Gipson v. Snohomish County

• Court: Washington Supreme Court
• Decided: October 10, 2019
• Docket: 96164-6
• Status: Published

Opinion

This opinion was V-ESJ filed for record J-r3 at 8fij»^on Odri^^i^ BV ::r^GTOM

Susan L. Carlson Supreme Court Clerk '^ai\kAAAM-. t CHIEF jusrice

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

RON GIPSON, No. 96164-6 Petitioner,

V. En Bane

SNOHOMISH COUNTY,a munieipal corporation.

Respondent. Filed OCT 1 0

MADSEN,J.-—Ron Gipson challenges Snohomish County's response to a records

request under the Public Records Act(PRA), chapter 42.56 RCW,which allows agencies

to withhold information relating to "active and ongoing" employment investigations for

"unfair practice ... or of a possible violation of other federal, state, or local laws

prohibiting discrimination." Former RCW 42.56.250(5)(2014). Gipson requested

records that related to allegations of workplace sexual harassment against him. At the

time of his request, Gipson was under investigation for those allegations. Due to the

voluminous request, Snohomish County responded by producing the documents in five

installments over the course of several months and asserted the active and ongoing No. 96164-6

investigation exemption under the act for each of those installments. Gipson argues

treating each installment with the exemption was improper under the PRA. We disagree. For the following reasons, we hold that Snohomish County properly applied the

active and ongoing investigation exemption and affirm.

FACTS

In 2014, Gipson was under investigation for several allegations of sexual

harassment and sexual discrimination reported by a few female corrections officers from

the Snohomish County Denney Juvenile Justice Center, where he was employed. This

investigation was conducted by an outside investigator, Marcella Fleming Reed (referred

throughout by the parties as MFR). The investigation continued until February 2, 2015.

Gipson was the longest serving council member at the time on the Everett City

Council and was up for reelection in 2015. To address the allegations and a report on the

matter from a local news outlet, Gipson submitted a public records request on

November 28, 2014, for "all records which in any way mentions the name Ron Gipson as

it relates to this [public records request]." Clerk's Papers(CP)at 52-56. The county

received the request on December 1, 2014, and assigned the request tracking number

14-06701. See CP at 47-48. In response to Gipson's voluminous request, the county

issued its response in five installments over the course of several months.

On February 19, 2015, Gipson received the second installment to his records

request. This installment contained a series of heavily redacted invoices, along with a

"Withholding Log," which explained that an additional 69 pages were being withheld due No. 96164-6

to an active, ongoing investigation under RCW 42.56.250(5). A third installment was

provided to Gipson on March 5, 2015, also notifying that an additional 298 pages were

being withheld under the active and ongoing investigation exemption.

On April 22, 2015, Gipson was notified of a fourth installment for his records

request. Believing it had provided all records requested by Gipson, the county closed the

request stating:

With regard to PRR 14-06701, the County claimed the attorney-client exemption and the exemption identified in RCW 42.56.250(5) for active and on-going investigations into allegations of employment discrimination. At the time your request was received, November 28, 2014, the employment discrimination investigation which was the subject ofthe request was still active and on-going. These records and the exemptions cited are not governed by the Court's decision in Predisik [v. Spokane School District No. 81, 182 Wn.2d 896, 346 P.3d 737(2015)] because the County did not redact or withhold based on either RCW 42.56.230(3) or RCW 42.56.240(1). The County declines to change or remove the exemptions cited and the records withheld or redacted in response to PRR 14-06701.

CP at 140. Gipson responded that he had not received all documents requested,

prompting the county to produce a fifth installment of records on May 4, 2015, that it had

overlooked, and subsequently closed the request.^

In April 2016, Gipson filed a complaint in King County Superior Court seeking

disclosure of the redacted records and statutory penalties under the PRA. The county

filed a motion for summary judgment, arguing the county had a right to rely on the active

and ongoing investigation exemption to each installment because it applied on the date

the request was received. The trial court granted summary judgment, and Gipson

It appears the first and fourth records request installments are not in dispute. No. 96164-6

appealed. The Court of Appeals affirmed, holding that the exemption applied at the time

the request was made and the county was not required to update its responses once the

investigation ended. See Gipson v. Snohomish County, No. 76826-3-1(Wash. Ct. App.

July 9, 2018)(unpublished), http://www.courts.wa.gov/opinions/pdf/768263.pdf. Gipson

petitioned this court for review, arguing the Court of Appeals' decision improperly

applied the "no standing request" rule in Sargent v. Seattle Police Department, 167 Wn.

App. 1, 260 P.3d 1006 (2011), aff'd in part and rev'd in part on other grounds, 179

Wn.2d 376, 314 P.3d 1093 (2013).^ We granted review.

ANALYSIS

The PRA was enacted to facilitate government transparency through the disclosure

of public records. In furtherance of that goal, the PRA requires agencies to publish rules

and regulations to promote ease of access for public records requests. See former RCW

42.56.040 (2014). Because the people have a right to remain informed of government

instruments, this chapter's provisions are to be "liberally construed and its exemptions

narrowly construed." Former RCW 42.56.030 (2014). The PRA requires agencies to

"provide for the fullest assistance to inquirers and the most timely . . . action on requests

for information." Former RCW 42.56.100 (2014). However, in certain circumstances,

information is exempted from public inspection. See former RCW 42.56.250 (2014).

Some of these exemptions may be time limited.

^ Gipson also raised an equitable estoppel argument in this court due to the county's response to his records request. Pet. for Review at 4; Suppl. Br. of Pet'r at 15-20. This court"may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). As such, we decline to consider Gipson's equitable estoppel claim. No. 96164-6

Gipson argues the appellate court here erred by extending the application of

Sargent to this case. A discussion of the facts in that case is helpful to understand the

applicability ofSargent to this case. In July 2009, the respondent in Sargent was under

investigation for an altercation with an off-duty police officer. 167 Wn. App. at 7. He

submitted a records request in August and September, which was denied due to an active

and ongoing investigation. Id. The respondent was then asked to resubmit a records

request in six to eight weeks. The investigation continued through the interim, and the

investigator conducted his last witness interview in October 2009. Around this time, an

internal investigation of the off-duty officer commenced. Later that month, the

investigation was referred to the city attorney for prosecution. Id. The city declined to

file charges in late 2009 or early 2010, and the respondent was notified of that decision.

Id.

In February 2010, the respondent submitted a refresher request. Id. at 7-8. The

police department provided redacted records, relying on the active and ongoing

investigation exemption in March. Id. at 8. The internal investigation of the off-duty

officer concluded in April 2010, and the respondent did not submit a new request for

records at that time.

The respondent filed a complaint in King County Superior Court, alleging

violations under the PRA. The trial court in that case agreed with the respondent and

held that the records were no longer exempt after the investigation ended and that the city No. 96164-6

was required to produce the records for the respondent that were previously exempted.

Id. at 8-9. That decision was appealed.

In Sargent I, the Court of Appeals reversed and created a bright-line rule holding

that "[t]he PRA does not provide for standing records requests. An agency is not

required to monitor whether newly created or newly nonexempt documents fall within

[such] a request to which it has already responded." Id. at 12. Pointing to the

Washington State Bar Association's Public Records Act Deskbook, the court noted,"The

[PRA] does not provide for 'continuing' or 'standing' requests. Instead, the comment

suggests 'refresher' requests." Id. at 11 (footnote omitted)(quoting WASH. State Bar

Ass'n,Public Records Act Deskbook: Washington's Public Disclosure and

Open Public Meetings Laws § 5.3(3)(d) cmt. at 5-31 (2006)). Because the

investigation was not referred to the city for prosecution until after the initial records

requests were made, the city could claim the exemption, and the respondent was required

to submit a refresher request after he was notified the investigation concluded.

Gipson argues that Sargent is inapt because, here, the active and ongoing

investigation exemption was no longer applicable after February 2, 2015, and any

installment produced after that date cannot be limited by that exemption. In essence,

Gipson asks us to treat each installment as a new, independent request, and the county

must determine whether there are any applicable exemptions at the time the installment is

produced to the requester. No. 96164-6

But installments are not new stand-alone requests. Rather, installments fulfill a

single request and should be treated as such. With any request, the receiving agency

determines any applicable exemptions at the time the request is received. Treating each

installment as a new, single request would effectively permit standing requests because a

requester is not required to submit a records request each time an installment is prepared.

The agency prepares each installment based on the initial records request it receives. An

agency is required to provide only records in existence at the time the request is made.

An exempt record, like a nonexistent record, is not available for inspection, and an

agency is not obligated to produce it. Should the exemption expire and the record come

into "existence" after the initial request and determination, the onus is on the requester to

make a "refresher request."

Holding otherwise runs counter to the Court of Appeals' rationale in creating the

bright-line rule in Sargent. It would allow standing requests in cases where records

requests require multiple installments because, with each installment, Gipson failed to

submit a refresher request, relying instead on his initial request made in November 2014.

Such a reading ofthe PRA is unworkable. As Snohomish County correctly

argued, this would effectively provide for a "standing request," which would treat

requesters who are seeking limited information differently from those who request high

volumes of records.^ Under Sargent, if it were a single installment request that was

^ See Wash. Supreme Court oral argument, Gipson v. Snohomish County, No. 96164-6 (Feb. 26, 2019), at 20 min., 20 sec. through 21 min., 34 sec., video recording by TVW, Washington State's Public Affairs Network, https://www.tvw.org/watch/?clientlD=9375922947&eventID=2019021552&autoStartStream

7 No. 96164-6

fulfilled while a limited exemption was in effect, the requester would be required to

submit a new request when the exemption expired. In contrast, under Gipson's proposed

rule, the requester whose voluminous request requires installments would not.

Essentially, this would allow a "standing request" so long as the request is broad enough

to require an agency several months and multiple installments to fulfill. See Wash.

Supreme Court oral argument, Gipson v. Snohomish County, No. 96164-6 (Feb. 26,

2019), at 23 min., 0 sec. through 23 min., 20 sec., video recording by TVW, Washington

State's Public Affairs Network,

https://www.tvw.org/watch/?clientID=9375922947&eventID=2019021552&autoStartStr

eam=true. Only those who request large volumes of records stand to benefit from such a

rule.

Contrary to Gipson's argument, applying Sargent to installment requests is not an

improper extension of the "no standing requests" rule. The policy underlying the "no

standing requests" rule is equally applicable to a voluminous request requiring multiple

installments to fulfill. The Court of Appeals, in Sargent, rejected standing requests

because "[njothing in the language or history of the [PRA]indicates the legislature

intended to impose on agencies an endless monitoring of old requests, or to require

updated responses indefinitely to people who may have long since lost interest." 167

Wn. App. at 11. Further, agency regulations provide that "[a]n agency must only provide

=true. No. 96164-6

access to public records in existence at the time of the request. An agency is not

obligated to supplement responses." WAC 44-14-04004(4)(a).

We note that the Public Records Act Deskbook already has some guidance on this

issue. It states that "[a]n agency has no duty to create a record in response to a request;

only records existing at the time of the request must be provided." Wash. State Bar

Ass'n,Public Records Act Deskbook: Washington's Public Disclosure and

Open Public Meetings Laws § 5.1(4), at 5-8 (2d ed. 2014). Thus, it notes that

"standing requests" act as a request for documents that may become available in the

future. See id. Similarly, the determination of an exemption at the time the request was

made is treated like a record that does not exist. Therefore, once "a temporal exemption

expires after the request is made, the agency is not required to produce the record." Id.

Rather than requiring our state agencies to continuously monitor for any changes

to the status of a claimed exemption, Sargent's bright-line rule is reasonable, and we

adopt it. Thus, we hold that a records request is satisfied when an agency receives a

public records request, identifies a legitimate exemption under the PRA at that time, and

elearly notifies the requester that the request will be treated in aeeordanee with that

exemption. This puts the requester on notice as to the nature of the exemption, and they

can submit a "refresher request" after receiving an installment controlled by the claimed

exemption, or when the exemption has expired, if the requester still wants those records.

Adopting this bright-line rule also furthers public policy. As Snohomish County

correctly notes, assessing a request on the date it is received "insures the people's prompt. No. 96164-6

efficient access to public records." Suppl. Br. of Resp't at 10. Many agencies have large

volumes of public records requests. When receiving a request, the agency must identify

responsive documents and any applicable exemptions, and estimate the time for response.

Requiring the agency to continuously reevaluate a request to determine whether their

original assessment regarding exemptions is still correct will only delay the production of

the records request. By treating a request that must be fulfilled in installments as

tantamount to a new request, if an agency realizes that a claimed exemption it relied on

has expired, it will have to reproduce all of the information it previously released to

comply with the public records request. Such an outcome will prove unwieldy and

overburden many agencies that already deal with an enormous volume of records

requests.

Snohomish County argues that requiring a requester to submit refresher requests

would provide greater transparency between the agency and the requester, and while the

county acknowledges doing so puts a greater burden on the agency to process more

requests, "this is the preference" as "transparency is the goal [under the PRA]." Wash.

Supreme Court oral argument,supra, at 23 min., 41 sec. through 24 min., 11 sec., and 24

min., 17 sec. through 25 min., 02 sec. We agree with the county's reasoning. Applying

Sargent to voluminous requests will prevent agencies from allocating personnel to the

task of continuously monitoring the status of a single expansive request while

installments are pending. See id. at 30 min., 16 sec. through 30 min., 39 sec. This is the

very thing that Sargent was trying to prevent.

10 No. 96164-6

When a requester is made aware of a temporal exemption applied to their records

request, the deskbook recommends that the requester submit a separate "refresher

request." PUBLIC RECORDS ACT DESKBOOK § 5.3(24), at 5-19 (2014). It also

recommends that the "refresher request" should seek all records indicated in the initial

request "from the date ofthe first request to the date ofthe refresher request." Id.

Gipson's invitation to create a new rule antithetical to underlying policies of records

requests is not well taken.

Snohomish County determined that an exemption existed at the time Gipson made

his request. The county relayed this to Gipson via e-mail correspondence. See CP at 139-

40. While Gipson argues he was dissuaded from submitting "refresher" requests, in part

because he was provided "factually misleading infonuation ... that the investigation

remained open and as a result the status of the requested records unchanged," that is

immaterial. Suppl. Br. of Pet'r at 11-12. Admittedly, Snohomish County's e-mail may

not have been a model of clarity. It "claimed the attorney-client exemption ... for active

and on-going investigations into allegations of employment discrimination." CP at 140.

It did not state that it would continue to apply that exemption even after the

investigations, then in progress, ended. Thus, it could have been more clear.

But, the PRA does not require agencies to inform the requester when an exemption

expires. The act only requires agencies to inform the requester of any exemptions they

claim. This provides notice to the requester so that the requester may submit a refresher

request when they are aware that the claimed exemption has expired or after an

11 No. 96164-6

installment claiming that exemption is received. Regardless of Gipson's complaint

regarding the e-mail correspondence, the PRA does not require an agency to do more

than communicate any claimed exemptions to the requester. We hold that Snohomish

County complied with the requirements ofthe PRA and that no violation occurred.

Attorneys Fees and Costs

Snohomish County has also moved for recovery of costs under RAP 14.3 and

RCW 4.84.080. In ordinary civil actions, a "successful litigant may recover only such

attorney fees as the statute or agreement of the parties provides." State ex rel. Maori v.

City ofBremerton, 8 Wn.2d 93, 102, 111 P.2d 612(1941)(citing Easterbrooks v.

Abrahams, 200 Wash. 636, 94 P.2d 486 (1939)). RCW 4.84.080(2) provides that where

"judgment is rendered" by an appellate court in a civil proceeding, the prevailing party is

awarded $200. We note that the appellate court determines costs "in all cases after the

filing of a decision terminating review." RAP 14.1(a). The appellate court making the

final determination decides whether to awards costs and fees on review. RAP 14.1(c). If

we determine costs and fees are warranted, the court "commissioner or clerk" will

determine the award by ruling. Id. Because Snohomish County moved for fees in the

lower court and prevails on appeal, we award costs to be determined by the court clerk.

CONCLUSION

Although the goal ofthe PRA is to facilitate government transparency in a timely

and efficient manner, the PRA "does not require that agencies provide updates to

previous responses, or monitor whether documents properly withheld as exempt may

12 No. 96164-6

later become subject to disclosure." Sargent, 167 Wn. App. at 10-11. An agency is not

required to maintain constant vigilance of any exemptions it asserts when the request is

first received, regardless of whether the records request requires a single installment or

multiple installments to satisfactorily fulfill. We affirm.

13 No. 96164-6

WE CONCUR:

3^X4 0

M(Mv^

14 Gipson V. Snohomish County (Stephens, J., dissenting)

No. 96164-6

STEPHENS, J. (dissenting)—^This case arises under the Public Records Act

(PRA), chapter 42.56 RCW. Ron Gipson requested records relating to workplace

sexual harassment allegations against him, which were under investigation at the

time of his request. Snohomish County(County)responded to Gipson's request in

installments over the course of several months, invoking the exemption in RCW

42.56.250(5)^ for "active and ongoing" employment investigations to withhold the

investigative records. The County continued to rely on this exemption after the

investigation had concluded, reasoning that its obligations were fixed on the date it

received Gipson's request rather than on the dates it released records. We are asked

'When Gipson filed his eomplaint in 2016 the exemption at issue was eodified as RCW 42.56.250(5). Today, the same exemption, with no change in wording, is eodified as RCW 42.56.250(6)and will remain effective until July 1,2019. To maintain consistency with the parties' briefing and lower court opinions, this opinion cites the applicable exemption as RCW 42.56.250(5). Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

to decide whether the County violated the PRA in taking this approach. To answer

this question, we must consider the reach of the "no standing requests" rule first

articulated by the Court of Appeals in Sargent v. Seattle Police Department, 167

Wn. App. 1, 260 P.3d 1006 (2011){Sargent I), aff'd in part and rev'd in part on

other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013) {Sargent II), specifically

whether the PRA allows an agency to, in effect, "freeze" its disclosure obligations

on the date it receives a PRA request.

I would hold that the PRA does not authorize withholding public records

based on an expired temporary exemption. Because the PRA is "a strongly worded

mandate for broad disclosure of public records," Hearst Corp. v. Hoppe,90 Wn.2d

123, 127, 580 P.2d 246 (1978), its provisions "must be 'liberally construed and its

exemptions narrowly construed' to ensure that the public's interest is protected,"

Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768

(2011)(quoting RCW 42.56.030). The legislature expressly limited the exemption

in RCW 42.56.250(5) to "active and ongoing" employment investigations.

Allowing an agency to continue asserting this exemption after an investigation has

concluded runs counter to the statutory mandate to provide "thefullest assistance to

inquirers and the most timely possible action on requests for information." RCW

42.56.100(emphasis added).

-2- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

Rather than construing this purpose liberally and the PRA's exemptions

narrowly, today's majority turns this statutory command on its head. The majority

takes Sargent Fs rule against "standing requests" and applies it to still-pending

requests,reasoning that requiring agencies to adjust the scope ofongoing disclosures

when an exemption expires would be "unwieldy and . . . overburden[some]."

Majority at 10. But logistical challenges do not, in my view,justify responding to

a pending request by inaccurately asserting a no-longer-applicable exemption.

Agencies must comply with the law, even when compliance is inconvenient and

burdensome. Because the majority's reasoning runs contrary to the PRA's mandate

for full and timely disclosure of public records, I respectfully dissent.

BACKGROUND AND PROCEDURAL fflSTORY

In 2014, Gipson became the subject of several sexual harassment allegations

relating to his employment as a corrections officer at the Snohomish County Denney

Juvenile Justice Center. Gipson was also the longest-serving member ofthe Everett

City Council and was up for reelection in the fall of2015. The investigation ofthese

allegations was overseen by the County's human resources department and was

conducted by an outside investigator, Marcella Fleming Reed (referred to by the

parties as the MFR investigation).

-3- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

On December 1, 2014,^ the County received a public records request from

Gipson for "all records which in any way mentions the name Ron Gipson as it relates

to this [public records request]." Clerk's Papers(CP)at 47-48, 52-56. The County

assigned this request tracking number 14-06701. Because the request contained a

large number of documents,the County issued its response in five installments over

the course of several months.

The MFR investigation into the sexual harassment allegations against Gipson

concluded on February 2, 2015. In his complaint, Gipson states that (presumably,

as a subject of the investigation) he was notified of the investigation's closure

through several letters, "which state that the subject EEO [equal employment

opportunity] complaints were in fact closed and that there were no active nor

ongoing investigations." CP at 5. These letters are referenced but not included in

the record on appeal.

On February 19, 2015, after the MFR investigation closed, Gipson received

the second installment in response to his records request.^ This installment contained

a series of heavily redacted invoices from the MFR investigation and an exemption

^ There is some discrepancy in the record regarding the date of Gipson's initial records request, with some documents listing the date as November 28, 2014. See, e.g., CP at 52. The variance is not material to the analysis in this opinion, and we use the most commonly referenced date, December 1, 2014. ^ The production of records provided in the first and fourth installments are not at issue in this case.

-4- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

log that explained an additional 69 pages were being withheld as part of an active,

ongoing investigation pursuant to RCW 42.56.250(5). A third installment, received

March 5, 2015, also contained an exemption log listing 298 pages of records

withheld under the same exemption.

On April 22,2015,the County attempted to close request 14-06701 by sending

Gipson an e-mail stating:

All records will have been provided with this fourth installment and this request will be closed. With regard to PRR 14-06701, the County claimed the attorney-client exemption and the exemption identified in RCW 42.56.250(5)for active and on-going investigations into allegations of employment discrimination. At the time your request was received, November 28, 2014, the employment discrimination investigation which was the subject of the request was still active and on-going. These records and the exemptions cited are not govemed by the Court's decision in Predisik [v. Spokane School District No. 81, 182 Wn.2d 896, 346 P.Sd 737(2015)] because the County did not redact or withhold based on either RCW 42.56.230(3) or RCW 42.56.240(1). The County declines to change or remove the exemptions cited and the records withheld or redacted in response to PRR 14-06701.

CP at 139-40. Gipson responded to this e-mail by stating that he had not received a

complete set ofthe documents requested and, as a result, he still considered request

14-06701 to be open. This prompted the County to issue the fifth installment on

May 4, 2015, which contained additional invoices, and to then close the request.

With the release of each installment after the second, the County reasserted

the active and ongoing investigation exemption in RCW 42.56.250(5) and failed to

reevaluate or make any determination as to whether the exemption applied after the

-5- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

investigation was closed. Answer to Pet. for Review at 7. Gipson alleged that he

lost the election in 2015 because he was unable to obtain the requested records in a

timely manner and repudiate a negative article in the Everett Herald regarding the

sexual harassment allegations. Pet. for Review at 18.

In February 2016, Gipson submitted a new request (tracking number

K006705), seeking invoices and other documents from the MFR investigation. At

the initiation of litigation, the County's response to this request was still pending.

Gipson filed the complaint in this case in Kling County Superior Court in April

2016, seeking disclosure ofthe requested records and statutory penalties authorized

by the PRA. In response,the County filed a motion for summary judgment, alleging

that it had the right to rely on RCW 42.56.250(5) in responding to Gipson's initial

records request because the exemption applied on the date the request was received.

The superior court granted summary judgment, concluding that the Court of Appeals

opinion in Sargent I "created a bright line rule that there are no standing requests

and that exemptions are applied as of the date of a request." CP at 397. Gipson

appealed and the Court of Appeals, Division One, affirmed. Gipson v. Snohomish

County, No. 76826-3-1, slip op. at 6-7(Wash. Ct. App. July 9, 2018)(unpublished),

http://www.courts.wa.gov/opinions/pdf/768263.pdf.

-6- Gipson V. Snohomish County,96164-6 (Stephens, J., dissenting)

Gipson petitioned this court for review, asserting that the Court of Appeals

decision reflects an improper extension of the "no standing requests" rule in

Sargent

Washington's PRA is a strongly worded mandate for disclosure of public

records, aimed to ensure the people ofthe state remain informed,"so that they may

maintain control over the instruments that they have created." RCW 42.56.030.

Exemptions under the act must be narrowly construed "to assure that the public

interest will be fully protected." Id. Judicial review of agency actions taken or

challenged under the PRA is de novo. RCW 42.56.550(3). "While agencies have

some discretion in establishing procedures for making public information available,

the provision for de novo review confirms that courts owe no deference to agency

interpretations of the [PRA] but are charged with determining when a duty to

disclose exists and whether a statutory exemption applies." Zink v. City ofMesa,

140 Wn. App. 328, 335, 166 P.3d 738 (2007).

Gipson also raised an equitable estoppel argument in this court based on the County's actions in responding to his records requests. Pet. for Review at 4; Suppl. Br. of Pet'r at 15-20. Because this court has discretion to refuse to review "any claim of error which was not raised in the trial court," RAP 2.5(a), we decline to consider Gipson's equitable estoppel claim.

-7- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

At issue in this case is the County's application of the employment

investigation exemption found in RCW 42.56.250(5). That provision temporarily

exempts "[i]nvestigative records compiled by an employing agency conducting an

active and ongoing investigation of a possible unfair practice under chapter 49.60

RCW or of a possible violation of other federal, state, or local laws prohibiting

discrimination in employment." The plain language of this exemption restricts its

application to active and ongoing investigations; it does not exempt materials

relating to completed investigations. In determining whether an exemption applies,

"[t]he burden ofproofshall 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

42.56.550(1). In my view,the County failed to meet its burden, particularly in light

ofthe PRA's mandate for broad public disclosure.

A. The "No Standing Requests" Rule of Sargent I Does Not Authorize an Agency To Assert an Expired Temporary Exemption To Withhold or Redact Records in Response to a Pending Public Records Request

The PRA does not directly address the question whether an agency may

continue to withhold or redact public records based on an expired temporary

exemption that was effective at the initiation of a records request. No statute

expressly dictates how an agency should implement a temporary exemption if it

-8- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

ceases to apply when the agency is still processing a PRA request. While the PRA

provides agencies with latitude to fill in statutory gaps and "adopt and enforce

reasonable rules and regulations," it mandates that"[s]uch rules and regulations shall

provide for ihQfullest assistance to inquirers and the most timely possible action on

requests for information." RCW 42.56.100 (emphasis added). This statutory

mandate provides the guiding principle for my analysis and conclusion that an

agency may not continue to rely on a temporary exemption beyond the time frame

the legislature has specified.

Today's majority takes a contrary view, expanding the rule against "standing

requests" articulated in Sargent I to cover "voluminous request[s] requiring multiple

installments to fulfill." Majority at 8. It argues that because "many agencies . . .

already deal with an enormous volume of records requests," a rule "[rjequiring [an]

agency to continuously reevaluate a request to determine whether their original

assessment regarding exemptions is still correct... will prove unwieldy." Id. at 10.

So the majority holds that because there was an ongoing employment investigation

when Gipson submitted his records request on December 1, 2014,the County could

continue to assert RCW 42.56.250(5) throughout its disclosure of records in

installments, even with respect to installments not released until several months after

the investigation concluded. Id. at 8.

-9- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

A brief examination ofthe facts in Sargent I is helpful to understand why the

majority's reliance on its "no standing requests" rule is incorrect. In Sargent I, the

primary issue was "whether a request for public records has indefinite effect, such

that after an agency has responded to a request, it must monitor the status of all

records within the request and disclose any that later become subject to disclosure."^

Sargent I, 167 Wn. App. at 6. The case involved two PRA requests (submitted

August 31 and September 1, 2009) for records regarding an altercation between

Evan Sargent and an off-duty Seattle police officer. Id. at 7. Approximately one

week after Sargent submitted his requests, the city responded that his request was

denied because the requested documents were exempt under RCW 42.56.240(1)

(effective law enforcement investigation exemption), and the city suggested that

Sargent resubmit his request in six to eight weeks. Id.

In February, Sargent resubmitted and clarified his request. Id. at 7-8. The

city responded by disclosing some records but again suggested that Sargent resubmit

his request in four to six weeks because it was withholding the officer's disciplinary

file due to an open and active investigation. Id. at 8. The investigation closed in

^ When Sargent I was subsequently considered in this court, the issue was the "proper scope of the effective law enforcement exemption of the [PRA]," specifically whether the exemption applies categorically. Sargent II, 179 Wn.2d at 381. Our opinion contains no discussion of the duration ofthe exemption. See id.

-10- Gipson V. Snohomish County,96164-6 (Stephens, J., dissenting)

April 2010, and at that time, Sargent elected not to submit a new request for the

records. Id.

Sargent contended that his August and September PRA requests remained

pending throughout, so that the city had the burden to "search out and disclose

additional records if the basis for a claimed exemption ceases to apply." Id. at 10.

Relying on a Washington State Bar Association Public Records Act Deskhook

comment indicating the PRA does not provide for '"continuing"' or '"standing"'

requests, the appeals court rejected this argument. Id. at 11; see also WASH. State

Bar Ass'n,Public Records Act Deskbook: WASHmcTON's Public Disclosure

AND Open Public Meetings Laws § 5.1(4), at 5-8 (2d ed. 2014).^ The court

articulated the following rule:"An agency is not required to monitor whether newly

created or newly nonexempt documents fall within a request to which it has already

responded." Sargent 1, 167 Wn. App. at 12(emphasis added).

The main distinction between Sargent I and this case is immediately apparent.

In Sargent I, the city had responded in full and closed the request while the

® Because Sargent I was decided in 2011, the court used the 2006 version of the Washington State Bar Association's Public Records Act Deskbook: Washington's Public Disclosure and Open Public Meeting Laws. Sargent I, 167 Wn. App. at 9 n3. In 2014,the Washington State Bar Association released the second edition of the Public Records Act Deskbook, which replaced the 2006 first edition and the 2010 supplement. To avoid confusion and ensure the most current guidance is considered, unless otherwise noted, all original citations to the Deskbook in this opinion are to the 2014 second edition.

-11- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

investigation was ongoing, and thus its invocation of the exemption was

contemporaneous with its response to the records request. Sargent I, 167 Wn. App.

at 8. In contrast, here,the County elected to provide records in response to Gipson's

PRA request in several installments, and the investigation concluded well before its

response was complete. CP at 47-49, 139-40. Stated differently, Gipson's PRA

request remained "open" from the County's point of view, and it could not say here,

as in Sargent I, that it had "already responded." 167 Wn. App. at 12.

Another distinction between Sargent I and the case at hand highlights the

likely consequences of the majority's decision. In Sargent I, the city responded to

the PRA request by asserting the exemption and recommending a timeline for the

requester to resubmit his request. Upon resubmittal, the city provided some records

and asserted different applicable exemptions for certain records that remained

undisclosed. Sargent I, 167 Wn. App. at 7-9. Here, in contrast, the County

acknowledges that, even though it compiled and produced some installments of

records after the conclusion of the investigation, it never reevaluated Gipson's

request or made any new determination as to which exemptions applied. Answer to

Pet. for Review at 7. The County simply relied on SargentI to assert any exemptions

that applied on December 1, 2014. Going forward, other government agencies may

well rely on today's decision to avoid disclosing records that were temporarily

-12- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

exempted at the time a request was received, even though they know the exemption

does not apply at the time of disclosure. This result runs counter to the PRA's direct

command to construe its provisions liberally and its exemptions narrowly. RCW

42.56.030.

Today's majority disregards this command and instead adopts the broad

reading ofSargent I suggested in some secondary authorities. Id. For example, the

Public Records Act Deskbook, relied on by the appeals court in Sargent I, reads the

PRA as allowing agencies to determine their obligations based on the date a request

is first received. See Public Records ActDeskbook § 5.1(4), at 5-8. Even so,the

Deskbook advises agencies to disclose records once a temporary exemption expires:

[§ 5.1](4) Only existing records may be requested ... A requestor cannot make a "standing request" for records that may become available in the future. Sargent v. Seattle Police Dep't, 167 Wn. App. 1, 260 P.2d 1006 (2011), ajfd in part, rev'd in part on other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013). Likewise, the determination of whether a record is exempt is made at the time the request is received. If, for example, a temporal exemption expires after the request is made,the agency is not required to produce the record; but the record must be identified on an exemption log, and as a practical matter it may be advisablefor the agency to produce the record ifit has not yet closed the request.

Id.(emphasis added).

-13- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

Similarly, the attorney general's model rules^ suggest a broad reading of

Sargent I, at least insofar as responding to requests in the context of existing versus

future-acquired records:

WAC 44-14-04004(4)(a) When the agency does not have the record. An agency is only required to provide access to public records it has or has used. An agency is not required to create a public record in response to a request. An agency must only provide access to public records in existence at the time of the request. An agency is not obligated to supplement responses. Therefore,ifa public record is created or comes into the possession of the agency after the request is received by the agency, it is not responsive to the request and need not be provided. A requestor must make a new request to obtain subsequently created public records.

(Footnote omitted.)

While it stands to reason that agencies might rely on such guidance to

essentially "freeze" their obligations on the date a request is received, I believe this

reflects an inappropriately broad reading ofSargent Fs "no standing requests" rule.

Though deskbooks, WACs,and decisions ofthe Court of Appeals may be persuasive

^ The PRA states that [t]he attomey general, by February 1, 2006, shall adopt by rule advisory model rules for state and local agencies, as defined in RCW 42.56.010, addressing the following subjects: (a) Providing fullest assistance to requestors; (b) Fulfilling large requests in the most efficient manner; (c) Fulfilling requests for electronic records; and (d) Any other issues pertaining to public disclosure as determined by the attomey general. RCW 42.56.570(2).

-14- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

to this court, none can overcome the PRA's express mandate to provide "thefullest

assistance to inquirers and the most timely possible action on requests for

information." RCW 42.56.100 (emphasis added). By relying on these nonbinding

sources of authority, today's majority undemiines the PRA's "strongly worded

mandate for broad disclosure of public records." Hearst Corp.,90 Wn.2d at 127.

Instead, I would take this opportunity to clarify the limited reach of Sargent

I's rule: it does not reduce an agency's disclosure obligations while an open public

records request is being fulfilled. The basic principle that "[a]n agency is not

required to monitor whether newly created or newly nonexempt documents fall

within a request to which it has already responded^ should remain good law.

Sargent I, 167 Wn. App. at 12(emphasis added). However, this rule's application

ought to be limited to the time period following an agency's completed response,

when the agency and the requester consider the request to be closed.

Because this case involves an open PRA request where the County was in the

process of responding, its practices must adhere to the overarching mandate of the

PRA:to "provide for thefullest assistance to inquirers and the most timely possible

action on requests for information." RCW 42.56.100 (emphasis added). As I

explain below, this mandate precluded the County from continuing to assert the

temporary employment investigation exemption beyond the time frame authorized

-15- Gipson V. Snohomish County, 96164-6(Stephens, J., dissenting)

in the exemption itself. The exemption applies only when an agency is "conducting

an active and ongoing investigation." RCW 42.56.250(5). Once the MFR

investigation concluded, the PRA obligated the County to reevaluate Gipson's

unfulfilled request rather than to reassert the expired exemption as if it were still

applicable.

B. Because the County Was Required by the PRA To Provide the "Fullest Assistance" and Take the "Most Timely Action" on Gipson's Public Records Request, It Could Not Assert RCW 42.56.250(5) as a Basis To Withhold Records after the MFR Investigation Concluded

The employment investigation exemption in RCW 42.56.250(5) is self-

limiting. It authorizes withholding "[i]nvestigative records compiled by an

employing agency conducting an active and ongoing investigation of a possible

unfair practice under chapter 49.60 RCW or of a possible violation of other federal,

state, or local laws prohibiting discrimination in employment." RCW 42.56.250(5).

Because the legislature has carefully delineated the temporal scope of this

exemption, neither courts through their decisions nor agencies through their

implementation ofthe PRA may expand it. Instead, our responsibility is to interpret

the exemption narrowly to align with the PRA's mandate that agencies provide the

"fullest assistance" and take "the most timely possible action" in response to public

records requests. RCW 42.56.100. While I am not insensitive to the administrative

efficiencies that may be served by allowing agencies to identify a "date certain" for

-16- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

purposes of planning large-scale public record responses, the PRA places a high

value on providing the fullest and most timely disclosure to requesters.

Agencies are certainly free to map out their plan for responding to a records

request based on the date a request is received, and they may, of course, elect to

disclose responsive records in multiple installments over time. As part of providing

full assistance and a timely response to public records requests, agencies are

expected to communicate with requesters and articulate the basis for any asserted

exemptions. Communications between the requester and the agency are essential so

that the agency can fulfill a PRA request in the most complete and efficient manner

possible. When circumstances change during the time a public records request is

being processed, the PRA contemplates that agencies will take a service-oriented

approach in communicating with the requester. In some instances,the requester may

elect to proceed with the original request, even though this may result in receiving

partial or redacted information. In other cases, the requester may prefer to make a

new request. Either way, the PRA requires agencies to follow a process that best

serves the public policy of open government.

The problem in this case is that the County continued to assert the exemption

in RCW 42.56.250(5) as if the employment investigation were active and ongoing,

rather than communicating with Gipson and reevaluating its response to his public

-17- Gipson V. Snohomish County, 96164-6 (Stephens, J., dissenting)

records request. This was not a "standing request," as in Sargent I, but an active,

open request to which the County was still responding. By its plain terms, the

temporary employment investigation exemption expired once the MFR investigation

concluded and no longer provided a basis for the County to withhold records in

response to Gipson's pending request.

Clear communication between agencies and public records requesters is

essential to fulfilling the objectives of the PRA and ensuring that the citizens of

Washington "maintain control over the instruments that they have created." RCW

42.56.030. Today's majority errs by extending the "no standing requests" rule of

Sargent I to justify the County's assertion of an expired temporary exemption under

RCW 42.56.250(5)as a basis for withholding public records. While I appreciate the

logistical challenges agencies face in responding to public records requests, the law

prioritizes public disclosure over government convenience and compels "the fullest

assistance to inquirers and the most timely possible action on requests for

information," RCW 42.56.100. Out of respect for PRA's broad mandate of public

disclosure, I respectfully dissent.

-18- Gipson V. Snohomish County,96164-6 (Stephens, J., dissenting)

-19-