FILED ` OCTOBER 28, 2021 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
ESTATE OF JONNY TORRES AND ) HIS PARENTS JAMIE VALENCIA ) No. 36886-6-III AND MARIA M. TORRES, ) (Consolidated with ) No. 37777-6-III) Appellants, ) ) v. ) UNPUBLISHED OPINION ) KENNEWICK SCHOOL DISTRICT, ) ) Respondent. )
SIDDOWAY, A.C.J. — The trial court dismissed this Public Records Act1 (PRA)
action, finding that the Estate of Jonny Torres’s claim that the Kennewick School District
violated the PRA by failing to explain its inability to produce security video failed as a
matter of law. The Estate appealed. It soon learned through discovery in a separate
federal action that the District might have violated the PRA in other ways. It sought to
offer evidence of those other alleged violations on appeal, relying on RAP 9.11.
1 Chapter 42.56 RCW. Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Our commissioner granted the Estate’s motion and ruled that the superior court
should consider the additional evidence and determine whether it would change the
outcome of the District’s summary judgment motion. The superior court ruled that
because the additional evidence was never relied on by the Estate in defending against the
summary judgment motion, it would not change the result. The Estate filed an appeal of
that decision, which was consolidated with its earlier appeal.
The superior court properly granted summary judgment dismissing the initial
security video-related PRA claim. It misapprehended the nature of the issue it was
directed by our commissioner to address following the granting of the RAP 9.11 motion,
however. It erred in refusing to consider whether the Estate’s PRA claims based on
records newly-produced in federal discovery presented a genuine issue of material fact
requiring trial.
We affirm the trial court’s May 2019 summary judgment dismissal of the Estate’s
security video-related claim. We reverse its August 2020 ruling that summary judgment
dismissal of the Estate’s complaint remained appropriate. We return the matter to the
superior court with directions for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Events of 2017
On September 14, 2017, Kennewick School District’s assistant superintendent of
secondary education, Ron Williamson, learned that Jonny Torres, a sixth grade student at
2 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Highlands Middle School, had been hospitalized for serious complications of his asthma,
and Jonny’s parents had expressed a belief that the complications were the result of
Jonny’s having exercised in physical education (PE) class a week earlier. Upon learning
of Jonny’s hospitalization, Mr. Williamson traveled to the middle school where he spoke
to Dan Davila, the school’s security officer. Mr. Williamson instructed Mr. Davila to
save all video recorded by the school on September 7 that included Jonny, beginning with
Jonny’s PE class.
Mr. Davila used Jonny’s class schedule and information from the school nurse to
track Jonny’s movements, reviewed security video from the school, and saved every
segment of recorded video beginning with Jonny’s fifth period PE class in which Jonny
appeared. Fifth period began at 12:03 p.m. The first recorded video Mr. Davila saved
began at approximately 12:20 p.m. and depicts students who had emerged from locker
rooms and taken seats on the gym floor. The recorded video collected by Mr. Davila was
saved to a flash drive and provided to Mr. Williamson the next day. It was also uploaded
to a shared drive on the District’s network.
Tragically, although Jonny’s father called an ambulance upon Jonny’s completion
of school on September 7 and Jonny was airlifted to Sacred Heart Medical Center’s
Children’s Hospital in Spokane, his condition was so critical that he was placed on life
support. He was declared brain dead and removed from life support on September 26.
3 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
On November 3, lawyers retained to represent Jonny’s estate wrote to the District
and the middle school and demanded the preservation of “all evidence involving this
tragic case” including video tape recordings, school files, and incident reports. Clerk’s
Papers (CP) at 11. By that time, however, any security video recorded at the middle
school that had not been preserved by Mr. Davila was no longer available. The District’s
security cameras transmit video to the District’s network video recorder when the
cameras detect motion. If no motion is detected, no video is recorded. Because the video
consumes a great deal of storage space, the District allocates enough space to store video
for 30 days. After that, the video is automatically deleted to make room for new video.
On December 18, a lawyer retained by the District wrote to the Estate’s lawyers
acknowledging their request for preservation of evidence related to the September 7
incident. He asked that further communications about the incident be referred to him.
He concluded by stating, “If you make a public record request in the future, please kindly
direct the same to my attention.” CP at 14.
The Estate directed a public records request to the District, with a copy to its
outside counsel, on December 29. Among other requests, it sought “each document,
video, CD, writing, e-mails involving Kennewick School District (including their
employees or agents) related to student, Jonny Torres,” followed by examples of items it
deemed to be included. CP at 17.
4 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Events of 2018
On January 6, 2018, Bronson Brown, the District’s general counsel, wrote to the
Estate’s lawyers to acknowledge their public records request and notify them that the
District would be able to respond to the request in 60 calendar days. He stated, “[T]he
amount of records you requested likely is quite substantial and will take a substantial
amount of time to assemble.” CP at 148. On March 8, Mr. Brown produced e-mails
responsive to the Estate’s public records request, with the exception of e-mails believed
to be exempt from disclosure.
On May 31, the Estate sent a follow-up letter to the District, with a copy to its
outside counsel, again requesting video footage of Jonny at school on September 7,
including but not limited to footage of Jonny’s arrival and his presence in classrooms,
hallways, the main office, the gym, and outdoors. On June 8, Mr. Brown sent an e-mail
to the Estate’s lawyers that provided a link to all of the video of Jonny then in the
District’s possession.
On June 14, one of the Estate’s lawyers e-mailed Mr. Brown to say that on
reviewing the video, it was apparent that “hours of video of Jonny Torres on September
7, 2017, have not been provided.” CP at 29. He asked for an explanation of whether
video had been lost, destroyed or was not being produced for some reason. On June 15,
Mr. Brown responded,
5 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
I will verify with staff that the videos that were produced are all that exist regarding J. Torres. If there are more that are responsive to your records request below then I anticipate those should be able to be produced to you by 6/29. I will be out of the office all next week but if you have any other questions/concerns I will be able to get back to you when I return on Tuesday, 6/26.
CP at 29. The Estate’s lawyers received no further video production from Mr. Brown.
The Estate filed a complaint for violations of the PRA on November 6. The
complaint alleged that the Estate submitted a public records request for all records
maintained by the District. Most of the facts alleged in the complaint addressed only the
District’s alleged failure to provide all the security video the Estate believed was in the
Events of 2019
The District answered the Estate’s PRA complaint on February 5, 2019. A few
months later, both parties moved for summary judgment. The Estate’s motion and
memorandum in support of summary judgment limited its argument to the District’s
alleged failures to provide an adequate response to the request for all video of Jonny,
accusing the District of “failing to identify the missing footage or provide a written
explanation for the missing footage prior to the involvement of the court.” CP at 47. The
District argued in moving for summary judgment that the Estate had no evidence that the
District had failed to provide all security video in its possession at the time of the public
6 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
records request. The Estate’s opposition to the District’s motion for summary judgment
did not allege or imply that records other than security video were raised by its complaint.
Following a hearing, the trial court granted the District’s motion and denied the
Estate’s motion on May 24. The Estate appealed.
Meanwhile, on March 13, Jonny’s parents filed a wrongful death action in the
federal district court for the Eastern District of Washington. Among documents produced
by the District in September in response to discovery were pages from Jonny’s
PowerSchool2 profile and related documents that had not been produced in response to
the December 2017 public records request.
The Estate filed its opening brief in this appeal on October 30. Its opening brief
addressed the fact that records newly-produced in federal discovery were responsive to its
public records request but had not been produced in response to the request. When the
District moved in November to strike all references to the newly-produced documents,
the Estate filed a counter motion in December asking this court to accept the newly-
produced documents as additional evidence under RAP 9.11.
2 “Schools within Kennewick School District use a program called PowerSchool as its student information system. PowerSchool is used to record student grades, attendance, discipline, demographic information, emergency contacts, athletic clearance, etc.” CP at 203.
7 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Events of 2020
The parties’ motions were heard by our commissioner, who entered her ruling
granting the Estate’s motion on January 23, 2020. The commissioner found that the
Estate’s public records request was broad. More importantly, the commissioner found
that “[a]lthough the Estate’s complaint for violations of the Public Records Act focused
on the videos, the alleged public records violations the Estate complained of were as
broad-based as its requests were.” CP at 388. The commissioner ruled that “the
additional evidence is relevant to the question on review—whether the District produced
all relevant documents requested.” Id. (emphasis added). The commissioner observed
that requiring this court to decide whether summary judgment was appropriate given the
only evidence before it—the evidence about production of security video—“risks a
statute of limitations problem for the Estate if it has to file a separate complaint against
the District based upon the additional evidence.” CP at 389. The commissioner
determined that the superior court was “the best venue for the Estate to present all of the
alleged additional evidence. The superior court shall also rule on whether the District’s
failure to provide those additional documents to the Estate in response to the Estate’s
public records request defeats the District’s motion for summary judgment.” CP at 390.
The ruling directed the superior court to proceed as set forth, after which the matter
would return to the Court of Appeals for the determination of the Estate’s appeal.
8 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
On May 21, the Estate filed a motion in superior court seeking an order vacating
the summary judgment and to reopen discovery based on the new evidence. The District
opposed the motion, characterizing the issue referred by our commissioner as being
whether the Estate’s complaint “allege[d] that [the District] improperly withheld not just
video footage, but other documents which were voluntarily produced by [the District]
after Plaintiffs’ federal lawsuit was filed.” CP at 317. At the hearing of the motion, the
District argued that the Estate’s complaint did not allege any violations based on the
records first produced in the federal discovery.
On August 21, the superior court mailed its ruling to the parties’ lawyers and to
this court’s clerk/administrator. Its ruling stated, “That video documents were the sole
theory for the Estate’s public records act case cannot be seriously disputed. Neither party
moved this court for a partial summary judgment ruling regarding video documents
versus all other potential documents/records. Rather, what was presented to me were
cross motions for summary judgment requesting this court to either grant judgment in
favor of the Estate or complete dismissal of the case.” CP at 478. The superior court
elaborated on further reasons for believing that the Estate’s theory at the time of the
summary judgment motion was limited to the District’s response to the request for
security video. It concluded by stating:
My decision was based on the sole theory presented to me: whether or not [the District] had produced all video documents in existence on the date of the Estate’s PRA request. As to that sole question presented to me,
9 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
I ruled in favor of [the District]. I maintain that ruling and deny the Estate’s CR 60 Motion to Vacate.
CP at 480 (emphasis omitted). It directed the District to prepare an order denying the
Estate’s motion to vacate. It entered that order in September.
The Estate filed what it styled as an amended notice of appeal assigning error to
the superior court’s orders. This court determined that the matter constituted a new
appeal and consolidated it with the earlier appeal.
ANALYSIS
It is undisputed that the parties’ cross motions for summary judgment decided by
the superior court in May 2019 dealt only with whether the District violated the PRA in
responding to the Estate’s request for all security video. As explained in section II
below, the superior court erred by failing in 2020 to view the violations at issue more
broadly, based on our commissioner’s direction. Nonetheless, its decision in 2019 can be
reviewed separately as a motion for partial summary judgment, and is affirmed. We
address it first.
I. SUMMARY JUDGMENT DISMISSAL OF THE SECURITY VIDEO-RELATED CLAIM WAS PROPER
The Estate contends the superior court erred when it granted the District’s motion
for summary judgment dismissing its security video-related PRA claim.
10 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Standard of Review
The purpose of summary judgment is to “avoid a useless trial when there is no
genuine issue of any material fact.” LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299
(1975). The moving party bears the burden of proving by uncontroverted facts that no
genuine issue of fact exists. See Regan v. Seattle, 76 Wn.2d 501, 458 P.2d 12 (1969);
Hughes v. Chehalis Sch. Dist. No. 302, 61 Wn.2d 222, 377 P.2d 642 (1963).
Once the moving party meets its initial burden of proof, the burden shifts to the
nonmoving party to show a genuine issue of fact exists. See id. The adverse party may
not rest on mere allegations in the pleadings but must set forth specific facts showing that
there is a genuine issue for trial. W. G. Platts, Inc. v. Platts, 73 Wn.2d 434, 438 P.2d 867
(1968); Johnson v. Recreational Equip., Inc., 159 Wn. App. 939, 956, 247 P.3d 18 (2011)
(nonmoving party cannot rely on “speculation and conjecture” to raise a genuine issue of
material fact). If no genuine issue of material fact exists, the moving party is entitled to
judgment as a matter of law. CR 56(c).
We review the grant or denial of a motion for summary judgment de novo. Keck
v. Collins, 181 Wn. App. 67, 78, 325 P.3d 306 (2014). All facts and reasonable
inferences from the facts are to be construed in the light most favorable to the nonmoving
party. Id. at 79.
11 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
Public Records Act Claims
The PRA is a strongly worded mandate for broad disclosure of identifiable public
records. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). In response
to a proper public records request, RCW 42.56.070(1) requires a public agency “to ‘make
available for public inspection and copying all public records’ or identify a specific
exemption and provide an explanation of how it applies to the individual agency record.”
Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 809, 246 P.3d 768 (2011)
(quoting RCW 42.56.070(1)). “When an agency withholds or redacts records, its
response ‘shall include a statement of the specific exemption authorizing the withholding
of the record (or part) and a brief explanation of how the exemption applies to the record
withheld.’” City of Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014)
(quoting RCW 42.56.210(3)). “The purpose of the requirement is to inform the requester
why the documents are being withheld and provide for meaningful judicial review of
agency action.” Id.
The PRA recognizes that records may be destroyed by an agency in the ordinary
course of operations. Neigh. All. of Spokane County v. Spokane County, 172 Wn.2d 702,
750, 261 P.3d 119 (2011) (Madsen, C.J., concurring). And Washington courts have
drawn a distinction between a request for information about public records and a request
for the public records themselves. Smith v. Okanogan County, 100 Wn. App. 7, 12, 994
P.2d 857 (2000). A request for information about a public record is not the same as a
12 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
request for an identifiable public record. Bonamy v. City of Seattle, 92 Wn. App. 403,
409, 960 P.2d 447 (1998). “The [PRA] does not require agencies to research or explain
public records, but only to make those records accessible to the public.” Smith, 100 Wn.
App. at 12.
Application to the Estate’s Security Video-Related Claim
As it relates to security video of Jonny in the possession of the District, the Estate
contends on appeal that summary judgment dismissal of its violation claim was improper
because it demonstrated that the District’s response to its records request was inadequate.
It characterizes District general counsel Brown as equivocating when he wrote, “I will
verify with staff that the videos that were produced are all that exist” and “If there are
more that are responsive . . . I anticipate those should be able to be produced to you by
6/29.” CP at 29. It argues that the District was required by the PRA to disclose and
explain why additional responsive security video did not exist.
On the issue of equivocation, the Estate relies on Yakima Herald-Republic. In that
case, a newspaper sought information on the amount of public funds being used for the
defense of two men charged with aggravated first degree murder, who potentially faced
the death penalty. 170 Wn.2d at 781. In its attempt to obtain the information, the
newspaper submitted a public records request to the county and intervened in the criminal
case to challenge the court’s order sealing attorney billing records. Id. at 783-85. In
responding to the public records request, the county stated it was unclear whether the
13 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
superior court’s order sealing the attorney billing records included related billing records
held outside the court, and expressed its concern with “the impact of the paper’s request
on vital governmental functions such as the ability of the defendants to have a fair trial,
as well as attorney-client confidentiality.” Id. at 806.
The Washington Supreme Court concluded that billing records held by nonjudicial
entities were subject to disclosure. Id. at 805-08. It found the county’s response to be
insufficient under the agency’s statutory burden “to ‘make available for public inspection
and copying all public records’ or identify a specific exemption and provide an
explanation of how it applies to the individual agency record.” Id. at 805-06 (quoting
RCW 42.56.070(1)) (citing RCW 42.56.210(3)); Rental Ass’n v. City of Des Moines, 165
Wn.2d 525, 199 P.3d 393 (2009)). RCW 42.56.210(3) provides that “[a]gency responses
refusing, in whole or in part, inspection of any public record shall include a statement of
the specific exemption authorizing the withholding of the record (or part) and a brief
explanation of how the exemption applies to the record withheld.” (Emphasis added.)
The court awarded costs and reasonable attorney fees to the newspaper because the
county’s response failed to provide that brief explanation of an exemption’s application.
Yakima Herald-Republic, 170 Wn.2d at 809.
In this case, the District did not refuse to allow inspection of security video based
on the alleged application of an exemption. The brief explanation requirement at issue in
Yakima Herald-Republic does not apply. Other cases are in accord. Koenig, 182 Wn.2d
14 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
at 95 (costs and fees awarded where agency “either failed to cite a specific exemption or
failed to provide any explanation for how a cited ‘other’ statute exemption applied to the
redacted driver’s license numbers in the specific records produced”); John Doe L v.
Pierce County, 7 Wn. App. 2d 157, 198, 433 P.3d 838 (2018) (Yakima Herald-Republic’s
rule that an agency cannot equivocate about the application of an exemption “assumes
that the agency redacted or withheld records in response to a request.”).
Equally inapposite is the Estate’s reliance on Neighborhood Alliance. The
language from Neighborhood Alliance on which the Estate relies was in the context of
discussing why an agency’s adequate search for responsive documents will satisfy its
obligation under the PRA even if it is later discovered that some responsive documents
were not found. As the court explained:
[A]gencies are required to make more than a perfunctory search and to follow obvious leads as they are uncovered. The search should not be limited to one or more places if there are additional sources for the information requested. . . . This is not to say, of course, that an agency must search every possible place a record may conceivably be stored, but only those places where it is reasonably likely to be found.
172 Wn.2d at 720 (citations omitted).
In Neighborhood Alliance, Spokane County was suspected of unfair hiring
practices. Id. at 709. This suspicion was supported by an undated office seating chart,
anonymously provided to Neighborhood Alliance, which identified work locations for
employees who had not yet been hired. Id. at 709-10. A public records request to the
15 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
county from Neighborhood Alliance requested complete electronic information logs for
the chart, calculated to determine when the undated seating chart was created. Id. at 710.
In response, the county produced only one, unhelpful, document. Id. at 711. It was later
discovered that the computer from which the seating chart was printed was replaced in
April 2005, a month before Neighborhood Alliance submitted its records request. Id. at
711-12. Only a new computer was searched for responsive records, with no effort made
to determine whether the hard drive of the computer used to print the seating chart had
been erased or the file had been backed up in any other place. Id.
On appeal, the county argued that since it did not have the requested records, it
could not be held liable under the PRA. Id. at 719. The Washington Supreme Court
held, however, that “the focus of the inquiry is not whether responsive documents do in
fact exist, but whether the search itself was adequate.” Id. at 719-20. Because the county
searched only the new computer and did not provide any explanation why it neglected to
search the old computer or any other place likely to contain the record, it failed to show
that its search was adequate. Id. at 722-23; see also Fisher Broad.-Seattle TV LLC v. City
of Seattle, 180 Wn.2d 515, 522, 326 P.3d 688 (2014) (citing Neigh. All., 172 Wn.2d at
722) (“When an agency denies a public records request on the grounds that no responsive
records exist, its response should show at least some evidence that it sincerely attempted
to be helpful.”).
16 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
This appeal does not present an adequate search issue. The Estate did not
challenge the District’s evidence that any security video not preserved by Mr. Davila in
mid-September would have been deleted in the ordinary course some two and a half
months before the Estate’s public records request.
The words “explanation” and “explain” appear in only five provisions of the PRA,
none relevant here.3 The language from Neighborhood Alliance on which the Estate
relies must be understood as applying when the issue presented is the adequacy of an
agency’s search. Nothing suggests that our Supreme Court was imposing a new burden,
not imposed by the PRA itself, to provide not only responsive documents, but
information. As earlier observed, “[t]he [PRA] does not require agencies to research or
explain public records, but only to make those records accessible to the public.” Smith,
100 Wn. App. at 12.
3 As earlier discussed, RCW 42.56.210(3) requires a brief explanation, when an agency refuses to permit inspection, of how a specific exemption applies to the record withheld. RCW 42.56.120(3)(b) provides that when a customized service charge is assessed to a requester, the agency must provide an explanation why the charge is assessed. RCW 42.56.070(1) provides that deletions of identifying details to prevent an unreasonable invasion of personal privacy interests must be fully explained. RCW 42.56.250(14)(e)(i) provides that law enforcement body-worn camera recordings that would otherwise be exempt from public inspection and copying can be obtained by attorneys involved in certain civil rights actions if the attorney explains the relevancy of the recording to the cause of action. Finally, RCW 42.56.570(1) charges the attorney general’s office with publishing and updating a pamphlet explaining the PRA.
17 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
The District’s evidence that it provided the Estate with all of the responsive
security video in its possession at the time of the public records request is unchallenged.4
When, as here, questions are asked about the failure to produce additional records, it will
often be prudent to answer the questions since a failure to answer might result in
unnecessary litigation. But the District’s failure to answer the Estate’s lawyer’s questions
was not a violation of the PRA. Summary judgment dismissing the Estate’s claim that
the District’s response to the request for video violated the PRA was appropriate.
II. BECAUSE THE SUPERIOR COURT MISAPPREHENDED OUR COMMISSIONER’S DIRECTION TO TAKE ADDITIONAL EVIDENCE, THE MATTER MUST BE RETURNED TO THAT COURT
Under RAP 9.11 we may direct that additional evidence on the merits be taken
before we decide a case on review. It is, by the rule’s express terms, a limited remedy.
RAP 9.11(a). Professor Tegland describes it as “designed to address the situation in
which some formal failure of proof, will, if not cured, necessitate a socially-wasteful new
4 Or at least not effectively challenged. The Estate makes a passing argument that e-mail obtained by the Estate in the records newly-produced in federal discovery raises a question of fact about the adequacy of the District’s search for security video. The e-mail was sent by the principal of Highlands Middle School on September 15, 2017, to Mr. Davila and addresses what “Ron Williamson has asked you to do” to preserve security video from September 7. CP at 255. The Estate construes the e-mail as inconsistent with declarations provided by Mr. Williamson and Mr. Davila. Assuming without agreeing that there is an inconsistency, there may or may not be a reasonable explanation. Critically, however, an e-mail sent more than three months before the District received the Estate’s public record request does not raise any genuine issue of fact about the adequacy of the District’s subsequent search for records. Nothing in the e-mail casts doubt on the District’s evidence that it produced all of the security video preserved by District employees.
18 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
trial that could be burdensome in human terms, and be expensive as well.” 2A KARL B.
TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 9.11 author’s cmt. 1, at 696
(8th ed. 2014). As this case illustrates, it can also be used to address the situation where a
failure to present then-unknown evidence in opposition to a motion for summary
judgment might necessitate wasteful posttrial motion practice.
The six elements that must be demonstrated create a high bar to the seldom-
granted relief. This court may direct the taking of additional evidence only if
(1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party’s failure to present the evidence to the trial court, (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.
RAP 9.11(a). The Estate persuaded our commissioner that all six requirements existed in
this case.
Our commissioner was also persuaded that the Estate’s complaint was broad
enough to include claims for PRA violations unrelated to the District’s response to the
request for video. The issue was debatable, but the District did not move to modify the
commissioner’s ruling, so it is the final decision of this court under RAP 17.7. See
Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 547, 815 P.2d 798 (1991) (“A party
aggrieved by a commissioner’s ruling can only object by a motion to modify filed no
19 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
later than 10 days after the ruling is filed. [Former] RAP 17.7 [(1991)]. If no such
motion is filed, the ruling becomes a final decision of the court.”).
The issue that the commissioner’s ruling directed to the superior court to decide
was whether the records newly-produced in response to federal discovery did or did not
present evidence of one or more PRA violations that require trial. To that end, the Estate
should have identified what it contended were the newly-discovered PRA violations, the
District could contest the claimed violations, and the superior court should then have
decided whether summary judgment remained appropriate or whether the Estate’s
enlarged claims required trial.
The superior court arrived at its own interpretation of its charge: to decide whether
the parties’ May 2019 summary judgment arguments dealt only with the security video
issues.5 We agree with the superior court that the parties’ arguments at that time did deal
with only that issue. But following the commissioner’s ruling, that does not justify
dismissing the Estate’s case in its entirety. If a defendant who moves for summary
5 Several things could have contributed to the superior court’s misunderstanding about what it was expected to do. A direction to a trial court to take additional evidence under RAP 9.11(b) is rare, and in retrospect, it would have helped if our commissioner had provided more explicit direction. The procedure first went awry when the Estate filed a CR 60(b) motion to vacate the May 2019 summary judgment order—a motion that was unnecessary and suggested that whether to entertain the additional evidence was the superior court’s decision to make, when it was not. And the District incorrectly argued to the superior court that the issue presented for the court’s decision was whether the Estate’s complaint was broad enough to encompass any PRA violations revealed by the newly-produced records—but that issue had already been decided in the Estate’s favor by our commissioner.
20 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
judgment only demonstrates a basis for dismissing some of a plaintiff’s claims, then his
mere request that the court dismiss all of the plaintiff’s claims does not provide a basis
for dismissing a case in its entirety. Admasu v. Port of Seattle, 185 Wn. App. 23, 40, 340
P.3d 873 (2014). “[T]he moving party cannot prevail on the original motion based on
issues not raised therein.” Id. Given our commissioner’s controlling ruling that the
Estate’s security video claim was not its only claim of a PRA violation, the superior court
was required to recognize that what the District presented in May 2019 as a motion for
dismissal of the entire complaint must be seen, instead, as a motion for partial summary
judgment. The direction to the superior court in 2020 was to determine whether
summary judgment was appropriate in light of claims based on the records newly-
produced in federal discovery.
The Estate is unduly optimistic about where the commissioner’s ruling leaves it at
this point in the proceedings. It contends we should grant it summary judgment on the
issue of whether the District silently withheld the records newly-produced in federal
discovery. But on return of this matter to the trial court, the Estate did not move again for
summary judgment—and even if it had, it could not appeal a denial. It could only seek
discretionary review. See, e.g., Sunbreaker Condo. Ass’n v. Travelers Ins. Co., 79 Wn.
App. 368, 380, 901 P.2d 1079 (1995). Clearly this court will not decide a summary
judgment motion in the first instance. The additional evidence needs to be presented to
the superior court, at which time the District can raise such issues as the records’
21 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
responsiveness to the request, exemptions from inspection and disclosure, and the
adequacy of its search.
The Estate requests an award of reasonable attorney fees on appeal under RAP
18.1 and the PRA. RAP 18.1(a) allows this court to award attorney fees and costs on
appeal “[i]f applicable law grants to a party the right to recover reasonable attorney fees
or expenses.” “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 record or the right to receive a response to a public record
request within a reasonable amount of time.’” Gronquist v. Dep’t of Licensing, 175 Wn.
App. 729, 756, 309 P.3d 538 (2013) (quoting RCW 42.56.550(4)).
The Estate has not prevailed on its claim that the District violated the PRA in
responding to its request for video. It has not yet prevailed on its claim that the District
violated the PRA in any other respect.
We affirm the partial summary judgment dismissal of the Estate’s claim that the
District violated the PRA in responding to its request for video. Consistent with the
commissioner’s ruling, the Estate’s motion to add evidence to the record is granted to the
extent needed to allow the superior court to determine whether evidence of the records
newly-produced in federal discovery defeat the District’s motion for summary judgment.
The parties are asked to notify this court if, on rehearing, the District’s motion for
summary judgment is denied. If so, these appeals will be dismissed.
22 Nos. 36886-6-III and 37777-6-III) (consolidated) Estate of Torres v. Kennewick School District
If the superior court holds again that the District is entitled to summary judgment
dismissal of all of the Estate’s claims then, consistent with the commissioner’s ruling, the
matter will return to the Court of Appeals for a determination of the balance of the
Estate’s appeal.
The matter is remanded to the superior court for proceedings consistent with this
opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________ Siddoway, A.C.J.
WE CONCUR:
_____________________________ Lawrence-Berrey, J.
_____________________________ Fearing, J.