IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ELIZABETH ROBERTS and JONATHAN ROBERTS, No. 88277-5-I
Appellants, DIVISION ONE
v. UNPUBLISHED OPINION
CITY OF SEATTLE acting through its DEPARTMENT OF TRANSPORTATION,
Respondent.
HAZELRIGG, C.J. — Elizabeth and Jonathan Roberts appeal from an order
that granted summary judgment in favor of the City of Seattle and dismissed their
claims under the Public Records Act (PRA). 1 Roberts2 fails to establish that they
made a recognizable request for disclosure of records under the PRA. Because
Roberts did not provide fair notice of a PRA request, the City was not obligated to
comply with the disclosure requirements of the statute. Accordingly, dismissal was
proper, and we affirm.
FACTS
Elizabeth and Jonathan Roberts purchased their home in July 2021 and
began the permitting process with the Seattle Department of Transportation
1 Ch. 42.56 RCW. 2 We refer to the appellants collectively here as Roberts and by their first names only as
necessary for clarity. No disrespect is intended. No. 88277-5-I/2
(SDOT) to change the footprint of the driveway. The process has been lengthy
due to the proximity of their home to a shoreline street end (SSE) owned by SDOT.
After rejecting multiple design plans, SDOT agreed to meet with Roberts regarding
the driveway issues.
On April 3, 2024, Roberts and their land use attorneys, Ian Morrison and
Jacqueline Quarré, met with SDOT employee Joel Miller and Assistant City
Attorney Patrick Downs to discuss the status of Roberts’ street use permit. The
parties agreed that the confidentiality afforded pursuant to ER 408 3 applied to their
conversation. During the meeting, Morrison and Quarré provided “a printout of
eight (8) different shoreline street ends in the City of Seattle where it appeared
from aerial photos that private properties have significant driveways or
encroachments in the shoreline street end adjacent to them.” A few weeks before
the meeting, Quarré had submitted PRA requests for permitting records related to
two of the street ends in the photos but still had not received the records. During
the meeting, Quarré noted difficulty finding permitting records in SDOT’s permit
portal. Miller agreed to look into the permit records for the eight properties, and
Quarré asked for copies of those permit records when Miller found them.
3 ER 408 provides the following:
In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
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After the meeting, Quarré inquired about the records in three separate e-
mail messages to Downs. On April 11, Quarré sent a three-page e-mail labeled
as “ER 408 . . . Follow-Up Information” regarding Roberts’ address. The message
included five separate topics, including the permitting records:
3. Permitting Records for Other SSEs
Attachment 2 is a PDF copy of the document that we provided at our meeting that shows aerial snapshots of other SSEs with significant encroachments. Joel was planning to find the permitting history for the SSEs following our meeting and planned to share them with us. Are those records available? I’m not sure it is possible for us to access any of that information from SDOT’s website.
Later that same day, Downs replied, “Received the documents. Thanks.”
In the second e-mail, sent April 26 and entitled “additional communications
and updates,” Quarré stated, “I also wanted to follow-up on whether SDOT has
found any permitting history on the S[S]E’s that we discussed at our April 3
meeting?” She asserted in a declaration that Downs did not respond to this inquiry.
Quarré’s third communication on this matter, also labeled as “ER 408 . . .
Follow-Up,” occurred on June 19. Near the end of the message, Quarré raised the
permit issue:
As a follow-up on this issue, Joel was planning to find the permitting history for other SSE’s discussed in our meeting and planned to share them with us. We have not received any records from him, are they available? I am not sure it is possible for us to access any of that information from SDOT’s website.
Downs replied to the e-mail and thanked Quarré for her message but provided no
further information.
SDOT denied Roberts’ driveway application on September 11, 2024, and
by that time, they had yet to receive copies of the permit records. On September
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25, Quarré filed a public records request for the permits related to the six identified
properties not included in the request made prior to the meeting with SDOT. SDOT
did not produce any documents in response to this request.
Roberts filed a lawsuit against the City of Seattle on November 6, 2024,
alleging multiple violations of the PRA based on SDOT’s failure to comply with the
request for permitting records made during the April 3, 2024 meeting and
subsequent e-mail messages. The City filed a motion for summary judgment and
dismissal of the claim premised on its contention that Quarré’s oral request and
follow-up e-mails failed to provide fair notice that a request was being made
pursuant to the PRA. Roberts filed a motion for partial summary judgment on the
issue of liability and expressly requested that the court find the City liable for
violating the PRA but reserve on the issue of penalties. The trial court entered an
order that denied Roberts’ motion for summary judgment on liability, granted the
City’s motion, and dismissed the matter.
Roberts timely appealed.
ANALYSIS
Roberts aver the trial court erred in its summary judgment dismissal of their
claim because they made a clear PRA request for public records from SDOT and
the City failed to comply. We disagree.
I. Summary Judgment and PRA
“The PRA is ‘a strongly worded mandate for broad disclosure of public
records.’” Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 408,
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259 P.3d 190 (2011) (plurality opinion) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d
123, 127, 580 P.2d 246 (1978)). The PRA is liberally construed while its
exemptions are narrowly construed. RCW 42.56.030. Unless a specific exemption
applies, agencies have an affirmative obligation to disclose records requested
under the PRA. SEIU 775 v. Dep’t of Soc. & Health Servs., 198 Wn. App. 745,
749, 396 P.3d 369 (2017).
Judicial review of agency actions under the PRA is de novo. RCW
42.56.550(3). Where the record includes only documentary evidence, we conduct
the same inquiry as the trial court. Spokane Police Guild v. Liquor Control Bd.,
112 Wn.2d 30, 35-36, 769 P.2d 283 (1989). PRA claims may be decided on
summary judgment. West v. Dep’t of Licensing, 182 Wn. App. 500, 505, 331 P.3d
72 (2014). Summary judgment is proper when the record shows “no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” CR 56(c). The facts are viewed in the “light most favorable to the
nonmoving party, and summary judgment is granted only if, from all of the
evidence, reasonable persons could reach but one conclusion.” Vallandigham v.
Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citation
omitted).
On a motion for summary judgment, the moving party has the initial burden
of showing there is no genuine issue of material fact. Id. Once the moving party
meets this threshold burden, the nonmoving party must then present evidence of
the existence of a disputed material fact in order to survive summary judgment.
Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d
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506, 516, 799 P.2d 250 (1990). A motion for summary judgment is properly
granted if “the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to his case.” Atherton Condo., 115 Wn.2d at
516.
II. PRA Requests and “Fair Notice”
Roberts claim that Quarré’s oral request for copies of the SSE permits and
three follow-up e-mail messages that contained inquiries about the permits were
PRA requests that triggered the City’s responsibilities under the statute.
The PRA “only applies when public records have been requested. In other
words, public disclosure is not necessary until and unless there has been a specific
request for records.” Bonamay v. City of Seattle, 92 Wn. App. 403, 409, 960, P.2d
447 (1998). A specific request for records “occurs when ‘the person requesting
documents from an agency . . . state[s] the request with sufficient clarity to give the
agency fair notice that it had received a request for a public record.” Germeau v.
Mason County, 166 Wn. App. 789, 804, 271 P.3d 932 (2012) (alterations in
original) (quoting Wood v. Lowe, 102 Wn. App. 872, 877-78, 10 P.3d 494 (2000)).
No specific format is required to make a PRA request, nor must the request
specifically reference the PRA or be submitted to the designated PRA coordinator.
O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 80, 493 P.3d 1245 (2021). However,
“at a minimum, the PRA ‘require[s] that requests be recognizable as PRA
requests.’” Germeau, 166 Wn. App. at 805 (alteration in original) (quoting Beal v.
City of Seattle, 150 Wn. App. 865, 876, 209 P.3d 872 (2009)). “[T]he request must
state with sufficient clarity that it is a request for a public record and ‘give the
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agency fair notice that it ha[s] received’ a PRA request.” Id. at 806 (some alteration
in original) (quoting Wood, 102 Wn. App. at 878).
“There is no single, comprehensive definition of ‘fair notice’ for PRA
purposes.” Id. at 805. To assess whether a request has provided “fair notice” to
trigger a duty to disclose under the PRA, Washington courts consider several
factors related to the characteristics of the request and the records sought. Id. We
examine these factors to determine whether Quarré’s oral request and follow-up
e-mails for copies of the permits provided SDOT with fair notice of a PRA request.
A. Characteristics of Request
“The factors relating to the characteristics of the request are (1) its
language, (2) its format, and (3) the recipient of the request.” O’Dea, 19 Wn. App.
2d at 81. Roberts assert that they submitted an in-person oral request that was
clear and specific.
Roberts are correct that PRA requests may be made orally and in-person.
The Washington Administrative Code specifically acknowledges that some
agencies routinely accept oral public records requests and find that such requests
are the best way to provide certain records. See WAC 44-14-03006. “The PRA
does not require written requests, but it does require that the requests be
recognizable as PRA requests.” Beal, 150 Wn. App. at 876.
In assessing the characteristics of a request, “[t]he request’s medium may
be relevant to its clarity.” Id. We have noted that an oral request “makes it
unnecessarily difficult for citizens to prove that they in fact requested public
records.” Id. at 874-75. As this court stated in Beal, “[A]mbiguous oral requests
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made during the course of meetings put[] agencies in the awkward position of
contemporaneously parsing the difference between a request to collaboratively
share information and a request that potentially triggers a duty to produce records
or pay fines and attorney fees.” Id. at 875.
This case exemplifies the difficulties of oral PRA requests described in Beal.
The initial request occurred during a meeting, and the parties reported various
descriptions of the request. Quarré recalled in her declaration, “When I heard that
Mr. Miller would find those records, I asked Mr. Miller and Mr. Downs for copies of
the records that Mr. Miller was going to find.” While Morrison stated in his
declaration, “On behalf of [Roberts], Ms. Quarré and I requested that City
Employees provide Plaintiffs with copies of the permitting records for the eight
other shoreline street ends listed in the Shoreline Street End Document.” Elizabeth
explained the circumstances of the request as follows:
At the end of the meeting, Patrick [Downs] turned to Joel [Miller], who was sitting to his left, and asked if Joel could get the permitting records for the eight street ends depicted in the document we’d been discussing. Jacquie [Quarré] and Ian [Morrison] immediately asked if we could get copies of these permitting records. Patrick said that seemed reasonable, and Joel nodded in agreement.
Jonathan provided a similar description to Elizabeth’s and stated, “At the end of
the meeting, Pa[t]rick Downs asked Joel Miller to find the permitting records for
those eight street ends, and Jacquie requested that we receive copies of these
documents because she hadn’t been able find them through the City Portal.”
Based on the recollections of Quarré and both Elizabeth and Jonathan, the
attorneys spontaneously asked for copies of permits when Downs directed Miller
to research the eight SSEs. When Downs requested Miller find the permits,
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Roberts capitalized on the opportunity to obtain copies. Nothing about the
circumstances or the language used established a formal PRA request.
The statements from Downs and Miller speak to the casual nature of the
request. Downs explained the following in his declaration in support of the City’s
summary judgment motion:
During the meeting on April 3rd, I remember Ms. Quarré asked about the driveway permits for several other locations on a list she brought to the meeting. I interpreted Ms. Quarré’s statements to be an informal request that SDOT investigate the permitting for these other properties and subsequently provide courtesy copies of any permits. I did not interpret her statements to be a request for records pursuant to the PRA.
In his own declaration in support of the motion, Miller indicated that he interpreted
the request as a directive to investigate the permits for the other SSEs and share
relevant information:
I understood our conversation about the list Ms. Quarr[é] brought with her to be an informal process where both parties shared information back and forth cooperatively. My recollection is that I told Ms. Quarr[é] I would look into the other locations to determine if they were comparable to the Roberts’ driveway site. At no point did I understand Ms. Quarr[é] to be making a PRA request on behalf of the Roberts.
Roberts’ request for copies of the permits discovered during research had the
character of an “ambiguous oral request[] made during the course of [a] meeting[]”
rather than a clear demand that would put the City on fair notice of a PRA request.
See Beal, 150 Wn. App. at 875.
The three follow-up e-mail messages were similarly non-specific. As one
of five topics included the April 11 message, Quarré noted that Miller “was planning
to find the permitting history for the SSEs following our meeting and planned to
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share them with us,” and asked, “Are those records available?” In her April 26
message, Quarré inquired as to whether SDOT had found any permitting history
as discussed at the meeting. By that time, the five business day response deadline
imposed by the PRA 4 had already passed, but Quarré made no mention of the
City’s failure to abide by the timeline in the statute. The June 19 e-mail was
similarly devoid of any reference to the PRA or the significant passage of time
since the alleged request. Quarré merely followed up by stating that Miller had
planned to share the permitting history for the other properties and again inquired
“are they available?” None of these messages put the City on notice that the
previous request had been made pursuant to the PRA or informed the City that it
had missed the response deadline.
Additionally, Roberts made their request for copies of the documents to an
SDOT employee and an assistant city attorney, neither of whom is a public records
officer. WAC 44-14-03006 expressly recognizes that
a requestor must provide the agency with fair notice that the request is for the disclosure of public records; oral requests, especially to agency staff other than the public records officer or designee, may not provide the agency with the required notice.
(Emphasis added.) Downs acknowledged in his declaration that he had “some
responsibilities for the City’s compliance with the [PRA]” which includes “advising
departments on PRA compliance and reviewing documents with department
representatives in response to PRA requests.” Miller also noted that he had “some
4 “The PRA mandates that an agency respond to a public records request within five days
of receipt, either by (1) providing the records, (2) acknowledging the request and providing a reasonable estimate of the time required to respond, or (3) denying the request.” Gronquist v. Wash. State. Dep’t. of Corr., 32 Wn. App. 2d 617, 629, 557 P.3d 706 (2024), review denied, 4 Wn.3d 1011 (2025); RCW 42.56.520(1).
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responsibilities for SDOT’s compliance with the [PRA]” by assisting the agency’s
Public Disclosure Officer in determining search parameters to look for records and
review whether records are relevant or responsive to a particular request. Thus,
Miller and Downs were involved in PRA compliance at the time of Roberts’
purported requests but did not generally receive requests for their agencies.
In this case, the characteristics of requests considered in assessing fair
notice, specifically the recipient, language, and format, demonstrate only a
spontaneous request for copies of permits made during an information-sharing
meeting. The follow-up inquiries about the availability of those copies do not assert
a PRA request or alert the City to any failure to follow the statutory deadlines.
These factors support the City’s claim that Roberts did not make a recognizable
PRA request.
B. Characteristics of the Records
“The factors relating to the characteristics of the records are ‘(1) whether
the request was for specific records, as opposed to information about or contained
in the records,’ ‘(2) whether the requested records were actual public records,’ and
‘(3) whether it was reasonable for the agency to believe that the requester was
requesting the documents under an independent, non-PRA authority.’” O’Dea, 19
Wn. App. 2d at 81 (quoting Germeau, 166 Wn. App. at 807). The City does not
dispute that the permitting records are public records or that this factor weighs in
favor of Roberts as a result. However, the parties disagree as to whether the City
could reasonably believe the requests were made under other authority.
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According to Roberts, the parties agreed that ER 408 applied to the
conversations that occurred during the April 3 meeting and Quarré titled two of her
e-mail messages “ER 408 . . . Follow-Up.” ER 408 provides that in civil cases,
“evidence of conduct or statements made in compromise negotiations is . . . not
admissible.” The parties agreed that the meeting and subsequent e-mail
messages qualified as “compromise negotiations” for purposes of the application
of ER 408. Therefore, Miller and Downs could reasonably have considered the
request for copies of the permits as information sharing in the context of the
negotiations, rather than a PRA request. Indeed, Downs stated in his declaration
that he “understood Ms. Quarré’s e[-]mails to be an informal request within the
ongoing discussion about the Roberts’ driveway permit application.” Miller
expressed a similar understanding in his declaration that the conversation about
this list was “an informal process where both parties shared information back and
forth cooperatively.” Although not strictly “non-PRA authority,” the assertion of ER
408 provided reasonable grounds for Miller and Downs to assume that Roberts
asked for copies as part of the ongoing negotiations and information sharing.
The ambiguous request made in the context of continuing discussions about
Roberts’ driveway permit did not amount to a recognizable request for disclosure
under the PRA. Based on the characteristics of the requests, Roberts did not
provide the City with the requisite “fair notice.” See O’Dea, 19 Wn. App. 2d at 80.
Without fair notice, the City was not obligated to comply with the PRA. See
Germeau, 166 Wn. App. at 811. The trial court properly granted summary
judgment in favor of the City and dismissed the claim.
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III. Costs on Appeal
The City seeks costs on appeal under RAP 14.2. 5 RAP 14.2 provides “costs
to the party that substantially prevails on review, unless the appellate court directs
otherwise in its decision terminating review.” As the prevailing party, the City may
recover its costs. See Mitchell v. Wash. State Inst. of Pub. Pol’y, 153 Wn. App.
803, 833, 225 P.3d 280 (2009). We grant the City’s request subject to its continued
compliance with the procedural requirements of the RAPs. 6 See Johnson v. City
of Seattle, 184 Wn. App. 8, 23, 335 P.3d 1027 (2014).
Affirmed.
WE CONCUR:
5 The City specifically stated that it requested costs under RAP 14.2(a) which does not
exist in the Rules of Appellate Procedure. 6 Roberts seek attorney fees and costs under RCW 42.56.550(4). Because Roberts is not
the prevailing party in this PRA action, we decline the request.
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