Rental Housing Ass'n v. City of Des Moines

Fairhurst, J.

¶35 (concurring in judgment) — I agree with the majority that Rental Housing Association of Puget Sound (RHA) timely filed its lawsuit. I write separately, however, because I disagree with the majority’s holding that, for purposes of the Public Record Act’s4 (PRA) statute of limitations, a claim of exemption exists only after an *542agency produces a privilege log to a requesting party. Unlike the majority, I would hold that an agency does not need to provide a privilege log to provide a claim of exemption. Instead, according to RCW 42.56.210(3) and .550(6), the agency must provide “a statement of the specific exemption authorizing the withholding of the record (or part).” The city of Des Moines (City) did just that in its August 17, 2005, letter. However, because RHA submitted a new request for the same documents on October 7, 2005, and the City did not provide a claim of exemption to that request until its January 26, 2006, letter, the statute of limitations was restarted on the date of that response. As RHA filed its suit within one year of that response, I concur in the majority’s judgment that the trial court erred in dismissing the complaint.

¶36 At issue in this case is the meaning and applicability of the PRA’s statute of limitations, RCW 42.56.550(6), which provides, “[a]ctions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” In particular, we are to determine at what point an agency provides a claim of exemption throughout its response process.

¶37 As the term “claim of exemption” is undefined elsewhere in the statute, we must look to its dictionary definition and to its context within the statutory scheme as a whole to derive its plain meaning. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 11, 43 P.3d 4 (2002); Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P.3d 762, 27 P.3d 608 (2000). We also must remember that this court’s goal is to carry out the legislature’s intent, giving meaning to each word in the statute. Tesoro Ref & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008) (citing Burns v. City of Seattle, 161 Wn.2d 129, 140, 164 P.3d 475 (2007)).

¶38 Starting with the dictionary definition, “claim” means, “an assertion, statement, or implication (as of value, effectiveness, qualification, eligibility) often made or likely *543to be suspected of being made without adequate justification.” Webster’s 'Third New International Dictionary 414 (2002). Thus, for purposes of the PRA, an agency provides a claim of exemption when it makes a statement asserting that it is withholding documents based upon some exemption.

¶39 Having examined the dictionary definition, it is next important to understand the agency response process outlined by the PRA to determine exactly when a claim of exemption occurs.

¶40 RCW 42.56.520 outlines the three options an agency has upon receiving a public records request:

Responses to requests for public records shall be made promptly by agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives. Within five business days of receiving a public record request, an agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives must respond by either (1) providing the record; (2) acknowledging that the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives has received the request and providing a reasonable estimate of the time the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives will require to respond to the request; or (3) denying the public record request. Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request. In acknowledging receipt of a public record request that is unclear, an agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives may ask the requestor to clarify what information the requestor is seeking. If the requestor fails to clarify the request, the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives need not respond to it. Denials of requests must be accompanied by a written statement of the specific reasons therefor. Agencies, the office of the secretary of *544the senate, and the office of the chief clerk of the house of representatives shall establish mechanisms for the most prompt possible review of decisions denying inspection, and such review shall be deemed completed at the end of the second, business day following the denial of inspection and shall constitute final agency action or final action by the office of the secretary of the senate or the office of the chief clerk of the house of representatives for the purposes of judicial review.

RCW 42.56.210(3) speaks to the requirements when an agency denies a request. It states, “[a]gency responses refusing, in whole or in part, inspection of any public record 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.”

¶41 Examining these statutes and the dictionary definition, I would hold that a claim of exemption occurs as part of an agency response denying a records request. RCW 42.56.520 provides for only three options upon receiving a request: to provide the documents, to acknowledge the receipt of the request and provide an estimation of time to complete it, or to deny the request. When the agency denies the request, pursuant to RCW 42.56.210(3), it must provide a statement of the specific exemption authorizing the withholding of the record and a brief explanation why the exemption applies to the record. As the legislature used the term “statement” in RCW 42.56.210(3), which is the dictionary definition of “claim of exemption” in RCW 42.56-.550(6), I believe that the legislature was using the term “claim of exemption” to describe the requirement outlined in RCW 42.56.210(3) that the agency provide a “statement of the specific exemption authorizing the withholding of the record (or part).”

¶42 While the majority has not explicitly done the above analysis, it has implicitly concluded that the term “claim of exemption” concerns agency responses denying requests. The majority goes on to conclude that our decision in Progressive Animal Welfare Society v. University of Wash*545ington, 125 Wn.2d 243, 884 P.2d 592 (1994) (PAWS II), requires that the agency provide a privilege log to complete its agency response and thus trigger the running of the statute of limitations. As explained below, I disagree with the majority and would hold that to trigger the statute of limitations, an agency need only provide the type of statement required by RCW 42.56.210(3).

¶43 In PAWS II, decided 11 years before the legislature enacted RCW 42.56.550(6), PAWS filed a public records request seeking documents related to funding of research grants at the University of Washington. 125 Wn.2d at 249-50. The university denied the request and PAWS filed suit. Id. During pretrial discovery, PAWS sought to obtain three documents created after the public records request. Id. at 268. After conducting an in-camera review, the trial court denied PAWS’ request for production on the ground that the documents were not relevant. Id. We disagreed, holding that a letter written by a doctor at the university stating that he would not respond to public records requests was relevant to casting a backward light on the university’s response. Id. We held that there was a question of fact whether the doctor silently withheld the documents that should have been disclosed pursuant to PAWS’ records request. Id. at 269. We also noted portions of the grant proposals were not submitted to the trial court. Id. Citing the former version of RCW 42.56.210(3) (former RCW 42.17.310(4) (1994)), we spoke to the silent withholding of documents:

Silent withholding would allow an agency to retain a record or portion without providing the required link to a specific exemption, and without providing the required explanation of how the exemption applies to the specific record withheld. The Public Records Act does not allow silent withholding of entire documents or records, any more than it allows silent editing of documents or records. Failure to reveal that some records have been withheld in their entirety gives requesters the misleading impression that all documents relevant to the request have been disclosed. Moreover, without a specific identification of each individual record withheld in its entirety, the reviewing *546court’s ability to conduct the statutorily required de novo review is vitiated.
The plain terms of the Public Records Act, as well as proper review and enforcement of the statute, make it imperative that all relevant records or portions be identified with particularity. Therefore, in order to ensure compliance with the statute and to create an adequate record for a reviewing court, an agency’s response to a requester must include specific means of identifying any individual records which are being withheld in their entirety. Not only does this requirement ensure compliance with the statute and provide an adequate record on review, it also dovetails with the recently enacted ethics act.

Id. at 270-71 (footnote and citation omitted). In a footnote, we described the type of information that needed to be provided:

The identifying information need not be elaborate, but should include the type of record, its date and number of pages, and, unless otherwise protected, the author and recipient, or if protected, other means of sufficiently identifying particular records without disclosing protected content. Where use of any identifying features whatever would reveal protected content, the agency may designate the records by a numbered sequence.

Id. at 271 n.18.

¶44 I would hold our analysis in PAWS II does not lead to the conclusion that to provide a claim of exemption sufficient to start the running of the statute of limitations, an agency must provide a privilege log. This is so for several reasons.

¶45 When this court created the privilege log requirement in PAWS II, we fashioned the rule out of concern that agencies were silently withholding documents and that trial records were inadequate. It was not out of concern for the running of the statute of limitations. Moreover, by repeatedly stating that providing the information would ensure compliance with RCW 42.56.210(3) and that it would create an adequate record on review, we noted the requirement of providing the specific identifying information went beyond the statutory obligations created by RCW *54742.56.210(3). To extrapolate from PAWS II that an agency must provide a privilege log to initiate the running of the statute of limitations not only goes beyond the specific wording of the PRA but also goes beyond a reasonable reading of PAWS II. I believe the only proper way to read the statute of limitations provision in the context of the PRA and PAWS II is to hold that an agency need not provide a privilege log to trigger the running of the statute of limitations.

¶46 Applying the above analysis to the facts of the case demonstrates that providing a privilege log is not necessary to trigger the running of the statute of limitations. On July 20, 2005, RHA requested the City disclose certain documents relating to its “Crime-Free Rental Housing Program.” Clerk’s Papers (CP) at 49-51. On July 21, 2005, the City responded it had received the request and would respond as soon as possible. CP at 53-54. On August 17, 2005, the City provided several records but in a letter, noted that it withheld approximately 600 pages of documents:

We are not providing a number of documents from the City-Attorney’s Office file, which are described as follows:

Legal Department’s Packet No. 1:

The packet excludes approximately 600 pages of documents that are exempt from public disclosure per [former] RCW 42.17.310(1)6) because they are drafts, notes, and interagency memoranda not relied on in public action; or because they are exempt from disclosure under [former] RCW 42.17.310(l)(j) [(2004)] because they would not be subject to discovery, as attorney work product or subject to attorney/client privilege. These exempt documents include:
• Inter-office legal opinions and memoranda;
• Copies of reported cases decided by the Washington State Supreme Court and Court [ ] of Appeals dealing with rental housing ordinances;
• Copies of newspaper articles regarding the crime-free rental housing ordinance & possible litigation;
• Copies of treatises & articles dealing with the legality of crime-free rental housing ordinances;
*548• Copies of treatises & articles dealing with the Washington Landlord/Tenant Act (RCW 59.18);
• Attorney notes regarding preparation for teaching the “legal issues” portion of the Landlord Training Workshop;
• Copies of similar crime-free rental housing ordinances from other municipalities;
• Copies of “edits, drafts, re-drafts, & redlined versions” of the crime-free rental housing ordinance; and
• Copies of “edits, drafts, re-drafts, & redlined versions” of the Agenda Items prepared for presentation to the City Council.

CP at 61-62.

¶47 That letter provides a clear statement or assertion that approximately 600 pages were exempted and a brief explanation why. A reasonable person receiving that letter would conclude the City claimed documents were statutorily exempted.5 To hold otherwise and set the trigger for the running of the statute of limitations at the moment a privilege log is provided would force courts to needlessly delve into whether the agency’s privilege log sufficiently described the records.

¶48 If there had not been subsequent communications between the City and RHA, I would conclude that the running of the statute of limitations began when RHA received the August 17, 2005, letter. However, on October 7, 2005, in response to the above communications, RHA sent a letter explaining that it believed several of the withheld records were not exempted from disclosure. CP at 64-65. RHA also requested that the City provide a log of the specific documents the City claimed were exempt and to provide any e-mails responsive to the original request. CP at 64-66. RHA requested “that the City ensure that it has *549provided us with all documents regarding the City’s standards for compliance with the CPTED [(Crime Prevention Through Environmental Design)] element, regarding landlords’ compliance with the program’s CPTED element and its other provisions, and regarding the City’s methods of ensuring such compliance.” CP at 66. RHA noted that noncompliance “may result in an award of costs, attorney fees, and statutory penalties.” Id.

¶49 In an October 12, 2005, letter, the City treated RHA’s letter as a new request:

At this time, we believe that we have properly withheld exempt public records, stating the specific exemption in the terms required by [former] RCW 42.17.310(4) [(2003)] [current RCW 42.56.210(3)]; and that our six hundred page response provided all public records that are responsive to your July 20, 2005 public disclosure request. We note that your definition of requested “documents” is considerably broader than the Public Disclosure Act’s definition under [former] RCW 42.17.020(41) [(2005)] of “public records” that must be provided in response to a request for public disclosure, and that your definition does not incorporate the numerous statutory exemptions from public disclosure. However, at your request, I will re-review the applicable statutes and case[ ]law concerning these exemptions; and the City Clerk will again request that City departments review their records, specifically searching for public records that you suspect we have failed to disclose. We will attempt to provide a complete response by November 18, 2005.

CP at 68 (emphasis added). By noting the request, stating that it would request City departments to review their records, and providing an estimation of time to complete its response, this letter indicates that the City treated RHA’s October 7, 2005, letter as a new request for documents and in response gave an estimate of time of completion.

¶50 Later documents confirm that both parties treated the October 7, 2005, letter as a new request requiring the City to provide a complete response. On November 23, 2005, in a letter regarding “October 7, 2005 Public Disclosure Request - Crime Free Rental Housing Ordinance,” the *550City wrote, “[d]ue to the demands that come with the end of the year, I will not be able to provide you with a complete response to your October 7, 2005 public disclosure request until December 9, 2005.” CP at 70. Thus, the City again intimated its view that the October 7, 2005, letter was a new request that required a complete response.

¶51 On January 25, 2006, RHA wrote a letter regarding a “Demand for Immediate Production of Documents Requested July 20 and October 7, 2005; And Separate PDA Request for More Recent Documents Regarding the Crime-Free Rental Housing Ordinance/Program and the City’s 2006 Budget.” CP at 72-75. In that letter, RHA wrote:

On October 7, 2005, we requested that the City either produce the withheld documents (especially several types of documents which appeared to fall far outside the PDA’s exemptions), or identify each document and the specific basis for withholding it, as required by the PDA. We also requested that the City produce additional responsive documents (noting broad categories of documents that were apparently missing from the City’s response, such as e[-]mails).
By letter dated October 12, 2005, the City indicated, in response to our October 7 letter, that it would “attempt to provide a complete response by November 18, 2005.” On November 23, 2005, the City indicated that it would not be able to provide a complete response until December 9, 2005.
It is now January 25, 2006 - more than two months past the City’s original estimation of November 18 and nearly five months from when the documents should have been produced in the first instance. Unless we receive immediate assurance from the City that the responsive documents will be promptly produced, we will file suit under the [public disclosure act] to compel production of the documents. Further, we will seek an award of monetary sanctions and attorneys’ fees and costs for bringing such an action.

CP at 72-73. In that letter, RHA also submitted a new request for documents created after July 20, 2005. CP at 73-74.

¶52 RHA’s letter indicated it understood the City was treating the October 7, 2005, letter as a new request for *551documents and that the date projected by the City’s October 12, 2005, letter was the estimated amount of time requested by the City to complete its response to the October 7, 2005, request.

¶53 On January 26, 2006, the City wrote a letter regarding the “October 7, 2005 Letter - Crime Free Rental Housing Ordinance.” CP at 77. In that letter, the City noted that, on October 7, 2005, RHA had “demanded that we provide the City Attorney’s file, and other unidentified ‘remaining documents’ that ‘appear to be lacking.’ ” CP at 78. The City claimed that the documents already provided satisfied the demands in the October 7, 2005, letter. Id. The City wrote:

In short, the City has already provided: (1) a complete six hundred (600) page response to your public disclosure request, on August 17, 2005; (2) a careful identification of documents in the City Attorney’s files that were not disclosed, and an explanation of the statutory basis for non-disclosure, in our initial response on August 17, 2005; and (3) a second response on October 12, 2005, reiterating that we had already provided responsive documents and had properly withheld exempt documents. Nothing in the public disclosure act or in any relevant case[ ]law requires us to provide a third response to your original public disclosure request.

Id. The City proceeded to explain that it was providing a copy of a city clerk’s inquiry and two e-mails from the primary records custodian indicating all responsive records had been provided. Id. The City stated that, after reviewing the relevant case law and statutes, it “believe [d] that we have properly withheld exempt public records, stating the specific exemptions in the terms required by RCW [42.56-.210(3)].” Id. The City then provided a claim of exemption verbatim to its August 17, 2005, letter. CP at 79.

¶54 Given the correspondence between the City and RHA, I would hold that both parties treated the October 7, 2005, letter as a new request for documents. The City did not claim an exemption until January 26, 2006, when it denied the request and asserted the same exemption, using *552the same wording as in the August 17, 2005, letter. As RHA filed its lawsuit on January 16, 2007, within one year of the claim of exemption, RHA complied with RCW 42.56.550(6). CP at 2. The trial court erred in dismissing RHA’s suit as time barred.

¶55 While the majority and I agree on the result, the above application of the facts highlight why my analytical approach is preferable compared to the majority’s. First, the facts demonstrate it is possible for an agency to provide a claim of exemption without providing a privilege log. It was clear to RHA that the August 17, 2005, letter was a claim of exemption for documents requested on July 20, 2005. It also became clear the City was claiming an exemption for its withholding documents requested on October 7, 2005. Although the City did not provide the privilege log until April 14, 2006, the parties were aware that the City was withholding documents, claiming they were exempted by the work product, attorney work product, or attorney-client privilege exemptions.

¶56 Second, following the majority’s approach, RHA could, and does, argue that because the privilege log provided by the City is insufficient, the statute of limitations has yet to run.6 Majority at 539-40; Appellant’s Br. at 36-37. Under my approach, there is a clearer bright line of when an agency makes a claim of exemption. Under the majority’s approach, it is possible the City has yet to trigger the running of the statute of limitations even though RHA was well aware years ago the City was withholding documents relying on specific exemptions.

*553¶57 I concur in the majority’s result.

Owens, J., concurs with Fairhurst, J.

The legislature amended and recodified the public disclosure act as the Public Records Act (PRA) in 2005, moving it from chapter 42.17 RCW to chapter 42.56 RCW, effective July 1, 2006. Laws of 2005, ch. 274. While RHA first filed its public disclosure request when the public disclosure act was in effect, RHA filed its lawsuit when the PRA was in effect. Thus, the one year statute of limitations was not in effect when RHA filed its request, but that statute of limitations was in effect when RHA filed its suit. To avoid confusion and to be consistent with the majority, this opinion refers to the PRA.

While not dispositive, it is worth noting that, in its response letter dated October 7, 2005, RHA understood the August 17,2005, letter to he the City’s claim of exemption by noting the City’s claim of exemption and arguing that the exemptions did not apply. CP at 64. Further, RHA threatened the City with a lawsuit seeking an award of costs, attorney fees, and statutory penalties. CP at 66.

It appears RHA contends the City has yet to produce a proper privilege log, but the statute of limitations began to run on June 16, 2006, as a result of the City’s last installment letter. Appellant’s Br. at 36-37; Wash. Supreme Court oral argument, Rental Hous. Ass’n v. City of Des Moines, No. 80532-6 (May 6, 2008), at 11 min., 15 sec.; 13 min., 30 sec.; 44 min., 20 sec., audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org. According to RHA, the statute of limitations began to run only because the letter was the last installment of the disclosure of documents. Appellant’s Br. at 36-37; see RCW 42.56.550(6).