IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
RAMIRO VALDERRAMA, No. 86195-6-I
Appellant,
v. PUBLISHED OPINION
CITY OF SAMMAMISH,
Respondent.
BOWMAN, J. — Ramiro Valderrama sued the city of Sammamish (City),
alleging that the City violated the Public Records Act (PRA), chapter 42.56 RCW,
by failing to adequately search for and produce records of communications
between council members and citizens stored on the council members’ private
devices. The trial court granted summary judgment for the City. Because the
City shows it performed an adequate search under the PRA, we affirm.
FACTS
Valderrama is a former City council member. On January 6, 2022, he
submitted a public records request (PRR) to the City, seeking communications
between council members and citizens on “external channels” like “WhatsApp,
Signal, Slack, Telegram, etc.” Specifically, he requested “all communications
from all Council Members since 2019 with Miki Mullor . . . and also Michael
Scoles using any of these or similar WeChat etc. channels.” The City identified
Valderrama’s request as PRR 4241. At that time, the following council members No. 86195-6-I/2
were in office: Amy Lam, Kali Clark, Karen Howe, Kent Treen, Ken Gamblin,
Christie Malchow, and Karen Moran.
Two days later on January 8, Valderrama submitted the same PRR but
expanded it to include “telephone call logs” and “any correspondence with the
wife of Miki Mullor.” The City identified Valderrama’s second request as PRR
4244. On January 13, the City notified Valderrama that the first installment of
records related to PRR 4241 and PRR 4244 would be available by February 28,
2022.
Then, on January 28, 2022, Valderrama filed a broader request that
included "all Council Members since 2018.”1 The next day, he amended the
request. That request stated:
Council Members have been using external channels for communication with citizens/residents including but not limited to: WhatsApp, Signal, Slack, Telegram, etc. I would like to receive copies of all communications and copies of telephone call logs/lists of calls made to citizens from all Council Members since 2019 with any resident using any of these or similar channels [including] WeChat etc. channels.
The City identified Valderrama’s third request as PRR 4280. On February 4, the
City notified Valderrama that a first installment of records related to PRR 4280
would also be available by February 28.
On February 28, 2022, the City e-mailed the current and former council
members to notify them about Valderrama’s requests and ask them to search
their personal devices and accounts for responsive records, provide responsive
1 By the January 28 request, council member Gamblin had resigned.
2 No. 86195-6-I/3
records to the City, and complete Nissen2 affidavits. The City attached blank
template affidavits to its e-mails.
The City then worked with its own attorneys and sought advice from
outside counsel to adequately respond to Valderrama’s requests. It
communicated with Valderrama about the status of his requests and worked with
the council members to obtain affidavits, clarify the scope of the requests, and
answer related questions. The City’s public disclosure officer attested that she
worked “extensively with the City’s attorneys to draft Nissen
Declarations/Affidavits for former Council[ ]members . . . and then work[ed] with
council[ ]members to customize and finalize [them].”
Between February and June 2022, the City produced five installments of
affidavits and records responsive to PRRs 4241, 4244, and 4280. With each
production, the City provided Valderrama status updates and estimated dates for
further installments. In June 2022, Valderrama agreed that the City could close
PRR 4241 because the remainder of the request was duplicative of PRR 4244.
PRR 4244 and PRR 4280 remained open.
After June 2022, the City’s installments for PRR 4244 slowed as it
awaited outstanding affidavits from former council members Chris Ross and
Gamblin. The City asked Ross and Gamblin several times to provide responsive
records and execute affidavits. On November 30, 2022, Ross provided the City
2 Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015). Under Nissen, if an employee stores or is in control of agency records, they must submit an affidavit with sufficient facts showing withheld personal records are not public records under the PRA. Id. at 886.
3 No. 86195-6-I/4
his affidavit, explaining that he completed his search and found no responsive
records. The City sent the affidavit to Valderrama that same day.
In January 2023, the City reminded Gamblin that he had not provided
records or an affidavit and warned him that it may take legal action against him to
obtain any public records. On February 6, 2023, Gamblin e-mailed the City his
completed Nissen affidavit, asserting that he searched his personal devices and
accounts and declaring that he provided all responsive records. The same day,
the City sent the affidavit to Valderrama and closed PRR 4244.
As to PRR 4280, between June 2022 and March 2023, the City provided
Valderrama rolling record installments at least once every month except for
November3 and February. The records included screenshots, voice mails,
WhatsApp transcripts, and Facebook messages. The City also provided signed
affidavits that council members produced as they completed their searches.
On March 2, 2023, Valderrama told the City that the only outstanding
records were those from council member Treen. A week later, Valderrama
requested updated affidavits from two other council members, and the City
provided them. In late March, the City provided Valderrama an affidavit from
Treen, explaining that he had turned over all responsive records.
Meanwhile, on March 9, 2023, Valderrama sued the City, alleging that it
violated the PRA by failing to conduct an adequate search for his requested
3 In October 2022, the City told Valderrama that it believed it had fulfilled his request and closed PRR 4280. But after receiving a letter from Valderrama’s attorney asking the City to reconsider, the City reopened PRR 4280 in November.
4 No. 86195-6-I/5
records and failing to promptly make those records available for inspection and
copying.
After Valderrama filed suit, the City continued to produce responsive
records and affidavits as it received them. By November 2023, the City had
provided Valderrama hundreds of responsive documents and 43 Nissen
affidavits from former and current council members and other City staff.
In November 2023, the City moved for summary judgment dismissal of
Valderrama’s lawsuit, arguing that it conducted an adequate search for the
requested records and provided Valderrama all public records responsive to his
requests. Valderrama moved for partial summary judgment, asserting the City
violated the PRA by failing to conduct an adequate search for the records. He
argued that the evidence showed council members Gamblin, Malchow, and
Treen executed their affidavits in bad faith and that the City should have sued the
council members, and he sought “forensic examination of [their] devices and
accounts.” After oral argument, the trial court issued a written order granting
summary judgment for the City and denying Valderrama’s motion.4
Valderrama appeals.
ANALYSIS
Valderrama argues the trial court erred by granting summary judgment for
the City because the City failed to conduct an adequate search for records
4 In its order, the court notes that Valderrama conceded at oral argument that there were no outstanding issues with PRRs 4241 or 4244. The record on appeal does not include a transcript of oral argument, but we presume the trial court’s documented concession is accurate. The City notes the concession in its response brief on appeal and Valderrama does not dispute the concession in his reply. As a result, we address Valderrama’s arguments as they apply to only PRR 4280.
5 No. 86195-6-I/6
relevant to his requests. According to Valderrama, evidence showed that council
members Gamblin, Malchow, and Treen executed their affidavits in bad faith and
that the City “took no effective action to compel compliance with the PRA.”5 We
disagree.
We review de novo a grant of summary judgment and engage in the same
inquiry as the trial court.6 Neigh. All. of Spokane County v. Spokane County, 172
Wn.2d 702, 715, 261 P.3d 119 (2011). A court should grant summary judgment
when, “viewing the evidence in the light most favorable to the nonmoving party,
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” West v. City of Tacoma, 12 Wn. App. 2d 45, 69,
456 P.3d 894 (2020). Neither mere allegations nor conclusive statements raise
issues of material fact sufficient to preclude summary judgment. Id. at 70.
We also review agency actions under the PRA de novo. Neigh. All., 172
Wn.2d at 715. The PRA “is a strongly worded mandate for broad disclosure of
public records.” Id. at 714. Its purpose is to provide “the public access to
information about every aspect of state and local government.” Nissen, 183
Wn.2d at 874. “We liberally construe the PRA to promote the public interest.”
West, 12 Wn. App. 2d at 70.
5 For the first time on appeal, Valderrama and amicus curiae the Washington Coalition for Open Government argue that the City’s public records policies violate the PRA. Because Valderrama did not make that argument below, we decline to address it. RAP 2.5(a) (we “may refuse to review any claim of error which was not raised in the trial court”). 6 Valderrama argues that the trial court did not correctly apply the law under the PRA, improperly resolved questions of fact, and misconstrued the record. Because we review a grant of summary judgment de novo, we need not reach these issues.
6 No. 86195-6-I/7
A “public record” is any writing containing information relating to
government conduct “prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.” RCW 42.56.010(3). An
agency’s public records include its employees’ work product so long as an
employee prepares, owns, uses, or retains it “within the scope of their
employment.” Nissen, 183 Wn.2d at 877.7 This includes work product located
on personal devices like cell phones. Id.
Once an agency receives a request for public records, it must perform “an
adequate search” for the records. Nissen, 183 Wn.2d at 885. Courts determine
the adequacy of a search using a reasonableness standard that depends on the
facts of each case. Neigh. All., 172 Wn.2d at 720. An agency’s search must be
more than perfunctory. Id. It must be “reasonably calculated to uncover all
relevant documents.” Id. Still, an agency need search only those places where a
responsive record is “reasonably likely” to be found, not “every possible place a
record may conceivably” exist. Id.
An agency bears the burden of showing beyond material doubt that it
conducted an adequate search. Neigh. All., 172 Wn.2d at 720-21. When
reviewing an agency’s search, we focus on whether the search was adequate,
not on whether unproduced responsive documents exist. Id. at 719-20; see also
West, 12 Wn. App. 2d at 79 (“the mere fact that a record is eventually found does
not itself establish the inadequacy of an agency’s search”). “We review the
scope of [an] agency’s search as a whole.” West, 12 Wn. App. 2d at 79.
7 Emphasis added.
7 No. 86195-6-I/8
If an employee stores or is in control of agency records, we must interpret
the PRA to balance the employee’s privacy rights with the public’s interest in
government accountability. See Nissen, 183 Wn.2d at 884. So, the onus
remains with an agency to perform an adequate search for records, but the
“agency employees are responsible for searching their files, devices, and
accounts for records responsive” to a PRA request. Id. at 885-86. Employees
must produce responsive public records to the employer agency, and the agency
then determines whether any of the records are exempt from production and
discloses the records to the requestor. Id. at 886.
“To satisfy the agency’s burden to show it conducted an adequate search
for records, we permit employees in good faith to submit ‘reasonably detailed,
nonconclusory affidavits’ ” about the “nature and extent of their search.” Nissen,
183 Wn.2d at 885 (quoting Neigh. All., 172 Wn.2d at 721). The affidavit must
explain why withheld information is not a “public record” under the PRA. Id. at
886. “So long as the affidavits give the requester and the trial court a sufficient
factual basis to determine that withheld material is indeed nonresponsive, the
agency has performed an adequate search under the PRA.” Id. When done in
good faith, this procedure allows an agency to satisfy its duty to search for and
disclose public records without unnecessarily infringing on its employees’
constitutional rights. Id. at 886-87. An agency’s affidavits are entitled to a
presumption of good faith. Forbes v. City of Gold Bar, 171 Wn. App. 857, 867,
288 P.3d 384 (2012).
8 No. 86195-6-I/9
Here, after receiving Valderrama’s PRA requests for council members’
communications using “external channels,” the City determined that responsive
records were likely located on current and former council members’ private
devices. So, the City contacted current and former council members who were in
office during the time relevant to Valderrama’s requests and informed them of
each PRR. It asked the council members to conduct “adequate searches” of
their personal devices and accounts for responsive records, provide responsive
records, and complete Nissen affidavits describing the nature and extent of their
searches. It told the council members that under the guidelines of the Municipal
Research and Services Center, which cites Nissen,
“[t]he affidavit must be ‘reasonably detailed’ and ‘nonconclusory,’ and should describe the accounts, devices and locations searched and the names and search terms used to locate responsive records.”
The City then provided Valderrama rolling installments of responsive
records as it received them from council members, maintaining frequent contact
with Valderrama to answer his questions and give production updates. And
when council members did not respond to the City’s requests, it followed up and
continued to ask for records, even warning some council members that it may
take legal action if they failed to search for and provide responsive records and
an affidavit.
As council members completed their searches, they sent the City
responsive documents and executed Nissen affidavits explaining the nature and
extent of their searches and why withheld documents were not responsive to the
PRRs. For example, in council member Gamblin’s January 2023 affidavit, he
9 No. 86195-6-I/10
explained that he searched his WhatsApp and Telegram applications on his
personal phone for “messages . . . with Sammamish residents, related to [C]ity
business.” He conducted the search by reviewing “all of the chat sessions” with
Sammamish residents and “messages sent or received” during his term. He also
attested he reviewed Facebook and Facebook Messenger for responsive records
and did not find any related to City business, but he was continuing to search
those applications. He later testified that he had provided all responsive records.
Gamblin certified that any records withheld “are either personal in nature . . . or
are not responsive to the relevant request.”
Council member Malchow submitted four affidavits describing her
searches related to PRR 4280. She testified that she made copies of all the
responsive public records she found on encrypted applications accessible to her
and provided them to the City. She did this by “opening the [application],” “taking
screenshots” of conversations, and redacting information unrelated to City
business. The City later asked Malchow to provide the records unredacted. But
by then, Malchow had deleted several of the records from her laptop and had
trouble retrieving them. So, in a subsequent affidavit, she described how she
contacted WhatsApp, Apple, and another council member for help and was
ultimately able to recover “about 2/3 of [those] records.” She attached the
responsive records to her affidavits and certified that any withheld records are
“either personal in nature . . . or are not responsive to the relevant request.”
Finally, council member Treen submitted three affidavits related to PRR
4280. In a March 2023 affidavit, Treen testified that he searched his personal
10 No. 86195-6-I/11
devices and accounts, including Telegram and WhatsApp. And he specified that
his search included terms like “city of Sammamish, “town center,” and “STCA.”8
In a subsequent affidavit, Treen added that he also searched Slack and
Facebook Messenger for records, where he reviewed the content of his message
threads individually but did not find messages related to City business. Rather,
the messages were related to family matters, campaign matters, or his capacity
as a Sammamish resident. Treen attested that to his recollection, he had not
communicated with citizens about City business through WhatsApp, Slack,
Telegram, or Facebook Messenger. He certified that any records withheld “are
either personal in nature . . . or are not responsive to the relevant request.”
The record shows that the City timely responded to Valderrama’s PRRs
and promptly sought responsive records from those current and former council
members most likely to possess them. The City then provided Valderrama all
responsive public records received from the council members as well as
reasonably detailed, nonconclusory affidavits showing the nature and extent of
those searches and explaining why certain records were not responsive to the
requests.
Still, Valderrama contends that the City’s search was inadequate. He
argues evidence shows that council members Gamblin, Malchow, and Treen
executed their affidavits in bad faith and that the City “took no effective action to
8 STCA LLC is a land developer with many projects in the City.
11 No. 86195-6-I/12
compel compliance with the PRA.”9
As to Gamblin and Malchow, Valderrama fails to show evidence of bad
faith. Valderrama argues that Gamblin executed his affidavit in bad faith
because he delayed responding to the City’s search request and did not search
his Slack account for responsive documents. But Valderrama fails to explain
how Gamblin’s delay in responding to the City amounts to bad faith. And he
points to no evidence that Gamblin used his Slack account for City business.10
Valderrama alleges that Malchow acted in bad faith because text
messages from 2020 “show she intentionally used encrypted applications to keep
her communications secret” and intentionally deleted public records. But
Malchow’s stated reasons for using encrypted applications are not evidence that
she searched for responsive documents to Valderrama’s PRR in bad faith. And
the evidence does not support the argument that Malchow intentionally deleted
responsive records. Instead, Malchow explained that she timely provided all
responsive records in redacted form. Then, after “a substantial amount of time”
had passed, she deleted records from her laptop because its storage disc was
“full.” Even so, Malchow was able to retrieve about 2/3 of those documents and
9 Valderrama also challenges in passing several other council members’ affidavits as technically deficient. But he does not support his argument with citations to legal authority and analysis, so we do not address those claims. RAP 10.3(a)(6); see also West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012) (when an appellant fails “to present developed argument for our consideration on appeal,” we do not address the challenge). 10 Valderrama also alleges Gamblin told a former colleague that he could manipulate depositions by feigning a lack of memory. But again, Valderrama fails to explain how that amounts to evidence Gamblin executed his Nissen affidavits in bad faith.
12 No. 86195-6-I/13
provide them in unredacted form. Valderrama offers no evidence that Malchow
redacted responsive information or deleted responsive records in bad faith.
Finally, Valderrama says evidence shows that council member Treen
executed his Nissen affidavits in bad faith. Valderrama points to a City
information technology (IT) employee’s testimony that Treen “asked him for help
‘scrubbing’ his phone” in February 2023, about three months before Treen
executed his last affidavit.11 Treen claimed in deposition testimony that the
request was to obtain information from his City-issued phone, not to delete
information from his personal cell phone. In any event, Valderrama is correct
that this evidence presents a disputed issue of fact as to whether Treen sought to
delete information from his cell phone. But he is incorrect that the disputed fact
is material to whether the City conducted an adequate search.
Valderrama insists that the evidence suggesting Treen may have acted in
bad faith compelled the City to take additional action to ensure Treen complied
with the PRRs. Specifically, Valderrama suggests the City should have sued
Treen to forensically examine his cell phone. But the City did take additional
action to confirm that Treen responded fully to Valderrama’s requests. It asked
Treen if he would allow the City’s IT director to search his private devices and
accounts for public records responsive to outstanding PRRs. But Treen refused.
And Valderrama cites no authority suggesting that to conduct an adequate
11 Valderrama also points to a 2020 message that the then-City manager sent to Treen directing him to delete e-mails and the City’s failure to require Treen to disclose those records as evidence of bad faith. But Valderrama did not include e-mails as requested documents in his PRRs. See Cantu v. Yakima Sch. Dist. No. 7, 23 Wn. App. 2d 57, 81-82, 514 P.3d 661 (2022) (a party seeking records under the PRA must identify the documents with reasonable clarity).
13 No. 86195-6-I/14
search for public records, an agency must sue its employee to forensically
search their private devices for public records. See State Constr., Inc. v. City of
Sammamish, 11 Wn. App. 2d 892, 906, 457 P.3d 1194 (2020) (“Where a party
fails to cite to relevant authority, we generally presume that the party found
none.”).
Indeed, while our Supreme Court has not specifically addressed whether
an agency suspecting bad faith must sue to forensically examine an employee’s
personal device, it has suggested that such an infringement on employees’
privacy rights is unnecessary to conduct an adequate search. In Nissen, our
Supreme Court recognized that its procedure for obtaining public records from
employees’ private devices “might be criticized as too easily abused or too
deferential to employees’ judgment.” 183 Wn.2d at 887. But it reasoned that the
procedure is not uniquely deferential because “an employee’s judgment would
often be required to help identify public records on a cell phone, even in an in
camera review.” Id. And, despite its imperfections, the process strikes an
acceptable balance between personal liberty and government accountability.
See id. at 884.
Because the record shows that the City conducted an adequate search for
records responsive to Valderrama’s requests, we affirm the grant of summary
judgment for the City.
Valderrama also seeks attorney fees on appeal under RAP 18.1(a) and
the PRA. Under RAP 18.1(a), we may award attorney fees on appeal if
14 No. 86195-6-I/15
“applicable law grants to a party the right to recover reasonable attorney fees.”
And RCW 42.56.550(4) provides, in relevant part:
Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.
A party “prevails” and is entitled to fees “when an agency wrongfully refuses to
disclose or produce requested records.” See Neigh. All., 172 Wn.2d at 728.
Because the City conducted an adequate search and it did not wrongfully
withhold records, Valderrama did not prevail on appeal and is not entitled to
attorney fees.
We affirm summary judgment for the City.
WE CONCUR: