Chapter §16.3 Procedural Aspects of Requestor-Initiated Actions

• Jurisdiction: Washington

§16.3 PROCEDURAL ASPECTS OF REQUESTOR-INITIATED ACTIONS

Washington civil rules apply to PRA actions. See Neighborhood Alliance of Spokane Cnty. v. County of Spokane, 172 Wn.2d 702, 261 P.3d 119 (2011) (discovery is available to a requestor under the civil rules, even though discovery is not addressed by the PRA); Spokane Research & Def Fund v. City of Spokane (Spokane Research IV), 155 Wn.2d 89, 105, 117 P.3d 1117 (2005); Rufin v. City of Seattle, 199 Wn.App. 348, 398 P.3d 1237 (2017), review denied, 189 Wn.2d 1034 (2018) (agency may make a CR 68 offer of judgment in a PRA action); Doe G v. Dep't of Corr, 197 Wn.App. 609, 391 P.3d 496 (2017) (objectors to disclosure of records under the PRA can be certified as a class under CR 23), rev'd on other grounds, 190 Wn.2d 185, 410 P.3d 1156 (2018); City of Lakewood v. Koenig, 160 Wn.App. 883, 890, 250 P.3d 113 (2011) (civil rules permitting discovery apply, and "there is no authority in the civil rules to limit their application to plaintiffs"). Litigants should be aware of local rules established by the county court where the lawsuit is filed. The superior courts of Adams County, Thurston County, and Mason County each have a local court rule directed at PRA cases. See Adams County LCR 16; Thurston County LCR 16; Mason County LCR 16.

In some instances, the PRA provides specific procedures for litigating PRA cases.

(1) Initiating legal action

A party seeking relief in court must file a complaint to invoke the court's jurisdiction. See Spokane Research IV, 155 Wn.2d at 105. But see Sheats v. City of E. Wenatchee, 6 Wn.App. 2d 523, 431 P.3d 489 (2018) (requestor's filing of an initial pleading including an ex parte motion, declaration, and memorandum of authorities was sufficient to give the court subject matter jurisdiction over the agency). The lawsuits are most commonly brought in a Washington state court, although PRA issues may arise in federal court actions. The PRA allows a lawsuit to be brought in the superior court of the county where the record is located, or a neighboring county if the responding agency is a county. See RCW 42.56.550(1), (5); RCW 36.01.050. "[N]ormal civil procedures," such as declaratory judgment, injunction, or a writ of mandamus, "are an appropriate method to prosecute a claim under the [Act]." Spokane Research IV, 155 Wn.2d at 105. The defendant in such a suit is the agency to which the records request was directed.

The Court of Appeals in one decision found that before a requestor may initiate a lawsuit against an agency for wrongful withholding of records, there must be "some action denying access to a record." Hobbs v. State, 183 Wn.App. 925, 936, 335 P.3d 1004 (2014). In Hobbs the court found that a lawsuit is premature when the agency is in the process of producing requested records in installments and has not affirmatively denied access to responsive documents. Id. at 936-37. Courts in several cases have relied on Hobbs, finding PRA lawsuits "premature." See Doe v. Benton County, 200 Wn.App. 781, 789, 403 P.3d 861 (2017), review denied, 190 Wn.2d 1006 (2018); Doe L v. Pierce County, 7 Wn.App.2d 157, 433 P.3d 838 (2019). But the Court of Appeals, Division I, distinguished Hobbs in Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn.App. 695, 715, 354 P.3d 249 (2015), finding it did not apply when the agency claimed and reiterated an exemption to production, thereby engaging in final agency action.

The Supreme Court distinguished Hobbs in Kilduff v. San Juan County,___Wn.2d___, 453 P.3d 719, 727 (2019), ruling that once an agency has completed its response, it cannot require a requestor to raise any alleged errors in an administrative appeal before filing suit.

Comment: The "final action" requirement in Hobbs does not apply to a cause of action brought pursuant to RCW 42.56.550(2) challenging a "reasonable estimate o£ time." Freedom Found v. Dep't of Soc. & Health Servs., 9 Wn.App. 2d 654 445 P.3d 971 (2019). Although no court has addressed the issue, it is also likely that Hobbs does not apply to a cause of action challenging a "reasonable estimate of charges" under RCW 42.56.550(2), once that estimate is provided.

(2) Expedited hearings: show cause hearings and summary judgment

The PRA authorizes speedy judicial review after a requestor files a motion and affidavit, thereby allowing the parties to avoid expensive and prolonged litigation that could impede a citizen's use of the act. See O'Neill v. City of Shoreline (O'Neill II), 170 Wn.2d 138, 154-57, 240 P.3d 1149 (2010); RCW 42.56.550(1); WAC 44-14-08004(1); see also Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788, 801, 791 P.2d 526 (1990).

One method for expedited review is a "show cause" hearing, whereby the agency is ordered to appear in front of a judge who will consider whether the agency's actions violated the PRA. See Lindeman v. Kelso Sch. Dist. No. 458,162 Wn.2d 196, 200,172 P.3d 329 (2007) (trial court held show cause hearing). (The issue of whether an agency can move for a show cause hearing under the PRA is addressed in §16.4, below.) Show cause hearings are a common method of resolving disputes under the PRA. See O'Neill II, 170 Wn.2d at 153-54; Wood v. Thurston County, 117 Wn.App. 22, 27, 68 P.3d 1084 (2003). This show cause procedure is specifically authorized by the PRA. RCW 42.56.550(1), (2).

PRA show cause hearings, in particular, are designed to be quick and relatively easy so the requestor—pro se or with counsel—can obtain the records if he or she is entitled to them. As one court explained: "The purpose of the [PRA] is to ensure speedy disclosure of public records. The statute sets forth a simple procedure to achieve this." Spokane Research & Def. Fund v. City of Spokane (Spokane Research III), 121 Wn.App. 584, 591, 89 P.3d 319 (2004), rev'd on other grounds, 155 Wn.2d 89,117 P.3d 1117 (2005). A show cause hearing is "discretionary, not mandatory." Spokane Research IV, 155 Wn.2d at 104. A motion to show cause may be decided without oral argument, O'Neill II, 170 Wn.2d at 153-54, although more typically the court will hold a hearing on the motion.

Practice Tip: Although the PRA contains no procedural rules for a show cause hearing, as a matter of practice, courts sometimes delay ruling on a show cause motion when the facts of the case are not fully developed, similar to a summary judgment continuance under CR 56(f).

The court does not give deference to the agency's decisions and applies a "de novo" standard. RCW 42.56.550(3). The PRA specifically directs the court to "take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." RCW 42.56.550(3). The court may resolve factual issues "solely on affidavits," although courts will sometimes hear live testimony. RCW 42.56.550(3); Cowles Publ'g Co. v. State Patrol, 109 Wn.2d 712, 715-16, 748 P.2d 597 (1988) (trial court heard testimony from police officers and psychologists); Zink v. City of Mesa (Zink I), 140 Wn.App. 328, 334-35, 166 P.3d 738 (2007). Because the court determines disputed facts at the show cause hearing, it may rule in favor of either party.

Practice Tip: If no live testimony is offered, the show cause hearing will be similar to a summary judgment hearing, except that the court can make factual determinations and need not accept the nonmoving party's evidence as correct. Thus, a party may want to move for summary judgment or, in the alternative, a ruling on show cause.

The parties may use other procedures, such as a summary judgment motion or a motion to dismiss, to determine whether an agency has violated the PRA. See, e.g., Newman v. King County, 133 Wn.2d 565, 569, 947 P.2d 712 (1997) (adjudicating PRA violation and determining "prevailing party" by summary judgment); Germeau v. Mason County, 166 Wn.App. 789, 799-800, 271 P.3d 932, review denied, 174 Wn.2d 1010 (2012) (parties filed motions for summary judgment); Beat v. City of Seattle, 150 Wn.App. 865, 209 P.3d 872 (2009) (affirming trial court's grant of agency's motion for summary judgment); Limstrom v. Ladenburg (Limstrom I), 98 Wn.App. 612, 614, 989 P.2d 1257 (1999), review denied, 141 Wn.2d 1004 (2000) (agency filed CR 12(b)(6) motion to dismiss). The usual summary judgment standards of proof and burdens apply in PRA cases. See Bldg. Indus. Ass'n of Wash. v. McCarthy (BIAW), 152 Wn.App. 720, 735-37, 218 P.3d 196 (2009) (describing summary judgment standards in PRA case); see also Neighborhood Alliance of Spokane Cnty. v. County of Spokane, 153 Wn.App. 241, 224 P.3d 775 (2009), aff'd in part, rev'd in part, 172 Wn.2d 702, 261 P.3d 119 (2011).

When an agency seeks summary judgment on a "reasonable search" claim, the agency bears the burden of proving its search was adequate "beyond material doubt." Neighborhood Alliance, 172 Wn.2d at 721. When an agency presents evidence that a requested record does not exist, the burden shifts to the plaintiff to refute that assertion with "facts that would be admissible at trial." BIAW, 152 Wn.App. at 736. There can be no silent withholding of a document that no longer exists at the time of a request. Kozol v. Wash. State Dep't of Corr, 192 Wn.App. 1, 8, 366 P.3d 933 (2015). Likewise, an agency does not silently withhold a record when it fails to produce an otherwise responsive record that it fails to locate after a search that was "reasonably calculated to uncover" all responsive records. Id. (agency not liable for not producing form that was not located after a legally adequate...