Supreme Court accepts the Center’s petition for review in the case of the Neighborhood Alliance v. Spokane County.
A five member panel of the Washington Supreme Court has unanimously agreed that the full court will review a state Court of Appeals ruling last summer in the Neighborhood Alliance v. Spokane County public records case.
The case dates back to 2005 when the Alliance–led then by current Spokane County 
Commissioner Bonnie Mager–sought public records to try to document an allegation of nepotism. Specifically, the Alliance sought records that might corroborate what a leaked seating chart appeared to indicate on its face–that a decision to hire the son of County Commissioner Phil Harris for a position in the county’s Building & Planning department was a done-deal even before the job had been publicly posted, as required by law.
The charges of nepotism (three of Harris’s sons ultimately went to work for the county) clearly factored into Mager’s election victory over Harris four years ago. But the controversy over the records has lived on as the Center’s lawyers mounted a lengthy effort on behalf of the Alliance to obtain evidence and testimony related to a) the “wiping” of a hard drive housed in the computer on which the seating chart had been electronically created, b) the search county officials conducted for records, and c) the possible destruction of records sought by the Alliance.
The public records case succeeded, at least to the extent that a Court of Appeals panel reversed a trial court judge to find that Spokane County failed “to conduct an adequate search for the complete electronic information log showing the date the seating chart was created.”
The appeals court ruling last August was hailed as “vindication” for the Alliance by CFJ attorney Breean Beggs because it found the county liable for violating the open records law. Still, the appeals court panel sided with Spokane County on procedural and legal issues that, at least in the Center’s view, contradicted the Washington Supreme Court’s 2005 ruling in a case involving River Park Square documents that had been illegally withheld by the City of Spokane. In that case, the Supreme Court unanimously ruled that standard civil rules of discovery apply to public records cases in Washington, and that an agency cannot escape liability for withholding documents from a requester by waiting until a subsequent event triggers the release of the same records.
In the Alliance case, the Court of Appeals panel relied on precedents adjudicated under the federal Freedom of Information Act (FOIA) and a 2002 Washington state case (Daines v. Spokane County) in ruling that the county could not be held liable for the late release of ostensibly responsive documents, and that the trial court had ruled correctly for the county in denying a motion to compel discovery. Although the Court of Appeals decision recounts the county’s repeated efforts to block discovery in the Neighborhood Alliance case, the appeals court decision (again relying on FOIA precedents) agreed with Spokane County that the trial court appropriately used its discretion to restrict discovery.
In the petition to the Supreme Court, however, attorneys Breean Beggs and Bonne Beavers argue that the appeals court panel simply ignored the 2005 case involving the River Park Square documents. What the appeals court panel overlooks, they argue, is that the Washington Public Records Act provides for mandatory penalties when violations occur, and that the weight of those penalties is properly adjudicated based on the degree of negligence or willfulness of an agency’s failure to provide a requested record. Thus, robust discovery is needed to meaningfully evaluate an agency’s culpability and thus assign the proper per day penalty for the violation(s).
“Unlike FOIA,” they contend, “the subject matter of a state public records action is not simply the existence or nonexistence of relevant documents and the procedures utilized to find them. Rather, because the state act provides for mandatory penalties, the agency’s decision not to release records, and the ground for that decision are precisely the subject matter of a suit brought under the Public Records Act.”
On the issue of the delayed document release (in this instance the Center and the Alliance argue that the county only produced a responsive document after the Alliance submitted a second records request) Beggs and Beavers cite the 2005 RPS decision to argue that “untimely release [of a record] is itself a violation” of the state law.
In short, the two issues that Beggs and Beavers presented the Supreme Court for review are:
1) Whether a plaintiff in a PRA action is entitled to the same scope of discovery allowed other civil plaintiffs under Washington’s civil discovery rules.
2) Whether a plaintiff is a prevailing party under the PRA where the defendant agency wrongfully withheld documents at the time of request but released the same prior to suit in response to a different public records request.
The requested relief is for the state Supreme Court to “reinforce its earlier ruling” in the 2005 RPS records case by upholding a broad right for discovery and to find that the additional documents at issue were improperly withheld. The petition asks that the case then be remanded to a trial court for discovery on the remaining issues so as to properly assign penalties, fees and expenses against the county.
In responding to the petition on behalf of the county, Spokane attorney Pat Risken contends the appeals court rulings against the Alliance are not disputed by any state Supreme Court ruling. Risken criticizes the Alliance’s efforts for broad discovery in the case and accuses the organization of seeking “to create a ‘gateway’ into the workings of government from the most innocuous document request. The potential for abuse is astounding.”
Risken also disputes that the Alliance was denied appropriate discovery in the case, and argues that the county should not be held liable for late produced documents because the records were in the Alliance’s possession at the time if filed the lawsuit.
On behalf of the County, Risken also cross-petitioned the Supreme Court to challenge the Court of Appeals’ conclusion that the county is liable for failing to conduct an adequate search for information related to the leaked seating chart.
–CFJ