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Gipson v. Snohomish County

Supreme Court of Washington, En Banc

October 10, 2019

RON GIPSON, Petitioner,
v.
SNOHOMISH COUNTY, a municipal corporation, Respondent.

          MADSEN, J.

         Ron Gipson challenges Snohomish County's response to a records request under the Public Records Act (PRA), chapter 42.56 RCW, which allows agencies to withhold information relating to "active and ongoing" employment investigations for "unfair practice ... or of a possible violation of other federal, state, or local laws prohibiting discrimination." Former RCW 42.56.250(5) (2014). Gipson requested records that related to allegations of workplace sexual harassment against him. At the time of his request, Gipson was under investigation for those allegations. Due to the voluminous request, Snohomish County responded by producing the documents in five installments over the course of several months and asserted the active and ongoing investigation exemption under the act for each of those installments. Gipson argues treating each installment with the exemption was improper under the PRA. We disagree.

         For the following reasons, we hold that Snohomish County properly applied the active and ongoing investigation exemption and affirm.

         FACTS

         In 2014, Gipson was under investigation for several allegations of sexual harassment and sexual discrimination reported by a few female corrections officers from the Snohomish County Denney Juvenile Justice Center, where he was employed. This investigation was conducted by an outside investigator, Marcella Fleming Reed (referred throughout by the parties as MFR). The investigation continued until February 2, 2015.

         Gipson was the longest serving council member at the time on the Everett City Council and was up for reelection in 2015. To address the allegations and a report on the matter from a local news outlet, Gipson submitted a public records request on November 28, 2014, for "all records which in any way mentions the name Ron Gipson as it relates to this [public records request]." Clerk's Papers (CP) at 52-56. The county received the request on December 1, 2014, and assigned the request tracking number 14-06701. See CP at 47-48. In response to Gipson's voluminous request, the county issued its response in five installments over the course of several months.

         On February 19, 2015, Gipson received the second installment to his records request. This installment contained a series of heavily redacted invoices, along with a "Withholding Log," which explained that an additional 69 pages were being withheld due to an active, ongoing investigation under RCW 42.56.250(5). A third installment was provided to Gipson on March 5, 2015, also notifying that an additional 298 pages were being withheld under the active and ongoing investigation exemption.

         On April 22, 2015, Gipson was notified of a fourth installment for his records request. Believing it had provided all records requested by Gipson, the county closed the request stating:

With regard to PRR 14-06701, the County claimed the attorney-client exemption and the exemption identified in RCW 42.56.250(5) for active and on-going investigations into allegations of employment discrimination. At the time your request was received, November 28, 2014, the employment discrimination investigation which was the subject of the request was still active and on-going. These records and the exemptions cited are not governed by the Court's decision in Predisik [v. Spokane School District No. 81, 182 Wn.2d 896, 346 P.3d 737 (2015)] because the County did not redact or withhold based on either RCW 42.56.230(3) or RCW 42.56.240(1). The County declines to change or remove the exemptions cited and the records withheld or redacted in response to PRR 14-06701.

CP at 140. Gipson responded that he had not received all documents requested, prompting the county to produce a fifth installment of records on May 4, 2015, that it had overlooked, and subsequently closed the request.[1]

         In April 2016, Gipson filed a complaint in King County Superior Court seeking disclosure of the redacted records and statutory penalties under the PRA. The county filed a motion for summary judgment, arguing the county had a right to rely on the active and ongoing investigation exemption to each installment because it applied on the date the request was received. The trial court granted summary judgment, and Gipson appealed. The Court of Appeals affirmed, holding that the exemption applied at the time the request was made and the county was not required to update its responses once the investigation ended. See Gipson v. Snohomish County, No. 76826-3-1 (Wash.Ct.App. July 9, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/768263.pdf. Gipson petitioned this court for review, arguing the Court of Appeals' decision improperly applied the "no standing request" rule in Sargent v. Seattle Police Department, 167 Wn.App. 1, 260 P.3d 1006 (2011), off'd in part and rev'd in part on other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013).[2] We granted review.

         ANALYSIS

         The PRA was enacted to facilitate government transparency through the disclosure of public records. In furtherance of that goal, the PRA requires agencies to publish rules and regulations to promote ease of access for public records requests. See former RCW 42.56.040 (2014). Because the people have a right to remain informed of government instruments, this chapter's provisions are to be "liberally construed and its exemptions narrowly construed." Former RCW 42.56.030 (2014). The PRA requires agencies to "provide for the fullest assistance to inquirers and the most timely . . . action on requests for information." Former RCW 42.56.100 (2014). However, in certain circumstances, information is exempted from public inspection. See former RCW 42.56.250 (2014). Some of these exemptions may be time limited.

         Gipson argues the appellate court here erred by extending the application of Sargent to this case. A discussion of the facts in that case is helpful to understand the applicability of Sargent to this case. In July 2009, the respondent in Sargent was under investigation for an altercation with an off-duty police officer. 167 Wn.App. at 7. He submitted a records request in August and September, which was denied due to an active and ongoing investigation. Id. The respondent was then asked to resubmit a records request in six to eight weeks. The investigation continued through the interim, and the investigator conducted his last witness interview in October 2009. Around this time, an internal investigation of the off-duty officer commenced. Later that month, the investigation was referred to the city attorney for prosecution. Id. The city declined to file charges in late 2009 or early 2010, and the respondent was notified of that decision. Id.

         In February 2010, the respondent submitted a refresher request. Id. at 7-8. The police department provided redacted records, relying on the active and ongoing investigation exemption in March. Id. at 8. The internal investigation of the off-duty officer concluded in April 2010, and the respondent did not submit a new request for records at that time.

         The respondent filed a complaint in King County Superior Court, alleging violations under the PRA. The trial court in that case agreed with the respondent and held that the records were no longer exempt after the investigation ended and that the city was required to produce the records for the respondent that were previously exempted. Id. at 8-9. That decision was appealed.

         In Sargent I, the Court of Appeals reversed and created a bright-line rule holding that "[t]he PRA does not provide for standing records requests. An agency is not required to monitor whether newly created or newly nonexempt documents fall within [such] a request to which it has already responded." Id. at 12. Pointing to the Washington State Bar Association's Public Records Act Deskbook, the court noted, "The [PRA] does not provide for 'continuing' or 'standing' requests. Instead, the comment suggests 'refresher' requests." Id. at 11 (footnote omitted) (quoting Wash. State Bar Ass'n, Public Records Act Deskbook: Washington's Public Disclosure and Open Public Meetings Laws § 5.3(3)(d) cmt. at 5-31 (2006)). Because the investigation was not referred to the city for prosecution until after the initial records requests were made, the city could claim the exemption, and the respondent was required to submit a refresher request after he was notified the investigation concluded.

         Gipson argues that Sargent is inapt because, here, the active and ongoing investigation exemption was no longer applicable after February 2, 2015, and any installment produced after that date cannot be limited by that exemption. In essence, Gipson asks us to treat each installment as a new, independent request, and the county must determine whether there are any applicable exemptions at the time the installment is produced to the requester.

         But installments are not new stand-alone requests. Rather, installments fulfill a single request and should be treated as such. With any request, the receiving agency determines any applicable exemptions at the time the request is received. Treating each installment as a new, single request would effectively permit standing requests because a requester is not required to submit a records request each time an installment is prepared. The agency prepares each installment based on the initial records request it receives. An agency is required to provide only records in existence at the time the request is made. An exempt record, like a nonexistent record, is not available for inspection, and an agency is not obligated to produce it. Should the exemption expire and the record come into "existence" after the initial request and determination, the onus is on the requester to make a "refresher request."

         Holding otherwise runs counter to the Court of Appeals' rationale in creating the bright-line rule in Sargent. It would allow standing requests in cases where records requests require multiple installments because, with each installment, Gipson failed to submit a refresher request, relying instead on his initial request made in November 2014.

         Such a reading of the PRA is unworkable. As Snohomish County correctly argued, this would effectively provide for a "standing request," which would treat requesters who are seeking limited information differently from those who request high volumes of records.[3] Under Sargent, if it were a single installment request that was fulfilled while a limited exemption was in effect, the requester would be required to submit a new request when the exemption expired. In contrast, under Gipson's proposed rule, the requester whose voluminous request requires installments would not. Essentially, this would allow a "standing request" so long as the request is broad enough to require an agency several months and multiple installments to fulfill. See Wash. Supreme Court oral argument, Gipson v. Snohomish County, No. 96164-6 (Feb. 26, 2019), at 23 min., 0 sec. through 23 min., 20 sec, video recording by TVW, Washington State's Public Affairs Network, https://www.tvw.org/watch/?clientID=9375922947&eventID=2019021552&autoStartStr eam=true. Only those who request large volumes of records stand to benefit from such a rule.

         Contrary to Gipson's argument, applying Sargent to installment requests is not an improper extension of the "no standing requests" rule. The policy underlying the "no standing requests" rule is equally applicable to a voluminous request requiring multiple installments to fulfill. The Court of Appeals, in Sargent, rejected standing requests because "[n]othing in the language or history of the [PRA] indicates the legislature intended to impose on agencies an endless monitoring of old requests, or to require updated responses indefinitely to people who may have long since lost interest." 167 Wn.App. at 11. Further, agency regulations provide that "[a]n agency must only provide access to public records in existence at the time of the request. An agency is not obligated to supplement responses." WAC 44-14-04004(4)(a).

         We note that the Public Records Act Deskbook already has some guidance on this issue. It states that "[a]n agency has no duty to create a record in response to a request; only records existing at the time of the request must be provided." Wash. State Bar Ass'n, Public Records Act Deskbook: Washington's Public Disclosure and Open Public Meetings Laws § 5.1(4), at 5-8 (2d ed. 2014). Thus, it notes that "standing requests" act as a request for documents that may become available in the future. See id. Similarly, the determination of an exemption at the time the request was made is treated like a record that does not exist. Therefore, once "a temporal exemption expires after the request is made, the agency is not required to produce the record." Id.

         Rather than requiring our state agencies to continuously monitor for any changes to the status of a claimed exemption, Sargent's bright-line rule is reasonable, and we adopt it. Thus, we hold that a records request is satisfied when an agency receives a public records request, identifies a legitimate exemption under the PRA at that time, and clearly notifies the requester that the request will be treated in accordance with that exemption. This puts the requester on notice as to the nature of the exemption, and they can submit a "refresher request" after receiving an installment controlled by the claimed exemption, or when the exemption has expired, if the requester still wants those records.

         Adopting this bright-line rule also furthers public policy. As Snohomish County correctly notes, assessing a request on the date it is received "insures the people's prompt, efficient access to public records." Suppl. Br. of Resp't at 10. Many agencies have large volumes of public records requests. When receiving a request, the agency must identify responsive documents and any applicable exemptions, and estimate the time for response. Requiring the agency to continuously reevaluate a request to determine whether their original assessment regarding exemptions is still correct will only delay the production of the records request. By treating a request that must be fulfilled in installments as tantamount to a new request, if an agency realizes that a claimed exemption it relied on has expired, it will have to reproduce all of the information it previously released to comply with the public records request. Such an outcome will prove unwieldy and overburden many agencies that already deal with an enormous volume of records requests.

         Snohomish County argues that requiring a requester to submit refresher requests would provide greater transparency between the agency and the requester, and while the county acknowledges doing so puts a greater burden on the agency to process more requests, "this is the preference" as "transparency is the goal [under the PRA]." Wash. Supreme Court oral argument, supra, at 23 min., 41 sec. through 24 min., 11 sec, and 24 min., 17 sec. through 25 min., 02 sec. We agree with the county's reasoning. Applying Sargent to voluminous requests will prevent agencies from allocating personnel to the task of continuously monitoring the status of a single expansive request while installments are pending. See id. at 30 min., 16 sec. through 30 min., 39 sec. This is the very thing that Sargent was trying to prevent.

         When a requester is made aware of a temporal exemption applied to their records request, the deskbook recommends that the requester submit a separate "refresher request." PUBLIC RECORDS ACT DESKBOOK § 5.3(24), at 5-19 (2014). It also recommends that the "refresher request" should seek all records indicated in the initial request "from the date of the first request to the date of the refresher request." Id. Gipson's invitation to create a new rule antithetical to underlying policies of records requests is not well taken.

         Snohomish County determined that an exemption existed at the time Gipson made his request. The county relayed this to Gipson via e-mail correspondence. See CP at 139-40. While Gipson argues he was dissuaded from submitting "refresher" requests, in part because he was provided "factually misleading information . . . that the investigation remained open and as a result the status of the requested records unchanged," that is immaterial. Suppl. Br. of Pet'r at 11-12. Admittedly, Snohomish County's e-mail may not have been a model of clarity. It "claimed the attorney-client exemption ... for active and on-going investigations into allegations of employment discrimination." CP at 140. ...


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