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West v. Gregoire

Court of Appeals of Washington, Division 2

October 21, 2014

Arthur West, Appellant,
v.
Christine Gregoire, as Governor, et al., Respondents

Oral Argument September 4, 2014.

As amended by order of the Court of Appeals November 4, 2014.

Appeal fro Thurston Superior Court. Docket No: 10-2-02121-1. Judge signing: Honorable Gary R Tabor. Judgment or order under review. Date filed: 06/17/2011.

Arthur West, pro se.

Robert W. Ferguson, Attorney General, and Elizabeth C. Beusch and Alan D. Copsey, Assistants, for respondents.

Authored by Bradley A. Maxa. Concurring: Linda CJ Lee, Lisa Worswick.

OPINION

[184 Wn.App. 165] Bradley A. Maxa, J.

[¶1] Arthur West appeals the trial court's dismissal, following show cause proceedings

Page 111

under former RCW 42.56.550 (2005),[1] of his complaint alleging that then Governor Christine Gregoire violated the Public Records Act (PRA), chapter 42.56 RCW, by refusing to produce numerous records under a claim of executive privilege. West initially argued that the trial court erred in recognizing an executive privilege as a PRA exemption. However, our Supreme Court resolved this issue in Freedom Foundation v. Gregoire, 178 Wn.2d 686, 310 P.3d 1252 (2013), holding that a qualified executive communications privilege operates as a PRA exemption. West now asserts that the trial court erred in dismissing his lawsuit based on the executive [184 Wn.App. 166] privilege because he also asserted additional PRA claims relating to Gregoire's alleged unreasonable delay in producing records and other grounds, and because the trial court should have deferred ruling on whether West could show a particularized need for the records requested under the second part of the Freedom Foundation test.

[¶2] We hold that (1) the trial court did not err in dismissing all West's claims following the former RCW 42.56.550 show cause proceedings because West abandoned all claims other than those based on his argument that the executive privilege was not a valid PRA exemption, and (2) the trial court properly ruled that the executive privilege precluded disclosure because West failed to submit any evidence that he had a particularized need for the records requested. Accordingly, we affirm.

FACTS

[¶3] In January 2010, West made a PRA request to Gregoire for all records for which she had asserted executive privilege since 2007. The governor's office responded within five business days, as required by RCW 42.56.520, explaining that it would take three to four weeks to process the request and provide the responsive records and an exemption log listing records covered by any exemptions. However, the governor's office did not communicate further with West for over eight months.

[¶4] On September 3, the governor's office prepared a letter notifying West that the records and exemption log were available for inspection and copying. West claims he never received this letter. On September 24, West filed suit against Gregoire to compel production of all records for which Gregoire had " wrongfully asserted an executive privilege exemption where none exists under the [PRA]." Clerk's Papers (CP) at 5. West also sought penalties under the PRA and a declaratory ruling that the privilege itself was not a valid PRA exemption. On September 27, West [184 Wn.App. ...


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