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Robbins, Geller, Rudman & Dowd, LLP v. Office of Attorney General

Court of Appeals of Washington, Division 2

March 4, 2014

Robbins, Geller, Rudman & Dowd, LLP, Respondent,
The Office of the Attorney General, Respondent, Vincent T. Gresham, Appellant

Oral Argument October 15, 2013.

Page 906

[Copyrighted Material Omitted]

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Appeal from Thurston Superior Court. Docket No: 11-2-02273-8. Date filed: 04/20/2012. Judge signing: Honorable James J Dixon, Christine A. Pomeroy.

Michele Lynn Earl-Hubbard (of Allied Law Group LLC ), for appellant.

Douglas C. McDermott (of McDermott Newman PLLC ); and Robert W. Ferguson, Attorney General, and Dawn C. Cortez, Assistant ( Daniel Morrissey, of counsel), for respondent.

James W. Beck on behalf of McClatchy Company, Washington Newspaper Publishers Association, and Pioneer News Group, amici curiae.

AUTHOR: Lisa Worswick, C.J. We concur: Joel Penoyar, J.P.T., James Richard Verellen Richard Verellen, J.


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Worswick, C.J.

[179 Wn.App. 716] ¶ 1 Vincent Gresham appeals an order permanently enjoining the Washington Attorney General's Office (AGO) from releasing records Gresham requested under the Public Records Act (PRA), chapter 42.56 RCW. Law firm Robbins Geller Rudman & Dowd LLP sought the injunction to protect information it submitted to the AGO seeking eligibility to provide future securities litigation and related services to the Washington State Investment Board (WSIB). Gresham also appeals a summary judgment order dismissing his PRA claim for penalties and costs against the AGO. Because Robbins Geller failed to prove that any exemption protected the information from production, we vacate the challenged portions of the permanent injunction and order the AGO to produce the withheld records. Because the AGO withheld the records in accordance with a court order, Gresham did not prevail against the AGO, and thus summary judgment dismissal of his claims for penalties, attorney fees, and costs was proper.


¶ 2 Wishing to build a roster of private law firms able to represent the WSIB in potential future securities litigation and provide related services such as portfolio monitoring, the AGO published a request for qualifications and quotations (RFQQ). The RFQQ warned firms that their responses [179 Wn.App. 717] were subject to disclosure under the PRA. The RFQQ informed firms that they could designate portions of their responses as " proprietary" information and that the AGO would notify firms if an agency received a public records request for any of the designated proprietary information and allow such firms an opportunity to obtain a court order enjoining disclosure.

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Robbins Geller and about two dozen other law firms responded to the 2010 RFQQ. Robbins Geller indicated that certain portions of its response (hereafter 2010 Washington Response) were proprietary. Robbins Geller was one of six firms selected to execute a " Master Securities Litigation Services Agreement" with the AGO and the WSIB.[1] Clerk's Papers (CP) at 1763.

¶ 3 On two prior occasions, government agencies had released information Robbins Geller's predecessor firm had provided in response to previous RFQQs. First, Robbins Geller's predecessor firm responded to a similar RFQQ in 2004 (hereafter 2004 Washington Response) that was subsequently disclosed in response to public records requests. Second, the firm's predecessor provided a response to an invitation to negotiate issued bye the State Board of Administration of Florida in 2009 (Florida Submittal) that was published in a national legal trade publication available on the Internet.

¶ 4 Under the PRA, Gresham requested the AGO produce any information related to requests for proposals from securities law firms and for any responses from the firms. The AGO then notified Robbins Geller that it had received Gresham's request and would release Robbins Geller's 2010 Washington Response, including the designated proprietary information, unless Robbins Geller obtained an injunction.

¶ 5 Robbins Geller filed a lawsuit against the AGO to enjoin production of its (1) past and proposed fee agreements [179 Wn.App. 718] with WSIB, (2) amount of and carriers of professional liability insurance, (3) " Portfolio Monitoring Program" [2] client list, and (4) names and contact information of 16 institutional investor clients used as references for securities litigation work. Gresham was joined as a necessary party. The AGO did not oppose Robbins Geller's request for injunctive relief as to the designated proprietary information.[3] Gresham filed a cross claim against the AGO alleging violation of the PRA.

¶ 6 The trial court permanently enjoined the AGO from producing the information at issue (hereafter the protected information) based on two PRA exemptions and the Uniform Trade Secrets Act (UTSA), chapter 19.108 RCW. The trial court's order provided:

The Protected Information qualifies as valuable formulae, designs and research data, the disclosure of which would result in private gain and public loss, and is exempt from disclosure under RCW 42.56.270(1).
The Protected Information qualifies as trade secrets under RCW 19.108.010(4), and are exempt from disclosure under RCW 42.56.270(11)(a)-(b) as proprietary data and trade secrets essential to Robbins Geller's method of conducting business and the services the Firm offers its clients.

CP at 1343. The AGO then successfully moved for summary judgment of Gresham's PRA claim against it. Gresham appealed directly to our Supreme Court which transferred the case to this court.[4]

[179 Wn.App. 719] ANALYSIS

I. Public Records Act

¶ 7 The PRA requires state and local agencies to produce all public records upon request unless a specific PRA exemption or other statutory exemption applies. RCW 42.56.070(1); Gendler v. Batiste, 174 Wn.2d 244, 251, 274 P.3d 346 (2012). Exemptions are narrowly construed to promote the strong public policy favoring disclosure. RCW 42.56.030; Franklin County Sheriff's Office v. Parmelee,

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175 Wn.2d 476, 479, 285 P.3d 67 (2012), cert. denied, 133 S.Ct. 2037 (2013). If an agency intends to produce records to a requester under the PRA, a person who is named in the record or to whom the record specifically pertains, may seek a judicial determination that the records are exempt from production. RCW 42.56.540; King County Dep't of Adult & Juvenile Det. v. Parmelee, 162 Wn.App. 337, 350, 254 P.3d 927 (2011), review denied, 175 Wn.2d 1006 (2012), cert. denied, 133 S.Ct. 1732 (2013). Under RCW 42.56.540, a court may enjoin production of requested records if an exemption applies and examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions. Parmelee, 162 Wn.App. at 350-51. The party seeking to prevent production--in this case Robbins Geller--has the burden to prove that the requested documents fall within the scope of an exemption. Dragonslayer, Inc. v. Wash. State Gambling Comm'n, 139 Wn.App. 433, 441, 161 P.3d 428 (2007).

II. Standard of Review

¶ 8 The PRA provides that " [j]udicial review of all agency actions taken or challenged under RCW 42.56.030 through 42.56.520 shall be de novo." RCW 42.56.550(3). Where the record consists only of affidavits, memoranda of [179 Wn.App. 720] law, and other documentary evidence, an appellate court stands in the same position as the trial court in reviewing agency action challenged under the PRA.[5] Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994) (lead opinion). Here, the trial court's decision granting a permanent injunction under the PRA was based solely on documentary evidence. Thus, we are not bound by the trial court's factual findings. Dragonslayer, Inc., 139 Wn.App. at 441-42; see Ames v. City of Fircrest, 71 Wn.App. 284, 292-93, 857 P.2d 1083 (1993) (appellate review of PRA decisions based solely on documentary evidence without testimony is de novo and the appellate court may decide both issues of fact and law); cf. Zink v. City of Mesa, 140 Wn.App. 328, 336-37, 166 P.3d 738 (2007) ( where live testimony is presented in actions under the PRA, appellate courts review trial courts' factual findings to determine whether substantial evidence supported them). Also, we review injunctions issued under the PRA de novo. RCW 42.56.550(3); Parmelee, 162 Wn.App. at 351.

III. Statutory Interpretation Principles

¶ 9 Our fundamental objective in interpreting a statute is to ascertain and carry out the legislature's intent or the collective intent of the voters acting in their legislative capacity (for statutes enacted through the initiative process). Am. Legion Post No. 149 v. Dep't of Health, 164 Wn.2d 570, 585, 192 P.3d 306 (2008); Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). If the statute's meaning is plain on its face, then we give [179 Wn.App. 721] effect to that plain meaning as an expression of legislative intent. Campbell & Gwinn, LLC, 146 Wn.2d at 9-11. When determining a statute's plain meaning, it is appropriate to look to the language of the statute itself and the context of the statute, including related statutes or other provisions within the same act. Campbell & Gwinn, LLC, 146 Wn.2d at 10-12. For example, ...

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