FILED
APRIL 11, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
PALMER D. STRAND and PATRICIA )
N. STRAND, ) No. 34190-9-111
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
SPOKANE COUNTY and )
SPOKANE COUNTY ASSESSOR, )
)
Respondents. )
KORSMO, J. - Patricia and Palmer Strand appeal from a judgment entered in their
Public Records Act, ch. 42.56 RCW (PRA), action against Spokane County (County).
We affirm.
FACTS
This case involves public records requests made by Strand to the Spokane County
Assessor between 2010 and 2013. Strand sued the County in 2014. They were
No. 34190-9-III
Strand, et al v. Spokane County, et al
represented by counsel through the bench trial of the case. Subsequently, Ms. Strand
proceeded pro se.
The records requests relevant to this action included:
(1) Inspection reports as to thirty eight separate parcels in Spokane County
for the time period of 2007 to May 25, 201 O;
(2) Appraisals for the assessment years of 2008 through 2012;
(3) Assessor's Roster of Appeals to the Board of Equalization;
(4) Assessor's Statistics on Appeals to the Board of Equalization and the
Washington State Board of Tax Appeals.
Clerk's Papers (CP) at 406.
The trial court issued a memorandum decision on June 18, 2015. The court
concluded that there was a violation as to the timeliness of the County's response on the
request for inspection reports, and a violation in responding to the request for a roster of
appeals and statistics of appeals. Clerk's Papers (CP) at 408-409. It found no violation
in the request for appraisals, concluding that they were timely produced. CP at 408. The
trial court also noted that there were substantial communication problems between the
parties that led to many of the issues in the case.
The County brought a motion to amend judgment, which the trial court treated as a
motion for. reconsideration. The court granted the motion in part, amending its finding of
a violation as to the timeliness in responding to the inspection reports, and as to the
violation in producing the roster of appeals to the board of equalization. CP at 413. The
court maintained the violation as to the statistics on appeal (the only remaining violation).
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CP at 413-414. Ms. Strand subsequently brought a motion to reconsider, which the court
denied. CP at 403-404.
The court ruled that it would award costs for the expenses of the attorney on the
issue that Strand prevailed on, along with penalties and other appropriate costs. CP at
438. The parties were directed to file memoranda addressing those issues. Strand
sought penalties of over $10,000,000.00, attorney fees of $42,100.00, and costs of
$3,474.31. However, no documentation was submitted to support the attorney fee and
cost requests. Instead, Strand wrote that the documentation would be attached to the
final order. CP at 277.
Having received no documentation, the court denied attorney fees and costs by
means of a second memorandum decision. The court set the penalty for the one PRA
violation at $10 per day for a total of $7,380. Strand moved for reconsideration and
purportedly attached records to the motion. However, none of those records are in the
appellate record. CP at 389-390. The court denied the motion and entered a final
judgment and order on March 2, 2016.
Strand appealed to this court. A panel considered the case without oral
argument.
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ANALYSIS
Ms. Strand is conducting this appeal prose. We discern three distinct issues 1 and
will address them as follows. First, we will consider the contention that the trial court
improperly ruled that certain records were exempt from production. We next will address
whether the court erred in denying fees and costs. Finally, we will address Strand's
argument that the court erred in assessing the penalty at $10 per day. 2
Record Production
Strand claims that the trial court applied improper exemptions in ruling against her
argument that the County failed to provide some of the requested documents. We
conclude that the trial court properly determined that no violation occurred. The trial
court did not rely on any PRA exemptions in making its ruling.
1
The opening brief purports to raise eleven ( 11) assignments of error and thirty
(30) issues relating to those assignments of error. Strand, however, does not devote
argument to the majority of these issues; the argument section only purports to discuss
anywhere from three to six issues. An appellate court will not address issues not
adequately argued in briefing. RAP 10.3(a)(6) (stating the brief must contain "argument
in support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record."); State v. Wood, 89 Wn.2d 97, 99, 569 P.2d
1148 ( 1977) ("Appellant did not address these contentions in his brief and we will not
consider assignments of error which are supported neither by argument nor authority.").
Consequently, this court will address the issues that are properly presented and ignore the
vast majority of the remaining claims.
2
We reject the County's argument that the June 18, 2015 memorandum decision is
not before this court because it was not timely appealed. That decision was not an appealable
final order because it did not qualify as a final judgment, nor was it an order preventing a final
judgment in the case. RAP 2.2(a)(l), (3). The trial judge also noted that fact. CP at 412.
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The principles governing our review of PRA actions are well settled. 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). Agencies must promptly disclose any
requested public record unless it falls within a specific, enumerated exemption. RCW
42.56.070(1). Under RCW 42.56.080, agencies must make "identifiable public records"
available for public inspection and copying. A public record is broadly defined as "any
writing containing information relating to the conduct of government." RCW 42.56.010.
"An identifiable public record is one for which the requestor has given a reasonable
description enabling the government employee to locate the requested record." Beal v.
City of Seattle, 150 Wn. App. 865, 872, 209 P.3d 872 (2009).
Agencies are not required to provide records that do not exist. Sperr v. City of
Spokane, 123 Wn. App. 132, 136-137, 96 P.3d 1012 (2004). However, where the agency
possesses undisclosed responsive records, it "must explain and justify any withholding, in
whole or in part, of any requested public records." Resident Action Council v. Seattle
Hous. Auth., 177 Wn.2d 417,432,327 P.3d 600 (2013). "Silent withholding is
prohibited." Id.
This court reviews public agency actions challenged under the PRA de novo.
RCW 42.56.550(3); Cornu-Labat v. Hosp. Dist. No. 2 of Grant County, 177 Wn.2d 221,
229,298 P.3d 741 (2013). The reviewing court is not bound by the trial court's factual
findings. Cornu-Labat, 177 Wn.2d at 229.
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Strand does not argue that the County failed to produce any specific record that it
was required to disclose. Instead, the argument appears to be that the trial court
improperly relied on nonexistent exemptions to the PRA in order to reject her arguments.
Specifically, she argues that the court improperly relied on four exemptions:
( 1) the "inspection report" exemption to justify withholding the inspection
records, (2) the "Historical Property Record Card" exemption to justify not
producing the appraisals, (3) the "32 words/phrases["] exemption to justify
not producing any records but those the assessor chose to produce, [and]
(4) the "assessor's [sic] did not understand" exemption to justify mitigating
the penalty.
Br. of Appellant at 43-44. She faults the County for failing to adequately prove these
exemptions and argues that some the exemptions render the PRA meaningless. Because
she misunderstands the trial court's conclusions, her arguments fail.
The trial court did not find that the any of the County's records were "exempt"
under the PRA. What constitutes an exemption under the PRA is controlled by statute.
See RCW 42.56.230. Generally, personal information is exempt. Id. Investigative, law
enforcement, and crime victim information is also exempt. RCW 42.56.240. The
"exemptions" listed by Ms. Strand are not exemptions under any provision of the PRA.
Rather, Ms. Strand appears to have labeled the reasons the trial court gave for not finding
a violation as an "exemption." In fact, the trial court never found an "inspection report
exemption" or any "Historical Property Record Card exemption." Instead, the court found
that the County timely produced the inspection reports, so there was no violation. CP at
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408. Without a violation, there was no need to discuss an exemption because there was no
withholding. A close reading of the trial court's memorandum opinion also shows no
records were held exempt. CP at 407 ("No claim of exemption was asserted at trial.").
As for the "32 words/phrases exemption," its origin is less clear. The trial court
never used the phrase, but Ms. Strand did use it to refer to one of her supplemental
requests. She had requested a search of the assessor's records using certain words and
phrases after her initial request of policies and procedures did not produce what she
wanted. CP at 122. Because the trial court did not rely on this in any way, it was not an
improper exemption from disclosure and has no bearing on appeal.
Similarly, the trial court never held that certain records were exempt from
disclosure because the assessor "did not understand" the request. See CP at 406-410.
Thus, this argument is also irrelevant to the trial court's actual decision. 3
3
Strand is incorrect in suggesting that a court cannot deny a violation because a
request is insufficient for the agency to understand the record sought. Case law is to the
contrary. See Wood v. Lowe, 102 Wn. App 872, 10 P .3d 494 (2000) (holding a request
for "information" and "documentation" were insufficient). Specifically, the requester
must ask for "identifiable public records." Bonamy v. City of Seattle, 92 Wn. App. 403,
410, 960 P.2d 447 (1998). An identifiable public record is one in which the requester has
given "a reasonable description enabling the government employee to locate the
requested record." Id. (internal quotations omitted). When interpreting public records
requests, the PRA does not require agencies to be mind readers. Id. at 409. While the
trial court did not rely on the lack of clarity of Strand's requests, such a holding would
not be contrary to the law.
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The first argument fails. The trial court did not apply any exemptions, nor did the
County argue any. Instead, the trial court concluded that the County had fulfilled its
obligations and timely provided the requested records.
Attorney Fees and Costs
Strand also argues that the court erred in denying her fees and costs. Since she
failed to provide the necessary documentation, the trial court did not err.
The PRA provides for a mandatory award of "all costs" to a person who prevails
against an agency in an action seeking to inspect or copy a "public record." RCW
42.56.550(4). This court has interpreted "all costs" liberally to include "all of the
reasonable expenses [the prevailing party] incurred in gaining access to the requested
records," including "reasonable costs incurred in litigating the dispute." Am. Civil
Liberties Union of Wash. v. Blaine Sch. Dist. No. 503, 95 Wn. App. 106, 117, 975 P.2d
536 (1999). The court reviews an award of attorney fees and costs under the PRA for
abuse of discretion. Kitsap County Prosecuting Atty 's Guild v. Kitsap County, 156 Wn.
App. 110, 120,231 P.3d 219 (2010). Discretion is abused when it is exercised on
untenable grounds or for untenable reasons.
The trial court certainly had tenable grounds for ultimately denying costs. The court
initially awarded fees and costs in accordance with the statute and directed Strand to
submit an appropriate order "with appropriate documentation." CP at 438. That never
occurred. Although Ms. Strand states that she ultimately submitted the documentation late,
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our record does not support that claim. Nonetheless, the trial court was not required to
consider the late evidence. This case lingered in the trial court for a significant period of
time post-trial. The trial court was under no obligation to keep the file open indefinitely.
The trial court did not abuse its discretion in denying the costs and attorney fees in
the absence of the requested documentation. See Mahler v. Szucs, 135 Wn.2d 398,434, 957
P .2d 632 ( 1998), overruled on other grounds by Matsyuk v. State Farm Fire & Cas. Co.,
173 Wn.2d 643, 272 P.3d 802 (2012) (stating that "Counsel must provide contemporaneous
records documenting the hours worked" for the court to award attorney fees).
This issue, too, is without merit.
Daily Penalty
The last issue we consider is an argument that the trial court erred in setting the
penalty at $10 per day for the failure to timely turn over the statistics on appeal. We
conclude that the trial court did not abuse its discretion in setting the penalty amount.
The PRA gives the trial court discretion to award a prevailing party "an amount
not to exceed one hundred dollars for each day that he or she was denied the right to
inspect or copy said public record." RCW 42.56.550(4). Determination of a PRA per
diem penalty is a two-step process: (1) determine the amount of days the party was
denied access to the public record, and (2) determine the appropriate amount of the
penalty. Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 459, 229 P.3d 735 (2010).
Although the existence or absence of an agency's bad faith is a primary consideration, no
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showing of bad faith is necessary before a penalty may be imposed on an agency. Amren
v. City of Kalama, 131 Wn.2d 25, 36-38, 929 P.2d 389 (1997). Also, "a good faith
·reliance on an exemption will not exonerate an agency from the imposition of a penalty
where the agency has erroneously withheld a public record." Id. at 36.
This court reviews an award of per diem penalties under the PRA for abuse of
discretion. Yousoufian, 168 Wn.2d at 458. An abuse of discretion is a manifestly
unreasonable decision or one based on untenable grounds or untenable reasons. Id. A
decision also is manifestly unreasonable if the court, despite applying the correct legal
standard, adopts a view no reasonable person would take. West v. Thurston County, 168
Wn. App. 162,187,275 P.3d 1200 (2012).
In Yousoufian, the court set forth guidelines for determining appropriate PRA
violation penalties. Yousoufian, 168 Wn.2d at 459-63. Mitigating factors that may
decrease the penalty are as follows:
(1) a lack of clarity in the PRA request; (2) the agency's prompt response or
legitimate follow-up inquiry for clarification; (3) the agency's good faith,
honest, timely, and strict compliance with all PRA procedural requirements
and exemptions; (4) proper training and supervision of the agency's
personnel; (5) the reasonableness of any explanation for noncompliance by
the agency; (6) the helpfulness of the agency to the requestor; and (7) the
existence of agency systems to track and retrieve public records.
Id. at 467 (footnotes omitted). The court also listed aggravating factors that may increase
the penalty:
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( 1) a delayed response by the agency, especially in circumstances making
time of the essence; (2) lack of strict compliance by the agency with all the
PRA procedural requirements and exceptions; (3) lack of proper training
and supervision of the agency's personnel; (4) unreasonableness of any
explanation for noncompliance by the agency; (5) negligent, reckless,
wanton, bad faith, or intentional noncompliance with the PRA by the
agency; (6) agency dishonesty; (7) the public importance of the issue to
which the request is related, where the importance was foreseeable to the
agency; (8) any actual personal economic loss to the requestor resulting
from the agency's misconduct, where the loss was foreseeable to the
agency; and (9) a penalty amount necessary to deter future misconduct by
the agency considering the size of the agency and the facts of the case.
Id. at 467-468 (footnotes omitted).
These factors are nonexclusive and for guidance only. Id. at 468. No single factor
controls, nor do the factors infringe on the trial court's considerable discretion in
determining the appropriate penalty. Id.
The trial court did not abuse that discretion here. The trial judge expressly
considered all of the Yousoufian factors. CP at 418 (stating that he had considered the
factors set out at pages 467 and 468 of Yousoufian). The court considered that Ms.
Strand suffered no economic loss as a result of the lack of disclosure, and that there was
no bad faith on the part of the County. Id. Only after this consideration did it conclude
that $10 per day was appropriate. These were tenable bases for setting the penalty.
The trial court did not abuse its discretion.
I
l
I
I
II
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Affirmed. 4
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
F~
4
We also deny Strand' s request for attorney fees on appeal. As a pro se litigant,
she is not entitled to attorney fees. E.g., Mitchell v. Dep 't of Corrs., 164 Wn. App. 597,
608,277 P.3d 670 (2011). In addition, Strand is not a prevailing party in this action.
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