NO. 896489-8 IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF LAKEWOOD, Petitioner v. DAVID KOENIG, Respondent
BRIEF OF AMICUS SUBMITTED ON BEHALF OF THE WASHINGTON ASSOCIATION OF PUBLIC RECORDS OFFICERS IN SUPPORT OF THE CITY OF LAKEWOOD
JIM ILES City of Everett City Attorney Ramsey Ramerman WSBA # 30423 Assistant City Attorney City of Everett 2930 Wetmore Ave Everett, WA 98201 (425) 257-7000 Attorneys for Amicus, Washington Association of Public Records Officers
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TABLE OF AUTHORITIES Cases
Page(s)
Armen v. City of Kalama 131 Wn.2d 25, 929 P.2d 389 (1997) ................................................ 10 City of Lakewood v. Koenig 160 Wn. App. 883, 250 P.3d 113 (2011) ......................................... 14 City of Lakewood v. Koenig 176 Wn. App. 397, 309 P.3d 610 (2013) ..................................... 2, 19 Kirby v. City of Tacoma 124 Wn. App. 454, 98 P.3d 827 (2004) ............................... 15, 16, 18 Neighborhood Alliance v. Spokane County 172 Wn.2d 702, 261 P.3d 119 (2011) ............................................ 8-9 Progressive Animal Welfare Society v. Univ. of Wash. (“PAWS”) 125 Wn.2d 243, 884 P.2d 592 (1995) ...................................... Passim Rental Housing Authority v. City of Des Moines 165 Wn.2d 525, 199 P.3d 393 (2009) ...................................... Passim Residential Action Council v. Seattle Housing Authority 177 Wn.2d 417, 300 P.3d 376 (2013) ...................................... Passim Roe v. TeleTech Customer Care Management LLC 171 Wash.2d 736, 257 P.3d 586 (2011)........................................... 18 Sanders v. State, 169 Wn.2d 827, 240 P.3d 120 (2010) ...................................... Passim Soter v. Cowles Pub’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007) ................................................ 14 Wash. State Physicians Ins. Exch. v. Fisons Corp 122 Wn.2d 299, 858 P.2d 1054 (1992) ........................................ 5, 18 Yakima County v. Yakima Herald, 170 Wn.2d 775, 246 P.3d 768 (2011) ...................................... Passim
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Statutes and Rules
Page(s)
Laws of 1973 Ch. 1, §1(11) (codified at RCW 42.17A.001(11)) .............1 RCW 42.56.050 ................................................................................11, 14 RCW 42.56.230 ................................................................................11, 19 RCW 42.56.240 ..........................................................................11, 14, 19 RCW 42.56.550 ..................................................................................4, 12 CR 8 ........................................................................................................13 CR 15 ......................................................................................................15 CR 33 ......................................................................................................17
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I. INTRODUCTION When the People enacted the Public Records Act in 1972 and declared that open government was a “fundamental and necessary precondition to the sound governance of a free society,” the People also cautioned that the courts should remain “mindful … of the desirability of the efficient administration of government.”1 This Court’s recent decisions regarding the requirements of RCW 42.56.210(3) illustrate how the Court has struck a balance between this these directives by on one hand mandating “strict compliance” with the PRA’s obligations,2 while on the other hand issuing decisions that providing “clear and workable guidance to agencies insofar as possible.”3 Thus, the Court has clearly identified what information should be included in an exemption log and penalized agencies for omitting required information because it interfered with a requestor’s ability to make a “threshold determination” of whether an exemption justified the agency’s withholding or redaction of information.4 On the other hand, the Court had emphasized that the agency’s explanations “need not be elaborate.”5 Having clear guidance in this area is particularly important because for most agencies, the exemption log is prepared by the agency Public
1
Laws of 173, Ch. 1, Sec. 1(11), now codified at RCW 42.17A.001(11). Rental Housing Authority v. City of Des Moines, 165 Wn.2d 525, 535, 199 P.3d 393 (2009). 3 Residential Action Council v. Seattle Housing Authority, 177 Wn.2d 417, 431, 439, 300 P.3d 376 (2013), republished as amended at – Wn.2d – (Jan. 10, 2014) (RAC); see also, e.g., Rental Housing, 165 Wn.2d at 540. 4 Rental Housing, 165 Wn.2d at 540. 5 Rental Housing, 165 Wn.2d at 540. 2
1
Records Officer, who is usually not an attorney. As this Court recently noted, exemptions under the PRA is a “difficult area of the law” with a “complex and often confusing statutory framework.”6 There is no need to further complicate it by adding open-ended or complex rules to the brief explanation requirement in RCW 42.56.210(3). But this is exactly what the Court of Appeal’s decision in this case7 and the arguments advanced by David Koenig would do and thus stand in stark contrast to any “clear and workable guidance.” Even though the record makes it clear Koenig has no problem making a threshold determination that the City of Lakewood, in his opinion, had violated the PRA based on the City’s brief explanation, he is now seeking to impose a new obligation that would require the brief explanation to include the correct legal analysis of how the exemption applies. There is no justification or public benefit for imposing this new, heighted burden. It is not mandated by the language of the PRA itself and it goes far beyond the Court’s legal reasoning in earlier RCW 42.56.210(3) decisions. Accordingly the Court should vacate the Court of Appeals ruling and, because Koenig has abandoned his claim that driver’s licenses are not in fact exempt, re-instate the trial court’s summary judgment order.
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RAC, 177 Wn.2d at 431 City of Lakewood v. Koenig, 176 Wn. App. 397, 309 P.3d 610 (2013) (Lakewood II)
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II. SUMMARY OF INTERESTS AND IDENTITY OF AMICI8 The members of the Washington Association of Public Records Officers (WAPRO) are Public Records Officers and other public employees from 100s of local and state agencies that are involved in their agency’s PRA compliance efforts.
WAPRO’s mission is to provide
training to PROs in all aspects of PRA compliance, including the preparation of exemption logs/withholding indexes. Therefore, the results in this case will directly affect the members of WAPRO and the training WAPRO provides to its members. III. SPECIFIC ISSUES ADDRESSED Whether an agency violates a requestor’s right to receive a response when the agency’s brief explanation does not provide an accurate legal analysis of the asserted exemption. Whether Koenig properly preserved a “right to a response” claim when he affirmatively stated that the “only issue” he wanted to litigate was whether the city properly redacted driver’s license numbers (a “right to inspect” claim) and he affirmatively waived all other claims. IV. STATEMENT OF THE CASE Amicus adopts the statement of facts in the City’s briefing. Facts relevant to this brief, including citations to the record, are included in the arguments below.
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Additional details about WAPRO, their interest in this case, why the Court should hear from WAPRO and the familiarly of applicant with the issues in this case are described in the Motion to File Brief of Amicus.
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V. ARGUMENT The PRA authorizes two classes of violations that support a cause of action. Yakima County v. Yakima Herald, 170 Wn.2d 775, 809, 246 P.3d 768 (2011). First, an agency may be held liable if it wrongfully withholds or redacts a record, which violates a requestor’s “right to inspect or copy” found in RCW 42.56.550(1) (hereafter the “right to inspect”). Second, an agency may be held liable for violating the requestor’s “right to receive a response” found in RCW 42.56.550(2) (hereafter the “right to a response” claim).
This Court has previously held that an agency
violation of a requestor’s right to a response can range from the complete silent withholding of records to omission of information from the exemption log. An essential part of right to a response violations are that the omitted information is necessary to allow a requestor to make a threshold determination regarding whether the agency properly relied on an exemption. Koenig now seeks to expand the “right to a response” by requiring the brief explanation to accurately analyze the exemption, rather than just allow a threshold determination of whether it applies. Under this new theory, an agency that included all required information in the exemption log that allowed a requestor to make a threshold determination would still be liable based on its faulty legal analysis, even if it is never shown that the exemption cited as incorrect. The Court should reject Koenig’s claims both because it would only serve to further complicate the PRA without providing any public
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benefit and because Koenig affirmatively waived any “right to a response” claim in his Answer when he affirmative stated that the “only issue” he wanted to litigate was whether the city properly redacted driver’s license numbers, a right to inspect claim, and he asked to court to dismiss all other claims. A.
The Court of Appeals Erred in Ruling that an Allegedly Inadequate “Brief Explanation” Amounted to a Right to a Response Violation In Progressive Animal Welfare Society v. Univ. of Wash., 125
Wn.2d 243, 884 P.2d 592 (1995) (“PAWS”), the Court recognized the quintessential “right to a response” claim – the silent withholding of a record. The Court compared silent withhold to the actions it had recently condemned in the Fisons case,9 and ruled that an agency’s silence “gives requesters the misleading impression that all documents relevant to the request have been disclosed.” PAWS, 125 Wn.2d at 270. To prevent silent withholding, the Court elaborated on what information an agency should supply to comply with RCW 42.56.210(3).10 By providing this information, the response was adequate because it informed a requestor that information is being withheld and allowed the requestor to make a threshold determination regarding whether the agency was relying on a proper exemption. PAWS, 125 Wn.2d at 270-71 & nn. 17
9
Wash. State Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299, 353, 858 P.2d 1054 (1992) 10 At the time of the decision, the PRA was still part of former Ch. 42.17 RCW, but for to avoid confusion, all cites will be to the current PRA provision.
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& 18. This information has the secondary effect of providing an adequate record for court review. PAWS, 125 Wn.2d at 270. In recent years the Court has recognized errors less egregious that silent withholding11 may also violate a requestor’s right to a response. But these errors all share two common elements: they involve the complete omission of information or action and this omission interferes with the requestor’s ability to make a threshold determination whether the agency had improperly asserted an exemption. Here, the City of Lakewood did not omit any information or action and Koenig was able to make the threshold determination that the City improperly redacted driver’s license numbers. But rather than test his threshold determination in court, Koenig is arguing (and the court of appeals found) that a brief explanation that does not provide a correct legal
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The Court should take the opportunity clearly distinguish between true silent withholding, where records are secretly withheld as a result of an agency’s intentional misconduct or gross negligence, and lesser violations where it is clear that an agency is withholding or redacting records, but has otherwise failed to comply with RCW 42.56.210(3), or where an agency has completely overlooked a record due to mere negligence or in good faith. True silent withholding, as the Court indicated in PAWS, is equivalent to the conduct in Fisons and is contrary to the precepts of the PRA and open government. While other violations of RCW 42.56.210(3) have some of the same harms, there is a dramatic difference in culpability between where an agency is misleading a requestor by suggesting nothing is being withheld and an agency that is very open about the fact that it is withholding information, even if it has otherwise violated the law. Likewise, there is a dramatic difference between the agency that is silently withholding records to deceive a requestor and the agency that is justg as unaware as the requestor that the responsive records have not been produced. While all three situations have negative impacts, when the latter two types of violations are lumped together with true silent withholding, it serves to under-emphasize badfaith nature of true silent withholding. See, e.g., Sanders, 169 Wn.2d at 863 (failure to include brief explanation warranted $3 per day penalty enhancement).
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analysis is itself a violation of his right to a response, even if the exceptions the City cited ultimately prove to be applicable. The Court should reject this conclusion because it ignores the Court’s prior reasoning for expanding the right to a response claim and it imposes a useless, yet onerous burden on agencies and their Public Records Officers. 1.
The Court’s Prior Expansion of the “Right to a Response” Claim Has Been Justified by the Harms that Come from the Complete Omission of Information.
The Court’s recent decisions have expanded the right to a response claim beyond just silent withholding to apply in other situations where an agency omits information that in turn interferes with the requestor’s ability to make a threshold determination regarding whether the agency has properly relied on an applicable exemption. This expansion began in the Court’s 2009 decision in Rental Housing Authority v. City of Des Moines, 165 Wn.2d 525, 539-40, 199 P.3d 393 (2009).
There an agency had cited exemptions to justify
withholding hundreds of records, but did not provide the specific identifying information for each document as identified in PAWS and required by RCW 42.56.210(3). The Court held that this failure was an inadequate response because without these omitted details, the requestor and the court “cannot know (1) what individual records are being withheld, (2) which exemptions are being claimed for individual records, and (3) whether there is a valid basis for a claimed exemption for an individual record.”
Rental Housing, 165 Wn.2d at 540.
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As a
consequence, the Court held that the city’s inadequate response failed to trigger the statute of limitations. The Court expanded on Rental Housing one year later when it decided Sanders v. State, 169 Wn.2d 827, 240 P.3d 120 (2010).
In
Sanders, the agency had provided a detailed explanation log, but had completely omitted any “brief explanation” from that log. The Court found that this violated RCW 42.56.210(3) because it prevented the requestor from “vetting” the validity of the claimed exemptions. Sanders, 169 Wn.2d at 846. As further justification, the Court expressly linked the brief explanation requirement in RCW 42.56.210(3), with RCW 42.56.550(4), which allows for the award of costs, but not penalties, if an agency violates a requestor’s right to receive a response. Sanders, 169 Wn.2d at 848. The Court then relied on Sanders in Yakima County v. Yakima Herald, 170 Wn.2d 775, 809, 246 P.3d 768 (2011), to emphasis that the “right to inspect” and the “right to receive a response” are two separate claims. Under this analysis, the Court held that the County violated the requestor’s right to a response when it failed to provide a clear response with regards to whether responsive records even existed. Without a clear response, the requestor had to resort to the courts without being able to make a threshold determination. The Court went on to conclude (for the first time) that the violation of the “right to a response” could justify an award of costs, even though there had been no determination regarding whether the requested records were exempt. Yakima, 170 Wn.2d at 809-
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10l; see also Neighborhood Alliance v. Spokane County, 172 Wn.2d 702, 224, 261 P.3d 119 (2011) (holding the failure to conduct an adequate search violated the requestors right to a response) All of the cases that have analyzed the right to a response claim are rooted in the common fact that the agency’s omission of information or failure to take certain actions violated a requestor’s right to a response because they interfered with the requestor’s ability evaluate whether records were wrongfully withheld.
As a result, the omission of
information makes it harder and more burdensome for the requestor to pursue a “right to inspect” claim. Thus, by allowing a requestor to recover for a right to a response claim, it eliminates any incentive an agency might have to omit information in hopes that a requestor will decide not to pursue a right to inspect claim. Rental Housing, 165 Wn.2d at 538 n.2. Silent withholding is the most extreme failure to respond because it can mislead a requestor into thinking all response records were in fact disclosed. PAWS, 125 Wn.2d at 270. The failure to provide detailed log information and the failure to provide a brief explanation also hamper with the requestor’s ability to vet the claimed exemption. Rental Housing, 165 Wn.2d at 540 (detailed information allows a requestor to determine if there is a valid basis for the claimed exemption); Sanders, 169 Wn.2d at 846 (brief explanation needed to vet exemption claim). In contrast, there is no question that Lakewood provided a brief explanation that was sufficient to allow Koenig to make a threshold determination and vet the City’s claim of exemption – Koenig’s complaint
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is that he has vetted the claim and thinks the City has wrongfully redacted information. Thus, the City’s explanation served the purposes specified in PAWS, Sanders and Rental Housing. Moreover, the Court has repeatedly emphasized that it will not give any deference to an agency’s determination that an exemption applies. See, e.g., Armen v. City of Kalama, 131 Wn.2d 25, 34 n.6, 929 P.2d 389 (1997) (“The court, not the agency seeking to avoid disclosure, determines whether the records are exempt.”). This means the usefulness of the brief explanation ends once it allows a requestor to make its threshold determination, and this intended use does not require a correct legal analysis. Accordingly, the Court should reject the conclusion that an agency has violated a requestor’s right to a response when the agency provides a brief explanation, but that explanation is incorrect. 2.
Brief Explanations Need Not Be Elaborate
Even if the Court were to require a brief explanation to be correct, the Court should reject Koenig’s claim that it must include correct legal analysis. Rather the Court should reaffirm that the “brief” explanation “need not be elaborate” and must only provide sufficient information to allow a requestor to make a “threshold” determination of whether the exemption applies to the requested record. PAWS, 125 Wn.2d 271 n.18. Under this standard, Lakewood complied with its obligations. In many cases, particularly where an agency is citing a categorical exemption, the brief explanation will only need to include the factual identification of the information being withheld.
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For example, if an
agency is redacted a debit card number and cites the categorical exemption in RCW 42.56.230(5) for debit card numbers,12 no explanation beyond stating that the redacted information is in fact a debit card number should be required. Under this standard, the City’s brief explanations were adequate. The City explained that the information it had redacted were driver’s license numbers and that these numbers were exempt under the Federal Driver’s Privacy Protection Act and RCW 42.56.240 in combination with RCW 42.56.050.13 By citing to the Reno case, the City explained that the federal statute applied to records for state agencies. By citing to RCW 42.56.050, the City explained that disclosure of the license numbers would be highly offensive and served no public interest. While these explanations could haven clearer, the facts of this case show the City’s explanation was more than sufficient to allow Koenig to make the threshold determination that the exemptions cited by the City did not apply. If Koenig had not chosen to abandon his assertion that no exemption applied, he could have tested these legal arguments in court. 3.
Requiring Brief Explanations to Contain Accurate Legal Analyses Would Unduly Burden Public Records Officers, Who Typically Are Not Attorneys
Not only does a correct legal analysis requirement serve no purpose, such a requirement would be exceedingly onerous on most public agencies because exemption logs are usually prepared by Public Records 12
The Court identified this as an example of a categorical exemption in RAC, 177 Wn.2d at 434. 13 Koenig conceded that the City asserted these exemptions in his Answer. See CP 17.
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Officers (PROs), who are almost always not attorneys.
The Court’s
analysis of conditional and categorical exemptions in RAC shows that even trained lawyers and judges find the legal requirements confusing. Thus, when the Court explained the difference between categorical and conditional exemptions, it conceded the distinction between the two “is sometimes
blurry”
with
“effectively categorical”
some
conditional
exemptions
and
exemptions
other
rendered
“exemptions
are
ambiguous and difficult to classify.” RAC, 177 Wn.2d at 434-35. Thus, when the lead opinion attempted the categorize the 141 exemptions in the PRA, it conceded that some may be sorted incorrectly. See RAC, 177 Wn.2 436, ¶22, and appendices, both stricken from the amended unanimous opinion. Under Koenig’s interpretation of the PRA, if a PRO provided a brief explanation and incorrectly characterized the exemption as categorical instead of condition, the explanation would violate the PRA, even if the exemption applied. To reduce potential liability, agencies would have to almost always engage legal counsel, who can be very costly, especially for agencies that do not have an attorney in house. This is a standard the Court has not held itself to and it makes no sense to impose it on an agency. B.
In His Answer, Koenig Affirmatively Waived His Right Obtain Relief Under a “Right to a Response” Claim As noted, the PRA authorizes two classes of violations that support
a cause of action – the “right to inspect: and “the right to receive a
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response.” Yakima, 170 Wn.2d at 809. When an agency violates the right to inspect, a requestor is entitled to penalties and costs. In contrast, a violation of a requestor’s right to a response only entitles the requestor to costs. RCW 42.56.550(4); Yakima, 170 Wn.2d at 809. For the first three years of this dispute, Koenig was alleging only a “right to inspect” claim: “The only substantive issue in this case is the legal question of whether the City properly redacted driver’s licenses under the PRA.”14 After the first court of appeals decision remanded the case back the trial court, however, Koenig tried to switch his claim from a right to inspect claim to a right to a response claim, and is now asserting “[i]t was not necessary for the court [of appeals] to decide whether driver’s license numbers are exempt under any specified PRA exemption.” Answer to Petition for Review at 2. These two positions are incompatible and show Koenig is now seeking relief under a claim the affirmatively waived in his Answer. Under CR 8, the claims litigated in a lawsuit must be included in the Complaint and Answer. While Lakewood made a broad claim for declaratory relief in its complaint (CP 7, ¶¶4.1-4.3), Koenig’s Answer narrowed the case down to one single substantive issue: “The City has redacted driver’s license numbers from requested records based on erroneous assertion that such information is exempt” pursuant to several
14
Br. of Appellant in Div. 2 No. 38657 in first appeal on discretionary review to the Court of Appeals, page 1 (filed May 4, 2009). (Hereafter “Koenig I Br. of Appellant”)
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statutes including the Federal Drivers’ Privacy Protection Act, RCW 42.56.050 and RCW 42.56.240. CP 17, ¶3.5. Koenig’s desire to only litigate one legal issue is significant because this Court has held that a requestor who has been sued by an agency can avoid the burdens of the lawsuit by waiving any claims it does not wish to litigate. See Soter v. Cowles Pub’g Co., 162 Wn.2d 716, 753 n.16, 174 P.3d 60 (2007). Koenig affirmatively exercised this right to narrow the case the “only substantive issue”, even though he believed the City has violated the PRA in other ways. His request for relief makes it clear that Koenig considered this “only issue” to be a right to inspect claim, not a right to a response claim. Thus, he sought: (1) “an order that the City improperly redacted driver’s license numbers from the requested records”; (2) an award of “penalties and attorney fees”; and (3) and affirmatively asked the court “[t]o dismiss the remainder of the City’s claim as moot.” CP 18. Penalties are only available for a right to inspect claim, making it clear that the one issue Koenig preserved was a right to inspect claim, and that any “right to a response” claim was dismissed by his choice to waive every claim except the single issue of whether the redactions were proper. See Yakima, 170 Wn.2d at 809 (penalties are only allowed for right to inspect claims). Koenig’s intent to limit this case to the single issue is emphasized in his briefing during the first appeal. See, e.g., Koenig I Br. of Appellant at 5 (“the only substantive issue in this case is whether the City has properly redacted driver’s license numbers”) (bold and italics original);
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see also pages 1,6 and 13 of this same brief. As a result of Koenig’s unambiguous position, the Court of Appeals recognized that “the only issue is whether the City properly withheld driver’s license numbers.” City of Lakewood v. Koenig, 160 Wn. App. 883, 886 n.1 250 P.3d 113 (2011) (Koenig 1). Thus, the Court’s remand order directed the trial court to “determine whether the City properly redacted driver’s license numbers.” Lakewood, 160 Wn. App. at 895. In response to this directive, Koenig has now told this Court that “[i]t was not necessary for the court [of appeals] to decide whether driver’s license numbers are exempt under any specified PRA exemption.” Answer to Petition for Review at 2. The mandate from the court of appeals after the first appeal (taken from Koenig’s own briefing) and Koenig’s current passion are impossible to reconcile. At the time of the first appeal, the “only issue” was a right to inspect claim. Now, the only issue has become two issues and includes a right to a response claim. Had Koenig acknowledged this switch and moved to amend his Answer to include this counterclaim based on his right to a response, that claim might properly be before this Court.
See CR 15(b) (allowing
amendments to conform to the facts); but see Kirby v. City of Tacoma, 124 Wn. App. 454, 98 P.3d 827 (2004) (holding that such amendment would not be allowed when new theory was raised for the first time in response to a summary judgment motion and the other party objects); Wolfe v. Legg, 60 Wn. App. 245, 251, 803 P.2d 804 (1991) (no amendment to add counterclaim when raised for the first time at the close of discovery).
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But what Koenig cannot do it change arguments without providing fair notice. “A party who does not plead a cause of action or theory of recovery cannot finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along.” Kirby, 124 Wn. App. at 472. Koenig has tried to finesse his “right to inspect” claim into a “right to a response claim” by cites to various places where he had cited RCW 42.56.210(3).
A close review of those citations, however, may
demonstrate that Koenig thought the City had violated that statute, but when those references are viewed in context, they do not support Koenig’s assertion that the “only issue” he wanted to litigate was a violation of that statute, as opposed to the substantive legal issue of whether driver’s licenses are exempt. The Answer itself does reference with RCW 42.56.210(3) or the brief explanation requirement. Moreover, by seeking penalties, it is clear Koenig was pursuing a “right to inspect” claim, not a “right to a response claim.” CP 18. Koenig’s citation to RCW 42.56.210(3) his briefing during the first appeal is only in the “Statement of the Case” section, not part of any legal argument and Koenig does not even include the statute in his statement of authorities. See, e.g., Koenig I Br. of Appellant at iii & 3. Nor can Koenig credibly claim his response to the City’s discovery put the City on notice he was pursuing a right to a response claim. When the City issued contention interrogatories asking “why” Koenig thought the City’s redactions were wrong and asking him to explain what he did not understand about the City’s claims of exemptions, Koenig simply
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referred the City to paragraph 3.5 in his answer. Compare CP 176-77 (interrogatories) with CP 180 (responses). He never made any mention of any claimed right to a response violation or even referenced the city’s “brief explanation.”
Moreover, while Koenig did cite to RCW
42.56.210(3), he expressly invoked only one of the two requirements in .210(3) – that the City was required to cite an applicable exemption. CP 180. He never raised the issue of an inadequate “brief explanation.” The fact that the City had the burden of proving driver’s licenses numbers were exempt at trial did not justify Koenig’s non-responses in discovery. CR 33(b) is also unambiguous notes that interrogatories are “not objectionable merely because the propounding party … has the burden of proof on the subject matter of the interrogatory at trial” and can require the responding party to provide “an opinion or contention that relates to fact or the application of law to fact[.]” Thus, the City was well within its right to ask Koenig to provide his legal theory, even though at trial the City had the burden of proof. Given that the timing of the Sanders decision, which serves as the basis of Koenig’s new “right to a response” claim, it seems likely that Koenig was not intending to make his brief explanation claim prior to the remand order after the first appeal, and only decided to switch his claims after remand because he now had the benefit of the Sanders decision.15 If 15
Koenig repeatedly states in his briefing that “[t]he City never asked Koenig to clarify his assertion that the City violated RCW 42.56.210(3).” See, e.g., Answer to Petition for Review at 9 n.4. The meaning of this claim is unclear, but presumably Koenig is not arguing he was free to hide the ball by refernces the statute but only identifying the citation requirement while actually intending to invoke the brief explanation requirement.
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that is what occurred, however, Koenig should have moved to amend his answer to add a counterclaim, rather than trying to “finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along.”
Kirby, 124 Wn. App. at 472.
This backdoor effort was
prejudicial to the City and thus properly rejected by the trial court. C.
Because There Were Ambiguities Regarding Whether Driver’s License Numbers Were Already Exempt Under Privacy Exemptions and Federal Law, There Is No Presumption New Legislation Changed the Existing Law. While Koenig chose to abandon his claim that drivers’ license
numbers are not exempt, he has tried to revive that claim in his supplemental brief in light of new legislation that adds an express exemption for employee driver’s license numbers. Although generally new legislation is presumed to change the law, this presumption does not apply when the original statute was ambiguous.
Roe v. TeleTech
Customer Care Management LLC, 171 Wash.2d 736, 751, 257 P.3d 586 (2011). In the Court of Appeals decision under review on this appeal, the Court ended its opinion by highlighting the ambiguities that surround the issue of whether or not driver’s license numbers are exempt. The Court exhaustively detailed all of the reasons why driver’s license numbers
Such game playing was unequivocally condemned in Wash. State Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299, 353, 858 P.2d 1054 (1992), where the Court held a party seeking discovery was not required to move to compel to get a response; rather a party who provides a non-response response should be sanctioned. The City clearly asked Koenig to explain his legal contentions. His failure to explicitly raise a claim based on the adequacy of the City’s brief explanation is only explainable by the fact that he did not intend to make that claim.
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should not be disclosed, but then noted that there was no express exemption.
Lakewood 2, 176 Wn. App. at 404 n.3.
This opinion
prompted the Sunshine Committee to review this issue, and these discussions lead to a compromise proposal to add an exemption for employees, but not to address whether driver’s license numbers were also exempt in investigative reports under privacy. The author of this brief, as a Sunshine Committee member, was closely involved in these discussions, where he highlighted his belief that driver’s license numbers were already exempt under privacy, but the proposed legislation would clarify the issue by removing any such exemption.16 Thus, the Court cannot presume that by enacted an exemption for public employee driver’s license numbers, that the Legislature was effectively providing driver’s license numbers for employees were not already exempt, or that driver’s license numbers in investigate reports are not exempt.
If anything, the court of appeal’s footnote provides an
excellent record of why disclosure of driver’s licenses would be highly offensive. Therefore, if the Court choses to opine on this issue, because there is no legitimate interest in driver’s license numbers, the Court should rule that as long as RCW 42.56240(1) or .230(3) otherwise apply, disclosure of the numbers would violate the right to privacy and thus the numbers are exempt from disclosure.
16
See, e.g., TVW recording of the February 18, 2014 meeting at 57:17, where the author of this brief expressed his position on this issue. See also Sunshine Committee meetings on September 17, 2013, November 5, 2013 and December 9, 2013.
19
VI. CONCLUSION The City of Lakewood’s explanation of the exemptions it was relying on to redact driver’s license numbers allowed Koenig to make the threshold determination that the City was wrongfully redacting these numbers. Thus, the City’s explanation served its purpose and the City complied with its obligation to respond. If Koenig was dissatisfied, he has the information he needed to pursue a right to inspect claim. No public benefit is gained by also allowing Koenig to pursue a right to a response claim as well. It is not mandated by the statute or the Court’s prior decisions and it flies in the fact of the People’s direction to be mindful of the
desirability
of
the
efficient
administration
of
government.
Accordingly, the Court should reverse the Court of Appeal’s decision and clarify what standard will be applied to an agency’s brief explanation. RESPECTFULLY SUBMITTED this 12th day of May, 2014. JIM ILES City Attorney, City of Everett
By:_________________________ Ramsey Ramerman WSBA # 30423 Assistant City Attorney Attorneys for Amicus Washington Association of Public Records Officers
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