IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SAN JUAN COUNTY, a municipal No. 84941-7-I corporation of the State of Washington, DIVISION ONE Respondent,
v. UNPUBLISHED OPINION
WASHINGTON COALITION FOR OPEN GOVERNMENT, a Washington non-profit corporation,,
Appellant.
SMITH, C.J. — The purpose of the Public Records Act (PRA), ch. 42.56
RCW, is to protect the public’s interest in open and accountable government. In
2020, the Washington Coalition for Open Government (WCOG) made a PRA
request of San Juan County. San Juan County sued WCOG when it sought
unredacted attorney invoices in a format that the County did not regularly use,
concerning payments made to outside counsel representing the County in
litigation concerning the PRA. San Juan County provided the invoices but
redacted all descriptions of the work provided. Following an in camera review,
the trial court concluded that San Juan County appropriately redacted the
invoices.
On appeal, WCOG contends that (1) San Juan County inappropriately
redacted the invoices in violation of RCW 45.26.904; (2) that the County violated
RCW 42.56.080(2) by considering WCOG’s identity; (3) that the County’s No. 84941-7-I/2
explanations of redactions were insufficient in violation of RCW 42.56.210(3);
and (4) that WCOG is entitled to attorney fees. We find no error and affirm.
FACTS
Background
In 2015, Edward Kilduff sued San Juan County alleging that a local
ordinance, which created an additional administrative exhaustion procedure to
the PRA violated it.1 During litigation, Kilduff was represented by a board
member of the Washington Coalition for Open Government (WCOG) and San
Juan County hired outside counsel.2 Our state Supreme Court ultimately
concluded that San Juan County did not possess the authority to add an
administrative exhaustion requirement to the PRA and remanded the case for
further proceedings.
Present Litigation
In April 2020, while Kilduff was on remand, WCOG made a public records
request seeking invoices of the outside counsel San Juan County had hired in
Kilduff. Worried that San Juan County was misappropriating funds, WCOG
requested “all invoices, contracts, correspondence, notes, bids, proposals,
records relating to conflicts of interest, meeting minutes, and any other records
relating to [San Juan] County’s use of outside counsel in Kilduff v. San Juan
1 The underlying facts are set forth in Kilduff v. San Juan County, 194 Wn.2d 859, 453 P.3d 719 (2019). 2 See Kilduff v. San Juan County, 194 Wn.2d 859, 453 P.3d 719 (2019).
(Michele Lynn Earl-Hubbard, board member of WCOG, listed as counsel for Edward Kilduff).
2 No. 84941-7-I/3
County.” A month later, San Juan County provided the invoices, which were
heavily redacted, but included the hours and total dollar amounts billed.
As part of their PRA claim, WCOG requested the documents in a format
that San Juan County did not typically use. In response to the request, the
County sued WCOG,3 seeking a declaratory judgment that it need not provide
the records in an electronic format incompatible with its tracking system. WCOG
later withdrew the formatting piece of their PRA request, instead filing a
counterclaim asserting that San Juan County’s invoices were improperly and
excessively redacted.
During discovery, WCOG sought information about how San Juan County
responded to its original PRA request, as well as all attorney invoices that dealt
with any PRA requests starting on January 1, 2018. The County objected,
arguing that the requests were overly broad and sought documents protected by
work product and attorney-client privilege. WCOG then sought those same
records through the PRA.
When San Juan County propounded discovery requests to WCOG, it
similarly sought production of WCOG’s invoices relating to the PRA request, its
current suit, and its participation in Kilduff. WCOG objected, arguing that such a
request called for protected work product and exceeded the scope of discovery.
3 San Juan County initially named William Crittenden as respondent in the suit as Crittenden made the request without disclosing that WCOG was his client. Once San Juan County determined that WCOG was the true requestor, it modified the complaint to name WCOG.
3 No. 84941-7-I/4
In January 2022, WCOG moved for partial summary judgment, arguing
San Juan County’s production of the redacted invoices violated the PRA.
Relying on invoices it had obtained from other agencies in separate PRA
requests, which were less heavily redacted, WCOG asserted San Juan County
had excessively redacted the invoices in violation of the PRA. WCOG asked the
court to compel the County to produce “properly redacted records” and also
sought in camera review of the documents. The County then cross-moved for
summary judgment on the grounds that the documents were relevant to an
ongoing controversy and thus, exempt under the PRA.
The court denied both parties’ motions for summary judgment, concluding
that issues of fact still existed, but granted WCOG’s motion for in camera review.
Following in camera review of the redacted documents, the court found that the
redacted material was work product protected by privilege. The court stated that
“the descriptions of the work performed by attorneys on the invoices could be
redacted in its entirety and that [San Juan] County was not obligated to go line by
line to select portions for more limited redaction.”
The court denied WCOG’s counterclaim and dismissed the matter with
prejudice. The court then denied WCOG’s motion for reconsideration. WCOG
appeals.
ANALYSIS
WCOG raises four issues on appeal, including whether San Juan County’s
invoice redactions complied with RCW 42.56.904, whether San Juan County
violated RCW 42.56.080(2) by taking WCOG’s identity into account, whether San
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Juan County’s explanations of the redactions satisfied RCW 42.56.210 (3), and
whether WCOG is entitled to attorney fees. We address each in turn.4
Standard of Review
“Agency action taken or challenged under the PRA is reviewed de novo.”
RCW 42.56.550(3); Progressive Animal Welfare Soc’y v. Univ. of Wash., 125
Wn.2d 243, 252, 884 P.2d 592 (1994) (PAWS). “[T]he appellate court stands in
the same position as the trial court where the record consists only of affidavits,
memoranda of law, and other documentary evidence.” PAWS, 125 Wn.2d
at 252.
RCW 42.56.904
WCOG contends that San Juan County violated RCW 42.56.904, which
prohibits redacting attorney invoices in their entirety and limits redactions to
specific exemptions, by redacting all descriptions in the invoices it provided,
regardless of whether they contained attorney mental impressions, legal advice,
theories, or opinions. We conclude that the invoice descriptions were exempt
under RCW 42.56.290.
Our Supreme Court has consistently reinforced the notion that “the [PRA]
‘is a strongly worded mandate for broad disclosure of public records.’ ” Soter v.
Cowles Publishing Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007) (quoting Hearst
Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)). “We liberally
4 WCOG appeals both the Findings, Conclusions, and Order Upon In Camera Review and the Order on Reconsideration. As we find no error with the in camera findings, there is no error on the trial court’s part for denying the motion for reconsideration.
5 No. 84941-7-I/6
construe the PRA in favor of disclosure.” RCW 42.56.030; Soter, 162 Wn.2d at
731. “The PRA requires a government agency to disclose any public record
upon request; however, an agency lawfully withholds production of records if one
of the PRA’s enumerated exemptions applies.” RCW 42.56.070(1); Sanders v.
State, 169 Wn.2d 827, 836, 240 P.3d 120 (2010). “The PRA’s numerous
exemptions protect certain records from disclosure and the PRA also
incorporates any ‘other statute’ that prohibits disclosure of records.” Dep’t of
Transp. v. Mendoza de Sugiyama, 182 Wn. App 588, 597, 330 P.3d 209 (2014)
(quoting RCW 42.56.070). Because we narrowly construe the PRA’s exemptions
in favor of disclosure, the burden is on the agency to establish that an exemption
applies. Mendoza de Sugiyama, 182 Wn. App at 597; RCW 42.56.030; RCW
42.56.550(1). “In construing the PRA, we look at the Act in its entirety in order to
enforce the law’s overall purpose.” Rental Hous. Ass’n of Puget Sound v. City of
Des Moines, 165 Wn.2d 525, 536, 199 P.3d 393 (2009). And when interpreting a
statute, the court, if possible, must “ ‘harmonize and give effect to all of the
relevant statutory language.’ ” State v. Peterson, 198 Wn.2d 643, 647, 498 P.3d
937 (2021) (quoting State v. Cyr, 195 Wn.2d 492, 502, 461 P.3d 360 (2020)).
There are two sections of the PRA at issue here. The first, RCW
42.56.904, provides that attorney invoices may not be “withheld in their entirety”
and that “specific descriptions of work performed be redacted only if they would
reveal an attorney’s mental impressions, actual legal advice, theories, or
opinions, or are otherwise exempt under chapter 391, Laws of 2007 or other
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laws.” The burden is on the public entity to justify each redaction and narrowly
construe any exemption to full disclosure. RCW 42.56.904.
The second, RCW 42.56.290, is one such “other law.” John Doe v. Wash.
State Patrol, 185 Wn.2d 363, 373, 374 P.3d 63 (2016). RCW 42.56.290
establishes the “controversy exemption,” which provides that “[r]ecords that are
relevant to a controversy to which an agency is a party but which records would
not be available to another party under the rules of pretrial discovery for causes
pending in the superior courts are exempt from disclosure under this chapter.”
“This is a categorical exception” that “applies to any materials that would not be
discoverable in the context of ‘a controversy under the civil rules of pretrial
discovery.’ ” Mendoza de Sugiyama, 182 Wn. App at 597 (internal quotation
marks omitted) (quoting Soter, 162 Wn.2d at 731). “Our Supreme Court has held
that the controversy exemption applies to the work product doctrine and the
attorney-client privilege.” Mendoza de Sugiyama, 182 Wn. App at 597. Attorney-
client privilege applies to communications and advice between an attorney and
client and extends to documents that contain privileged communications. Soter,
162 Wn.2d at 745. Similarly, work product extends to documents and tangible
things prepared in anticipation of litigation or for trial. CR 26(b)(4).
Here, WCOG sought access to attorney invoices from a case being
actively litigated and in which both WCOG and San Juan County had a stake.
Looking first to work product, the invoices were created “by or for” San
Juan County to use in the Kilduff litigation with the County’s expectation that they
be privileged during trial. The invoices documented the actions the attorneys
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took, the hours spent, and the amount charged for the ongoing Kilduff case. As a
result, they constitute work product under CR 26(b)(4) and are not discoverable.
Neither party makes any arguments about waiver and WCOG has made no
assertion of undue hardship.
As to attorney-client privilege, the unredacted records detail exactly the
activities counsel took in furtherance of the litigation. This includes
communications between attorney and client and highlights documents that
contain privileged communications. These are privileged materials. In
conjunction with the time and money spent, it could be relatively easy for
opposing counsel to decipher San Juan County’s litigation plan and its
communications with its attorneys.
Because the descriptions are privileged under work product and attorney-
client privilege and are therefore not subject to pre-trial discovery, they are
similarly not subject to the PRA under RCW 42.56.290. WCOG fails to
acknowledge that the PRA exempts non-discoverable information for pending
controversies and that it sought such records. Moreover, it ignores that San
Juan County did not redact the invoices in their entirety—neither the hours spent
nor the amounts billed were redacted from the invoices. RCW 42.56.290 is
directly applicable because WCOG sought information that is not discoverable
during on-going litigation.
WCOG’s reliance on redacted invoices from other matters is
unpersuasive. Attached as exhibits to WCOG’s counsel’s declaration, WCOG
points to copies of invoices issued by San Juan County’s attorney in other cases.
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WCOG cites no authority for the proposition that redactions must look like those
cases. And in those cases, WCOG sought invoices for work performed post-trial,
as opposed to work performed while the parties were actively litigating. The
invoices WCOG seeks in the present case concern pretrial matters protected by
attorney-client privilege and the work product doctrine. Why the County may
have spent a certain amount of money to pursue one legal theory over another is
information that is protected while the litigation is ongoing. Moreover, we note
that WCOG received the information it ultimately sought: the total amount of
money San Juan County paid outside counsel to litigate the Kilduff matter.
We note that both parties dedicate a substantial portion of their briefing
and oral argument to the legislative history of RCW 42.56.904. But the statute is
unambiguous and therefore we need not consider the legislative history.
“Where the meaning of statutory language is plain on its face, we must
give effect to that plain meaning as an expression of legislative intent.” Rental
Hous. Ass’n, 165 Wn.2d at 536. Only when a statute is ambiguous do we “resort
to aids of construction, including legislative history.” City of Spokane v. Spokane
County, 158 Wn.2d 661, 673, 146 P.3d 893 (2006).
RCW 42.56.904 states, It is the intent of the legislature to clarify that no reasonable construction of chapter 42.56 RCW has ever allowed attorney invoices to be withheld in their entirety by any public entity in a request for documents under that chapter. It is further the intent of the legislature that specific descriptions of work performed be redacted only if they would reveal an attorney's mental impressions, actual legal advice, theories, or opinions, or are otherwise exempt under chapter 391, Laws of 2007 or other laws, with the burden
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upon the public entity to justify each redaction and narrowly construe any exception to full disclosure.
The statute specifically includes exemptions under “other laws.” As noted,
“other laws” includes other provisions of the PRA. As the language of the statute
is plain on its face, we do not look to the legislative history.
At oral argument, WCOG claimed that reading RCW 42.56.290 as
exempting work product would render the entirety of the PRA meaningless
because RCW 42.56.904 was meant to limit redactions of attorney invoices as
allowed by earlier sections of the statute.5 But again, the language of the statute
is plain on its face and specifically includes exemptions provided by “other laws.”
RCW 42.56.904. We have previously held that RCW 42.56.290 is one such
other law and the rules of statutory interpretation do not require us to dig deeper
to find an ambiguity.
Because the invoices were properly exempt under RCW 42.56.290, we
conclude that San Juan County’s redactions complied with RCW 42.56.904.
RCW 42.56.080
WCOG next contends that San Juan County violated RCW 42.56.080(2),
which prohibits distinguishing among persons requesting records, by using
WCOG’s identity as the requestor to justify withholding public records. We
conclude that San Juan County did not violate the statute.
5Wash. Court of Appeals oral argument, San Juan County v. WCOG, No. 84941-7-I (Sept. 26, 2023), at 02:33, 03:15, 03:55, audio recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court- of-appeals-2023091214/?eventID=2023091214.
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RCW 42.56.080(2) states that “agencies shall not distinguish among
persons requesting records.” A requestor’s use of information may not be the
basis for denying a request. DeLong v. Parmelee, 157 Wn. App. 119, 146, 236
P.3d 936 (2010). Rather, an agency “must respond to all public disclosure
requests without regard to the status or motivation of the requestor.” Livingston
v. Cedeno, 164 Wn.2d 46, 53, 186 P.3d 1055 (2008).
Here, San Juan County responded to WCOG’s request. WCOG argues
that the County excessively redacted the invoices in response to WCOG’s
identity but this argument is unpersuasive because as discussed, the County
appropriately redacted the invoices. And apart from being an adverse party in
Kilduff, WCOG provides no evidence that the County would have, or did, treat
them differently than any other requestor. We conclude that San Juan County
did not violate RCW 42.56.080(2).
RCW 42.56.210(3)
WCOG also asserts that San Juan County failed to provide sufficiently
detailed explanations of how each exemption applied to withheld or redacted
records, in violation of RCW 42.56.210(3). Because the explanations were
sufficiently detailed but high level enough to protect the privileged information, we
conclude that the County’s explanations satisfy the statutory requirement.
RCW 42.56.210(3) states that “agency responses refusing, in whole or in
part, inspection of any public record shall include a statement of the specific
exemption authorizing the withholding of the record (or part) and a brief
explanation of how the exemption applies to the record withheld.” The brief
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explanations “need not be elaborate, but should include the type of record, it’s
date and number of pages, and, unless otherwise protected, the author and
recipient. . . Where use of any identifying features would reveal protected
content, the agency may designate the records by a numbered sequence.”
PAWS, 125 Wn.2d at 608 n.18. “Another way to properly provide a brief
explanation is to have a code for each statutory exemption, place that code on
the redacted information, and attach a list of codes and the brief explanations
with the agency’s response.” WAC 44-14-04004(5)(b). These codes allow a
requestor to make a threshold determination of whether the agency has properly
invoked the exemption. Rental Housing Ass’n, 165 Wn.2d at 539.
Here, San Juan County inserted codes for each claimed exemption into
the portion of record redacted under that exemption. The County redacted only
the descriptions of work. Because the rest of the documents remained
unredacted, the type of record and the dates and number of pages were all
accessible. The County provided the following brief explanations, coded as
either “1C” or “2”: 1C. RCW 42.56.290 exempts from disclosure records that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts. The referenced records are relevant to a controversy to which San Juan County is a party and would not be available under the civil rules of discovery. 2. RCW 5.60.060(2)(a) and RCW 42.56.070(1) exempt from disclosure communication made by a client to an attorney, or the attorney’s advice given thereon in the course of professional employment. The referenced information is a confidential attorney-client communication that is exempt from
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disclosure. See, Hangartner v. Seattle, 151 Wn.2d 439 (2004); Sanders v. State, 169 Wn.2d 827 (2020).
These coded explanations track directly to the Washington Administrative
Code (WAC) requirements. The explanations, in conjunction with the documents
themselves, provide enough information that the requestor can make a threshold
determination as to whether the information was appropriately redacted. To
require more detailed explanations or further identifying features would have
revealed content protected under attorney-client privilege and work product. We
conclude that San Juan County’s brief explanations satisfied the statutory
requirement.
Attorney Fees
WCOG requests attorney fees under the PRA, which provides that “[a]ny
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.” RCW 42.56.550(4). Because WCOG does not prevail on appeal, we
decline to award it fees.
We affirm.
WE CONCUR: