Isabelle Bichindaritz v. University Of Washington

• Court: Court of Appeals of Washington
• Decided: February 17, 2015
• Docket: 70992-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ISABELLE BICHINDARITZ, an ] individual, ) (O or'-

No. 70992-5-1 cj-> -:Ho\ Respondent, j DIVISION ONE v.

UNIVERSITY OF WASHINGTON, w? : 3-- co '-:-:"; Appellant, ) UNPUBLISHED OPINION

and j FILED: February 17, 2015

ORLANDO BAIOCCHI, an individual,

Defendant. j

Becker, J. —This is an appeal from a judgment in a Public Records Act

case imposing a large penalty and award of attorney fees against the University

of Washington. We reverse.

The dispute arose from the University's decision to deny tenure to Isabelle

Bichindaritz, Ph.D., a former professor at the University's Tacoma Institute of

Technology.

On September 9, 2009, Bichindaritz e-mailed a request to the University's

Office of Public Records seeking "a complete copy of all of my personnel files

and public records at the University of Washington, at the University of No. 70992-5-1/2

Washington Tacoma, and at the Institute of Technology." The request also

sought copies of "every email related to me (Isabelle, Isabelle Bichindaritz)

among all the people involved below" and went on to list approximately 96

different university employees.

The University received Bichindaritz's request on September 10, 2009,

and responded by letter 5 business days later. The letter estimated that it would

take approximately 25 business days to assemble and process the responsive

documents relating to Bichindaritz's request; that records would be made

available "on a rolling production basis to avoid unnecessary delay"; and that

Bichindaritz would be notified if the University needed additional time to locate,

review, or assemble documents. The director of the University's Office of Public

Records immediately began to locate and assemble responsive documents by

contacting University faculty. If she did not receive a response from a faculty

member, she followed up on her original request by e-mail.

By the end of October 2009, all responsive documents—totaling

approximately 25,000 pages—had been assembled. The University then began

to review the records and to redact information that was exempt from disclosure

under state and federal law. This proved to be a time-consuming process, and

the University notified Bichindaritz several times that the estimated production

date would have to be pushed back. In six stages during the 14 months between

October 13, 2009, and December 9, 2010, the University provided Bichindaritz

with some 13,000 pages of documents that had been reviewed and in some

cases redacted. No. 70992-5-1/3

Meanwhile, on March 11, 2010, Bichindaritz filed an administrative

complaint alleging sex discrimination, retaliation, and national origin

discrimination by the University.

On June 15, 2010, the University terminated Bichindaritz.

As of July 30, 2010, there were still 12,000 pages awaiting review—about

half of the documents assembled in response to her request. Finding of Fact

1.19.

On August 25, 2010, Bichindaritz filed a gender discrimination lawsuit

against the University in federal court.

On December 9, 2010, the University produced stage 6 with a letter

indicating that the production was still "partial."

On January 31, 2011, the University informed Bichindaritz that her request

would be closed if she did not view or pick up the stage 6 documents by

February 7, 2011.

On February 7, 2011, Bichindaritz directed the University to close her

request. According to Bichindaritz, counsel advised her that the documents

would be obtained through discovery in the federal lawsuit. The University

closed the request and stopped processing the remaining documents.

According to Bichindaritz, the discovery process in federal court was

unsatisfactory. On June 6, 2011, a day after the federal court discovery deadline

passed, she asked the University to resume processing the remaining

documents related to her September 2009 public records request. The

University estimated that the remaining documents would be available by July No. 70992-5-1/4

20, 2011. After several e-mails notifying her that additional time would be

necessary, the University disclosed the final 12,000 pages in four stages

between August 15, 2011, and November 15, 2011. With the last stage, the

University produced a 12-page privilege log.

On February 14, 2012, with her trial in federal court two months away,

Bichindaritz filed suit against the University in superior court, asserting civil rights

claims under Washington law.

On February 23, 2012—a date significant to the statute of limitations issue

in this appeal—she amended her complaint to add a cause of action under

Washington's Public Records Act, chapter 42.56 RCW, for failing to provide

documents in a timely manner between September 9, 2009, and November 15,

2011.

On April 20, 2012, after a bench trial, judgment was entered against

Bichindaritz in her federal lawsuit.

On July 16, 2012, the trial court in this matter dismissed Bichindaritz's civil

rights claims as barred by res judicata and collateral estoppel.

The order of July 16, 2012, also dismissed "all claims associated with or

arising from the University's response to Plaintiff's September 9, 2009 public

records act request" as time barred under the one-year statute of limitations in

RCW 42.56.550. This time bar applied to the University's response to the initial

request that was closed on February 7, 2011. It did not bar suit on any violations

committed by the University when it resumed the processing of documents on

June 6, 2011, because that date was within one year before February 23, 2012. No. 70992-5-1/5

On July 1, 2013, the superior court ordered the University to respond to a

request for production of 485 pages of documents that Bichindaritz believed had

been improperly redacted. On July 13, 2013, the University submitted a

memorandum explaining that 384 of those pages had not been redacted, 58 of

those pages had already been provided in response to Bichindaritz's 2009

request, and the remaining pages had been properly redacted. On August 2,

2013, after reviewing 43 documents in camera, the trial court released a number

of e-mails that the court determined had been improperly redacted.

The trial court then held a trial by affidavit as allowed by RCW 42.56.550

and ruled against the University. The court entered extensive findings and

conclusions adapted from a set proposed by Bichindaritz. The court was

particularly troubled by the redaction of an e-mail that had been sent from one

professor to another on January 11, 2008, during the tenure decision process. It

had been provided to Bichindaritz in redacted form on November 3, 2011. The

redacted portion stated, "I believe that the nursing person made the comments

about gender. The nursing person who was on Isabelle's committee hinted that

we might be picking on Isabelle's teaching because she was a woman."

Bichindaritz believed this e-mail might have provided critical support for her

gender discrimination lawsuit in federal court if she had obtained it in unredacted

form before trial.

The superior court ultimately determined that the University violated the

Public Records Act by waiting until the end of 2011 to produce the 12,000

documents "that were assembled and ready for distribution by October 2009." No. 70992-5-1/6

Clerk's Papers at 1149. The court concluded that the University acted in bad

faith with a self-serving motive to delay production long enough so the records

would not be available for use in Bichindaritz's federal lawsuit. Conclusion of

Law 2.7; Conclusion of Law 2.17. The court imposed a $723,290.50 penalty

($0.50 per page for each day of delay after June 7, 2011) and awarded

Bichindaritz $102,958.03 in attorney fees. The University appeals.

The parties agree that de novo review is appropriate for the interpretation

and construction of the Public Records Act. Bichindaritz, however, contends that

the findings of fact should be reviewed for substantial evidence. See West v.

Wash. State Dep't of Natural Res.. 163 Wn. App. 235, 245, 258 P.3d 78 (2011),

review denied, 173 Wn.2d 1020 (2012); Marriage of Rideout, 150Wn.2d337,

350-51, 77 P.3d 1174 (2003).

As indicated by RCW 42.56.550(3), review of a trial court's decision in a

Public Records Act matter is generally de novo. Fisher Broad .-Seattle TV LLC v.

City of Seattle. 180 Wn.2d 515, 522, 326 P.3d 688 (2014) ("Our review of both

the agency action and the court opinions below is de novo.") Whether the more

deferential review of findings of fact for substantial evidence is proper to apply in

a public records case where facts are in dispute need not be decided in this

case. Here there is no factual dispute about what the documents say and when

they were disclosed. The dispositive issue is whether the trial court erred by

faulting the University for taking five months to deliver the final 12,000 documents

after Bichindaritz renewed her request on June 6, 2011. Conclusion of Law 2.17

("By reactivating the 2009 PDA request on June 6, 2011, plaintiffs request could No. 70992-5-1/7

have been met the next day, June 7, 2011, given completed assembled

documents"); Conclusion of Law 2.21.

The University agrees that all documents responsive to Bichindaritz's

request had been assembled by the end of October 2009 and remained in that

state when Bichindaritz reactivated her request on June 6, 2011. What the

University challenges is the court's conclusion that as soon as the documents

were assembled, they were ready to be produced.

The University is right. While the statute requires that responses to

requests for public records shall be made "promptly," it also expressly recognizes

that an agency may need additional time to determine whether any part of the

information requested is exempt:

Additional time required to respond to a request may be based upon the need to . . . determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.

RCW 42.56.520. By the time Bichindaritz closed her 2009 request in February

2011, the University had assembled about 25,000 pages but had reviewed only

about half of them for applicable exemptions. It was unreasonable to expect the

University to produce the remaining 12,000 pages the same day Bichindaritz

reopened her request simply because it had already assembled those

documents.

Bichindaritz does not argue otherwise. In fact, the record reflects her

recognition that review and redaction of records is a time-consuming process

separate from assembling them. The University's first set of interrogatories

asked Bichindaritz, among other things, to identify what would have been a No. 70992-5-1/8

reasonable estimate of time to produce the records referred to in her public

records request. Bichindaritz answered by observing that the last half (the

12,000 pages) had been processed within 6 months, whereas the production of

the first half had been "spread in time over approximately one year and half. It

seems to me that a reasonable estimate would be 6 months from the date of

request." Clerk's Papers at 1413, 1415. In other words, Bichindaritz admitted

the last 12,000 pages were timely produced and that she was only complaining

about the amount of time it took the University to deliver the first six stages—the

14 months following her initial request in September 2009.

Bichindaritz contends that the finding of a delay that violated the Public

Records Act should be sustained on the basis that 14 months was unreasonable.

But delays during that 14-month period occurred more than one year before

February 23, 2012, the date Bichindaritz filed suit under the Act. Therefore they

may not be considered in deciding whether the University violated the Public

Records Act, as such claims are time barred under the one-year statute of

limitations in RCW 42.56.550. The trial court so ruled in the order of partial

summary judgment entered on July 16, 2012. The trial court never modified that

order, although asked by Bichindaritz to do so. As can be seen by comparing the

findings and conclusions proposed by Bichindaritz with the findings and

conclusions actually entered by the trial court, Bichindaritz wanted the trial court

to withdraw that interlocutory order of partial summary judgment. But the trial

court deleted from its findings and conclusions the language proposed by

Bichindaritz. Compare Clerk's Papers at 1139-40 (Conclusion of Law 2.1) and

8 No. 70992-5-1/9

Clerk's Papers at 1149 ("Conclusion") with Clerk's Papers at 2016-17 (Proposed

Conclusions of Law 2.2, 2.3) and Clerk's Papers at 2028 (Proposed Conclusion

2.27.2.) See also Clerk's Papers at 2347, 2371 (plaintiff's trial brief requesting

reconsideration of the order on partial summary judgment). The unappealed

order of partial summary judgment remains in effect as a conclusion of law

precluding redress of violations that may have occurred before February 23,

2011. The court's findings and conclusions discuss delays in the initial six stages

of production (2009-2010), but only as an aggravating factor for the penalty. The

court decided a violation had occurred based only on the five-month production

of the final 12,000 pages between June and November 2011. And as discussed

above, that finding of violation rests on the unsustainable assumption that

documents are ready to be produced as soon as they are assembled.

Bichindaritz suggests that the finding of violation can be sustained on the

basis that the University "repeatedly missed production deadlines." The

University did miss several self-imposed deadlines between June 2011 and

November 2011. But the Act only demands that agencies provide reasonable

estimates for production. Forbes v. City of Gold Bar. 171 Wn. App. 857, 864,

288 P.3d 384 (2012) ("The operative word is 'reasonable.'"), review denied. 177

Wn.2d 1002 (2013). The Act does not necessarily require an agency to comply

with its own self-imposed deadlines. The question is whether the agency "was

acting diligently in responding to the request in a reasonable and thorough

manner." Hobbs v. State. Wn. App. , , 335 P.3d 1004, 1011 (2014).

Bichindaritz does not argue, and the record does not indicate, that the University No. 70992-5-1/10

was less than diligent in completing the review and redaction of the final 12,000

pages. Indeed, as noted above, Bichindaritz admitted in discovery that six

months was a reasonable time.

Bichindaritz cites Violante v. King County Fire District No. 20. 114 Wn.

App. 565, 570-71, 59 P.3d 109 (2002). But the Violante court was concerned

with an agency that tried to excuse its nonresponsiveness on the basis that the

requester had other means of access to the documents. Violante does not

suggest that an agency's failure to meet its own estimated date of production

automatically violates the Public Records Act.

A more useful precedent is West v. Department of Licensing. 182 Wn.

App. 500, 331 P.3d 72, review denied. 339 P.3d 634 (2014). West alleged that

the Department had violated the Public Records Act by failing to reasonably

search for, identify, and produce records related to motor vehicle fuel tax

payments to Indian tribes. The Department responded in installments and not

always within its estimates of time needed. After nine months, the Department

had delivered almost 50,000 pages and still had as many as 10,000 pages to

review. The trial court entered summary judgment for the Department. This

court affirmed, recognizing that when a request for records is broad in scope and

the number of responsive records is substantial, an agency must be allowed time

to review the records "to determine whether they were responsive and whether

they should be produced, disclosed, redacted, or withheld." West, 182 Wn. App.

at 512.

10 No. 70992-5-1/11

Bichindaritz does not refute the University's assertion that locating and

assembling the responsive documents was only the beginning; reviewing and

redacting them was the time-consuming part of the process. Bichindaritz does

not meaningfully distinguish this case from West. The trial court did not

conclude, and neither do we, that the University was disingenuous when it

advised her that the process was taking more time than originally estimated.

The trial court erred in concluding that the University violated the Act. It is

unnecessary to address other issues discussed in the briefs. Those issues

include: whether a penalty can be imposed on a per-page basis as opposed to

per-record; whether this court should take judicial notice of the federal court's

ruling that the nondisclosure of the "nursing person" e-mail was immaterial;

whether the University's request for an evidentiary hearing should have been

granted; whether the 12,000 pages should have been grouped as a single "public

record" when calculating the penalty; whether the trial court erred in imposing

post-judgment interest on the penalty; and whether the award of attorney fees is

sufficiently supported by meaningful findings and conclusions.

We reverse the judgment for the penalty of $723,290.50 and the judgment

for attorney fees and costs.

^yACed, WE CONCUR:

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