FILED MARCH 8, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
ERIC HOOD, ) No. 38187-1-III ) Petitioner, ) ) v. ) OPINION PUBLISHED IN PART ) COLUMBIA COUNTY, ) ) Respondent. )
LAWRENCE-BERREY, J. — We granted discretionary review of a trial court’s order
compelling discovery. The order requires Eric Hood to answer questions and produce
documents pertaining to his litigation history involving the Public Records Act (PRA),
chapter 42.56 RCW. Columbia County (County) argues Mr. Hood is a disingenuous PRA
litigator motivated by profit, not by a true desire to obtain records, and this motive is an
appropriate factor for trial courts to consider when imposing a per diem penalty.
We are sympathetic to the County’s argument. But the proper focus for setting
penalties is on the agency’s conduct or motivation, not the requestor’s. Also, the 2011
legislature was aware of the so-called problem of disingenuous PRA litigants. It declined
to amend the PRA to make it more difficult for disingenuous PRA litigants to recover
penalties. Instead, it amended the PRA to make it more difficult for incarcerated PRA
litigants to recover penalties. We reverse the trial court’s discovery order. No. 38187-1-III Hood v. Columbia County
FACTS
On January 20, 2019, Eric Hood sent the Columbia County auditor the following
e-mail: “‘I heard the county was recently audited by the state auditor. May I have all
records the county got from the auditor and all records of the county’s response to the
audit or to the audit report?’” Clerk’s Papers (CP) at 2.1
The same day, the auditor e-mailed Mr. Hood: “‘Please find attached a copy of the
recently completed 2017 Accountability and Financial/Federal Audit Reports performed
by the Washington State Auditor’s Office. The County’s responses to the State Auditor
are included within these reports.’” CP at 2. Mr. Hood responded: “‘I received them,
though I haven’t had a chance to look at them yet. Thank you for your quick reply. Will
you be sending anything else or is that it?’” CP at 2. The auditor responded, “‘This is
everything that was reported to us from the State Auditor and our responses are included
within. So unless I receive another request from you for something else, this is all I
have.’” CP at 2.
1 The e-mails between Mr. Hood and the County are not in the record. However, we cite the complaint because the parties do not dispute the contents of the e-mails.
2 No. 38187-1-III Hood v. Columbia County
Just under one year later, Mr. Hood filed a complaint for violations of the PRA.
The County filed an answer asserting all responsive documents had been provided and
denying that Mr. Hood was entitled to any relief.
Mr. Hood sent the County interrogatories and requests for production. This led to
a CR 26(i) conference. The County indicated it was unclear what Mr. Hood meant in his
discovery and original PRA request and noted that the discovery questions and PRA
request were substantially similar. Mr. Hood’s attorney responded by listing the missing
items his client believed were requested in his discovery. The list included:
1. Entrance documents. Which typically outlines what will be audited. 2. Exit documents. Which typically state findings and recommendations. 3. Response to the exit documents, which is self-explanatory. [4]. A management letter which typically follows an audit. [5]. Emails scheduling a place and time for the audit.
CP at 74.
The County suspected that Mr. Hood was a disingenuous PRA litigator. It sent
discovery designed to establish that Mr. Hood’s motive for making his public records
request was financial gain, not a true desire to obtain records. The interrogatories asked:
INTERROGATORY NO. 3: Have you ever been party to any legal proceedings in the past, whether civil or criminal? If so, please state that nature of the proceeding and the date, court, place, and cause number of each action. ....
3 No. 38187-1-III Hood v. Columbia County
INTERROGATORY NO. 4: For each legal proceeding named in Interrogatory No. 3 relating to alleged violations of the Public Records Act, in which you were a plaintiff, please provide the following information: A. The outcome or resolution of the case (i.e. trial, dismissal on summary judgment, settlement, etc.). B. The identity of the substantially prevailing party. C. The amount of money the case was settled for. D. Any non-monetary relief awarded. E. The requests made under the Public Records Act. F. Any settlement offers made by Plaintiff or Plaintiff’s representative. .... INTERROGATORY NO. 5: For all public records lawsuits identified in Interrogatory No. 4, please identify which cases involve or involved an allegation that the public entity failed to seek clarification. .... INTERROGATORY NO. 6: For all public record lawsuits identified in Interrogatory No. 4, please identify which cases involve or involved an allegation that the public entity withheld records without claiming an exemption under the Public Records Act. .... INTERROGATORY NO. 7: Identify all public records lawsuits where you or your legal representative offered to withdraw the records request as part of any settlement offer or offers made. .... INTERROGATORY NO. 8: For all lawsuits where you proposed to withdraw your public records request as part of your settlement offer, please explain whether you ever received the requested records. .... INTERROGATORY NO. 11: Please identify each and every Washington county, city, district, or other governmental body or agency to which you have submitted the same or similar public records request for audit records as the request you sent to Columbia County.
CP at 43-46.
4 No. 38187-1-III Hood v. Columbia County
In its first request for production, the County requested Mr. Hood to produce “full
and accurate copies of your requests to all public entities identified in Interrogatory No. 4,
including any and all correspondence with employees or agents of those public entities.”
CP at 52. In its second request for production, the County requested “copies of all
settlement offers you have made in past and current litigation under the Washington State
Public Records Act RCW 42.56. et seq.” CP at 52.
Mr. Hood objected to the discovery. He cited City of Lakewood v. Koenig, 160
Wn. App. 883, 250 P.3d 113 (2011), which suggests that discovery seeking a record
requestor’s PRA litigation history is irrelevant. Following a CR 26(i) conference, the
County e-mailed Mr. Hood’s attorney: “It is unfortunate we will have to move forward
with a formal hearing on our discovery requests regarding Mr. Hood’s apparent
disingenuous use of the PRA for personal gain.” CP at 320.
The County moved to compel discovery responses and impose sanctions under
CR 37. The County’s memorandum in support explained the questions the discovery
sought to answer:
1) whether [Mr. Hood] is using the same or similar requests in his lawsuits; 2) whether [Mr. Hood] waits [to file his lawsuit] until just before the [one- year period of limitations] to maximize civil penalties; 3) whether [Mr. Hood] has obtained hundreds of thousands of dollars in PRA litigation settlements; 4) whether [Mr. Hood] offers to withdraw his requests in
5 No. 38187-1-III Hood v. Columbia County
exchange for money prior to receiving all alleged responsive records; and 5) whether [Mr. Hood] refuses to clarify his requests.
CP at 66.
At the motion hearing, the County argued that the legislature implicitly overruled
Koenig when it amended the PRA to allow trial courts to award a per diem penalty as low
as zero dollars. It argued that in cases such as the one before it—where PRA litigants are
motivated by pecuniary gain rather than a true desire to obtain records—the minimum
penalty is appropriate. Based on this argument, the trial court concluded that the
discovery sought was appropriate. It entered an order compelling Mr. Hood to answer the
discovery, but declined to award the County attorney fee sanctions.
Mr. Hood moved for discretionary review and to stay the trial court’s discovery
order. A commissioner of this court granted Mr. Hood’s requests.
ANALYSIS
Mr. Hood argues that his motive for filing his PRA request is not relevant, and the
trial court abused its discretion by allowing discovery into his PRA litigation history. We
agree.
A party may obtain discovery on any matter, not privileged, that is relevant to the
subject matter of the pending action. CR 26(b)(1). The requested discovery must be
reasonably calculated to lead to the discovery of admissible evidence. Id. A party, upon
6 No. 38187-1-III Hood v. Columbia County
reasonable notice to other parties and upon a showing of compliance with CR 26(i), may
apply for an order compelling discovery. CR 37(a). The decision to grant or deny a
motion to compel discovery is subject to the discretion of the trial court. Neigh. Alliance
of Spokane County v. Spokane County, 172 Wn.2d 702, 747, 261 P.3d 119 (2011). A trial
court abuses its discretion when its decision is based on an erroneous view of the law.
Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858
P.2d 1054 (1993).
The parties focus extensively on Koenig. We begin our analysis with that case.
KOENIG V. CITY OF LAKEWOOD
In Koenig, we were asked to decide whether the City of Lakewood (City) was
entitled to discovery into Koenig’s litigation history. 160 Wn. App. 883. There, after
providing Koenig with redacted records, the City sought a declaratory judgment that it
had fully satisfied the PRA request. Id. at 886. The City then sent Koenig discovery
requests into his litigation history and copies of any favorable settlements or judgments.
Id. at 886-87. Koenig moved for a protective order. Id. at 888. The City argued to the
trial court that the information it sought was important for the penalty phase of the PRA
litigation because it would show that Koenig was motivated by profit, not a true desire to
obtain public documents. Id. Koenig responded that the discovery requested would not
7 No. 38187-1-III Hood v. Columbia County
lead to admissible material. Id. The trial court ruled that the discovery was appropriate
because it could lead to admissible evidence of potential economic loss. Id. We reversed,
concluding that Koenig’s litigation history would not demonstrate his economic loss or
the lack thereof. Id. at 893.
We also addressed the City’s argument that the discovery would show Koenig’s
history of bad faith delay in filing PRA litigation to maximize his penalty award. Id. at
894. We concluded that Koenig’s delay in filing prior PRA lawsuits was not relevant to
setting the penalty in the case because the City sued and thus forced Koenig into its own
time schedule. Id. Despite the parties’ claims below and on appeal, Koenig does not hold
that a PRA litigant’s motive for seeking profit is irrelevant. We simply did not reach that
question.
THE 2011 AMENDMENT TO RCW 42.56.550(4)
The parties also focus on the 2011 amendment to RCW 42.56.550(4) and whether
that amendment permits trial courts to consider the PRA litigant’s profit motive when
assessing a per diem penalty.
Former RCW 42.56.550(4) (2006) provided: “[I]t shall be within the discretion of
the court to award [a prevailing PRA requestor] an amount not less than five dollars and
not to exceed one hundred dollars for each day that he or she was denied the right to
8 No. 38187-1-III Hood v. Columbia County
inspect or copy said public record.” In 2011, the legislature reduced the minimum per
diem penalty from five dollars to zero dollars. See LAWS OF 2011, ch. 273, § 1 (effective
July 22, 2011).
The County argues that the legislative intent of this amendment is to permit courts
to award zero-dollar penalties where requestors engage in disingenuous use of the PRA
for profit. It quotes from the following section of Senate Bill Report 1899:
Staff Summary of Public Testimony on Substitute House Bill: PRO: While the approaches of the other PRA bills this session were different and each had merit, this bill is a good compromise. It addresses the disingenuous use of the PRA for personal gain, allowing the court to impose no penalties in appropriate circumstances. The requirement that the judge must assess a minimum of $5 for each day works a disproportionate hardship on small jurisdictions, especially considering how long the legal process takes.
S.B. REP. ON H.B. 1899, 62d Leg., Reg. Sess. (Wash. 2011) (emphasis added); CP at 59.
The County admits that the report cannot be cited as evidence of legislative intent.
Importantly, the language quoted above is found in the staff summary of public testimony
and the first page of that report states: “This analysis was prepared by non-partisan
legislative staff for the use of legislative members in their deliberations. This analysis is
not part of the legislation nor does it constitute a statement of legislative intent.” CP at
58 (underlining added).
9 No. 38187-1-III Hood v. Columbia County
Neither party presents this court with admissible evidence of legislative intent for
the 2011 amendment. Instead, the County contends the elimination of the mandatory
minimum is legislative intent in response to Koenig. Citing Glass v. Stahl Specialty Co.,
97 Wn.2d 880, 887, 652 P.2d 948 (1982), the County argues, when construing legislation,
this court presumes the legislature is familiar with past judicial interpretations of
enactments. We agree with this general proposition, but it does not support the County’s
position.
First, the bill history for HB 1899 shows that the amendment was drafted and sent
to committees in February and March 2011. See Br. of Appellant, App. C. Koenig was
decided on March 29, 2011. These dates refute the County’s argument that the legislation
was in response to Koenig.
Second, past judicial interpretations of the PRA penalty statute resulted in a list of
factors for trial courts to consider when setting a per diem penalty. Yousoufian v. Office
of Ron Sims, 168 Wn.2d 444, 467-68, 229 P.3d 735 (2010). We presume the 2011
10 No. 38187-1-III Hood v. Columbia County
legislature was aware of the Yousoufian factors2 when it amended the statute. It could
have made it more difficult for disingenuous PRA litigators to recover penalties, but it did
not. Nothing in the 2011 amendments supports the County’s position that the legislature
sought to deter disingenuous PRA litigants from recovering penalties. The trial court
abused its discretion when it reached the contrary legal conclusion.
Nevertheless, we may affirm a trial court’s decision on any basis supported by the
record and the briefing. Huff v. Wyman, 184 Wn.2d 643, 648, 361 P.3d 727 (2015). In its
2 Mitigating factors that may decrease the penalty are: “(1) a lack of clarity in the PRA request; (2) the agency’s prompt response or legitimate follow-up inquiry for clarification; (3) the agency’s good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions; (4) proper training and supervision of the agency’s personnel; (5) the reasonableness of any explanation for noncompliance by the agency; (6) the helpfulness of the agency to the requestor; and (7) the existence of agency systems to track and retrieve public records.” Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467, 229 P.3d 735 (2010) (footnotes omitted). Conversely, aggravating factors that may increase 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; (3) lack of proper training and supervision of the agency’s personnel; (4) unreasonableness of any explanation for noncompliance by the agency; (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency; (6) agency dishonesty; (7) the public importance of the issue to which the request is related, where the importance was foreseeable to the agency; (8) any actual personal economic loss to the requestor resulting from the agency’s misconduct, where the loss was foreseeable to the agency; and (9) a penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.” Id. at 467-68 (footnotes omitted).
11 No. 38187-1-III Hood v. Columbia County
briefing, the County proposes multiple bases for affirming the trial court. In the
published portion of this opinion, we address the County’s strongest argument.
ARE THE INTERESTS OF THE PRA SERVED BY PERMITTING TRIAL COURTS TO REDUCE THE PER DIEM PENALTY FOR PROFIT-SEEKING PRA LITIGANTS?
The County argues “[t]he interests of the [PRA] are best served by discouraging
disingenuous requests and ‘gotcha’ litigation.” Br. of Resp’t at 35. It asserts that its
discovery seeks information to show that Mr. Hood, a serial requestor, has no interest in
obtaining public records, but instead is using the PRA to obtain nuisance settlements from
agencies who would rather pay $10,000 than incur the expense of litigation, possible
penalties, and attorney fees. The County argues that reducing penalty awards to dissuade
PRA abuse is consistent with the purpose of the PRA. In support of its argument, the
County cites Hobbs v. Washington State Auditor’s Office, 183 Wn. App. 925, 335 P.3d
1004 (2014). There, we recognized that “the purpose of the PRA is best served by
communication between agencies and requesters, not by playing ‘gotcha’ with litigation.”
Id. at 941 n.12.
But our Supreme Court has never recognized the relevance of a PRA requestor’s
motivation in setting per diem penalties. Quite the opposite, it is the agency’s motivation
that is relevant because “agency culpability [is] the focus in determining daily
penalties . . . .” Neigh. Alliance, 172 Wn.2d at 717.
12 No. 38187-1-III Hood v. Columbia County
We are sympathetic to the County’s argument. But if the law is to change, the
legislature, not the judiciary, must change it. The staff summary of SBH 1899 makes
clear the legislature was aware of “disingenuous” PRA litigants. Yet it did not address
disingenuous PRA litigants in the amendment. Rather, it added a new section
making it more difficult for incarcerated PRA litigants to obtain penalty awards.
See Former RCW 42.56.565 (2009), amended by LAWS OF 2011, ch. 300, § 1. Thus,
although the legislature had the opportunity to change the law in the manner requested by
the County, it chose to focus on incarcerated PRA litigants only. We will not “fix” what
the legislature’s inaction implies is not broken.3
Reversed and remanded.
3 In its brief, the County suggests that some of the discovery it seeks could lead to admissible evidence with respect to the Yousoufian factors. We note that most of these factors focus on evidence within the control of the agency, not the requestor. But the first and fifth Yousoufian mitigating factors—lack of clarity in the PRA request and the reasonableness of the agency’s excuse for noncompliance—are different. A party may be able to frame discovery into how other agencies answered a requestor’s PRA request that would be reasonably calculated to lead to admissible evidence: evidence that other agencies struggled to understand the requestor’s PRA request. Our decision today does not foreclose the County from refining its discovery requests to obtain such information.
13 No. 38187-1-III Hood v. Columbia County
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
THE REQUEST WAS SUFFICIENTLY IDENTIFIABLE
The County argues the discovery it seeks will show that Mr. Hood did not make a
sufficiently identifiable records request for liability to be imposed on it. We disagree.
The PRA does not “require public agencies to be mind readers. A public agency
cannot be expected to disclose records that have not yet been requested. To hold
otherwise would place public agencies in an untenable position.” Bonomy v. City of
Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998). “[T]his requirement of
identification is satisfied when there is ‘a reasonable description enabling the government
employee to locate the requested records.’” Id. at 410 (quoting Bristol-Myers Co. v. Fed.
Trade Comm’n, 424 F.2d 935, 938 (D.C. Cir. 1970)).
Mr. Hood’s PRA litigation history will not lead to admissible evidence of whether
his PRA request was “identifiable.” Mr. Hood asked for “all records the county got from
the auditor and all records of the county’s response to the audit or to the audit report.”
CP at 2. Mr. Hood’s request encompassed “all records” from the auditor, it was not
14 No. 38187-1-III Hood v. Columbia County
limited to the audit report. Discovery into Mr. Hood’s PRA litigation history will not
change this fact.
MR. HOOD HAS STANDING EVEN IF HE WAS NOT GENUINELY SEEKING PUBLIC RECORDS
The County next argues that the discovery it seeks will show that Mr. Hood lacks
standing because he was not genuinely seeking public records. We disagree with the
County’s analysis of standing.
“‘The doctrine of standing requires that a claimant must have a personal stake in
the outcome of a case in order to bring suit.’” Germeau v. Mason County, 166 Wn. App.
789, 803, 271 P.3d 932 (2012) (quoting Kleven v. City of Des Moines, 111 Wn. App. 284,
290, 44 P.3d 887 (2002)). Here, Mr. Hood made a request for public records from the
County, he asserts the County did not fully respond, and he seeks per diem penalties. Mr.
Hood stands to gain if he prevails. Because he has a personal stake in the litigation, he
has standing to bring this action.
ATTORNEY FEES
Mr. Hood, citing RCW 42.56.550(4), requests attorney fees on appeal. That
subsection provides in pertinent part:
15 No. 38187-1-111 Hood v. Columbia County
Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.
Here, Mr. Hood has not prevailed in anything other than a discovery dispute. An
award of reasonable attorney fees would be premature. We deny his request.
Lawrence-Berrey, J . ,j WE CONCUR:
Siddoway, A.C.J .
.f~».:r. i Fearing,