Kittitas County v. Sky Allphin

FILED
August 9, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

KITTITAS COUNTY, a municipal ) No. 33241-1-111
)
corporation and political subdivision of
the State of Washington, )
)
Respondent, )
)
v. )
)
SKY ALLPHIN, ABC HOLDINGS, INC., ) OPINION PUBLISHED IN PART
CHEM-SAFE ENVIRONMENTAL, )
INC., )
)
Appellants, )
)
WASHINGTON STATE DEPARTMENT )
OF ECOLOGY, )
)
Defendant. )

LAWRENCE-BERREY, A.CJ. - In 2011, Kittitas County (the County) issued a

notice of violation and abatement (NOVA) to Chem-Safe Environmental, Inc. and its

parent company, ABC Holdings, Inc. (collectively Chem-Safe) for storing and handling

moderate risk waste without proper county permits. The Kittitas County Prosecuting

Attorney's Office sought assistance from technical professionals at the Washington State

Department of Ecology (Ecology), and the deputy prosecutor and Ecology employees
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Kittitas County v. Allphin

exchanged e-mails throughout the regulatory enforcement litigation.

Sky Allphin, Chem-Safe's president, then submitted a Public Records Act (PRA)

request under chapter 42.56 RCW, seeking the County's records pertaining to the case,

including its attorneys' e-mails and correspondence. The trial court reviewed the e-mails

in camera and determined they were a product of litigation ongoing between the County

and Mr. Allphin and were, therefore, exempt from production under the PRA.

Mr. Allphin argues the sealed e-mails are not attorney work product or attorney

client privileged and, even if they are, the County waived any privilege when it

exchanged the e-mails with Ecology. In the published portion of this opinion, we discuss

the "common interest doctrine," an exception to the rule that the presence of a third party

to a communication waives a privilege. We hold that this doctrine applies here, and the

County did not waive any privilege by consulting with Ecology.

Mr. Allphin also argues (1) the County's exemption logs are inadequate, (2) the

County violated the PRA when it initially withheld or redacted records and then

subsequently produced those same records, (3) the County failed to provide the fullest

assistance, ( 4) the County unlawfully withheld handwritten notes by Richard Granberg,

and (5) the County abused the judicial process and this court should release the e-mails as

a sanction. In the unpublished portion of this opinion, we agree with Mr. Allphin that the

County wrongfully withheld six e-mails, but disagree with his remaining arguments. We

2

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therefore affirm in part, reverse in part, and remand for further proceedings.

FACTS

Chem-Safe operates a hazardous waste transport and transfer facility in Kittitas

County, Washington. Beginning in 2009 or 2010, the County and Ecology worked with

Chem-Safe to develop operations and engineering plans that would comply with

Washington's waste handling regulations. In December 2010, James Rivard, the

environmental health supervisor for the Kittitas County Public Health Department

(KCPHD), received letters from the Idaho Department of Environmental Quality. The

letters said an Idaho disposal company sent three shipments of waste back to Chem-Safe

because the contents of Chem-Safe's waste drums did not match the labels on the drums

or Chem-Safe's paperwork.

Mr. Rivard inspected Chem-Safe's facility and observed moderate risk waste

materials. Chem-Safe did not have a permit from KCPHD to collect moderate risk waste

or operate a moderate risk waste facility. Chem-Safe also failed to properly label

hazardous waste, had unsanitary drums, and lacked a secondary containment for their

drums.

The County issued Chem-Safe a NOVA, which alleged Chem-Safe had operated a

hazardous waste facility without a proper permit, required Chem-Safe to take a number of

abatement actions, and required Chem-Safe to suspend all facility operations until it

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obtained a permit. Mr. Rivard copied his letter to Gary Bleeker, Ecology's facilities

specialist lead, Wendy Neet, Ecology's solid waste inspector, and Richar:d Granberg,

Ecology's hazardous waste specialist. The County issued a health order that incorporated

the NOVA's findings and requirements.

Chem-Safe appealed the NOVA and the hearing examiner affirmed. Chem-Safe

appealed to the superior court, which also affirmed and ordered Chem-Safe to submit a

sampling plan and test its facility. Chem-Safe then appealed to this court. We upheld the

NOVA and concluded Chem-Safe did not comply with the County's permitting

ordinances. See ABC Holdings, Inc. v. Kittitas County, 187 Wn. App. 275, 284-86, 289,

348 P.3d 1222, review denied, 184 Wn.2d 1014, 360 P.3d 817 (2015).

Chem-Safe also brought a 42 U.S.C. § 1983 claim in federal court against the

County, Ecology, Mr. Rivard, Mr. Granberg, Mr. Bleeker, and two other Ecology

employees-Norman Peck with Ecology's toxics cleanup program, and his supervisor,

Valerie Bound.

The Kittitas County Prosecuting Attorney's Office originally assigned Deputy

Prosecutor Suzanne Becker to handle the Chem-Safe litigation. Deputy Prosecutor Zera

Lowe later took over the case. The County's employees and Ecology's employees e-

mailed one another and met in person throughout Chem-Safe's various appeals, and

Ecology's employees generally acted in a consultative role with respect to the civil

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enforcement action. For example, Mr. Peck kept Mr. Rivard updated as to whether

Chem-Safe had submitted a sampling plan, and discussed what the plan needed to include

in order to meet both agencies' requirements. After Chem-Safe moved to stay the

superior court's order, Ms. Lowe e-mailed Mr. Peck and asked for help responding to and

gathering additional declarations. Mr. Peck e-mailed Chem-Safe's declarations to the

other Ecology employees in order to coordinate a response, and also met with Ms. Lowe

and Mr. Rivard.

On October 17, 2012, Mr. Allphin submitted a PRA request to the County

requesting "[a]ll documentation, correspondence, pictures, court records and emails to

and from Kittitas County Public Health and Kittitas County Prosecutors Office regarding

Chem-Safe Environmental, Inc. dating from January 1, 2010 to current." 1 Clerk's Papers

(CP) at 70. Mr. Allphin sent Ecology a similar request, seeking all of Ecology's

documents regarding Chem-Safe. This request included all communications between

Ecology and the Kittitas County Prosecuting Attorney's Office while working on the

Chem-Safe case.

Ms. Lowe and legal secretary Angela Bugni were responsible for responding to

Mr. Allphin's PRA request. When Ms. Lowe learned Mr. Allphin had also requested

1
Mr. Allphin also submitted two more PRA requests on November 21, 2012, and
January 29, 2013. These requests were not voluminous, and the County responded to
these requests without controversy.

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records from Ecology, she asked Ecology's public records officer not to release any

records containing communications between the County's legal counsel and Ecology

employees that would disclose legal strategy or the attorneys' thought processes.

Ecology's records officer advised Ms. Lowe that Ecology would not release the records

until the County sought court protection. However, Ecology inadvertently released a few

e-mails between Ms. Becker (the former deputy prosecutor) and Ecology that Ms. Lowe

believed contained attorney work product.

The County filed a complaint in the superior court naming Mr .. Allphin, Chem-

Safe, and Ecology as respondents. The complaint sought a declaratory judgment that the

County and Ecology's e-mails were attorney work product and attorney client privileged

and thus exempt from production under the PRA. The County moved the superior court

to review the records in camera and also moved for a temporary restraining order (TRO)

enjoining Ecology from releasing the challenged records until the court had the chance to

review them.

At the hearing, the County handed up one sealed envelope with the caption

"DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW." CP at 781. The cover

sheet identified 11 individual e-mails and identified the sender, recipients, and date and

time at which the e-mail was sent.

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The superior court reserved ruling at the hearing and later issued a memorandum

decision. The court reviewed the records in camera and determined the e-mails were a

product of litigation ongoing between the County and Mr. Allphin and were, therefore,

exempt from production under the PRA. The superior court also held the fact that the

County e-mailed Ecology during the litigation did not waive this privilege, given that the

County and Ecology worked cooperatively to enforce the environmental laws and were

thus on the same "legal team." CP at 788.

In December 2013, the superior court incorporated its memorandum decision into

a final order, dissolved the TRO, and permanently enjoined Ecology from producing the

11 e-mails it reviewed in camera. The court ordered Ecology to produce the e-mails it

previously withheld under the TRO. The court found that sealing satisfied the lshikawa 2

factors, then sealed the e-mails.

In March 2014, Mr. Allphin filed an amended answer and brought counterclaims

against the County, alleging the County failed to provide the fullest assistance and
I

unlawfully withheld nonexempt records. The County obtained new counsel. Throughout

the next several months, the County and Mr. Allphin exchanged a number of letters

discussing the adequacy of the County's PRA response.

2
Seattle Times v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).

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In one of his letters, Mr. Allphin listed 21 additional e-mails from the County's

exemption logs that he wanted the court to review in camera. Mr. Allphin disagreed with

the County's claim that these e-mails were work product and thus exempt from

disclosure. The County agreed to assemble the 21 e-mails for a second in camera review.

Mr. Allphin and the County continued to fine tune the list of records the County would

submit for the second in camera review.

The County and Mr. Allphin both moved for summary judgment. At the hearing,

the County handed the court a sealed envelope containing 21 e-mails. The court

reviewed them and determined they contained attorney work product and were thus

exempt from production under the PRA. The court ruled the County and Ecology

exchanged the e-mails in response to the ongoing Chem-Safe litigation, and that the

County and Ecology shared a common interest in the enforcement of state and local

environmental regulations. The court also found the County's initial claims of exemption

were lawful, that the County provided its fullest assistance, and that Mr. Granberg's

handwritten notes, i.e., the "smoking gun memorandum" was not a County record and,

therefore, the County had no duty to disclose it. CP at 2982. The court then granted

summary judgment for the County. The court then sealed the e-mails and granted final

judgment for the County. Mr. Allphin appeals.

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ANALYSIS

A. STANDARD OF REVIEW

This court reviews public agency act_ions challenged under the PRA de novo.

RCW 42.56.550(3). We also review a summary judgment order de novo, engaging in the

same inquiry as the trial court. Andrews v. Wash. State Patrol, 183 Wn. App. 644, 650,

334 P.3d 94 (2014), review denied, 182 Wn.2d 1011, 343 P.3d 760 (2015). Summary

judgment is proper where the pleadings and affidavits show no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. CR 56(c ). In

reviewing a motion for summary judgment, we construe the facts and reasonable

inferences in favor of the nonmoving party. Andrews, 183 Wn. App. at 650-51. When

the record consists entirely of documentary evidence and affidavits, we stand in the same

position as the trial court and generally are not bound by the trial court's factual findings.

Progressive Animal Welfare Soc y v. Univ. of Wash., 125 Wn.2d 243, 252-53, 884 P.2d

592 (1994).

B. SEALED RECORDS FROM THE IN CAMERA REVIEW HEARINGS

The PRA is a "strongly worded mandate for broad disclosure of public records."

Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). It requires all state and

local agencies to disclose any public record on request, unless the record falls within

certain narrowly construed exemptions. RCW 42.56.070(1), .030. It is the agency's

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burden to show a redacted or withheld record was exempt. RCW 42.56.550(1). Where

the agency possesses undisclosed responsive records, it "must explain and justify any

withholding, in whole or in part, of any requested records." Resident Action Council v.

Seattle Hous. Auth., 177 Wn.2d 417, 432, 327 P.3d 600 (2013). "Silent withholding is

prohibited." Id.

I. The 21 e-mails from the second in camera review hearing

Mr. Allphin argues that the 21 e-mails the trial court sealed following the second

in camera review hearing are not exempt under the PRA because they do not contain

attorney work product and are not attorney client privileged.

Under RCW 42.56.290, an agency does not have to disclose "[r]ecords that 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." This includes communications containing attorney work product.

Block v. City o/Gold Bar, 189 Wn. App. 262, 279-80, 355 P.3d 266 (2015). The attorney

client privilege similarly protects confidential communications between an attorney and a

client from discovery or public disclosure. Mechling v. City of Monroe, 152 Wn. App.

830, 852, 222 P.3d 808 (2009); RCW 5.60.060(2)(a).

Attorney work product includes "documents and other tangible things that

(1) show legal research and opinions, mental impressions, theories, or conclusions of the

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attorney or of other representatives of a party; (2) are an attorney's written notes or

memoranda of factual statements or investigation; and (3) are formal or written

statements of fact, or other tangible facts, gathered by an attorney in preparation for or in

anticipation of litigation." Limstrom v. Ladenburg, 136 Wn.2d 595, 611, 963 P.2d 869

(1998). 3 Work product documents need not be prepared personally by counsel; they can

be prepared by or for the party or the party's representative as long as they are prepared

in anticipation of litigation. See CR 26(b )( 4 ).

Mr. Allphin argues two of the e-mails in the second index for in camera review-

numbers 2 and 21-were not sent or received by attorneys at all, but were exchanged

between Mr. Rivard and Mr. Peck, neither of whom are attorneys. However, number 2

on the index is an e-mail that Mr. Rivard sent to Mr. Peck and Ms. Lowe. See CP at

3239. The index sheet simply fails to list Ms. Lowe as a recipient. Number 21 on the

index is an e-mail Mr. Rivard sent only to Mr. Peck. However, the substance of Mr.

Rivard's e-mail is a forwarded message from Ms. Lowe, who asked Mr. Rivard to pass

along the message to Mr. Peck. See CP at 3389.

3
Limstrom held the broad civil discovery rule, CR 26(b )(4 ), applies when
determining whether records are exempt from production under RCW 42.56.290, rather
than the much narrower criminal discovery rule, CrR 4.7(f)(l), which only protects
documents from disclosure under the PRA "' to the extent that they contain the opinions,
theories or conclusions of investigating or prosecuting agencies.'" Koenig v. Pierce
County, 151 Wn. App. 221, 230, 211 P.3d 423 (2009) (quoting CrR 4.7(f)(l)).

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Mr. Allphin also argues the 21 e-mails, while originating from an attorney, do not

constitute attorney work product because they are not "mental impressions, thoughts, and

theories," and are therefore not exempt under the PRA. However, under Limstrom and

Koenig, the e-mails need only contain statements of fact gathered by an attorney or

prepared by or for the party or the party's representative in anticipation of litigation.

Without specifically describing the substance of the actual e-mails, it is clear these e-

mails contain statements of fact and legal strategies prepared by and for the various

employees of the County and Ecology in response to the Chem-Safe litigation. 4

2. Waiver

Mr. Allphin argues the County waived any protected, privileged, or confidential

right to the e-mails because its employees sent them to Ecology employees throughout

the Chem-Safe litigation. Mr. Allphin specifically challenges the trial court's finding that

4
Mr. Allphin argues the e-mails were not marked "confidential" or "work
product" to protect from disclosure. Br. of Appellant at 24. The record does not support
this argument. The first e-mail to which Mr. Allphin cites for this argument contains
a disclaimer that begins, in capital letters, with "CONFIDENTIALITY NOTICE." CP at
2237. The 21 sealed e-mails all contain similar disclaimers. Mr. Allphin also argues
that, even assuming the e-mails are work product, this court should order the County to
produce them under CR 26(b)( 4) 's exception to the work product privilege. However,
CR 26(b )( 4) provides that a party seeking attorney work product may obtain it only after
showing he or she "has substantial need of the materials in the preparation of such party's
case and that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means." Mr. Allphin fails to explain why he meets
either of these requirements.

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the County did not waive these privileges due to the fact that the County and Ecology

worked cooperatively to enforce the environmental laws and were thus on the same

"legal team." CP at 788.

Generally, a party waives the attorney work product privilege if that party

discloses documents to other persons with the intention that an adversary can see the

documents. Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002).

Similarly, to qualify for attorney client privilege, a communication must be made in

confidence. Morgan v. City of Fed. Way, 166 Wn.2d 747,757,213 P.3d 596 (2009).

The presence of a third person during the communication waives the privilege, unless the

third person is necessary for the communication or has retained the attorney on a matter

of"'common interest."' Id. (quoting Broyles v. Thurston County, 147 Wn. App. 409,

442, 195 P.3d 985 (2008)).

"The 'common interest' doctrine provides that when multiple parties share

confidential communications pertaining to their common claim or defense, the

communications remain privileged as to those outside their group." Sanders v. State, 169

Wn.2d 827, 853, 240 P.3d 120 (2010); see also C.JC. v. Corp. of Catholic Bishop of

Yakima, 138 Wn.2d 699,716,985 P.2d 262 (1999). The common interest doctrine is an

exception to the general rule that the voluntary disclosure of a privileged attorney client

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or work product communication to a third party waives the privilege. Avocent Redmond

Corp. v. Rose Elec., Inc., 516 F. Supp. 2d 1199, 1202 (W.D. Wash. 2007).

"The common interest or joint defense privilege applies where ( 1) the

communication was made by separate parties in the course of a matter of common

interest or joint defense; (2) the communication was designed to further that effort; and

(3) the privilege has not been waived." Id. at 1203. A written agreement regarding the

privilege is not required, but "the parties must invoke the privilege: they must intend and

agree to undertake a joint defense effort." Id.; see also In re Pac. Pictures Corp., 679

F.3d 1121, 1129 (9th Cir. 2012) ("[T]he parties must make the communication in pursuit

of a joint strategy in accordance with some form of agreement-whether written or

unwritten.").

The common interest doctrine applies in the PRA context. Sanders, 169 Wn.2d at

854. "[D]ocuments that fall under the common interest doctrine are not discoverable in

civil cases and so are exempt under the controversy exemption." Id. The Sanders court

held the common interest doctrine exempted certain documents from disclosure under the

PRA even if the attorney general's office (AGO) shared those documents with other

agencies. 5 Id. at 840, 853-54.

5
The Sanders court never explained what these documents were, what other
agencies the AGO shared them with, or the nature of the relationship between the AGO

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In contrast, in Morgan, a municipal court judge who was the subject of a hostile

work environment investigation e-mailed the city attorney and complained the

investigation created a hostile work environment for him. Morgan, 166 Wn.2d at 752.

The judge then forwarded that e-mail message to the private e-mail address of one of the

city council members. Id. The local newspaper filed a PRA request for the investigator's

report, and the judge moved to prevent its release. Id. The court held the attorney client

privilege did not apply to the e-mail the judge sent to the city attorney, and the e-mail was

therefore not exempt under the PRA. Id. at 757. This was because the judge later

forwarded that e-mail to the city council member and the judge failed to demonstrate a

common legal interest between him and the city council member. Id.

Here, although the County and Ecology did not have a joint prosecution

agreement, a written agreement was not required because the record demonstrates the two

agencies agreed to undertake a joint/common cause in the regulatory enforcement

litigation against Chem-Safe. At the very beginning of the case, Ms. Becker e-mailed

Mr. Granberg, Mr. Rivard, and Mr. Bleeker and scheduled a meeting to discuss Chem-

Safe's compliance with Washington's permitting, transportation, storage, and disposal

regulations. Throughout the litigation, the County asked Ecology questions about Chem-

Safe' s testing plans and about Chem-Safe's engineering and technical arguments. The

and these other agencies. See Sanders, 169 Wn.2d at 837-41.

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Kittitas County v. Allphin

record demonstrates Ecology was "acting in a consultative role with respect to the civil

enforcement action." 6 CP at 1412.

Mr. Allphin argues that the County and Ecology did not have a common interest

because the County sued Ecology to prevent Ecology from releasing the records, thus

making Ecology an opposing party for purposes of waiver. This argument conflates the

two lawsuits. While the County listed Ecology as a respondent in this case in order to

prevent Ecology from producing exempt documents, the County and Ecology were on the

same legal team for purposes of the underlying regulatory enforcement action, which is

separate from this PRA case.

Mr. Allphin also argues that the common interest doctrine is not a statutorily listed

PRA exemption and, therefore, the County cannot use it as a basis for withholding the e-

mails. The Sanders court expressly rejected this argument, finding that the common

interest doctrine is merely a common law exception to waiver of privilege that applies

when parties share a common interest in litigation. Sanders, 169 Wn.2d at 853.

6
In fact, this collaborative relationship between the County and Ecology is
statutorily required. RCW 70.105 .005(10) provides that "because local conditions vary
substantially in regard to the quantities, risks, and management opportunities available
for such wastes, local government is the appropriate level of government to plan for and
carry out programs to manage moderate-risk waste, with assistance and coordination
provided by [Ecology]." (Emphasis added.)

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While it is true that no attorney client relationship existed between the County

prosecutor and Ecology, we hold the lack of such a relationship does not prevent the

County prosecutor from seeking assistance from Ecology's technical professionals in

enforcing the state and county environmental laws. Releasing these records would force

government attorneys to forego communicating with other law enforcement professionals

during litigation due to the fear that their opponents will obtain their mental impressions

and ideas.

Because the communications between the County and Ecology throughout the

Chem-Safe litigation were protected under the work product and attorney client

privileges, we conclude the trial court properly sealed the sets of 11 and 21 e-mails.

A majority of the panel has determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder,

having no precedential value, shall be filed for public record in accordance with RCW

2.06.040.

ADDITIONAL FACTS

A. THE COUNTY'S RESPONSE TO MR. ALLPHIN'S PRA REQUEST

After Mr. Allphin submitted his PRA request, Ms. Lowe and Ms. Bugni first

transmitted his request to the county departments they believed might have records. They

then searched the prosecuting attorney's office's physical files. Next, they searched the

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office's network drive using key words. Also using key words, Ms. Bugni searched her

e-mail account and Ms. Lowe searched both her own and Ms. Becker's e-mail accounts.

The two then got permission from the county commissioners to search the County's

archival system to find deleted e-mails. Through March 20, 2013, the County expended

roughly 357 hours on Mr. Allphin's PRA response, which did not include the 115 hours

spent addressing attorney work product and attorney client privilege redaction issues.

Ms. Bugni personally spent over 200 hours working on the County's response.

At KCPHD, Mr. Rivard received the copy of Mr. Allphin's PRA request from Ms.

Lowe. Like Ms. Lowe and Ms. Bugni, Mr. Rivard searched his office's physical files and

used keywords to search the shared files on the office's computer server, his computer,

and his e-mail. Mr. Rivard reviewed every e-mail he sent and received from January 1,

2010 to October 17, 2012. Mr. Rivard eventually realized some of the e-mails in his

account did not contain attachments. He contacted the County's information technology

department about the issue, which told him the County's archiving system changed and

he needed to find the attachments in a separate archival system. After that, Mr. Rivard

went to the separate archival system to print the attachments to his e-mails. Mr. Rivard

reviewed his e-mails to ensure he had included all of the pages and attachments and then

sent them to Ms. Lowe, so that she could send them to Mr. Allphin. Mr. Rivard also

searched the County's digital camera and memory card. Mr. Rivard expended roughly

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180 hours on Mr. Allphin's PRA response.

Several days after Mr. Allphin submitted his PRA request, Ms. Lowe sent Mr.

Allphin a letter stating the County needed to provide the requested documents in

installments due to the large number of records the County needed to retrieve and review.

Ms. Lowe said the County would provide the first installment on November 8, 2012, and

would then continue providing scheduled installments until it fulfilled Mr. Allphin's

request.

The County then produced records in the following installments:

• November 8, 2012: County disclosed a list of 88 different court records,
totaling 1,786 pages. 7

• December 21, 2012: County produced 1,022 pages.

• January 23, 2013: the County produced 1,481 pages.

• February 27, 2013: the County produced 850 pages. In the letter, Ms.
Lowe noted that the County would include a detailed log if it withheld or
redacted any documents, and also noted that the County retained the right
to seek court protection of exempt records.

• March 27, 2013: the County produced 2,400 pages.

• March 28, 2013: the County produced 1,007 pages, some of which were
redacted or withheld, and an exemption log.

7On November 28, Ms. Lowe sent Mr. Allphin a letter in which she asked if Mr.
Allphin wanted the court records, asked how he wanted the records produced, and asked
from which specific departments he sought records.

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• April 2, 2013: the County produced 72 pages, some of which were redacted
or withheld, and an exemption log.

• April 26, 2013: the County produced 131 pages and 34 phone logs.

• May 24, 2013: the County produced 2,320 pages, including 111 e-mails
without any redaction, 22 with some portions redacted. The County
withheld 11 e-mails because they were either work product or attorney
client privileged. The County included an exemption log.

• June 19, 2013: the County produced 10,500 pages.

• July 26, 2013: the County produced 44 e-mails without redaction.

• August 26, 2013: the County produced 28 e-mails, some of which had
portions redacted. The County included an exemption log.

• September 30, 2013: the County produced 15 e-mails without redaction,
three with some part redacted, and withheld 2. The County included an
exemption log.

• October 28, 2013: the County produced 17 e-mails without redaction, and
withheld 18 e-mails. The County included an exemption log.

• November 18, 2013: the County produced 7 e-mails with redactions and
included an exemption log.

• December 23, 2013: the County produced 4 e-mails with no redactions, 5
e-mails with redactions, and withheld 10 e-mails. The County attached an
exemption log.

• January 13, 2014: the County produced 52 e-mails with no redaction and 3
e-mails with redaction. The County included an exemption log.

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Ms. Lowe retired in mid-2013 and Deputy Prosecutor Paul Sander assumed

responsibility for responding to the PRA request. On January 28, 2014, Mr. Sander sent

Mr. Allphin a letter advising him that he had concluded his search for records and the

January 13, 2014 installment was the final installment.

B. LITIGATION PRIOR TO THE FIRST IN CAMERA REVIEW HEARING

After moving for the TRO, the County discovered Mr. Allphin's former counsel

would not be back from vacation until the day of the hearing, so Ms. Lowe reset the

hearing for later in the week. The day before the hearing, Chem-Safe's new counsel e-

mailed Ms. Lowe and asked for a continuance, which Ms. Lowe declined. Later that day,

Mr. Allphin moved to disqualify Judge Scott Sparks and Judge Frances Chmelewski and

submitted affidavits of prejudice for each judge-one from Mr. Allphin, and one from

another one of Chem-Safe's officers. 8 The day of the hearing, Judge Chmelewski called

the case, noted the existence of the two affidavits, and ruled a visiting judge would hear

the case.

Visiting Judge Blaine Gibson found the affidavit filed against Judge Sparks was

invalid and the case should proceed before Judge Sparks. Judge Gibson extended the

TRO until Judge Sparks could review the records in camera. The County stated it no

8
Kittitas County has two superior court judges. When both judges are precluded
from hearing a case, the court administrator finds a visiting judge to preside over the
case, usually from Yakima County.

21
No. 33241-1-III
Kittitas County v. Allphin

longer sought to restrain the records Ecology had already released.

C. COUNTY ACKNOWLEDGES ERRORS FROM IN CAMERA REVIEW HEARING

After Mr. Allphin filed his amended answer, the County, through new counsel,

sent Mr. Allphin a letter concerning the Cou~ty's production of the remainder of the

requested records. In this letter, the County stated many of the records it had listed on the

exemption log were duplicates. The County also acknowledged the index of 11 e-mails it

had submitted to the court at the first in camera review hearing contained errors. The

County told Mr. Allphin the e-mail identified as number 7 on the index-purportedly a

July 18, 2011, 7:31 a.m. e-mail from Mr. Rivard to Ms. Becker-was erroneously

designated on the index. The e-mail the County actually submitted as number 7 on the

index was an e-mail from Mr. Rivard to Ms. Lowe and Mr. Peck, sent on July 19, 2012,

at 12:46 p.m.

The County also stated the envelope contained eight additional e-mails that were

not listed on the index. The reason the index did not identify these e-mails was because

they were contained in e-mail chains, and the index only listed the first e-mail in the

chain. Mr. Allphin responded to the County's letter and agreed the County produced

some of the records it claimed to have produced, but disagreed that the County had

produced others.

22
No. 33241-1-III
Kittitas County v. Allphin

The County moved to amend the superior court's final order from the first in

camera review hearing. In its motion, the County acknowledged the errors in the index it

had attached to the envelope. The County asked the court to issue an amended order that

correctly listed the e-mails the County submitted for in camera review. The County also

asked the court to review an additional e-mail it had failed to provide the court at the first

in camera review hearing. Mr. Allphin argued the County made material

misrepresentations and abused the judicial process, and asked the court to release the

records as a sanction and award him fees and costs. The court determined the record was

adequate and denied the County's motion.

Mr. Allphin sent the County a letter describing 11 e-mails that were still possibly

missing. 9 The County said it would look into these missing e-mails. The County also

produced the 8 e-mails it had failed to list on the index because they were buried in e-

mail chains, and also produced the 1 additional e-mail it failed to provide the court. The

County acknowledged Ecology produced these e-mails after the in camera review hearing

because they were not included in the court's sealing order, thereby waiving the work

product and attorney client privileges.

9
These 11 e-mails are different than the 11 e-mails the court reviewed at the first
in camera review hearing.

23
No. 33241-1-III
Kittitas County v. Allphin

The County's new counsel forwarded Mr. Allphin's e-mail about the 11 possibly

missing e-mails to Ms. Bugni, and Ms. Bugni searched for them in the County's archival

e-mail system. Ms. Bugni forwarded the list to KCPHD so it could check its archives as

well. Ms. Bugni and KCPHD were able to find several of the missing e-mails, and also

found three e-mails with time and date stamps that were similar, but not identical, to e-

mails Mr. Allphin claimed were missing.

The County told Mr. Allphin it had located several of the 11 "possibly missing" e-

mails and produced them, and also advised it had previously disclosed 4 of them. The

County also told Mr. Allphin it was still unable to locate the remainder of the possibly

missing e-mails, but was able to locate three e-mails with similar delivery dates and

times. The County produced these three e-mails. The County also produced a copy of

handwritten notes between Mr. Granberg and Mr. Rivard.

Mr. Allphin responded that he was certain the other "possibly missing" e-mails

existed and asked the County to check again. Ms. Bugni searched again and was unable

to locate them on any County system.

ADDITIONAL ANALYSIS

A. ADEQUACY OF EXEMPTION LOGS

Mr. Allphin argues the County's exemption logs are inadequate because none of

them listed the common interest doctrine as a basis for withholding the records.

24
No. 33241-1-III
Kittitas County v. Allphin

When an agency withholds or redacts records, its response "shall include a

statement of the specific exemption authorizing the withholding of the record (or part)

and a brief explanation of how the exemption applies to the record withheld."

RCW 42.56.210(3). The agency must do more than identify the record and the specific

exemption-it must explain how the exemption applies to the record. Block, 189 Wn.

App. at 282 (quoting City of Lakewoodv. Koenig, 182 Wn.2d 87, 94,343 P.3d 335

(2014)). "The level of detail necessary for a requestor to determine whether an

exemption is properly invoked will depend upon both the nature of the exemption and the

nature of the document or information." City of Lakewood, 182 Wn.2d at 95. "An

agency violates the PRA by failing to provide an adequate explanation." Block, 189 Wn.

App. at 283.

Here, the County's exemption logs all specifically identify the redacted or

withheld e-mails by author, recipients, date, time, and number of pages. The logs also

contain a column that provides an accurate description of the e-mails' contents. For

example, number 84 on the exemption log states the record being withheld was an "E

mail to Becker re CSE operations plan-questions re type of permit." CP at 668. The

logs state the County redacted or withheld the e-mails under the controversy exemption,

RCW 42.56.290, and list "[a]ttorney work product" as the basis for which the e-mails

would not be discoverable under the civil rules. CP at 668. It was also apparent the

25
No. 33241-1-111
Kittitas County v. Allphin

"controversy" at issue was the regulatory enforcement action surrounding the NOVA.

Cf Sanders, 169 Wn.2d at 846 (holding the AGO's exemptions logs were inadequate

because they claimed the controversy exemption for numerous records without specifying

details such as the controversy to which each record was relevant). Given that the

common interest doctrine is merely a common law exception to waiver and not a separate

exemption, the County's explanation that the e-mails were "work product" was sufficient

to explain why the County was withholding them. Between this explanation and the

County's description of each e-mail's contents, we conclude the County's exemption logs

were adequate.

B. INITIAL WITHHOLDING AND SUBSEQUENT PRODUCTION

Mr. Allphin argues the County violated the PRA when it initially withheld e-mails

and then subsequently produced them.

If an agency produces documents after the requester files suit, this is not an ipso

facto admission that the initial withholding of the documents was wrongful. Sanders,

169 Wn.2d at 849. "Rather, the appropriate inquiry is whether the records are exempt

from disclosure." Id. "If they are exempt, the agency's withholding of them was lawful

and its subsequent production of them irrelevant." Id. at 849-50. "If they are nonexempt,

the agency wrongfully withheld the records and the appropriate penalty applies for the

numbers of days the record was wrongfully withheld-in other words, until the record

26
No. 33241-1-III
Kittitas County v. Allphin

was produced." Id. at 850. An agency is permitted to maintain certain documents are

exempt but also produce them anyway if the agency determines their production would

be innocuous. Id. at 849.

Here, the County initially withheld or redacted many e-mails because they were

attorney work product or attorney client privileged. After Ecology inadvertently released

many of these e-mails, the County no longer claimed the e-mails were exempt and

subsequently produced them. The County argues it did not violate the PRA because it

continually stayed in a "cooperative dialogue" with Mr. Allphin. Br. of Resp't at 39. But

this is not a recognized statutory exemption. If the County withheld nonexempt e-mails,

it violated the PRA.

1. March 27-28, 2013 exemption log

Mr. Allphin argues the County improperly withheld a chain of six e-mails on its

March 27-28, 2013 exemption log. See CP at 1569-70. The County withheld these six e-

mails on the basis that they were "[ a]ttorney-client privileged e mail communications

between legal counsel and client." CP at 1566. The senders and recipients of these e-

mails were Brenda Larsen, who is the Kittitas County fire marshal, Alan Crankovich,

who is on the Kittitas County Board of Commissioners, Barry Kerth, a deputy fire

marshal, and Mr. Rivard. None of these individuals are attorneys. This chain of six e-

mails was therefore not exempt from disclosure under RCW 42.56.290 and the County

27
No. 33241-1-III
Kittitas County v. Allphin

violated the PRA when it initially withheld and subsequently produced them. Thus, a per

diem penalty applies for the numbers of days these e-mails were wrongfully withheld. 10

2. April 2, 2013 exemption log

Mr. Allphin argues the County's April 2, 2013 exemption log lists a number of e-

mails that do not contain work product or attorney client communications and, therefore,

the County wrongfully withheld these e-mails. Mr. Allphin does not identify specific e-

mails, but cites broadly to "CP at 2236-2479." Br. of Appellant at 33. We have reviewed

every e-mail to which Mr. Allphin cites and, with the exception of two, a deputy

prosecutor (either Ms. Becker or Ms. Lowe) was either the sender or a recipient on every

one. Accordingly, all of these e-mails were exempt from disclosure under the attorney

work product privilege and/or the attorney client privilege and the County did not violate

the PRA by subsequently producing them.

There are two e-mails in which a deputy prosecutor was not the sender or a

recipient. The first is from Krystal Rodriguez to Mr. Peck, sent on July 18, 2011 at 7:43

a.m. See CP at 2274. But there is no indication the County ever actually withheld this e-

mail, given that it is not listed in either of the County's exemption logs. The second is

from Mr. Peck to Mr. Rivard and Ms. Bound, sent on June 14, 2012 at 8:02 a.m. See CP

10
According to Mr. Allphin's declaration, the County eventually produced these
six e-mails on July 3, 2013, or 98 days after initially withholding them. See CP at 1469.

28
No. 33241-1-III
Kittitas County v. Allphin

at 2473-74. This e-mail is listed as number 93 on the County's April 2, 2013 exemption

log. See CP at 846. But when the County produced this chain of e-mails, it did not

redact this particular e-mail. Rather, it produced this e-mail and redacted a separate e-

mail in the chain, to which Ms. Lowe was a recipient. See CP at 865. Thus, the County's

subsequent production of these e-mails did not violate the PRA.

3. Over-redaction

Mr. Allphin argues the County over-redacted a number of e-mails. 11 He lists two

e-mails in particular. The first is from Mr. Rivard to Ms. Lowe and Mr. Peck that said,

"It is ok with me if you are [at the meeting] Norm." CP at 1754. The second is from Mr.

Peck to the AGO and Ms. Becker and was in response to the AGO's legal opinion

regarding whether their communications were privileged. The e-mail said, "Very helpful.

Thanks, Mary Sue. Have a great evening, and rest of your week. (Hopefully I won't

pester you any further[.])." CP at 1743.

RCW 5.60.060(2)(a) provides that any attorney client communication is

confidential. In light of our holding that the common interest doctrine protects all

confidential legal communications pertaining to Ecology and the County's joint effort in

11
RCW 42.56.210(1) provides that "the exemptions of this chapter are
inapplicable to the extent that information, the disclosure of which would violate personal
privacy or vital governmental interests, can be deleted from the specific records sought."

29
No. 33241-1-III
Kittitas County v. Allphin

the regulatory enforcement action, we conclude the County did not violate the PRA by

redacting these e-mails.

C. FULLEST ASSISTANCE

Mr. Allphin argues the County violated the PRA by delaying its records response

and failing to provide the fullest assistance.

Consistent with RCW 42.56.100, agencies must adopt rules that "provide for the

fullest assistance to inquirers and the most timely possible action on requests for

information," but still "prevent excessive interference with other essential functions of

the agency." However, "administrative inconvenience or difficulty does not excuse strict

compliance with the [PRA]." Zink v. City of Mesa, 140 Wn. App. 328, 337, 166 P.3d 738

(2007). "In general, an agency should devote sufficient staff time to processing records

requests, consistent with the act's requirement that fulfilling requests should not be an

'excessive interference' with the agency's 'other essential functions."' WAC 44-14-

04003(2). "The agency should recognize that fulfilling public records requests is one of

the agency's duties, along with its others." Id.

Here, the County did not delay fulfilling the records request, nor did it fail to

provide assistance in a timely manner. On October 24, 2012-five business days after

Mr. Allphin submitted his request-Ms. Lowe gave Mr. Allphin a detailed explanation

about how the County would respond to his request. Ms. Lowe and Ms. Bugni then

30
.No. 33241-1-III
Kittitas County v. Allphin

worked together to send Mr. Allphin installments on a monthly basis throughout the rest

of 2012, through 2013, and until Mr. Sander closed the request in 2014. Whenever the

deputy prosecuting attorney did not anticipate being able to send the installment by the

promised date because of illness or technical difficulties accessing the County e-mail

system, Ms. Bugni would communicate this with Mr. Allphin.

The prosecuting attorney's office expended roughly 357 hours on Mr. Allphin's

PRA response, which did not include the time spent addressing attorney work product

and attorney client privilege issues. Ms. Bugni spent over 200 hours working on the

prosecuting attorney's office's response, and Mr. Rivard spent 180 hours on KCPHD's

response. Both offices were short-staffed, and Ms. Lowe, Ms. Bugni, Mr. Rivard, and

Mr. Sander had to balance responding to a large request with their other official duties.

In fact, most of the delay in the initial stages of litigation was caused by the fact

that Mr. Allphin filed affidavits of prejudice against both of the judges in a two-judge

county. At the TRO hearings, visiting Judge Gibson noted that Mr. Allphin had nothing

to complain about in terms of the delay, given that the case would have been much

further along if he had not filed two affidavits. Judge Gibson also found the County

endeavored "to resolve the matter quickly and expeditiously," and that "the delays that

have resulted here have-primarily have been caused by the fact that the defendants filed

31
No. 33241-1-III
Kittitas County v. Allphin

two affidavits." Report of Proceedings at 131-32. We conclude the County did not delay

its records response, nor did it fail to provide the fullest assistance.

D. MR. GRANBERG'S HANDWRITTEN NOTES

Mr. Allphin argues the County possessed Mr. Granberg's handwritten notes,

which he describes as the "smoking gun memorandum," at the time he submitted his

PRA request. Br. of Appellant at 47. He contends the County intentionally withheld

these notes until it used them against him in the federal lawsuit.

"An agency is only required to provide access to public records it has or has used."

WAC 44-14-04004(4)(a). "An agency must only provide access to public records in

existence at the time of the request. ... [I]f a public record is created or comes into the

possession of the agency after the request is received by the agency, it is not responsive

to the request and need not be provided." Id.

The record demonstrates Ecology-not the County-possessed Mr. Granberg's

handwritten notes at the time Mr. Allphin submitted his PRA request. Mr. Rivard (a

County employee) and Mr. Granberg (an Ecology employee) worked together to inspect

Chem-Safe's facility. Mr. Rivard sent Mr. Granberg an e-mail on March 7, 2011, to

which he attached two color photographs of chemical drums and nothing else. 12 Mr.

12
Ms. Bugni also declared she used the County's archival system to search for the
March 7, 2011 e-mail and the attachment contained two photographs but no handwritten

32
No. 33241-1-111
Kittitas County v. Allphin

Granberg then took notes based off of these photographs. Ecology was the only agency

that had a copy of Mr. Granberg's notes, until Ecology sent the County a compact disc

containing records that Ecology had given Mr. Allphin. This happened after Mr. Allphin

filed his PRA request with the County and, therefore, the County was not required to

produce it.

Mr. Allphin argues the County possessed Mr. Granberg's notes at the time of Mr.

Allphin's PRA request because the notes were transmitted from the County's copier to a

County employee and then forwarded to an Ecology employee in 2011. To support this

argument, Mr. Allphin cites to his declaration. However, his declaration says nothing

about a copier of any kind, and simply repeats that Mr. Rivard sent Mr. Granberg the

notes in the March 7, 2011 e-mail.

Mr. Allphin also cites to the County's filings in federal court, which stated that on

March 7, 2011, Mr. Granberg gave Mr. Rivard handwritten notes based on Mr.

Granberg's review of photographs of Chem-Safe's facility. See CP at 1955-56, 1965-66.

The County included this in its filing because it initially believed the March 7, 2011 e-

mail included Mr. Granberg's notes based on one of Mr. Allphin's earlier declarations.

Based on all of the evidence in the record, reasonable minds could not differ that the

County did not possess Mr. Granberg's notes at the time Mr. Allphin filed his PRA

notes.

33
No. 33241-1-III
Kittitas County v. Allphin

request. We conclude the County did not wrongfully withhold Mr. Granberg's

handwritten notes.

E. MR. ALLPHIN'S REQUEST TO UNSEAL THE 11 E-MAILS AS A SANCTION

Mr. Allphin argues the County abused the in camera review process at the

September 9, 2013 hearing by including e-mails in the envelope that did not match the

accompanying index. Mr. Allphin asks this court to release the 11 e-mails as a sanction,

regardless of their PRA exemption status. Mr. Allphin cites RCW 2.28.010(3), which

gives Washington courts power "[t]o provide for the orderly conduct of proceedings

before it or its officers," and Yurtis v. Phipps, 143 Wn. App. 680, 693, 181 P.3d 849

(2008), which is a case about a vexatious litigant who filed multiple frivolous lawsuits.

Mr. Allphin is correct that the e-mails the County submitted in the envelope at the

first in camera review hearing did not correspond to the e-mails the County listed on the

index. The County argues that this was a mutual mistake, that the parties spoke past one

another at the hearing, and that it sent Mr. Allphin a letter and moved the trial court to

clarify the ruling when it realized its error.

It is difficult to see how this was a "mutual mistake" when the County prepared

the envelope, prepared the index, and was the only party with access to the 11 e-mails.

However, in this case, the County's error did not tangibly harm Mr. Allphin. Because the

County included the eight extra e-mails in the envelope but did not list them on the index,

34
No. 33241-1-III
Kittitas County v. Allphin

the trial court did not include those e-mails in its sealing order. Because of this, Ecology

later produced them to Mr. Allphin. Thus, the County's failure to list the e-mails on the

index actually benefitted Mr. Allphin.

In addition, the parties agreed to include the July 19, 2012, 12:46 p.m. e-mail the

County had erroneously put in the envelope at the first in camera review hearing on the

list of 21 e-mails for the court to review at the second in camera hearing. The trial court

ultimately determined this e-mail was exempt from disclosure. There is no evidence in

the record that the e-mail the County originally designated as number 7 on the index-

from Mr. Rivard to Ms. Becker on July 18, 2011 at 7:31 a.m.-ever actually existed. The

parties do not discuss it in any of their subsequent correspondence, and it is not listed on

any of the County's exemption logs. Because the County's error did not actually harm

Mr. Allphin, we reject his invitation to unseal the 11 e-mails the trial court sealed at the

first in camera review hearing as a sanction.

F. COSTS AND PER DIEM PENALTY

Mr. Allphin requests costs, including reasonable attorney fees, incurred on

appeal. Under RCW 42.56.550( 4 ), a party that prevails against an agency in an action

under the PRA is entitled to an award of "all costs, including reasonable attorney fees,

incurred in connection with such legal action." When a party seeking disclosure under

the PRA prevails with respect to some but not all of the requested documents, costs and

35
No. 33241-1-III
Kittitas County v. Allphin

attorney fees should be awarded only in relation to the documents or portions that the

court requires to be produced, and not to any documents or portions the court finds to be

exempt from production. Sanders, 169 Wn.2d at 867, 870. 13 Mr. Allphin prevailed very

narrowly and is entitled only to an award of costs and attorney fees reasonably incurred

in obtaining the six e-mails located at CP 1569-70.

We direct our court commissioner to determine the appropriate cost and attorney

fee award for those costs Mr. Allphin incurred on appeal relating to these six e-mails.

Consistent with RAP 18.1 (i), we direct the trial court to determine the appropriate cost

and attorney fee award for those costs Mr. Allphin incurred in the trial court relating to

these six e-mails. In addition to an award of costs and attorney fees, RCW 42.56.550( 4)

gives a court discretion to award Mr. Allphin a per diem penalty for each day the County

withheld these records. We defer this discretionary award to the trial court. If the trial

13
This author notes that while an award of attorney fees should be apportioned
between successful and unsuccessful PRA claims, an award of other types of costs
arguably should not be apportioned. This is because RCW 42.56.550( 4) directs that "all
costs" must be awarded to a person who prevails against an agency on a PRA claim.
(Emphasis added.) "All costs" strongly suggests that the legislature intended for courts to
award a successful PRA claimant "all costs" incurred. The legislature qualified its
directive by using the term "reasonable" not before costs, but before "attorney fees."
Nevertheless, Mr. Allphin has not raised nor briefed this issue, and we do not find
any clear authority. We therefore will not resolve the statutory ambiguity here. See
Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wn.2d 334,
352, 831 P.2d 724 (1992) (stating that when the law is unsettled, an appellate court
should not attempt to resolve an issue unless it is briefed by the parties).

36
No. 33241-1-III
Kittitas County v. Allphin

court exercises its discretion to award a penalty, it also has discretion to treat the six e-

mails as one group for purposes of calculating the daily penalty. See Double H, LP v.

Dep't of Ecology, 166 Wn. App. 707,714,271 P.3d 322 (2012).

Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this opinion.

WE CONCUR:

Pennell, J.

37