand.

32

- -

explanation for its redactions until after Gronquist filed his PRA claim; and ( ) 2009 4 the

redactions are in accord with the exemptions in effect beginning July 1, 2011 under RCW

115. 19. 2.

0

We further hold that the trial court erred when it refused to file deposition

transcripts that Gronquist asserts support his cost and penalties claims against Licensing.

We remand this matter to the trial court and direct it to file the deposition transcripts

Gronquist attempted to file in 2010 and again in 2011 at our direction. The deposition

transcripts will then be available for the trial court's consideration in determining whether

an assessment of costs and penalties against Licensing is warranted and the amount of the

costs and penalties, if imposed.

V

VAN DEREN, J.

I concur:

33

- -

BRINTNALL, J.concurring in the result) — While I concur with my colleagues in QUINN- (

believing that the Department of Licensing ( icensing)failed to respond to Derek Gronquist's

L

request within the Public Record Act's PRA)statutory timeframe or provide timely and (

adequate explanations for the redactions it made from the requested records, some of the

information in the requested master business license application should have been exempt from

disclosure. Accordingly, I concur only in the result.

The PRA provides that "[ i] nformation required of any taxpayer in connection with the

assessment or collection of any tax"is exempt from public disclosure " the disclosure of the if

information to other persons would: ( Be a) prohibited to such persons by ... [ RCW]

330. RCW 82: 2. "

3 2 provides 330( 82. 2.

3 ) that "[ r] and tax information are confidential eturns

and privileged."Under RCW 82. 2. information"" " he nature, source, c)( 330(

ii), 1)( 3 tax includes t

or amount of the taxpayer's income, payments, receipts, deductions exemptions, credits, assets,

liabilities, net worth, tax liability deficiencies ... or tax payments, whether taken from the

taxpayer's books and records or any other source."

Gronquist contends, and the majority agrees, that this exemption is not applicable to

information in a master business license application because such applications "have no

connection with the assessment or collection of taxes."Br.of Appellant at 27. The majority

cites Ford Motor Co. v. City ofSeattle, Exec. Services Dep't, Wn. d 32, 156 P. d 185 160 2 3

2007)for the proposition that " usiness license applications are not a substitute for tax returns"

b

the information contained and, accordingly, because " in the application was required not ` ... in

connection with the assessment or collection of any tax."'

Licensing failed to prove that the

is RCW 42. 6.

230(

4

5 ).

34

- -

information it redacted under RCW 82. 2.was exempt from disclosure. Majority at 17 330

3

quoting Ford, 160 Wn. d at 56 and RCW 42.5 6.3 0( )). overextends the Ford Motor Co.

2 2 4 This

decision and misconstrues the importance of filing a business license application for purposes of

taxation.

In the Ford Motor Co. case, the defendant asked the court to treat its business license

application as a proper tax return,thereby triggering a statute of limitations defense to requiring

payment of unpaid back taxes the city of Tacoma wished to collect. 160 Wn. d at 55 56. Our 2 -

Supreme Court rejected this invitation, reasoning that a business license application is " esigned

d

to license a company to engage in business, not to provide financial information for taxation

purposes."160 Wn. d at 56. In the context of the Ford Motor Co. case a situation where a 2 —

defendant has registered with the Department of Revenue (DOR)for purposes of business and

occupation ( O)

B & taxation but has failed to file appropriate tax returns this makes sense. A —

proper tax return is necessary to calculate B O taxation as that tax " s measured by the & i

application of rates against value of products, gross proceeds of sales, or gross income of the

business, as the case may be."

RCW 82. 4:

220(

1

0 ).

But,while business license applications are not a substitute for appropriately filed tax

returns, registering such an application puts the appropriate taxation authority on notice that

B O tax will be due. See, e. ., re Disciplinary Proceeding Against Cramer, 168 Wn. d 220, & g In 2

226, 225 P. d 881 (2010)because " egistering a new business with DOR is required by law"

3 ( r

charged with

DOR has agents " locating unregistered business entities "). The Ford Motor Co.

decision itself recognizes this distinction:

19 In Seattle, for instance, the B O tax is currently calculated for both retailers and retail service &

providers as being equal to the annual "gross proceeds of such sales of the business . . . multiplied by the rate of 00215."SEATTLE MUNICIPAL CODE 5.5.

. 050( C 4 ).

35

- -

E]en if the license applications could be considered returns, Ford failed to file

v

them until 2000. Had Ford filed them in the years they were due, Tacoma might have known to request tax returns and payment of taxes at that time. However, Fordfailed to provide such notice of its business activities in a timely manner. Its belated filing of license applications cannot now be used to avoid paying its fair share of the [B O] burden to Tacoma.

& tax

Ford Motor Co., Wn. d at 56 (emphasis added).Accordingly, contrary to Gronquist and the 160 2

majority's assertions, the business license application plays an essential function in the

assessment and collection of B O taxes.

&

Because a master business license application includes information required " n

i

connection with the assessment or collection of any tax,"

RCW 42. 6.the exemption for tax 230,

5

information under RCW 82. 2.should be applicable. In result, whether the business owner 330

3

purchased or leased any fixtures ( iewed either as "assets"or payments") whether the v ." and

owner bought, leased, or acquired all or part of an existing business ( gain viewed as "assets"or

a

payments ") should have been redacted as required by as required by RCW 82. 2. For that 330.

3

reason, I concur only in the result.

Q INN-

BRINTNALL, J.