In a landmark day for the fight against public corruption in Spokane, the Washington Supreme Court delivers a major victory to the Center for Justice and the Neighborhood Alliance.
By Tim Connor
It has been nearly six and a half years since Bonnie Mager and the Neighborhood Alliance of Spokane devised a straightforward experiment in government accountability. Their plan was to use Washington’s public records act (PRA) to obtain clear evidence that Spokane County had engaged in blatant nepotism when it hired Steve Harris, the son of Spokane County Commission chairman Phil Harris, to a position in the County’s Building & Planning Department.
The plan didn’t work. At least not right away. Rather than comply with the request, Spokane County embarked, instead, upon a coverup.
In a unanimous decision returned by the Washington Supreme Court Thursday morning, the court described the genesis of the coverup this way:
“At its core, this case involves PRA (public records act) requests that sought to uncover suspected illegal hiring practices in Spokane County’s Building and Planning Department (the BPD). On February 16, 2005, a copy machine at the BPD printed copies of an undated office seating chart. The print request came from the BPD employee Pam Knutsen’s computer. This chart showed cubicle arrangements of employees at the BPD, but it also included (central to this case) two names within a cubicle, who had not yet been hired, designated ‘Ron & Steve.’ This caused quite a stir among the BPD employees, many of whom already suspected the BPD of illegal hiring practices. Mark Holman, an Assistant Director of the BPD, saw the chart, cancelled the print job from Knutsen’s office, and unplugged the copy machine.”
Steve Harris was the third of Phil Harris’s sons to be hired by the county when he filled a BPD position that was first advertised by the County on March 1, 2005. Although the Neighborhood Alliance had obtained a copy of the seating chart via a county whistleblower, the records request it filed on May 16, 2005 sought:
1) the electronic data file that would record exactly when the chart was created.
2) records that would identify the identity of the “Ron & Steve” shown on the seating chart created two weeks before the open position was even advertised.
As the Supreme Court carefully chronicled in its ruling, the May 16, 2005 record request instigated years of stonewalling and obfuscation from Spokane County officials and their attorneys.
The computer that Pam Knutsen used to generate the seating chart had been quickly replaced with a new computer, and the old computer given to another employee—but only after its hard drive had been “wiped” clean of all data. Thus, the electronic data file was never recovered or produced in response to the Neighborhood Alliance request. As for documents identifying “Ron & Steve,” the County simply dismissed that as a request for an answer to the full identities of the two, something the County said it had no duty under the public records act to disclose since the law “does not require agencies to explain public records.”
Thursday’s unanimous decision in favor of the Neighborhood Alliance completes a stunning reversal that now exposes the County to the sort of intensive inquiry, under oath, that it has long sought to avoid in this controversy. In May 2008, after two years of hardball tactics by the County to evade discovery, a Lincoln County judge tossed out the case. The Alliance and the Center appealed and fifteen months later a State Court of Appeals panel offered up half a loaf. Yes, it said, the County had violated the law by not conducting an adequate search for the data contained on Knutsen’s computer. But the appeals court panel also ruled that the County could not be found liable for not disclosing records revealing the full identity of “Ron & Steve.”
On Thursday, however, the Supreme Court upheld the appeals court in its ruling for the Alliance on the Knutsen computer. It also found for the Alliance by overturning the appeals court ruling that the County isn’t liable for withholding the full identities of “Ron & Steve.”
In essence, the Supreme Court found that the County violated the state’s public records law in at least two distinct ways, and it will send the case back to a trial court to assess penalties, costs, and attorneys fees against the County. As importantly, the case will be sent back to Superior Court with a clear mandate for broad discovery to determine the full extent of the County’s efforts to withhold and/or destroy records that it should have provided to the Neighborhood Alliance.
In a sharp rebuke to both the trial court and the appeals court, the Supreme Court clearly explained why, under Washington state law, discovery in public records cases is inherently more germane and must be given a wider berth than discovery in federal Freedom of Information Act (FOIA) proceedings.
“It may be within the trial court’s discretion to narrow discovery,” Justice Charles Johnson wrote for the court, “but it must not do so in a way that prevents discovery information relevant to the issues that may arise in a PRA lawsuit.”
The key difference between the more limited FOIA discovery rules, and the state rules, Justice Johnson reiterated, is the state’s penalty clause. Under FOIA, there are no penalties against an agency for failing to provide requested records. Successful plaintiffs can only recover costs and attorneys fees. But Washington has a penalty provision that purposefully exists to discourage agencies from withholding records. As the state Supreme Court re-emphasized in the epic case of Armen Yousoufian v. King County trial courts are supposed to assess penalties for records violations based upon evidence of how negligently, or willfully, public officials behaved in illegally withholding the records. And these are questions that can only be answered through robust discovery.
“In this case,” wrote Justice Johnson, “the County, in response to most requests, refused discovery completely, as it did not respond to the interrogatories or requests for production at all. This was improper.”
“It’s actually quite simple,” says Breean Beggs, the former Center for Justice lead attorney who argued Neighborhood Alliance before the state Supreme Court in January. “There’s only one difference between the federal Freedom of Information Act and the state’s Public Records Act. And that is penalties. Under FOIA and the state law you can get relief to have the documents being withheld released to you. Under FOIA, once you have the documents that’s the end of the remedy, there’s no further remedy. Whereas under the state law you have an additional remedy of what is the appropriate penalty amount.”
After listing several instances where the County had abused the civil rules of discovery, Justice Johnson wrote: “Since discovery was not allowed to proceed, the record is incomplete, and we remand to the trial court for appropriate discovery.”
On remand to the trial court, it’s obvious now that discovery will certainly include a full deposition of Pam Knutsen, who is now the BPD’s administrative services manager. As Justice Johnson noted in his decision, it is the questioning of Knutsen by the Alliance’s attorneys that the County has fought the hardest to obstruct.
When asked where Thursday’s decision leaves the County and the Neighborhood Alliance, Beggs had this to say: “Without a settlement resolution, it means that thirty days from now it’s going to get mandated back to the trial court and we get to do vigorous discovery on how and why the county responded the way it did to our records request, including all the background information on who was ‘Ron and Steve,’ we get to ask those questions. And how did they get on that list and how did that computer get switched out.”
The Supreme Court’s strong ruling today is explicit that the County is liable; that county officials violated the state’s public records act in at least two important respects in the Neighborhood Alliance case.
Yet, in each of these two areas there remains ambiguity on some very important details that will ultimately shape not just how this case turns out but how public records law in Washington gets adjudicated.
(1) When the appeals court reached its decision for the Neighborhood Alliance in August 2009, it ruled that the County failed to conduct an adequate search for the electronic file information log in Pam Knutsen’s computer and that this failure to adequately search was tantamount to a failure to provide the requested record. The appeals court thus remanded the case back to the trial court “for determination of attorney fees, costs, and penalties against the County..”
With its ruling Thursday, the Supreme Court concurred with that decision. But it did little, if anything, to explain how penalties should be assessed for this type of violation. Ordinarily, when Washington courts assess penalties they assign them to a specific record, and clock the penalties on a daily basis, typically from the day a response is required to be produced, until the day the record is actually produced. But what if—as appears to be the case here—no record is produced because it has been destroyed? That answer is still not clear and, in its decision today, the Court frankly and repeatedly expressed that it was putting off “for another day” the question of whether the public records act “supports a freestanding daily penalty” when agencies both fail to conduct a proper search and produce no responsive documents to which penalties can attach. “A prevailing party in such an instance is at least entitled to costs and reasonable attorney fees.”
(2) Clearly, the Supreme Court handed the Center and Neighborhood Alliance an important victory in concluding that the County possessed and illegally withheld records providing the full identities of the names on the now infamous seating chart. There’s actually something of a dark comedy at work in this part of the Court’s decision. The problem is it’s a little complicated to follow. But let’s give it a try.
The starting point is that the County just simply blew off the Neighborhood Alliance and said it didn’t have to disclose the full names of “Ron & Steve” under the public records act.
The Centers’ lawyers, representing the Alliance vigorously disagreed, saying that if the full names existed in one or more records, and the County had knowledge that these names disclosed the full identities of the “Ron & Steve” on the seating chart, then those records were responsive to the May 16th request and should have been provided. To make this point, the Center’s researchers combed County records that had been turned over to the Neighborhood Alliance in November of 2005 in response to a later public records request. They found, among other things, emails created prior to the May 16, 2005 request that disclosed the full names of Ron Hand and Steve Harris in relation to logistical support for their assigned cubicles.
Rather than conceding the point (that responsive documents could be found in County files) the County chose a different tack. Since the Neighborhood Alliance’s lawyers had helpfully admitted that they had access to records disclosing the full names of Ron Hand and Steve Harris prior to the Alliance filing its lawsuit, the lawsuit was unnecessary, at least in regard to obtaining documents identifying the ‘Ron & Steve’ on the seating chart.
And the appeals court agreed. Specifically, this is what the appeals court ruled in August 2009: “Relying on Daines v. Spokane County (2002), the County correctly argues that there is no cause of action under the PRA to enforce the re-disclosure of records known by the Alliance to already be in its possession.”
But here, the appeals court just got it wrong. What the appeals panel (and the County) had overlooked is that the Supreme Court, in a June 2005 case related to the City of Spokane’s suppression of River Park Square records, had already repudiated the conclusion of the court of appeals in the 2002 Daines decision.
“As will generally be true in many cases, a party does not know with certainty that a document in its possession is the public record it seeks until the agency responds,” Justice Johnson wrote in Thursday’s opinion. “As we have previously recognized, the PRA requires a response to a request and disclosure of all responsive documents held by the agency. The fact that the requesting party possesses the documents does not relieve the agency of its statutory duties, nor diminish the statutory remedies allowed if the agency fails to fulfill those duties.”
What Justice Johnson appears to be saying in the above paragraph is that to comply with the PRA, the agency must not just release a record, but it actually must convey to the requester that it is a record that is responsive to the requester’s request.
And that’s not what happened in the Neighborhood Alliance case. At no time has the County ever forthrightly admitted that Steve Harris and Ron Hand are the two people designated as “Ron & Steve” on the February 2005 seating chart. Instead, it was the Center for Justice’s efforts to show the court what a responsive record could look like that prompted the County to then make what turns out to be the ill-advised reach for a legal argument based in the now obsolete 2002 Court of Appeals decision in Daines. This is because Daines, even it were still relevant, could only apply in a situation where the requester already has possession of the responsive record it seeks from the agency. Thus, by invoking Daines, and arguing by extension that the Alliance was seeking the “re-disclosure” of a responsive document, the County would be indirectly admitting something that it has been loath to admit in discovery, that Ron Hand and Steve Harris are the “Ron & Steve” on the seating chart.
That begs a question: By opting for the Daines argument, was Spokane County admitting that Steve Harris and Ron Hand are the full names of the employees on Pam Knutsen’s infamous seating chart?
According to today’s ruling, the answer from the Washington Supreme Court would appear to be yes.
“In this instance,” Judge Johnson wrote, “the agency refused to produce anything at all for Item #2 (the request for documents identifying “Ron & Steve”) saying instead that the PRA ‘does not require agencies to explain public records. As such, no response is required.’ This violates the PRA. The request sought public records, not explanations, and if the agency was unclear about what was requested, it was required to seek clarification. The Alliance eventually obtained two e-mails that explicitly named Ron Hand and Steve Harris in relation to setting up phones and computers, which directly relates to cubicle assignments and therefore would have been responsive to Item#2. The Alliance was wrongfully denied these public records between the time of the refusal until they were eventually disclosed pursuant to a separate request.”
Thus, according to the Supreme Court, the violation is clear. But it’s not at all clear how many penalty days should be counted in assessing penalties. Is it just the six months before the responsive record was found in the haystack of information provided in response to a separate records request? Or does the calendar stop when the County–without directly admitting the emails were responsive–decided to try to take refuge in the Daines argument? Or is the clock running still?
This will likely set up an interesting set of arguments when the case arrives back at the trial court for the assignment of penalties. Because even though the Alliance did get records that the Supreme Court now deems “responsive” to the request for records identifying “Ron & Steve,” it’s not at all clear that the County ever intended to respond to the request, or that it has yet.
The clear win for the Alliance and the Center in Thursday’s long-awaited ruling is that the Alliance and its lawyers now have a compelling mandate from the Supreme Court for discovery, the essence of which has been thwarted by the County and sharply limited by lower courts for over six years. At a minimum, it is a license to start shining the light into a corner of the County’s business that the County has wanted to keep in the dark for years.
–CFJ
