Servais v. Port of Bellingham

904 P.2d 1124
CourtWashington Supreme Court
DecidedOctober 26, 1995
Docket61364-8
StatusPublished
Cited by31 cases

This text of 904 P.2d 1124 (Servais v. Port of Bellingham) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Servais v. Port of Bellingham, 904 P.2d 1124 (Wash. 1995).

Opinion

904 P.2d 1124 (1995)
127 Wash.2d 820

John SERVAIS, Appellant,
v.
PORT OF BELLINGHAM, Respondent.

No. 61364-8.

Supreme Court of Washington, En Banc.

October 26, 1995.

*1125 Davis, Wright & Tremaine, Michael J. Killeen, Rosemary Reeve, Seattle, Amicus Curiae for Allied Daily Newspapers.

Foster, Pepper & Shefelman, Peter DuJulio, Grover E. Cleveland, Seattle, Amicus Curiae for Washington Public Ports Association.

Christine Gregoire, Attorney General, Thomas G. Holcomb, Jr., Asst., Olympia, Amicus Curiae for Attorney General.

Pemberton & Hoogestraat, P.S., Joseph T. Pemberton, Jr., Bellingham, for Petitioner.

Chmelik & Johnson, Frank J. Chmelik, Richard Davis, Bellingham, for Respondent.

SMITH, Justice.

Appellant John Servais seeks review of a decision by the Court of Appeals, Division One, affirming a judgment of the Whatcom County Superior Court which denied his action to compel public disclosure of a cash flow analysis prepared for the Port of Bellingham and which dismissed his complaint with prejudice, awarding Respondent Port of Bellingham statutory attorney fees and costs. We granted review. We affirm.

QUESTION PRESENTED

The sole question presented in this case is whether the Court of Appeals, Division One, was correct in affirming a judgment of the Whatcom County Superior Court which dismissed Appellant John Servais' action to compel the Port of Bellingham to disclose under RCW 42.17, the Public Disclosure Act, certain "public records," a supplemental cash flow analysis prepared for the Port *1126 by a national accounting and business consulting firm.

STATEMENT OF FACTS

In 1990, the Port of Bellingham (Port) commissioned Coopers & Lybrand, a national accounting and business consulting firm, to prepare a market feasibility study of Port properties at Fairhaven, Squalicum Harbor, Bellingham International Airport and Blaine Harbor.[1] The purpose of the study was to enable the Port to determine the potential and best uses of each of the properties, including leasing Port property for development, and to possibly design a comprehensive development strategy for all the property involved.[2] On May 7, 1991 and on June 18, 1991, the Port held its regularly scheduled commission meetings and publicly disclosed the results of the market feasibility study.[3]

After considering the market feasibility study, the Port requested Coopers & Lybrand, a national business and accounting firm, to prepare a cash flow analysis of recommended uses for Squalicum Harbor, Bellingham International Airport and Blaine Harbor. No cash flow analysis of recommended uses for Fairhaven was requested.[4] The second study was prepared by Coopers & Lybrand "for use by the Port of Bellingham in negotiations with prospective joint-venture partners, equity partners and operators with whom the Port of Bellingham will deal directly and should not be used for any other purpose."[5] The study was not disclosed to the public. That study is at issue in this case.

On September 24, 1991, Petitioner Servais filed a public disclosure request with the Port for inspection of the Coopers & Lybrand cash flow analysis.[6] The Port did not respond to the request until November 4, 1991.[7] On February 7, 1992, Appellant Servais, acting pro se, and Frank J. Chmelik, counsel for the Port of Bellingham, appeared in the Whatcom County Superior Court before the Honorable Michael F. Moynihan.[8] Appellant Servais was seeking to compel the Port to disclose certain records claimed by the Port to be exempt from public disclosure.[9]

The Port does not question whether the purported "complaint" in this case conforms to the requirements of CR 10. The document, in the form of a memorandum to the Whatcom County Superior Court from John Servais "Re: Port of Bellingham withholding of public records from public inspection,"[10] is clearly deficient under the rule. However, the Port filed an "Answer to Plaintiff's Complaint for Release of Public Records" on February 6, 1992, asking for "dismissal of Plaintiff's complaint with prejudice."[11] The parties proceeded to a hearing on February 7, 1992, at which counsel for the Port stated:

This is a request for review under 42.17 for a decision by the Court to withhold some records claimed exempt under 42.27.330. Mr. Servais filed this petition or complaint —I don't know what he entitled the complaint for—yesterday, because he was asking for some penalties, for $25 a day. We responded and got this special setting.... [[12]]

Petitioner Servais appeared at that hearing pro se.

*1127 On February 19, 1992, Petitioner appeared with counsel in Superior Court on his "motion to perfect the record." On March 5, 1992, his counsel filed an "Amended Complaint," which incorporated "the entirety of the Complaint on file" and which asked the court for the following relief:[13]

1. That the Court order full disclosure by the Defendant, and grant the opportunity to inspect and copy the entire documentation of any sort received at any time by Defendant from the accounting firm of Coopers & Lybrand;
2. That Court enter judgment against Defendants in favor of Plaintiff for all Plaintiff's costs and attorney fees incurred herein;
3. That the Court order Defendant to pay a $25.00 per day penalty/damages, commencing September 30, 1991;
4. For such other relief as the Court deems just.

On June 19, 1992,[14] Judge Moynihan conducted an in camera review of the requested documents and ruled they were exempt from public disclosure under RCW 42.17.310(1)(h). In the judgment and order dismissing the complaint, the court entered "findings of fact" which included the following:

1. [That] [t]he data withheld by the Port of Bellingham is financial data.
2. That the Port of Bellingham commissioned this data in order to provide for a public gain; (a) namely, to negotiate from a position of a well-informed landlord: and (b) to have the necessary information to value the expected long-term leases.
3. That any hotel development company would keep this type of information private and confidential so that it could deal from its own position of strength.
....
6. That the financial data is valuable formula and/or research data as defined in RCW 42.17.310(1)(h) in that it was obtained by the Port specifically to assist the Port in negotiating leases of its property.
7. That the release of the financial data would produce a private gain and a public loss.
....

The trial court dismissed Appellant's complaint with prejudice and awarded Respondent statutory attorney fees and costs.[15]

On December 27, 1993, the Court of Appeals, Division One, Acting Chief Judge Rosselle Pekelis writing, affirmed the decision of the trial court.

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904 P.2d 1124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/servais-v-port-of-bellingham-wash-1995.