Filed Washington State Court of Appeals Division Two
February 18, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMIE NIXON, a public records requestor, No. 60265-2-II
Appellant,
v.
STATE OF WASHINGTON, a public UNPUBLISHED OPINION agency; and its WASHINGTON STATE public agencies: DEPARTMENT OF AGRICULTURE (“WSDA”); DEPARTMENT OF ENTERPRISE SERVICES (“DES”); DEPARTMENT OF FISH AND WILDLIFE (“DFW”); DEPARTMENT OF LICENSING (“DOL”); DEPARTMENT OF HEALTH (“DOH”); DEPARTMENT OF SERVICES FOR THE BLIND (“DSB”); DEPARTMENT OF TRANSPORTATION (“DOT”); ARTS COMMISSION (“ARTS”); COMMISSION ON AFRICAN AMERICAN AFFAIRS (“CAAA”); COMMISSION ON ASIAN PACIFIC AMERICAN AFFAIRS (“CAPAA”); COMMISSION ON HISPANIC AFFAIRS (“CHA”); COMMISSION ON SALARIES (“COS”) No. 60265-2-II
BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS, (“BRPELS”); BOARD OF TAX APPEALS (“BTA”); RECORDS AND RETENTION TECHNICAL COMMITTEE (“Records Committee”); CASELOAD FORCAST COUNCIL (“CFC”); HEALTH CARE AUTHORITY (“HCA”); LABOR AND INDUSTRIES (“LNI”); LAW ENFORCEMENT OFFICERS’ AND FIREFIGHTERS’ PLAN 2 RETIREMENT BOARD (“LEOFF”); OFFICE OF CIVIL LEGAL AID (“OCLA”); PUGET SOUND PARTNERSHIP (“PSP”); RECREATION AND CONSERVATION OFFICE (“RCO”); SECRETARY OF STATE, (“SOS”); STATE ARCHIVIST; STATE AUDITOR’S OFFICE “(SAO”); WASHINGTON MILITARY DEPARTMENT (“MIL”); WASHINGTON STATE PARKS (“PARKS”); WASHINGTON RECORDS AND INFORMATION MANAGERS (“WARIM”); WASHINGTON STATE INSTITUTE FOR PUBLIC PARTICIPATION (“WSIPP”); WASHINGTON STUDENT ACHIEVEMENT COUNCIL (“WSAC”); WASHINGTON TECHNOLOGY SOLUTIONS (“WaTech”); WASHINGTON TRAFFIC SAFETY COMMISSION (“WTSC”); and JANE and JOHN DOE AGENCIES 1- 100,
Respondents.
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MAXA, J. – Jamie Nixon appeals the trial court’s grant of a CR 12(b)(6) motion to dismiss
his lawsuit against the State of Washington and nearly all the State’s administrative agencies
(collectively, the State). Nixon’s lawsuit challenged the State’s determination that internal digital
chats can be deleted after seven days rather than retained for a longer period like many public
records.
The State uses Microsoft Office 365 as a digital platform for various software services.
Part of Microsoft Office 365 is Microsoft Teams, which allows for instant messaging and other
communications. The State determined that Teams chats, which it considers transitory records,
will be retained for only seven days and then automatically deleted.
Nixon’s lawsuit asserted claims under the Uniform Declaratory Judgments Act (UDJA),
chapter 7.24 RCW, and sought a writ of mandamus, alleging that the State’s policy of retaining
Teams messages for only seven days violated various state laws. The trial court dismissed
Nixon’s UDJA claim under CR 12(b)(6) because it was not justiciable and because Nixon lacked
standing. The trial court also ruled that Nixon’s petition for a writ of mandamus was not
actionable.
We hold that (1) Nixon’s UDJA claims are not justiciable, (2) Nixon’s UDJA claims do
not present a matter of substantial public interest such that the court should consider them despite
the lack of justiciability, and (3) Nixon’s writ of mandamus claim fails as a matter of law.
Accordingly, we affirm the trial court’s dismissal of Nixon’s UDJA and writ of mandamus
claims.
FACTS
Because Nixon’s appeal comes to this court on a CR 12(b)(6) motion to dismiss, we rely
on the allegations in Nixon’s amended complaint and assume the truth of those allegations.
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Wiklem v. City of Camas, 31 Wn. App. 2d 575, 585, 551 P.3d 1067 (2024), review denied, 4
Wn.3d 1002 (2025).
Washington Technology Solutions (WaTech) is a state agency that acts as a “centralized
provider and procurer of certain information technology services as an agency to support the
needs of state agencies.” RCW 43.105.006. WaTech offers technology services for state
agencies, including the implementation and updating of information technology platforms and
services.
WaTech hosts Microsoft Office 365 software as its main software platform for state
agencies and implemented its use statewide. Microsoft Office 365 includes the platform called
“Teams.” Teams has a chat function that allows for digital messaging between agency
computers. This includes audio, video, and written messaging.
A records retention schedule approved by the state records committee1 discusses
transitory records, which are “records created or received by the agency which are typically of
short-term, temporary informational use.” Clerk’s Papers (CP) at 399. Transitory records are to
be retained “until no longer needed for agency business [and] then destroy[ed].” CP at 399.
The State engaged in numerous discussions across agencies about the preservation of
Teams chats and transitory records. WaTech ultimately implemented a retention policy for
Teams chats. Teams chats are retained for seven days and then automatically deleted.
Individual agencies can retain Teams chats for longer than seven days if the agency wishes. An
agency may not have a retention period for Teams chats shorter than seven days.
1 The state records committee was created by RCW 40.14.050, and one of its duties is “to approve, modify or disapprove the recommendations on retention schedules of all files of public records.”
4 No. 60265-2-II
Procedural History
In 2023 and 2024, Nixon made public record requests to four state agencies seeking the
production of certain documents, including Teams messages. The agencies were the Department
of Agriculture, the Department of Transportation, the Department of Fish and Wildlife, and the
Department of Health.
In response to Nixon’s public record request for Teams chats for a seven day period, the
Department of Fish and Wildlife stated that there were likely no responsive Teams chats because
the chats are deleted after seven days.
In May 2024, Nixon filed a lawsuit against the State “by and through its agencies.” CP at
3. In response to a motion to dismiss, Nixon amended his complaint to name the State and all its
agencies individually. Nixon also incorporated by reference his declarations and appendices
from his original complaint into his amended complaint. Nixon named 33 agencies, including
the four agencies that received his public record requests, and “Jane and John Doe Agencies 1-
100.” CP at 514. The amended complaint referenced the record requests to the four agencies.2
Nixon asserted claims against the State under the UDJA and also sought a writ of
mandamus. In addition, Nixon asserted claims under the Public Records Act (PRA), chapter
42.56, against the four agencies who received Nixon’s public record requests and the Open
Public Meetings Act (OPMA), chapter 42.30 RCW, against WaTech and other agencies.
Under the UDJA, Nixon sought a declaration that (1) the State’s “automated destruction
of public records from chat platforms violates retention standards for public records and state
2 At oral argument, Nixon’s counsel claimed that Nixon had sent PRA requests to almost all of the defendants. Although the amended complaint states that Nixon made PRA requests to other agencies for information about retention policies, his causes of action only reference four records requests regarding Teams chats.
5 No. 60265-2-II
statute,” (2) the State “has been automatically destroying public records sought in response to
[Nixon’s] public records requests,” (3) “the automated destruction practice without a Records
Committee hearing and approving the practice violates state records management requirements,”
and (4) the “automated destruction of public records without oversight and application of content
based retention standards violates the PRA.” CP at 411-12. Nixon also alleged that his
“constitutional right to hold public officials accountable and to stay informed about the actions of
elected officials has been compromised from [the State’s] actions.” CP at 412. Unlike his PRA
claim, Nixon’s UDJA claims do not mention the withholding of any records by the four agencies.
Nixon sought a writ of mandamus compelling the State “to cease the automated
destruction of public records with retention value and to preserve chats that are not transitory and
chats that may be of nominal retention value but are still responsive to public records requests
like [Nixon’s].” CP at 412.
The State filed a motion to dismiss Nixon’s non-PRA claims under CR 12(b)(6). The
State argued that Nixon’s UDJA claims were not justiciable and that he lacked standing. The
State also argued that Nixon could not establish a right to mandamus relief because the State had
no mandatory duty to act with respect to record retention schedules.
The trial court granted the State’s CR 12(b)(6) motion to dismiss. Regarding Nixon’s
UDJA claims, the trial court ruled that Nixon’s claims were not justiciable because the attempt to
enforce state record retention laws raised only theoretical rights. The court also ruled that the
PRA does not provide Nixon with a general right to enforce retention requirements. And to the
extent that Nixon was seeking to enforce the PRA’s document retention provision in RCW
42.56.100, the court ruled that the UDJA does not apply because there is an available remedy
under the PRA. Finally, the court ruled that Nixon lacked standing to bring a UDJA claim to
6 No. 60265-2-II
enforce record retention laws because he did not fall within the zone of interests regulated by
record retention laws and he had not suffered an injury in fact.
Regarding Nixon’s writ of mandamus claim, the trial court ruled that Nixon could not
show that the State was under a “clearly defined, mandatory, nondiscretionary duty to take any of
the actions” Nixon sought to compel through a writ of mandamus. CP at 547. The court also
ruled that Nixon did not have an interest in document retention policies beyond that of other
citizens.3
Regarding Nixon’s PRA claims, the trial court granted the motion to dismiss regarding
the Department of Transportation and denied the motion regarding the Department of
Agriculture, the Department of Fish and Wildlife, and the Department of Health.4 However, the
trial court directed entry of a final judgment under CR 54(b) regarding Nixon’s UDJA and writ of
mandamus claims.
Nixon appeals the trial court’s dismissal of his UDJA and writ of mandamus claims.
ANALYSIS
A. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a CR 12(b)(6) motion to dismiss. Wiklem, 31
Wn. App. 2d at 584. “We assume the truth of the allegations in the plaintiff’s complaint and may
consider hypothetical facts not included in the record.” Id. “Dismissal is appropriate where it
appears beyond doubt that a plaintiff will be unable to prove any set of facts that would justify
recovery.” Id.
3 The court also dismissed Nixon’s OPMA claims. Nixon does not appeal the trial court’s dismissal of his OPMA claims or his claim for injunctive relief. 4 Nixon’s agency-specific PRA claims are not at issue in this appeal.
7 No. 60265-2-II
Nixon attached a declaration and other documentary evidence to his complaint, which
generally converts a CR 12(b)(6) motion to a summary judgment motion under CR 56. Id.
However, review of a CR 12(b)(6) motion that incorporates external documents attached to a
pleading does not need to be treated as a summary judgment motion where the “operative facts
are undisputed and the core issue is one of law.” Ortblad v. State, 85 Wn.2d 109, 111 530 P.2d
635 (1975).
Here, Nixon’s appeal requires interpretation and application of straightforward issues of
law regarding justiciability and mandamus relief. The parties do not dispute the relevant facts
regarding the State’s record retention policies. And neither party argues that we should apply the
summary judgment standard of review to this appeal. Accordingly, we review Nixon’s appeal
under the CR 12(b)(6) standard.
B. RELEVANT STATUTES
1. Records Retention Act
The Records Retention Act (RRA), chapter 40.14 RCW, provides the requirements for
retention, preservation, and destruction of records by state agencies. RCW 40.14.020 states that
public records “shall be preserved, stored, transferred, destroyed or disposed of, and otherwise
managed, only in accordance with the provisions of this chapter.”
RCW 40.14.020(1) requires the State Archivist to manage state archives and records.
RCW 40.14.020(3) requires the archivist to “inspect, inventory, catalog, and arrange retention
and transfer schedules on all record files of all state departments and other agencies of state
government.”
RCW 40.14.050 creates a records committee, which has a duty to “approve, modify or
disapprove the recommendations on retention schedules of all files of public records and to act
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upon requests to destroy any public records.” RCW 40.14.050. Destruction of public records
must be done according to a retention schedule approved by the records committee. RCW
40.14.060(1).
The State Government General Records Retention Schedule, Version 6.3, “was approved
by the State Records Committee in accordance with RCW 40.14.050 on October 2, 2024.”
WASH. ST. ARCHIVES, WASH. SEC’Y OF ST., STATE GOVERNMENT GENERAL RETENTION
SCHEDULE (RETENTION SCHEDULE) 1 (version 6.3, Oct. 2024),
https://www.sos.wa.gov/sites/default/files/2025-06/state-government-general-records-retention-
schedule.pdf. This document contains retention schedules for various public records.
The retention schedule contains a section entitled “Records With Minimal Retention
Value (Transitory Records),” which “covers records created or received by the agency which are
typically of short-term, temporary informational use.” RETENTION SCHEDULE at 133. Under that
section is the directive “Retain until no longer needed for agency business then Destroy” for the
following records:
Informational Notifications/Communications
Records communicating basic/routine short-term information (regardless of format or media used) that: • Do not document agency decisions/actions; • Are not used as the basis of agency decisions/actions; and • Are not covered by a more specific records series.
Includes, but is not limited to: • Basic messages such as “Come and see me when you’re free,” “Call me back at (360) 555-5555,” etc. • Internal communications notifying of staff absences or lateness (such as “Bob is out today,” “Mary is running late,” etc.), . . . ; • Internal communications notifying of staff social events/gatherings (such as potlucks, birthdays, fun runs, cookies in the break room, etc.) or of weather/traffic
9 No. 60265-2-II
conditions (such as “Avoid I-5, it’s a parking lot,” “Take care – it has started snowing,” etc.); • Email delivery/read receipts, out-of-office notices, etc.
RETENTION SCHEDULE at 137.
2. Chapter 40.16 RCW
RCW 40.16.010 states in part,
Every person who shall willfully and unlawfully remove, alter, mutilate, destroy, conceal, or obliterate a record, map, book, paper, document, or other thing filed or deposited in a public office, or with any public officer, by authority of law, is guilty of a class C felony.
RCW 40.16.020 states in part,
Every officer who shall mutilate, destroy, conceal, erase, obliterate, or falsify any record or paper appertaining to the officer’s office, or who shall fraudulently appropriate to the officer’s own use or to the use of another person, or secrete with intent to appropriate to such use, any money, evidence of debt or other property intrusted to the officer by virtue of the officer’s office, is guilty of a class B felony.
3. Public Records Act
The PRA presents a mandate for the broad disclosure of public records. Green v. Pierce
County, 197 Wn.2d 841, 850, 487 P.3d 499 (2021). Courts must take into account the policy that
“free and open examination of public records is in the public interest.” RCW 42.56.550(3).
RCW 42.56.030 states in part,
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.
RCW 42.56.100 states,
Agencies shall adopt and enforce reasonable rules and regulations. . . consonant with the intent of this chapter to provide full public access to public records, to protect public records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency . . . . Such rules and regulations shall provide for the fullest assistance to inquirers and the most timely
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possible action on requests for information. Nothing in this section shall relieve agencies . . . from honoring requests received by mail for copies of identifiable public records.
If a public record request is made at a time when such record exists but is scheduled for destruction in the near future, the agency . . . shall retain possession of the record, and may not destroy or erase the record until the request is resolved.
(Emphasis added.)
RCW 42.56.550(1) states in part,
Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records.
C. UDJA CLAIM
Nixon argues that the trial court erred when it dismissed his UDJA claim based on the
ruling that the claim was not justiciable and that he lacked standing. We disagree.
1. UDJA Provisions
The UDJA provides courts with the authority to declare rights, status, and other legal
relations through a declaratory judgment. RCW 7.24.010. RCW 7.24.020 states that a person
whose “rights, status or other legal relations are affected by a statute” may seek a judicial
determination regarding the “construction or validity arising under the . . . statute.” 5
A court may also declare rights where a “judgment or decree will terminate the
controversy or remove an uncertainty.” RCW 7.24.050. But a “court may refuse to render or
5 It could be argued that Nixon’s claim is outside the scope of the UDJA because it does not involve the “construction or validity arising under [a] . . . statute.” RCW 7.24.020; see Bainbridge Citizens United v. Dep’t of Nat. Res., 147 Wn. App. 365, 374-75, 198 P.3d 1033 (2008) (holding that a declaratory judgment is not an available remedy when there is no question regarding construction of validity of a regulation and the only claim is that an agency improperly applied or administered the regulation). But the State does not make this argument, so we do not address it.
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enter a declaratory judgment or decree where such judgment or decree, if rendered or entered,
would not terminate the uncertainty or controversy giving rise to the proceeding.” RCW
7.24.060.
The UDJA is to be “liberally construed and administered.” RCW 7.24.120.
2. Legal Principles – Justiciability
For a court to hear a case under the UDJA, a justiciable controversy must exist. League
of Educ. Voters v. State, 176 Wn.2d 808, 816, 295 P.3d 743 (2013). The test for a justiciable
controversy includes four elements:
“(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interest, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.”
Wash. Fed’n of State Emps. v. State, 2 Wn.3d 1, 21, 534 P.3d 320 (2023) (quoting To-Ro Trade
Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)). Justiciability incorporates “ ‘ the
traditional limiting doctrines of standing, mootness, and ripeness, as well as the federal case-or-
controversy requirement.’ ” Wash. State Council of County & City Emps. v. City of Spokane, 200
Wn.2d 678, 685, 520 P.3d 991 (2022) (quoting To-Ro Trade Shows, 144 Wn.2d at 411).
Relevant here, the doctrine of standing is an inherent part of the justiciability
determination. Alim v. City of Seattle, 14 Wn. App. 2d 838, 847, 474 P.3d 589 (2020); see also
Lee v. State, 185 Wn.2d 608, 618, 374 P.3d 157 (2016). The foundation of the standing doctrine
is that a person must be adversely affected in a concrete way by a challenged action to bring suit.
Stevens County v. Stevens County Sheriff’s Dep’t, 20 Wn. App. 2d 34, 42, 499 P.3d 917 (2021).
We apply a two part test for standing under the UDJA. “ ‘First, a party must be within the zone
of interests to be protected or regulated by the statute in question. Second, the party must have
12 No. 60265-2-II
suffered an injury in fact.’ ” Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d
742, 769, 466 P.3d 213 (2020) (quoting Am. Legion Post No. 149 v. Dep’t of Health, 164 Wn.2d
570, 593, 192 P.3d 306 (2008)).6
Division Three of this court addressed an issue similar to the one in this case in Daines v.
Spokane County, 111 Wn. App. 342, 349-50, 44 P.3d 909 (2002), overruled on other grounds by
Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 727, 261 P.3d
119 (2011). In Daines, the plaintiff requested emails received by multiple county commissioners
regarding growth management practices. 111 Wn. App. at 345. But the county did not have the
emails because their emails were retained for only five days and were not otherwise saved. Id.
The plaintiff sought a declaratory judgment that deleting emails after five days violated the RRA.
Id. at 346. The County argued that “the state archivist, not the court, is responsible for
establishing standards and procedures for retaining governmental records.” Id. at 350.
The court stated, “We will not dispense academic opinions on theoretical rights. To
invoke the jurisdiction of a court under the declaratory judgment act requires a justiciable
controversy. A justiciable controversy is one upon which the court’s judgment will have some
practical effect. The proceedings must be adversary, not merely argumentative.” Id. (citations
omitted). The court stated that it could not participate in an “ ‘exercise in academics.’ ” Id.
(quoting State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 558, 413 P.2d 972 (1966)).
The court concluded,
6 Both the trial court treated justiciability and standing as separate issues, as do the parties. The Supreme Court has never suggested that the test for standing under the UDJA is more stringent than the requirements for justiciability. Both justiciability and standing essentially ask the same two questions: (1) whether the statute a person seeks to enforce through declaratory relief actually protects their interests, and (2) whether a party’s violation of that statute harmed the plaintiff in a concrete manner. Therefore, we believe that the better approach is the treat standing as part of the justiciability analysis.
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There is no justiciable controversy here. Mr. Daines asked the court to impose itself in a supervisory capacity over the County’s office procedures. Even the court’s power of mandamus does not authorize the court to assume general control or direction of official executive acts. Mr. Daines has no right under chapter 40.14 RCW that a declaratory judgment would secure.
Id. (citation omitted).
The parties cite to Building Industry Association of Washington v. McCarthy, where the
court stated,
BIAW argues that unless the courts require public agencies to comply with the records retention act, chapter 40.14 RCW, agencies may easily circumvent the PRA, chapter 42.56 RCW, by improperly destroying records. While the logic of this argument is compelling, no improper destruction of records under the records retention act has been shown here so we are presented with no opportunity to determine if the law supports that logic.
152 Wn. App. 720, 741, 218 P.3d 196 (2009).
The parties also cite to West v. Department of Natural Resources, where the court stated,
West relies on the records retention act, chapter 40.14 RCW, for the proposition that unless courts apply this statute, agencies will circumvent the PRA and improperly destroy records. But we have rejected this argument before. See BIAW, 152 Wn. App. at 741 (despite this argument’s compelling logic, no improper destruction has been shown).
163 Wn. App. 235, 245, 258 P.3d 78 (2011).
3. Analysis
In his UDJA claim, Nixon challenges the State’s decision that Teams chats can be
destroyed automatically after seven days and seeks a declaration that agencies are violating the
law by not retaining Teams chats for a longer period. Nixon argues that his claim is justiciable
based on (1) agency violations of chapters 40.14 and 40.16 RCW and (2) agency violations of
the PRA, RCW 42.56.100.
Nixon argues at length that the State’s automatic destruction policy for Teams chats
violates the retention schedules mandated by the RRA and the record preservation requirement in
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RCW 42.56.100. However, he does not address the threshold issue: whether he can satisfy the
four elements of a justiciable controversy. See Wash. Fed’n of State Emps., 2 Wn.3d at 21.
a. Actual Dispute Requirement
The first requirement is whether there is an actual, present, and existing dispute between
Nixon and the State agencies regarding retention of Teams chats. Id. Here, there is no existing
“dispute” between Nixon and the agencies. The agency has adopted a policy that all Teams chats
are transitory – with only “short-term, temporary informational use,” RETENTION SCHEDULE at
133 – and therefore can be deleted after a short period of time as authorized by the general
retention schedule. Nixon disagrees that all Teams chats are transitory, and he alleges that some
chats involve substantive matters and must be retained longer. But this is nothing more than a
speculative academic disagreement, not an adversarial conflict. Nixon provides no authority for
the proposition that a person can file suit under the UDJA because they disagree with an internal
agency decision.
In addition, Nixon is asking this court to dictate how agencies should apply the general
retention policies. But as in Daines, we decline to “impose itself in a supervisory capacity” over
the agencies’ procedures. 111 Wn. App. at 350.
b. Genuine Interest Requirement
The second requirement is whether Nixon has a genuine interest in the retention of Teams
chats. Wash. Fed’n of State Emps., 2 Wn.3d at 21. We view this requirement as incorporating
the zone of interests test for standing.
“To ascertain whether a party’s interests are arguably within the zone regulated or
protected by the statute in question, we look to the statute’s purpose and operation.” Wash. State
Hous. Fin. Comm’n v. Nat’l Homebuyers Fund, 193 Wn.2d 704, 715, 445 P.3d 533 (2019).
15 No. 60265-2-II
Merely having an interest in an issue is insufficient to show that a party’s claim is within the
zone of interests of a statute. See id. Rather, the statute a party seeks to enforce through a
declaratory judgment must regulate or protect the party’s relevant interest. Id.
Nixon argues that he is within the zone of interests of the RRA based on article I, section
1 of the Washington Constitution, which states, “All political power is inherent in the people, and
governments derive their just powers from the consent of the governed, and are established to
protect and maintain individual rights.” Similarly, he relies on RCW 42.56.030, which states,
“The people of this state do not yield their sovereignty to the agencies that serve them. The
people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist on remaining
informed so that they may maintain control over the instruments that they have created.”
Nixon argues that he “pursued access to Chats to inform himself and others about use of
governmental resources to generate public records with retention value without adhering to
retention requirements, which impaired his state constitutional rights.” Br. of Appellant at 11.
He asserts that he “cannot give informed consent pursuant to his rights under [article I, section 1]
when he cannot access public records that inform him what government is doing with the power
delegated to it.” Br. of Appellant at 11-12. Nixon states that the State’s policy of deleting Teams
chats “implicates [his] consent rights and his access to information to give informed consent.”
Br. of Appellant at 12.
Nixon also argues that the right to receive information is essential to the right of free
speech. He quotes Voters Education Committee v. Washington State Public Disclosure
Commission – “the right to free speech includes the fundamental counterpart of the right to
receive information,” 161 Wn.2d 470, 483, 166 P.3d 1174 (2007) – and Fritz v. Gorton –
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“Freedom of speech with the corollary – freedom to receive – would seriously discount the
intendment purpose and effect of the First Amendment.” 83 Wn.2d 275, 297, 517 P.2d 911
(1974).
Implicit in Nixon’s argument is that the purpose of the RRA is to protect the right of
citizens to access public records so that they may exercise informed consent regarding their
government. He asserts, “Records retention and destruction standards under RCW 40.14 and
RCW 40.16 are intended to protect public records so that the people have access to the
information.” Br. of Appellant at 17. However, nothing in the RRA states or even suggests that
this is the purpose of that chapter.
The RRA provides specific guidelines for how state agencies must create retention
schedules, get retention schedules approved, and preserve specific records. But the RRA does
not contain any provision that provides an individual with the right to a particular retention
schedule. Rather, it creates procedures for state agencies to follow. Further, the RRA provides
no mechanism and no private right of action for a person to challenge an agency’s retention
procedures. Instead, chapter 40.16 RCW provides criminal penalties for RRA violations.
Therefore, the RRA neither regulates nor protects Nixon with respect to his claim that the
agencies must adopt a particular retention schedule. We agree with Daines that we cannot
“dispense academic opinions on theoretical rights” and that Nixon “has no right under Chapter
40.14 RCW that a declaratory judgment would secure.” 111 Wn. App. at 350.
Nixon argues that Daines is distinguishable because he seeks to “enforce retention
standards, not judicially override them for purposes of compliance with the PRA.” Br. of
Appellant at 31-32. In Daines, the requestor sought “a declaratory judgment that destroying e-
mails after five days violates the public records retention statutes.” 111 Wn. App. at 346. Here,
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Nixon seeks a declaratory judgment that “respondents’ automated destruction of public records
from chat platforms violates retention standards for public records and state statute[s].” CP at
411. This is effectively the same relief sought in Daines.
We conclude that Nixon cannot show that he is within the zone of interests of the RRA to
satisfy the UDJA’s genuine interest/zone of interests requirement.
c. Direct and Substantial Interest Requirement
The third requirement is whether Nixon has a direct and substantial interest in the
retention of Teams chats. Wash. Fed’n of State Emps., 2 Wn.3d at 21. We view this requirement
as incorporating the injury in fact test for standing.
The injury in fact requirement “precludes those whose injury is speculative or abstract,
rather than actual, from bringing an action.” Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 716.
The mere fact that a person has an interest in an issue is not enough. See Benton County Water
Conservancy Bd. v. Dep’t. of Ecology, 3 Wn.3d 59, 67, 546 P.3d 394 (2024).
Nixon argues that he has suffered an injury in fact because “[t]he disappearance of chats
that have retention value means [he] has lost and will continue to lose access to records with
information essential to informing him about the operation of government.” Br. of Appellant at
15-16. He asserts that “[l]ack of agency transparency is an injury in fact.” Br. of Appellant at
16. More specifically, Nixon claims that “[t]he harm to him is that he cannot get the public
records he seeks because they no longer exist.” Appellant’s Reply Br. at 36.
However, other than the public record requests that Nixon made to four specific agencies
(discussed below), the agencies’ deletion of the Teams chats has not affected Nixon in any way.
The mere fact that he has an interest in the issue is not enough to establish injury in fact. Benton
County Water Conservancy Bd., 3 Wn.3d at 67. And Nixon’s suggestion that he might want to
18 No. 60265-2-II
access those records in the future is too “speculative or abstract” to constitute an injury in fact.
Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 716.
The agencies’ deletion of Teams chats potentially had an effect on Nixon regarding the
public record requests he made to four specific agencies, because those chats no longer were
available to produce. However, Nixon still has a viable PRA against the three agencies – the trial
court denied those agencies’ summary judgment motion on Nixon’s PRA claim. Although an
adequate alternative remedy is not a complete bar to a UDJA claim, see CR 57, declaratory relief
generally is unavailable when the plaintiff has an adequate legal remedy. Stafne v. Snohomish
County, 174 Wn.2d 24, 39, 271 P.3d 868 (2012) (refusing to consider a UDJA claim when the
plaintiff actually pleaded an alternative remedy). Here, declaratory relief is not appropriate for
the four specific agencies because Nixon pleaded a PRA claim against those agencies and retains
a PRA claim against three of them.
We conclude that Nixon cannot satisfy the genuine interest/injury in fact requirement
regarding the State’s decision to destroy Teams chats after seven days.
d. Summary
Nixon cannot satisfy any of the first three requirements for justiciability. Accordingly, we
hold that the trial court did not err when it dismissed Nixon’s UDJA claims as not justiciable.
4. Substantial Public Importance Exception
Nixon argues that even if his claims are not justiciable and he lacks standing, the trial
court should not have dismissed his UDJA claims because they present a matter of substantial
public interest. We disagree.
When a plaintiff’s claim fails to meet the justiciability and standing requirements, we
may exercise our discretion to address an issue in “rare cases when ‘the interest of the public in
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the resolution of an issue is overwhelming.’ ” Stevens County, 20 Wn. App. 2d at 46 (quoting
To-Ro Trade Shows, 144 Wn.2d at 416). The case must present “ ‘issues of broad overriding
public import.’ ” Stevens County, 20 Wn. App. 2d at 46 (quoting Diversified Indus. Dev. Corp. v.
Ripley, 82 Wn.2d 811, 814, 514 P.2d 137 (1973)). The Supreme Court has suggested that the
substantial public importance exception should apply when a controversy “ ‘immediately affects
significant segments of the population, and has a direct bearing on commerce, finance, labor,
industry, or agriculture.’ ” Lakehaven, 195 Wn.2d at 771 (quoting Am. Legion Post, 164 Wn.2d
at 595).
Here, whether agencies are not properly retaining Teams messages may be of some
public interest. But the public interest is not overwhelming, and the issue does not affect
significant segments of the population. And this case does not affect commerce, finance, labor,
industry, or agriculture. Therefore, we conclude that this case is not one of those rare cases
where we will consider Nixon’s claim even though it is not justiciable and he has no standing.
D. WRIT OF MANDAMUS CLAIM
Nixon argues that the trial court erred in dismissing his petition for a writ of mandamus.
We disagree.
1. Legal Principles
The writ of mandamus is an “ancient, rare, and extraordinary vehicle[] for relief,
available only when there is no plain, speedy, and adequate remedy in the ordinary course of
legal proceedings.” Walsh v. Hobbs, 3 Wn.3d 914, 919, 557 P.3d 701 (2024). The writ of
mandamus is extraordinary “because it allows courts to command another branch of government
to take a specific action, something the separation of powers typically forbids.” Colvin v. Inslee,
195 Wn.2d 879, 890-91, 467 P.3d 953 (2020).
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The court in Walsh explained the scope of a writ of mandamus:
A petitioner seeking mandamus relief must show that the official who is the subject of the petition has a mandatory, ministerial duty to perform an act required by law as part of that official’s duties. If the law does not require an official to take a specific action, neither may a writ of mandamus. Mandamus is appropriate only where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.
3 Wn.3d at 920 (emphasis added) (citations omitted). In other words, a writ of mandamus
cannot be used to compel acts that involve discretion unless an official refuses to exercise
their discretion. Wiklem, 31 Wn. App. 2d at 585. “ ‘[A] court may compel a state officer
to perform a discretionary duty but cannot direct how such discretion shall be exercised.’ ”
Id. (quoting Brown v. Owen, 165 Wn.2d 706, 725, 206 P.3d 310 (2009)).
To obtain a writ of mandamus, “the petitioner must demonstrate that (1) the party subject
to the writ has a clear duty to act, (2) the petitioner has no plain, speedy, and adequate remedy in
the ordinary course of law, and (3) the petitioner is beneficially interested.” Am. Prop. Cas. Ins.
Ass’n v. Kreidler, 200 Wn.2d 654, 659, 520 P.3d 979 (2022).
2. Analysis
The first issue is whether the various agencies had a clear duty to act. Creating
appropriate retention schedules may be mandatory under chapter 40.14 RCW, but there is no
mandatory, ministerial duty to create any particular retention schedule. This is a discretionary
decision guided by the provisions of chapter 40.14 RCW. And determining what retention
periods apply to specific records does not involve mandatory, ministerial duties. Specific to this
case, there is no law defining with precision and certainty when a record should be considered
transitory and how long transitory messages should be retained. The classification of Teams
messages as transitory under existing retention schedules is inherently discretionary.
21 No. 60265-2-II
Nixon argues that preservation of records is not a discretionary duty and that the lack of
preservation amounts to a failure to exercise discretion. But RCW 40.14.040 confers discretion
in agencies to appoint records officers, and RCW 40.14.020 sets forth the general duties of
record preservation. These statutes inherently confer discretion to the State to appoint officers
and execute the duties of record preservation in compliance with the statute. But they do not
require agencies to undertake any specific action with respect to the retention of specific records.
In addition, this cannot be considered a failure to exercise discretion because WaTech exercised
its discretion to recommend a seven day retention period for transitory Teams messages.
The creation of retention schedules and determining the types of documents subject to
certain retention schedules is an inherently discretionary act that requires judgment. See Walsh,
3 Wn.3d at 920. Nixon has not shown how the agencies have a “mandatory, ministerial duty to
perform an act required by law.” Id. Therefore, we conclude that Nixon cannot satisfy the first
requirement of a writ of mandamus.
The second issue is whether Nixon had a beneficial interest in compelling the agencies to
act. A person is beneficially interested for purposes of a writ of mandamus if they “ha[ve] an
interest in the action beyond that shared in common with other citizens.” Retired Pub. Emp.
Council of Wash. v. Charles, 148 Wn.2d 602, 616, 62 P.3d 470 (2003). Here, record retention
policies clearly are important to Nixon. But those policies do not uniquely affect Nixon any
differently than they would affect any other citizen. And his claims about record retention
policies could be asserted by any other citizen. Therefore, we conclude that Nixon cannot satisfy
the third requirement of a writ of mandamus.
Accordingly, we hold that the trial court did not err when it dismissed Nixon’s petition for
a writ of mandamus.
22 No. 60265-2-II
E. ATTORNEY FEES ON APPEAL
Nixon requests attorney fees and costs on appeal under RCW 42.56.550(4), which states
that any person prevailing on a PRA claim shall be awarded attorney fees. However, Nixon’s
claim on appeal is not a PRA claim. In any event, Nixon is not the prevailing party. We decline
to award attorney fees to Nixon.
CONCLUSION
We affirm the trial court’s dismissal of Nixon’s claims.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
VELJACIC, A.C.J.
GLASGOW, J.