73930-7
- Rick Hangartner V City of Seattle
File Date: 05/13/2004
Oral Argument Date: 10/21/2003
739307MAJ
~
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 73930-7
Title of Case: Rick Hangartner V City of Seattle
File Date: 05/13/2004
Oral Argument Date: 10/21/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court of County
Judgment or order under review
Date filed: 03/05/2002
Judge signing: Hon. William L Downing
JUSTICES
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Authored by Gerry L Alexander
Concurring: Faith Ireland
Bobbe J Bridge
Susan Owens
Mary Fairhurst
Dissenting: Barbara A. Madsen
Charles W. Johnson
Richard B. Sanders
Tom Chambers
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Edwin Klaich Inkley
Seattle City Attorneys Office
PO Box 94769
Seattle, WA 98124-4769
Shelley Jeanne Pellegrino
Seattle City Attorney's Office
PO Box 94769
Seattle, WA 98124-4769
Roger D. Wynne
Seattle City Attorneys Office
PO Box 94769
Seattle, WA 98124-4769
Martha J. Dawson
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Holly Anne Harris
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Paul J. Lawrence
Attorney at Law
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Matthew J Segal
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Stephen Alan Smith
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Counsel for Respondent(s)
Judith A. Endejan
Graham & Dunn PC
Pier 70
2801 Alaskan Way Ste 300
Seattle, WA 98121-1128
Aaron Hugh Caplan
Attorney at Law
Aclu of Washington
705 2nd Ave Ste 300
Seattle, WA 98104-1799
Duncan Emerson Manville
Riddell Williams PS
1001 4th Ave Ste 4500
Seattle, WA 98154-1065
Martha J. Dawson
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Amicus Curiae on behalf of Washington Association Of Sheriffs
Leo Edward Poort
Seattle Police Department
PO Box 34986
610 5th Ave
Seattle, WA 98124-4986
Amicus Curiae on behalf of King County School Coalition
John Lawrence Groh
Seattle City Attorney's Office
PO Box 94769
Seattle, WA 98124-7069
David John Lenci
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Amicus Curiae on behalf of Washington Association Of Prosecutin
Pamela Beth Loginsky
Washington Assoc of Prosecuting Atty
206 10th Ave SE
Olympia, WA 98501-1399
Amicus Curiae on behalf of Association Of Washington Cities
Brent David Boger
City Attorneys Office
210 E 13th St
PO Box 1995
Vancouver, WA 98668-1995
Theodore Henry Gathe
Attorney at Law
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995
Judith Martha Zeider
City Attorneys Office
PO Box 1995
Vancouver, WA 98668-1995
Amicus Curiae on behalf of Allied Daily Newspapers Of Washingto
James A. Jr Andersen
Attorney at Law
3008 98th Ave NE
Bellevue, WA 98004-1817
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Alison Page Howard
Attorney at Law
2600 Century Square
1501 4th Ave
Seattle, WA 98101-3225
Eric B Martin
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1664
Amicus Curiae on behalf of Washington Public Ports Association
John Lawrence Groh
Seattle City Attorney's Office
PO Box 94769
Seattle, WA 98124-7069
David John Lenci
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Amicus Curiae on behalf of Washington Coalition For Open Govern
James A. Jr Andersen
Attorney at Law
3008 98th Ave NE
Bellevue, WA 98004-1817
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Alison Page Howard
Attorney at Law
2600 Century Square
1501 4th Ave
Seattle, WA 98101-3225
Eric B Martin
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1664
Amicus Curiae on behalf of Attorney General
Narda D. Pierce
Attorney General
Solicitor General
PO Box 40100
Olympia, WA 98504-0100
Amicus Curiae on behalf of Washington Public Utility Districts
John Lawrence Groh
Seattle City Attorney's Office
PO Box 94769
Seattle, WA 98124-7069
David John Lenci
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Amicus Curiae on behalf of Washington State Trial Association
Mark J. Lee
Langabeer Tull & Lee PS
PO Box 1678
Bellingham, WA 98227-1678
Amicus Curiae on behalf of Washington State Association Of Muni
Brent David Boger
City Attorneys Office
210 E 13th St
PO Box 1995
Vancouver, WA 98668-1995
Theodore Henry Gathe
Attorney at Law
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995
Judith Martha Zeider
City Attorneys Office
PO Box 1995
Vancouver, WA 98668-1995
Amicus Curiae on behalf of Washington Newspaperpublichers Assoc
James A. Jr Andersen
Attorney at Law
3008 98th Ave NE
Bellevue, WA 98004-1817
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Alison Page Howard
Attorney at Law
2600 Century Square
1501 4th Ave
Seattle, WA 98101-3225
Eric B Martin
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1664
Amicus Curiae on behalf of League Of Women Voters Of Seattle
William John Crittenden
Attorney at Law
927 N Northlake Way Ste 301
Seattle, WA 98103-3406
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
RICK HANGARTNER )
) No. 73930-7
Respondent, )
)
v. ) En Banc
)
CITY OF SEATTLE, a municipal )
corporation, )
)
Appellant. )
)
CITIZENS AGAINST THE MONORAIL, a )
political action committee registered with )
the Washington State Public Disclosure )
Commission, )
)
Respondent, )
)
v. )
)
SEATTLE POPULAR MONORAIL )
AUTHORITY (the 'Seattle Monorail )
Project'), and HAROLD ROBERTSON, )
)
Appellants. )
) Filed May 13, 2004
ALEXANDER, C.J.--These consolidated cases raise several issues including:
(1) whether a request made under the public disclosure act (PDA) for all of
an agency's documents is overbroad, thus excusing the agency from complying
with the disclosure request, (2) whether the mere existence of public
debate surrounding a transportation project is a 'controversy,' as defined
in RCW 42.17.310(1)(j), rendering documents related to the project exempt
from the PDA, and (3) whether documents covered by the attorney-client
privilege are exempt from the PDA. We conclude that documents covered by
the attorney-client privilege are exempt from the PDA and, therefore,
reverse the trial court in Hangartner v. City of Seattle and remand for a
determination as to whether the withheld documents are covered by the
privilege. We also reverse in Citizens Against the Monorail v. The
Elevated Transportation Company1 on the basis that the request for 'all
books, records, {and} documents of every kind' was too broad.
I
Hangartner v. City of Seattle
In early 2000, the City of Seattle (the City) announced that it would hold
a public hearing on March 21, 2000, regarding Council Bill (CB) 113100.
This proposed ordinance was designed to allow the City to issue permits for
the 'temporary structures and uses' necessary for the construction of a
light rail transit system.2 Hangartner's Clerk's Papers (HCP) at 62. On
February 25, 2000, Rick Hangartner sent a PDA3 request to the City seeking
the disclosure of documents relating to CB 113100. Although the City
produced the bulk of the requested documents, it withheld three of the
requested documents (hereinafter referred to as the light rail documents),
asserting that they were exempt from disclosure under RCW 42.17.260(1) by
an 'other statute,' the attorney-client privilege set forth in RCW
5.60.060(2)(a), and the so-called 'controversy exemption' contained at RCW
42.17.310(1)(j). At the time Hangartner made his request, there was a
considerable amount of public debate over the development of the light rail
line. The City was not, however, involved in any litigation concerning CB
113100 at that time.
Hangartner brought suit against the City in King County Superior Court
seeking an order compelling disclosure of the light rail documents. He
then moved for summary judgment. The City responded by filing a cross-
motion for summary judgment.
The trial court granted Hangartner's motion and ordered the City to allow
Hangartner to inspect and obtain copies of the light rail documents. The
trial court did, however, stay its judgment to allow the City an
opportunity to seek review of its ruling. The City then sought
discretionary review of the trial court's decision with Division One of the
Court of Appeals.
In a separate PDA request sent almost two weeks after the trial court's
order, Hangartner sought records from the City relating to the City's
designation of an alcohol impact area in the Pioneer Square neighborhood.
Although the City produced many of the requested documents, it withheld
three documents (hereinafter referred to as the AIA documents) contending
that they were exempt from the PDA under the attorney-client privilege.4
The City agreed to allow Hangartner to amend his original complaint to
include the City's refusal to release the AIA documents. The trial court
then amended the judgment it had previously entered in order to provide
that the City was required to release these additional documents.5 The
trial court also stayed the effectiveness of its amended judgment pending
resolution of the matter on appeal. The City appealed to Division One of
the Court of Appeals, which struck the prior motion for discretionary
review and considered the entire case as an appeal of right.
Citizens Against the Monorail v. The Elevated Transportation Company
Citizens Against the Monorail (Citizens) sent a PDA request to the Elevated
Transportation Company (ETC) in an effort to obtain documents relating to a
proposed initiative regarding the development of a new monorail line in
Seattle, a matter that was on the November 5, 2002, ballot. In an effort
to clarify which documents it was requesting, Citizens modified its request
on September 26, 2002, 'to ask for the opportunity to inspect all books,
records, documents of every kind and the physical properties of the
Elevated Transportation Company.' Citizens' Clerk's Papers (CCP) at 15.
Although the ETC informed Citizens that the PDA requires it to produce only
''identifiable'' public records, it agreed to respond to the request but
stated that it would 'exercise its responsibility to review for
exemptions.' CCP at 18. Citizens never narrowed its request.
The ETC attempted to comply with Citizens' request, 'on a rolling basis{,}'
by screening all documents and releasing the documents it believed were not
exempt from disclosure. CCP at 86. Unsatisfied with the ETC's actions,
Citizens filed suit against the ETC in King County Superior Court to compel
the production of the documents prior to the November 2002 election.
Two days after the suit was filed, the ETC produced a log identifying the
records that it believed were exempt from production. The ETC claimed that
all of the records at issue in this appeal were either protected by an
'other statute,' the attorney-client privilege, or the controversy
exemption set forth in RCW 42.17.310(1)(j). ETC's Opening Br. at 9-10.
The following day, the trial court held a show cause hearing relating to
the withheld records. At that hearing, the ETC contended that: (1)
Citizens' request was overbroad, (2) the withheld records were covered by
the attorney-client privilege and, therefore, exempt from disclosure under
the 'other statute' exemption, and (3) some of the records were also exempt
by virtue of the controversy exemption. The trial court ordered the ETC to
disclose to . . . Citizens . . . all of its public records, including all
electronic records contained on all computers owned, operated or controlled
by the ETC and computers within the control of any ETC Staff member or ETC
Board member containing electronic correspondence relating to the conduct
of ETC's business; access to private computers shall be through a mutually
agreed third party.
. . . .
. . . ETC shall produce all documents identified on its exemption logs.
CCP at 206-07. The court stayed its ruling for 48 hours to allow the ETC
to seek emergency appellate review, which it did by filing a petition for
discretionary review with Division One of the Court of Appeals.
The following day, Citizens filed an emergency motion with the trial court
requesting the immediate production of certain records. In response to
this motion, the trial court reviewed two documents in camera and
determined that they were exempt from disclosure under RCW 42.17.310(1)(j),
the controversy exemption.
Approximately one week later, the trial court reviewed, in camera, an
additional 115 documents relating to the emergency motion. It determined
that many of the documents were exempt from production, relying on the
PDA's controversy exemption and the attorney-client privilege.6
The Court of Appeals granted the ETC's request for discretionary review.
Citizens was later granted cross-review of the trial court's determination
that certain documents were exempt. The Court of Appeals consolidated both
cases that are before us now, and certified them to this court pursuant to
RCW 2.06.030(d). Determining that these cases presented issues of broad
public importance, we accepted certification.
II
Agency actions challenged under the PDA are reviewed de novo. RCW
42.17.340(3). We, therefore, stand in the same position as the trial
court. O'Connor v. Dep't of Soc. & Health Servs., 143 Wn.2d 895, 904, 25
P.3d 426 (2001).
These consolidated cases raise several common issues including: (1) whether
the circumstances present when these documents were prepared can be
characterized as a 'controversy' as defined in RCW 42.17.310(1)(j), and (2)
whether the attorney-client privilege provides an exemption from the PDA.
Moreover, the ETC contends that Citizens' PDA request was impermissibly
broad, rendering it invalid. Because an agency is not required to comply
with an invalid PDA request, Bonamy v. City of Seattle, 92 Wn. App. 403,
412, 960 P.2d 447 (1998), review denied, 137 Wn.2d 1012, 978 P.2d 1099
(1999), we will first reach the question of the validity of Citizens'
request.
A. The Validity of Citizens' Request for All of the ETC's Documents
The ETC contends that it is excused from producing the withheld documents
because Citizens' request was overbroad. Citizens responds that it
identified the records it sought as 'the CDs containing ETC's most
important electronic communications.' Citizens' Br. of Resp't/Cross
Appellant at 42.
While there is no official format for a valid PDA request, a party seeking
documents must, at a minimum, provide notice that the request is made
pursuant to the PDA and identify the documents with reasonable clarity to
allow the agency to locate them. Wood v. Lowe, 102 Wn. App. 872, 878, 10
P.3d 494 (2000). The PDA requires agencies to produce only 'identifiable
public records.' RCW 42.17.270. If a request is too vague, an agency can
request a clarification. RCW 42.17.320. Here, it cannot be said that the
request was vague. Rather, the issue is whether the request was overbroad.
In Bonamy, Division One of the Court of Appeals determined that a request
''for generic policy guidelines on any type of investigation'' was
overbroad, rendering the request invalid. Bonamy, 92 Wn. App. at 411. The
Bonamy holding was reaffirmed in Wood where Division Three of the Court of
Appeals cited Bonamy for the proposition that a 'request 'for general
policy guidelines' {is} too broad.' Wood, 102 Wn. App. at 879. We agree
with the Court of Appeals that a government agency need not comply with an
overbroad request. We reach that determination because if a requesting
party could meet the PDA's requirement of identifying the desired documents
by requesting all of an agency's documents, the identification requirement
would be essentially meaningless. We will not interpret a statute in a
manner that leads to an absurd result. State v. J.P., 149 Wn.2d 444, 450,
69 P.3d 318 (2003). The PDA was enacted to allow the public access to
government documents once agencies are allowed the opportunity to determine
if the requested documents are exempt from disclosure; it was not enacted
to facilitate unbridled searches of an agency's property. We hold,
therefore, as did the Court of Appeals in Wood, that a proper request under
the PDA must identify with reasonable clarity those documents that are
desired, and a party cannot satisfy this requirement by simply requesting
all of an agency's documents.
Citizens argues that it 'clearly identified the types of records it
sought.' Citizens' Br. of Resp't/Cross Appellant at 42. Citizens,
however, fails to cite to the record to support this claim. Furthermore,
Citizens has not suggested that it modified its September 26, 2002, request
that sought 'all books, records, {and} documents of every kind.' CCP at
15. The dissent translates this request into one for 'all of the public
records in ETC's possession that were pertinent to the purpose for which
they were sought.' Dissent at 3 (emphasis added). Nothing in the record
suggests that Citizens so limited its request. Instead, the record
supports the ETC's contention that Citizens' request was for all of its
records because the trial court ordered the ETC to disclose 'all of its
public records.' CCP at 206. Although the ETC informed Citizens that it
was required to produce only ''identifiable'' records, Citizens never
limited its request. CCP at 18. Citizens' request, in sum, could not have
been any broader.7
When a request is invalid, the agency is excused from complying with it.
Bonamy, 92 Wn. App. at 412. The ETC was not obligated to comply with
Citizens' overbroad request, and the trial court erred in holding
otherwise. We, therefore, find it unnecessary to consider the ETC's
remaining arguments relating to the trial court's orders.
B. Hangartner's PDA Requests
1. The Controversy Exemption
The City argues that the trial court erred in determining that the
controversy exemption does not apply to the light rail documents. The
trial court determined that applying the controversy exemption was
unnecessary because the City failed to establish that litigation was
reasonably likely.
The controversy exemption is contained within the PDA and exempts from
disclosure those '{r}ecords which 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.' RCW 42.17.310(1)(j). In Dawson v. Daly, 120 Wn.2d 782, 791, 845
P.2d 995 (1993), we defined the phrase 'relevant to a controversy' as
'completed, existing, or reasonably anticipated litigation.' We declined
to define this phrase as ''a prolonged public dispute, debate or
contention'' concluding that such a definition would violate the PDA's
requirement that exemptions are construed narrowly. Id. at 790; see RCW
42.17.251 ('The public records subdivision of this chapter shall be
liberally construed and its exemptions narrowly construed . . . .').
The City contends that the light rail documents were created in reasonable
anticipation of litigation because there was a 'litigation-charged
atmosphere' at the time they were created. City's Opening Br. at 43. The
City has, however, failed to establish that there was any threat or
reasonable anticipation of litigation concerning the enactment of CB
113100. Indeed, a 'litigation-charged atmosphere' is more analogous to the
definition of 'relevant to a controversy' that we rejected in Dawson than
it is to the definition we adopted in that case. We hold, therefore, that
the trial court did not err in determining that the light rail documents
were not exempt under RCW 42.17.310(1)(j).
2. The Attorney-Client Privilege as a PDA Exemption
The PDA generally requires all agencies to disclose requested documents
unless a 'specific statutory exemption is applicable.' Dawson, 120 Wn.2d
at 789. The purpose of the act is to allow the people to retain their
sovereignty and effectively control their government by remaining informed
about its actions. RCW 42.17.251. 'In order to promote its purposes, the
{PDA's} provisions are to be liberally construed to promote full access to
public records; its exemptions are to be narrowly interpreted.'
Confederated Tribes v. Johnson, 135 Wn.2d 734, 745-46, 958 P.2d 260 (1998).
At the trial court, Hangartner contended that the attorney-client privilege
provides an exemption for documents only when the documents relate to a
'controversy' as defined in RCW 42.17.310(1)(j). The trial court agreed,
reasoning that the PDA's 'other statute' exemption, contained at RCW
42.17.260(1), does not include the attorney-client privilege. RCW
42.17.260(1) is a provision of the PDA. It provides, in pertinent part,
that '{e}ach agency . . . shall make available for public inspection and
copying all public records, unless the record falls within the specific
exemptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or
other statute which exempts or prohibits disclosure of specific information
or records.' (Emphasis added.) An agency, therefore, must establish that
its record is exempt through one of the specific exemptions listed within
the PDA or another statute, incorporated by RCW 42.17.260(1), that exempts
or prohibits disclosing the record. As noted above, RCW 42.17.310(1)(j)
protects only documents that 'are relevant to a controversy . . . {and}
would not be available to another party under the rules of pretrial
discovery for causes pending in the superior courts.'
The City asserts that the attorney-client privilege as codified at RCW
5.60.060(2)(a) is an 'other statute' that prohibits disclosing certain
records through the PDA. RCW 5.60.060(2)(a) provides that '{a}n attorney
or counselor shall not, without the consent of his or her client, be
examined as to any communication made by the client to him or her, or his
or her advice given thereon in the course of professional employment.'
Hangartner argues that interpreting the attorney-client privilege as an
'other statute' as provided in RCW 42.17.260(1) 'would render the
controversy {exemption} meaningless and superfluous.' Hangartner's Br. of
Resp't at 19. We agree that '{s}tatutes are construed wherever possible so
that no portion is superfluous.' In re Marriage of Gimlett, 95 Wn.2d 699,
703, 629 P.2d 450 (1981). Nevertheless, a determination that documents
that fall within the statutory attorney-client privilege are exempt from
the PDA does not render the controversy exemption meaningless. Indeed, in
this case, even though Hangartner made requests that he referred to as
'voluminous,' the City claimed that only six documents, three of the light
rail documents and three AIA documents, fell within the attorney-client
privilege. HCP at 27; see HCP at 417.
The controversy exemption exempts documents that are 'relevant to a
controversy' and unobtainable through pretrial discovery, which will
include some documents also covered by the attorney-client privilege and
some documents that are not covered by the attorney-client privilege.
Additionally, the attorney-client privilege protects documents and records
that fall within the privilege regardless of whether they are 'relevant to
a controversy.' Thus, an exemption for documents falling within the
statutory attorney-client privilege merely complements the controversy
exemption.
Recognizing an exemption for documents protected by the attorney-client
privilege will not, as the dissent contends, 'swallow{} the PDA's purpose
of allowing citizens a right to public records.' Dissent at 9. The
attorney-client privilege is a narrow privilege and protects only
'communications and advice between attorney and client;' it does not
protect documents that are prepared for some other purpose than
communicating with an attorney. Kammerer v. W. Gear Corp., 96 Wn.2d 416,
421, 635 P.2d 708 (1981). Thus, should an agency prepare a document for a
purpose other than communicating with its attorney, and then claim that the
document is protected by the attorney-client privilege, the requesting
party might well claim that the agency has acted in bad faith. A finding
of bad faith could cost the agency dearly since a requesting party is
'entitled' to an award of between $5 and $100 for each day that it was
wrongfully denied ''the right to inspect or copy {the requested} public
record.'' Amren v. City of Kalama, 131 Wn.2d 25, 35, 37, 929 P.2d 389
(1997) (quoting RCW 42.17.340(4)). When deciding where, between $5 and
$100 per day, the appropriate per day award should rest, the court must
consider whether the agency claimed an exemption in bad faith. Id. at 38.
'When statutory language is plain and unambiguous, the statute's meaning
must be derived from the wording of the statute itself.' State v. Johnson,
104 Wn.2d 179, 181, 703 P.2d 1052 (1985). This rule holds true, even if
'the Legislature intended something else but failed to express it
adequately.' State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997). In
our view, RCW 42.17.260(1) is clear in including the statutory attorney-
client privilege as an exemption. When the legislature amended the PDA to
include the 'other statute' exemption, it could have easily trumped the
attorney-client privilege by excluding it from consideration as an 'other
statute.' Laws of 1987, ch. 403, sec. 3. It did not do so. Although the
dissent would have us rewrite the statute to include a requirement that the
'other statute' 'mesh{} with the PDA,' we will not look past the clear
language of that statute. Dissent at 9. Instead, we consider both the
PDA's mandate that exemptions are interpreted narrowly and the statutory
language used in creating the exemptions. Because RCW 5.60.060(2)(a) is
unquestionably a statute other than RCW 42.17.260(6), 42.17.310, or
42.17.315 that prohibits the disclosure of certain records, documents that
fall under RCW 5.60.060(2)(a) are exempt from the public disclosure act.
Consequently, the trial court erred in ordering the City to produce its
documents because the trial court never determined whether the documents
were protected by the attorney-client privilege.8
III
The language the legislature used in RCW 42.17.260(1) is clear and
plainly establishes that documents that fall within the attorney-client
privilege are exempt from disclosure under the PDA. The trial court should
not, however, have reached that issue in Citizens because the PDA request
there was invalid because it was overbroad. We reverse the trial court's
orders in that case on that basis.
In Hangartner, we affirm the trial court's determination that the
light rail documents were not exempt under RCW 42.17.310(1)(j) because
these documents were not created in reasonable anticipation of litigation
concerning CB 113100. We do, however, reverse the trial court's
determination that the attorney-client privilege does not provide an
exemption for the six documents withheld by the City. We, therefore,
remand to the trial court to determine if the withheld documents are
covered by the attorney-client privilege.
WE CONCUR:
1The Elevated Transportation Company was a public agency charged with
extending the Seattle Monorail. Although it was dissolved by action of the
Seattle City Council on June 9, 2003, all of its liabilities were
transferred to the Seattle Popular Monorail Authority. To limit confusion,
we have referred to the Elevated Transportation Company throughout this
opinion even though the Seattle Popular Monorail Authority has been
substituted as the real party in interest.
2The record contains (1) clerk's papers for Hangartner (HCP) and (2)
clerk's papers for Citizens (CCP).
3The PDA is codified at chapter 42.17 RCW.
4The City does not contend that the AIA documents are exempt from
disclosure under RCW 42.17.310(1)(j), the controversy exemption.
5Because Hangartner prevailed in his action, the trial court also awarded
Hangartner $43,825 in attorney fees, costs, and statutory penalties
pursuant to RCW 42.17.340(4).
6The trial court entered a written order on November 21, 2002, reflecting
these decisions.
7The dissent contends that Citizens had no choice but to request all of the
ETC's documents because the ETC did not maintain a public records index as
required by RCW 42.17.260(3). Dissent at 5. Citizens, however, did have
the option of challenging the ETC's failure to maintain an index, but it
chose not to.
8Both Hangartner and Citizens sought attorney fees pursuant to RCW
42.17.340(4), which allows a party to recover attorney fees if he or she
prevails in an action for the production of documents under the PDA.
However, neither Hangartner nor Citizens prevailed. Therefore, attorney
fees are not awarded.
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