IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
UNDIVIDED MEDIA LLC, a Washington limited liability company, No. 87628-7-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
CITY OF SEATTLE,
Respondent.
COBURN, J. — After providing a partial installment of responsive records, the City
of Seattle took nearly three additional months to complete unDivided Media LLC’s finite
request for a city councilmember’s communication records over a 10-hour period.
unDivided Media sued the City for violations of the Public Records Act (PRA), chapter
42.56 RCW. The parties filed cross motions for summary judgment. The trial court
granted the City’s motion and denied unDivided Media’s motion. unDivided Media
appeals, arguing that the City (1) failed to provide a reasonable time estimate for the
first installment of records, (2) failed to provide a reasonable time estimate for the
second records installment, and (3) was not reasonably diligent in its response to the
records request. We disagree with unDivided Media’s first contention but agree that
undisputed facts establish that City’s second installment estimate was unreasonable
and that the City failed to handle the request with reasonable diligence as a matter of
law. Accordingly, we affirm in part, reverse in part, and remand for the trial court to enter 87628-7-I/2
partial summary judgment in favor of unDivided Media, to award reasonable attorney
fees, and to consider unDivided Media’s request for an award of daily penalties.
FACTS
On June 21, 2023, unDivided Media owner Brandi Kruse submitted a public
records request to the City’s legislative department for 10 hours of communication
records involving city councilmember Andrew Lewis. Specifically, unDivided Media
requested records created, sent, or received on June 6, 2023 between 12 p.m. and 10
p.m. Pacific Time that included “[a]ll text messages sent to and from,” “[a]ll voicemails
left on,” and a list of ingoing and outgoing calls from Lewis’ city-issued cell phone as
well as “[a]ll emails” with any email attachments sent to and from Lewis’ city-issued
email. The request was received by the legislative department’s public disclosure officer
(PDO) Matthew Jaeger.
Also on June 21 Jaeger sent a records preservation notice to the public
disclosure liaison at Lewis’ office, Maliq Phakdymanivong. At this time, Jaeger had 29
additional open or active records requests in process. He was the only PDO in the
legislative department and the only person responding to records requests on behalf of
the legislative department. The position for the legislative department’s designated
alternate PDO was vacant and had been since March or April 2023. The City had
approximately 90 PDOs assigned to different departments.
On June 27 Scheereen Dedman was hired as city clerk and direct supervisor of
Jaeger. Dedman managed the public disclosure office for the legislative department,
and her supervision responsibilities were limited to overseeing the PDO within the
legislative department.
2 87628-7-I/3
On June 28 Jaeger sent a letter to Kruse informing her that an initial installment
of requested records would be provided around August 18, 2023. By this time, Jaeger
had received 973 records responsive to unDivided Media’s request. Jaeger primarily
based the August 18 estimate on his current workload and placed unDivided Media’s
request “at the end of the line” of previously received requests that he was actively
working on. Based on his experience and knowledge, Jaeger estimated he could
respond to about three records requests per week and at this time, “it would have been
six, seven weeks out.” Jaeger considered current PDO staffing of the legislative and
other departments as well as the number of city personnel involved. Jaeger also
accounted for the possible amount of time it would take for him to review the records
responsive to unDivided Media’s request. Though Jaeger was used to “a three- to four-
week turnaround” when there are two PDOs working on records requests, it was not
unusual for him to have a six- to eight-week turnaround on requests when he was the
only PDO working in the department.
From July 13 to July 24, Jaeger was out on temporary leave for a family
member’s hospitalization. His workload was not covered while he was out. When
Jaeger returned from leave, “there were 10 additional records requests that required
attention.” Despite this, on August 18, 2023, Jaeger notified Kruse that the first
installment of 578 responsive records was ready and would be provided within two
business days upon payment of a $1.25 invoice. Due to the volume of records requests
he was processing, Jaeger required an additional day to make the records available.
Kruse downloaded the first installment on August 24, 2023. This same day,
Jaeger informed her that a second installment would be provided on November 10,
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2023. At this point, Jaeger was processing more than 50 open requests for responsive
records and for any potential exemptions that would require redaction and the creation
of an exemption log.
Jaeger was out of the office for two weeks starting the last week of September.
He returned to the office on October 6. Jaeger’s supervisor Dedman provided some
back-up coverage for about a week during this period.
After Jaeger provided the second installment estimate of November 10, Kruse
asked Jaeger why the City required nearly six months to complete her request and
offered to attempt to narrow the request to speed up production. Based on her
experience in making hundreds of public records requests to the City and other
governmental entities, Kruse characterized the City’s November estimate as “highly
unusual … given the very narrow nature of the request.” Jaeger explained that the City
needed until November 10 due to staffing shortages. He did not respond to Kruse’s offer
to attempt to narrow her request.
Kruse also reached out to city councilmember Sara Nelson in September for her
perspective as to the City’s response. Nelson apparently sent an email to Kruse
expressing surprise at the amount of time it was taking to get a response to unDivided
Media’s request and that Nelson’s office typically requires that records are produced in
three weeks. 1
1 The actual email is not in the record before us. The record refers to unDivided Media’s exhibits related to Nelson’s deposition that were included with unDivided Media’s motion for summary judgment but were not designated in the clerk’s papers. The City does not dispute unDivided Media’s assertion as to the substance of Nelson’s email and also cites to Nelson’s deposition answers about the email. 4 87628-7-I/5
On October 20 unDivided Media sued the City under the PRA. About two weeks
later, in the week leading up to November 10, Jaeger reviewed the second installment
of 395 responsive records. On November 9 Jaeger notified Kruse that the remaining
395 records were ready for disclosure upon invoice payment. The City released the
records to unDivided Media the following day upon its payment of the $1.25 invoice.
In March 2024 the City moved for summary judgment dismissal of unDivided
Media’s lawsuit. unDivided Media filed a response in opposition and a cross-motion for
summary judgment.
As to whether there was a normal time period for responding to a certain request,
Jaeger testified that “it changes on the type of request” rather than “[t]he straight
number of records.” He continued, “I don’t know what the records are until I review the
records. And I think that the estimates were perfectly reasonable.” Public disclosure
liaison Phakdymanivong, like Jaeger, did not consider unDivided Media’s request
particularly complex or extensive. When Phakdymanivong received the records request,
it came with a form sheet that included a deadline to respond to the legislative
department within about two weeks to a month from the date he received the request.
After Dedman was hired, she took time to determine whether or how to combine
the alternate PDO position with one that would also serve as manager to the legislative
department’s boards and commission unit. Dedman testified on May 22, 2024:
I’m not sure as to why [the position was] not [advertised] prior to me. When I started [on June 27, 2023], I just had a list of positions. Well, I had a lot to learn and so in the list of duties, it wasn’t the highest of priority to fill because I was still learning exactly what the needs for that unit are. And unfortunately, due to staffing needs, once I’ve determined that it was – yeah, it was a position that I would like to combine with another unit that I failed to mention. Oh my gosh, I’m so sorry. We have a boards and commission manager. And so I want to combine.
5 87628-7-I/6
I wanted that position to be able to serve both of those units and that took some time to come up with the job description to, you know, work out what the duties would be. So unfortunately, it’s just more so with everything moving at the pace of government, I put up air quotes, the pace of government. Then that’s why today I just had a conversation, you know, with HR about how we can proceed to fill that position.
Dedman said that the legislative department “just ha[s] the one [PDO] and the
vacant position who would do any responding.” According to Jaeger, having someone in
the alternate PDO position would have lessened his workload. Dedman testified that
while there was a time she provided back-up coverage for Jaeger, “if I did any sort of
thing during that timeframe, I’m not really aware because I’m not very familiar with the
job. I couldn’t even tell you the dates I did it, but it was for about a week.”
The City also submitted testimony from Julie Kipp, city manager for the Citywide
Public Records Act Program, 2 who testified that Jaeger was the employee dedicated to
responding to public records requests for the legislative department. Kipp continued,
“[Dedman] will sometimes act as, like, a backup if, like, to send out a 5-day. I don’t know
– I believe I’ve worked with her once to – while [Jaeger] was out to try to move some
process along, but I can’t remember the details of exactly what she needed.”
The trial court granted summary judgment in favor of the City, dismissing
unDivided Media’s claims. unDivided Media appeals.
2 The portion of Kipp’s testimony in the record on appeal does not include evidence of her title, but both parties in their briefing refer to Kipp as the city manager of the “Citywide Public Records Act Program.” 6 87628-7-I/7
DISCUSSION
Legal Principles
The PRA mandates all state and local agencies to disclose any requested public
record unless a specific exemption under the Act or another statute applies. Cantu v.
Yakima Sch. Dist. No. 7, 23 Wn. App. 2d 57, 78, 514 P.3d 661 (2022) (citing
Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 250, 884 P.2d 592
(1994) (plurality opinion)); RCW 42.56.070(1). The purpose of the Act is to increase
governmental transparency and accountability by providing access to public records for
Washington citizens. John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d
63 (2016). We liberally construe the PRA to promote the public’s interest in full access
to public records. SEIU Healthcare 775NW v. Dep’t of Soc. & Health Services, 193 Wn.
App. 377, 400, 377 P.3d 214 (2016) (citing RCW 42.56.030).
“The PRA provides a cause of action for two types of violations: (1) when an
agency wrongfully denies an opportunity to inspect or copy a public record, or (2) when
an agency has not made a reasonable estimate of the time required to respond to the
request.” Andrews v. Wash. State Patrol, 183 Wn. App. 644, 651, 334 P.3d 94 (2014)
(citing RCW 42.56.550(1), (2)). 3 An agency’s failure to respond to a records request
with reasonable diligence amounts to a constructive wrongful denial of a request in
violation of the PRA. Cantu, 23 Wn. App. 2d at 88, 93-94. Courts owe no deference to
an agency’s interpretations of the PRA. O’Neill v. City of Shoreline, 170 Wn.2d 138,
149, 240 P.3d 1149 (2010). Instead, in an action to enforce the PRA, the agency bears
the burden of proof to show that it acted reasonably or that the estimated response time
3 RCW 42.56.550 has been amended since this court’s decision in Andrews, but the relevant language has not changed. 7 87628-7-I/8
it provided was reasonable in compliance with the PRA. Cantu, 23 Wn. App. 2d at 79-
80; Andrews, 183 Wn. App. at 651; RCW 42.56.550(1), (2).
A determination of “whether an agency complie[d] with the PRA is a fact specific
inquiry and must be decided on a case-by-case basis.” Andrews, 183 Wn. App. at 653.
In a PRA case, the trial court “may conduct a hearing based solely on affidavits.” RCW
42.56.550(3). Where, as is applicable here, a PRA case presents a question of law that
was decided by the trial court solely based on documentary evidence and legal
arguments, an appellate court’s review is de novo. Gronquist v. Dep’t of Licensing, 175
Wn. App. 729, 742, 309 P.3d 538 (2013); see RCW 42.56.550(3).
In a PRA case, either party may move for summary judgment under CR 56 4 if the
underlying facts are not in dispute. Cantu, 23 Wn. App. 2d at 80 (citing CR 56(c)); see
also West v. Dep’t of Licensing, 182 Wn. App. 500, 505, 331 P.3d 72 (2014) (“Public
Records Act cases may be decided on summary judgment.”) (citing Spokane Rsch. &
Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117 (2005)).
“[S]ummary judgment is generally appropriate only if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.” Cantu,
23 Wn. App. 2d at 80 (citing Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080
(2015)). That is, where reasonable persons could reach only one conclusion from the
evidence. Andrews, 183 Wn. App. at 651. Notably, in the instant case, the parties agree
that the material facts as to the legal issues on appeal have been fully developed and
are not in dispute.
4 Standard civil procedural rules apply to PRA lawsuits. Rufin v. City of Seattle, 199 Wn. App. 348, 361, 398 P.3d 1237 (2017) (citing Spokane Rsch. & Def. Fund v. City of Spokane, 155 Wn.2d 89, 104, 105, 117 P.3d 1117 (2005)). 8 87628-7-I/9
We review a trial court’s summary judgment order de novo, engaging in the same
inquiry as the trial court. Id. at 650 (citing Folsom v. Burger King, 135 Wn.2d 658, 663,
958 P.2d 301 (1998)). At the summary judgment stage, a party moving for summary
judgment has the burden of showing there is no genuine issue of material fact. City of
Fife v. Hicks, 186 Wn. App. 122, 131, 345 P.3d 1 (2015). “A material fact is one on
which the outcome of the litigation depends in whole or in part.” Id. If the moving party
meets this burden, the nonmoving party must present evidence to show that material
facts remain in dispute. Id. at 132. The nonmoving party cannot rely on speculation,
conclusory statements, or argumentative assertions but must provide “specific facts
which sufficiently rebut the moving party’s contentions” to demonstrate a genuine issue
as to a material fact. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997); Block v. City
of Gold Bar, 189 Wn. App. 262, 269, 355 P.3d 266 (2015) (citing CR 56(e)). “If the
nonmoving party fails in this, summary judgment is proper.” Hicks, 186 Wn. App. at 132.
In reviewing a record on summary judgment, we view any reasonable inferences in the
light most favorable to the nonmoving party and consider only the evidence that was
before the trial court. O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 79, 493 P.3d 1245
(2021); Andrews, 183 Wn. App. at 650-51; RAP 9.12. We may affirm the trial court’s
order on any basis supported by the record. O’Dea, 19 Wn. App. 2d at 79.
Reasonable Time Estimate
unDivided Media challenges the City’s estimated installment dates of August 18
and November 10, 2023. unDivided Media argues that it was unreasonable for the City
to take more than a month to provide the first installment of records and to delay more
than four months before producing the second (and final) installment. We affirm the trial
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court’s ruling that the August 18 estimate was reasonable but conclude that the record
establishes that the November 10 estimate was unreasonable as a matter of law.
A. First Installment Estimate of August 18, 2023
unDivided Media avers that the City’s initial estimate of August 18, 2023 was
unreasonable because it was not based on a consideration of all the factors
enumerated in the City’s internal policy that may affect response time 5 and it exceeded
the City’s standard maximum production time of two to four weeks.
5 unDivided Media cites section 5.3.2 of the Multi-Departmental Administrative Rules (MDAR) 17-0002, the City’s internal policy effective July 23, 2017 regarding public record responses under the PRA. Section 5.3.2 states: when the City receives a public records request, the PDO will determine a reasonable estimate of time within which the City will respond to the request, factoring in the nature, volume, and availability of the requested records; the amount of time necessary to respond to a particular request and its effect on the amount of PDO and non-PDO staff time that can be devoted to responding to the requests of other requestors; and the impact on essential City functions. Specific factors that may affect the response time estimate include, but are not limited to:
(a) Number of pending requests from the same requestor; (b) Volume of records requested; (c) Complexity or ambiguity of the request; (d) Requests for underlying metadata; (e) Access to database or electronic system records; (f) Information Technology (IT) staff involvement; (g) Records not easily identified, located, and/or accessible; (h) Current PDO staffing; (i) Current staffing of any involved City departments; (j) Research by City staff; (k) Amount of time needed by City staff who are not primarily responsible for public disclosure processing; (l) Number of department personnel or other City departments involved; (m) Third-party notice; (n) Complex review to determine if content is exempt; (o) Extensive and complicated electronic redaction; (p) Legal review; (q) Resolving issues related to retention of responsive records; and/or (r) Grouped requests.
10 87628-7-I/11
Under the PRA, agencies must provide a “‘reasonable’ estimate, not a precise or
exact estimate, recognizing that agencies may need more time than initially anticipated
to locate requested records.” Andrews, 183 Wn. App. at 652; see RCW 42.56.520;
WAC 44-14-04003(6). “To provide a ‘reasonable’ estimate, an agency should not use
the same estimate for every request” but “roughly calculate the time it will take to
respond to the request.” WAC 44-14-04003(7). There is no standard amount of time that
is allowed to fulfill a request. Id. Thus, reasonable estimates should vary. Id. Time to
“respond” can include, for example, time to process the request, such as locating and
assembling records, redacting records, determining if disclosure exemptions apply, or
making an installment available. Id.
As stated above, the agency has the burden of showing that the time estimate it
provided was reasonable. RCW 42.56.550(2). We review the reasonableness of a time
estimate in the context in which it was provided. See, e.g., Wade’s Eastside Gun Shop,
Inc. v. Dep’t of Lab. & Indus., 185 Wn.2d 270, 289, 372 P.3d 97 (2016) (holding an
agency’s 232-day response time unreasonable when it was previously determined that
no exemptions applied). “[W]hether an estimate is reasonable necessarily must be
based on a forward-looking evaluation at the time of the estimate, not on a backward-
looking evaluation after the fact.” Freedom Found. v. Dep’t of Soc. & Health Services, 9
Wn. App. 2d 654, 667, 445 P.3d 971 (2019).
Here, unDivided Media presented testimony from PDO Jaeger that in
determining the August 18 estimate he did not consider certain factors outlined in the
City’s policy that may affect response time, including the location of the records or
whether they were easily identified or accessible, research by City staff, amount of time
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needed by City staff who were not primarily responsible for public records requests,
third-party notice, legal review, issues related to the retention of responsive records, or
grouped requests. However, PDO Jaeger’s purported deviation from internal
expectations regarding the determination of response time to a public records request
does not by itself create a cause of action under the PRA.
Under RCW 42.56.100, agencies must “adopt and enforce reasonable rules and
regulations” consistent with the intent of the PRA to “provide for the fullest assistance to
inquirers and the most timely possible action on requests for information.” The purpose
of RCW 42.56.100 is to safeguard and facilitate timely access to public records and
does not permit an agency to promulgate rules that undermine the express intent of the
PRA and delay timely action on public records requests. Kilduff v. San Juan County,
194 Wn.2d 859, 871, 453 P.3d 719 (2019). We have previously observed that the
purpose of the PRA is to keep agencies accountable in responding to public records
requests with reasonable thoroughness and diligence, not to impose “a mechanically
strict finding of a PRA violation whenever [internally imposed] timelines are missed.”
Andrews, 183 Wn. App. at 653. In this vein, though conduct in relation to internal
policies and procedures may be considered as evidence relevant to the question of the
reasonableness of an agency’s response estimate, an agency’s deviation from internal
guidance or expectations in determining such an estimate does not alone establish
liability under the PRA. See id. at 651-53; C.S.A. v. Bellevue Sch. Dist. No. 405, 32 Wn.
App. 2d 544, 569 n.26, 557 P.3d 268 (2024), review denied, 4 Wn.3d 1019 (2025), cert.
denied, 146 S. Ct. 181 (2025).
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According to Jaeger’s undisputed testimony, he individually worked on requests
for the legislative department in the order that they were received. Jaeger explained he
placed unDivided Media’s request “at the end of the line” of currently pending requests
and estimated the time it would potentially take to complete the preceding requests and
unDivided Media’s specific request. We have previously held that an agency’s
determination of a time estimate is reasonable where it was based on a consideration of
how long it will take for the agency to review records for a request while also processing
other PRA requests. Freedom Found., 9 Wn. App. 2d at 666-67; 6 see also Rufin v. City
of Seattle, 199 Wn. App. 348, 358, 398 P.3d 1237 (2017) (holding that the city
responded diligently in its response to PRA request that took 65 days to complete
where it placed the request in the queue along with other requests and was working on
other requests). The record thus establishes that Jaeger reasonably determined the
August 18 estimate based on a consideration of the time he needed to complete the
request along with other requests as the sole PDO in the legislative department.
unDivided Media asserts that it should not have taken Jaeger longer than two to
four weeks to respond to its request. But Jaeger testified it was not unusual for him to
need six to eight weeks to respond to a records request when he was the only PDO
working in the department.
unDivided Media relies on councilmember Nelson’s opinion that it was surprising
how long the City was taking to respond to unDivided Media’s request and that Nelson’s
office typically requires responses be made to records requests in three weeks. This,
6 The court in Freedom Foundation, 9 Wn. App. 2d at 662, 665-67, considered the reasonableness of a time estimate under former RCW 42.56.520 (2010), which is not materially different from the current statute for the purposes of this opinion’s analysis. Compare LAWS OF 2010, ch. 69, § 2 with LAWS OF 2017, ch. 303, § 3. 13 87628-7-I/14
unDivided Media argues, is evidence that the City’s estimated time for response was
not reasonable. However, Nelson conceded that she has never served as a PDO or
reviewed records collected in response to a public records request for exemptions,
third-party notices, or any other relevant considerations under the PRA. Nelson also
acknowledged she was not aware how PDO Jaeger or the legislative department
prioritized records requests. Additionally, Nelson did not know how many requests were
ahead of unDivided Media’s request or the volume of such requests. unDivided Media
also refers to public disclosure liaison Phakdymanivong’s testimony, arguing that his
testimony indicated “the normal turnaround time for the records requests of this nature
would have been between two (2) to four (4) weeks.” But Phakdymanivong testified to
the timeline he understood he had to provide responsive records to Jaeger, and not to a
reasonable estimate for the legislative department to produce records to unDivided
Media.
unDivided Media avers that at minimum the City should have provided an
explanation to support its time estimate for its narrow request. However, the PRA does
not require an agency to provide a records requestor an explanation for its time
estimate for disclosure. 7 Andrews, 183 Wn. App. at 652 (citing Ockerman v. King
County Dep’t of Developmental & Env’t Services, 102 Wn. App. 212, 217-18, 6 P.3d
1214 (2000)).
7 An agency may still opt to provide an explanation for an estimate as a best practice. See WAC 44-14-04003(7) (“While not required, … to avoid unnecessary litigation over the reasonableness of an estimate, an agency could briefly explain to the requestor the basis for the estimate in the initial response. The explanation need not be elaborate but should allow the requestor to make a threshold determination of whether he or she should question that estimate further or has a basis to seek judicial review of the reasonableness of the estimate.”) (citing Ockerman, 102 Wn. App. at 214). 14 87628-7-I/15
Whether an agency has provided a reasonable estimate of time generally
depends on the facts and circumstances. In this case, however, the City bore its burden
to show that its first installment estimate of August 18 was reasonably based on the
time needed to respond to pending requests as well as unDivided Media’s request.
Under CR 56, the burden then shifted to unDivided Media to show otherwise, which it
failed to do. Thus, we hold that a reasonable factfinder could only conclude on this
record that the City’s first installment estimate was reasonable. Accordingly, the trial
court properly granted summary judgment to the City on this basis, as it was entitled to
judgment as a matter of law. See Block, 189 Wn. App. at 274-78; Andrews, 183 Wn.
App. at 651, 653-54.
B. Second Installment Estimate of November 10, 2023
unDivided Media contends that the record presents no genuine dispute that the
City’s second installment estimate of November 10, 2023 was unreasonable as a matter
of law. Because the City provides no evidence to establish the reasonableness of its
November 10 estimate for the completion of unDivided Media’s records request, we
agree.
An agency is entitled to a reasonable amount of time to produce responsive
records under the PRA and is therefore not required to strictly comply with its internal
production dates. O’Dea, 19 Wn. App. 2d at 90; Andrews, 183 Wn. App. at 653. The
City’s extension of its estimated response to unDivided Media’s request thus does not
amount to a per se PRA violation. See Andrews, 183 Wn. App. at 650, 653; C.S.A., 32
Wn. App. 2d at 569 n.26. Nonetheless, the City has the burden to prove that its second
estimate was reasonable. RCW 42.56.550(2); Gronquist v. Dep’t of Corr., 32 Wn. App.
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2d 617, 629-31, 557 P.3d 706 (2024), review denied, 4 Wn.3d 1011 (2025). Extended
estimates are appropriate when circumstances have changed. Gronquist, 32 Wn. App.
2d at 629 (citing Andrews, 183 Wn. App. at 652); WAC 44-14-04003(7).
The City presented no evidence of the changed circumstances that resulted in
the extended estimate of nearly three months. The City’s own evidence showed that
when Kruse inquired about the extended estimate of November 10, PDO Jaeger
attributed it to staffing shortages. Yet, when Jaeger provided the August 18 estimate, he
had already accounted for how long it would take him to complete unDivided Media’s
request given his workload as the sole PDO for the legislative department. In addition to
testifying that an eight-week response time was not unusual when he was the only one
responding to records requests for the legislative department, Jaeger generally
estimated he could respond to about three requests per week and explained he would
address requests in chronological order. At most, considering Jaeger was individually
handling 29 open requests when he received unDivided Media’s request on June 21,
2023, this timeline would have placed the completion of the request sometime around
the end of August or early September.
The record suggests that Jaeger received additional records requests after
receiving unDivided Media’s request. Jaeger received 10 of these requests in July upon
his return from temporary leave. He testified that by around August 24, “at some point,”
he had “cleared 50 open requests.” But the City provides no insight as to how these
additional requests impacted Jaeger’s otherwise standard chronological processing of
requests such that it required him to estimate the next production date for unDivided
Media’s June 21 request as November 10. Because the City has the burden to establish
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that its estimate was reasonable, any lack of evidence regarding circumstances
warranting the extended estimate must be construed against it. See Gronquist, 32 Wn.
App. 2d at 631.
Accordingly, we conclude that the City did not meet its obligation to show that the
November 10 estimate was reasonable under the PRA. In a case where the parties
have filed cross-motions for summary judgment, “[t]hough the reversal of a trial court’s
order granting summary judgment to one party does not mean that the other party’s
motion for summary judgment must be granted, this can be an appropriate remedy
where the two motions take diametrically opposite positions on the dispositive legal
issue and raise no issues of fact.” Aaland v. CRST Home Solutions, LLC, 35 Wn. App.
2d 501, 519, 575 P.3d 1279 (2025), review denied, No. 104668-5 (Wash. Feb. 2, 2026).
Accordingly, because no reasonable factfinder could find on this undisputed record that
the City’s decision to delay its response of remaining records to November 10 was
reasonable, unDivided Media is entitled to summary judgment as a matter of law on this
issue. See Block, 189 Wn. App. at 274; Andrews, 183 Wn. App. at 651. We reverse in
part the trial court’s summary judgment order and remand for entry of partial summary
judgment in unDivided Media’s favor.
Reasonable Diligence
unDivided Media next contends that uncontested facts show that the City did not
respond to its request with reasonable diligence to provide the fullest assistance to its
records request as required by the PRA.
Under the PRA, agencies must fulfill record requests in a manner that does not
create “excessive interference” with the agency’s “other essential functions of the
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agency.” RCW 42.56.100; WAC 44-14-04003(3). At the same time, agencies must
provide the “‘fullest assistance’” and the “‘most timely possible action on requests for
information.’” Freedom Found., 9 Wn. App. 2d at 673 (internal quotation marks omitted)
(quoting Andrews, 183 Wn. App. at 651); see Mitchell v. Dep’t of Corr, 164 Wn. App.
597, 607, 277 P.3d 670 (2011). An agency has the burden of establishing that it
provided the fullest assistance to requestors and the timeliest possible action on records
requests. Gronquist, 32 Wn. App. 2d at 629 (citing RCW 42.56.100). “In determining
whether an agency acted promptly in producing responsive records we examine
whether the agency’s response was thorough and diligent.” Freedom Found., 9 Wn.
App. 2d at 673 (citations omitted). As referenced above, an agency’s failure to diligently
respond to a records request is unreasonable and amounts to a constructive wrongful
denial of a request in violation of the PRA. Cantu, 23 Wn. App. 2d at 88, 93-94; see
RCW 42.56.550(1).
unDivided Media argues that the City’s failure to adequately staff the legislative
department to respond to public records requests violated the City’s internal policy 8 and
rendered the City’s conduct unreasonable under the PRA.
As stated above, an agency’s deviation from its internal policies and procedures
regarding the handling of public records requests does not create a cause of action
under the PRA. See Andrews, 183 Wn. App. at 651-53; C.S.A., 32 Wn. App. 2d at 569
n.26. Where an agency does not strictly comply with internal expectations or timelines
but otherwise acts reasonably diligently in responding to a public records request,
8 unDivided Media cites section 4.2.1 of the City’s public records disclosure policy, MDAR 17-0002 (effective July 23, 2017), which states that “[e]ach department shall have at least one designated PDO and at least one designated alternate PDO, the latter to carry out the PDO’s functions when the PDO is not available due to vacation, sick leave, or otherwise.” 18 87628-7-I/19
courts should take a flexible approach that focuses on the thoroughness and diligence
of the response in determining whether the agency’s conduct is consistent with the
PRA. See Andrews, 183 Wn. App. at 646, 653. To this end, “[a]n agency may produce
records in installments but must make them with reasonable diligence.” C.S.A., 32 Wn.
App. 2d at 558 (citing RCW 42.56.080(2); Cantu, 23 Wn. App. 2d at 90).
A court conducts a fact-specific inquiry to determine whether an agency
responded to a records request with reasonable thoroughness and diligence. Freedom
Found., 9 Wn. App. 2d at 673 (citing Rufin, 199 Wn. App. at 358). “In determining
whether an agency worked diligently on a request, ‘we apply an objective standard from
the viewpoint of the requester.’” C.S.A., 32 Wn. App. 2d at 564 (quoting Cantu, 23 Wn.
App. 2d at 94). This standard contemplates the plaintiff’s prior requests, communication
that occurred between the requester and the agency, and the totality of the
circumstances. Id. (citing RCW 42.56.100). As such, an agency’s conduct in relation to
its internal policies and procedures may be considered as evidence relevant to
reasonableness under the PRA. See Andrews, 183 Wn. App. at 653; C.S.A., 32 Wn.
App. 2d at 564 n.23. An agency cannot excuse an objective lack of diligence with
evidence of administrative inconvenience, insufficient allocation of resources, or
difficulty in producing records. Cantu, 23 Wn. App. 2d at 94-95; see C.S.A., 32 Wn. App.
2d at 568 (holding that school district’s claims that it received an unprecedented number
of public records requests and was short-staffed did not excuse its failure to produce
requested records for a six-month period).
In the instant case, the City’s internal requirement for departments to have an
alternate PDO to provide coverage when the designated PDO is unavailable is evidence
19 87628-7-I/20
of the staffing that the City deemed necessary to diligently respond to records requests
under the PRA. See Multi-Departmental Administrative Rules (MDAR) 17-0002, § 4.2.1
(eff. July 23, 2017). The City does not dispute this and instead claims that it did provide
the necessary back-up coverage for PDO Jaeger to maintain a diligent response to
records requests during the period that unDivided Media’s request was pending.
Turning to the record, it does not appear that PDO Jaeger’s temporary
unavailability in July negatively impacted his ability to respond to unDivided Media’s
request by the first installment estimate of August 18, 2023. However, Jaeger cited
staffing shortages as the reason for the delayed completion of unDivided Media’s
request to November 10 and testified that additional PDO staffing would have lessened
his workload. During Jaeger’s two-week absence in September, which was after Jaeger
provided the second installment estimate of November 10, Jaeger’s supervisor Dedman
provided back-up coverage for only about a week to the limited extent that she sent out
initial five-day letters to new requests. Aside from her limited assistance with new
requests, Dedman did not even know what Jaeger’s duties entailed. Though Dedman
testified she did not advertise the vacant alternate PDO position because she was
assessing the needs of the unit and the possibility of combining the position with
another position, the City’s evidence provided no explanation for its failure to ensure in
the meantime that the person providing back-up to the legislative department’s PDO
was properly trained to do more than send out five-day letters to new requests.
The City further proffered testimony from Dedman that she did not consider back-
up coverage for public records requests as “the highest of priority” for the legislative
department and attributed the time it took to address the gaps in the department’s ability
20 87628-7-I/21
to respond to records requests to “the pace of government.” The City’s inadequate
allocation of resources, lack of priorities, and organizational obstacles is not a defense
for its failure to diligently assist with records requests. See Cantu, 23 Wn. App. 2d at 94-
95; see also RCW 42.56.152 (setting forth training requirements for public records
officers and managers under the PRA).
Thus, the City has failed to meet its burden to show that it acted with reasonable
diligence in producing the second installment of records responsive to unDivided
Media’s request. We therefore hold that no reasonable person could find on this record
that the City provided the fullest assistance to unDivided Media during the time period
that it waited for the second records installment as required by the PRA. Accordingly,
unDivided Media is entitled to partial summary judgment as a matter of law. See
Andrews, 183 Wn. App. at 650-51, 653-54. We thereby reverse in part the trial court’s
order granting the City’s motion for summary judgment and remand for the court to
enter partial summary judgment in unDivided Media’s favor on this basis.
Daily Penalty and Attorney Fees
To the extent it is a prevailing party on appeal, unDivided Media requests
attorney fees and costs and a daily penalty award under RCW 42.56.550(4). RCW
42.56.550(4) provides an award of “all costs, including reasonable attorney fees” to a
requestor who prevails in establishing that an agency violated the PRA. The statute also
provides courts the discretion “to award such person an amount not to exceed [$100] for
each day that he or she was denied the right to inspect or copy said public record.”
RCW 42.56.550(4).
21 87628-7-I/22
Where this court determines that an agency has violated the PRA, the proper
remedy is to remand to the trial court for a determination of a reasonable attorney fee
award and appropriate daily penalties. See C.S.A., 32 Wn. App. 2d at 570 (citing
Neighborhood All. of Spokane County v. Spokane County, 172 Wn.2d 702, 728, 261
P.3d 119 (2011)). “[A]lthough an award of attorney fees to a prevailing party in a PRA
action is mandatory, whether to award a penalty under RCW 42.56.550(4) is within the
trial court’s discretion.” West v. Port of Olympia, 183 Wn. App. 306, 318, 333 P.3d 488
(2014) (citing Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 428, 327
P.3d 600 (2013)). Accordingly, as required under RCW 42.56.550(4), we award
unDivided Media attorney fees as the prevailing party on appeal consistent with this
opinion. Because unDivided Media may be entitled under the PRA to attorney fees for
legal services on remand to the trial court as well as fees on appeal, we remand this
issue to the trial court with instructions to determine an appropriate award consistent
with controlling case law and to exercise its discretion as to whether to award a penalty
under RCW 42.56.550(4).
CONCLUSION
We affirm in part, reverse in part, and remand with instructions for the trial court
to enter partial summary judgment in favor of unDivided Media on the grounds that the
City did not provide a reasonable time estimate for the disclosure of the second records
installment and did not provide the fullest assistance in completing the production of
requested records in violation of the PRA. We also remand for the trial court to hold
further proceedings to award reasonable attorney fees below and on appeal and for
22 87628-7-I/23
consideration of unDivided Media’s request for daily penalties.
WE CONCUR: