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West v. City of Puyallup

Court of Appeals of Washington, Division 2

February 21, 2018

ARTHUR WEST, Appellant,
v.
CITY OF PUYALLUP, Respondent.

          Maxa, A.C.J.

         This case involves whether posts by an elected public official on a personal Facebook page are public records subject to the Public Records Act (PRA), chapter 42.56 RCW. Arthur West made a PRA request to the City of Puyallup for records relating to a Facebook page associated with Julie Door, a Puyallup City Council member. The trial court ruled that Door's Facebook posts did not constitute public records and granted summary judgment in favor of the City.

         We confirm that a public official's posts on a personal Facebook page can constitute an agency's public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official's scope of employment or official capacity. However, we hold that Door's particular Facebook posts at issue in this case were not public records as a matter of law because she did not prepare them within the scope of her official capacity as a City Council member. Accordingly, we affirm the trial court's summary judgment order.

         FACTS

         On March 25, 2016, West submitted a public records request to the City that asked for "All City related public records sent to or received at Council Member Door's 'Friends of Julie Door' Facebook site, 2014-2016, or any such records in the possession of the City." Clerk's Papers (CP) at 215. Door was a member of the Puyallup City Council.

         The City conducted a search of its official Facebook page for any records sent to the Friends of Julie Door Facebook page and located no such records. The City also searched its archiving system for all documents sent and received with the term "Friends of Julie Door, " and located one message to a City email address inviting the recipient to "like" the Friends of Julie Door Facebook page. The City produced a copy of that message to West. The City disclosed no other documents.

         West filed a PRA action against the City, alleging that the City violated the PRA by not disclosing posts on the Friends of Julie Door Facebook page. The City filed a summary judgment motion, arguing that the posts were not public records.

         In support of its motion, the City submitted a declaration from Door. Door's declaration stated that the Facebook page did not contain any information related to the conduct of City government or the performance of any government function. She explained that the Facebook page was not used or intended to be used to conduct any governmental function and had not been used or referenced by the City at City meetings or cited in support of any agency action. She also stated that the page was publicly accessible, and that the account had received only one immaterial private message. Finally, Door stated that the Facebook page was a campaign site used for campaign purposes or to provide information to her supporters.

         Door's declaration did not state who had made the posts on the Friends of Julie Door Facebook page. However, Door never denied that she was the person who prepared the posts.

         West filed a response to the motion, supported by his own declaration. He later filed a second declaration. His declarations included publically available posts from the Friends of Julie Door Facebook page, which West argued contained information related to City business and public comments on a decision before the City Council. These posts fell into three general categories.

         First, several posts briefly referenced various issues, including completing a Sound Transit survey; the City's construction of new sidewalks; a project on a historic piece of farmland in the City; the Puyallup police chief's presentation regarding the police department's strategic plan; Door's participation in the Association of Washington Cities convention; Door's service on a scholarship committee; an open house regarding the widening of Shaw Road in the City; the City's budget document; a link to another City Council member's Facebook page; registration for the National Night Out; the ribbon cutting for a new Pierce Transit connector; Sound Transit's options for parking improvement, a related survey, and an invitation to a City council meeting on the issue; Sound Transit's presentations at a City Council study session and a City Council meeting; Association of Washington Cities training; and a City Council meeting agenda.

         Second, several posts referenced and contained links to the City's official Facebook posts about various issues, including the City's water testing; regional growth; an open house regarding Sound Transit; a ribbon-cutting event for a new park; the City's public works department; car wash awareness month; City Council meeting agendas; volunteering for City boards and commissions; the city's Santa parade and tree lighting, the City's Concert in the Park program, a vacancy on the City's parks and recreation advisory board; meetings regarding housing focus groups; the City Council's decision to co-sponsor a parade for high school state champions; and a City Council study session and special meeting.

         Third, a few posts referenced and contained links to the Puyallup Police Department's official Facebook posts about the city's homeless population, a jail camera lawsuit in federal court, and the block watch program.

         In addition, the Friends of Julie Door Facebook page contained comments from individuals regarding a few of the posts. Door did not respond to any of the comments. After West's PRA request, Door posted a message stating that she was prohibited from answering specific questions about the City's actions on Facebook and that questions should be directed to Door's work-related email address and telephone number.

         The trial court granted summary judgment in favor of the City and dismissed West's PRA claims. The court ruled that Door's Facebook posts were not public records because they were not prepared, owned, used, or retained by the City and the City had no control over the Facebook page. The court also refused to adopt a rule that a Facebook post by an elected official that refers to a public agency is a public record.

         West appeals the trial court's order granting summary judgment in favor of the City.

         ANALYSIS

         A. Standard of Review

         We review de novo an agency's action in responding to a PRA request. RCW 42.56.550(3); White v. Clark County, 199 Wn.App. 929, 934, 401 P.3d 375 (2017), review denied, 189 Wn.2d 1031 (2018). This de novo review includes summary judgment orders involving the PRA. John Doe P v. Thurston County, 199 Wn.App. 280, 289, 399 P.3d 1195 (2017). We stand in the same position as the trial court on PRA matters when the record consists of documentary evidence. John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d 63 (2016).

         When a summary judgment motion involves factual issues, we view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn.App. 178, 182, 401 P.3d 468 (2017). If a moving defendant shows the absence of any evidence supporting the plaintiff's claim, the burden shifts to the plaintiff to show a genuine issue of material fact. Id. at 183. But when ...


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