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Kilduff v. San Juan County

Supreme Court of Washington, En Banc

December 12, 2019

SAN JUAN COUNTY, a political subdivision of the State of Washington, and JAMIE STEPHENS, in his capacity as San Juan County Council Member and Public Records Officer, Respondents.

          YU, J.

         The Public Records Act (PRA), ch. 42.56 RCW, declares that the people "do not yield their sovereignty to the agencies that serve them" or "give their public servants the right to decide what is good for the people to know and what is not good for them to know." RCW 42.56.030. Despite the burden this places on local governments, nothing in the PRA gives local governments the right to create another layer of administrative review or to require administrative exhaustion before the public may seek judicial review.

         Edward Kilduff sued San Juan County for alleged violations of the PRA. In the same complaint, he brought a quo warranto[1] action against county council member Jamie Stephens, who also served as the county's public records officer, believing the offices to be incompatible. The trial court dismissed Kilduff s PRA claim on the basis that he failed to exhaust an internal administrative review procedure mandated by San Juan County Code (SJCC) 2.108.130. Finding Kilduff s quo warranto action to be frivolous, the court dismissed the claim and sanctioned Kilduff and his attorneys pursuant to CR 11 and RCW 4.84.185. Kilduff appealed directly to this court. He challenges the validity of SJCC 2.108.130, the trial court's dismissal of his PRA claim, and the sanctions award.

         We reverse the trial court's dismissal of Kilduff s PRA claim and hold that public records requesters are not required to exhaust administrative remedies before filing a PRA lawsuit; therefore, SJCC 2.108.130 is invalid. We further hold that although Kilduff lacked standing to bring the ouster claim, the trial court abused its discretion when it imposed fees and sanctions pursuant to CR 11 and RCW 4.84.185. Finally, we remand the question of attorney fees to the trial court. We therefore reverse in part, affirm in part, and remand to the trial court.


         A. PRA claim

         On May 20, 2015, Kilduff filed a two-part PRA request stemming from a wetlands classification dispute and subsequent investigation into improper government action (IGA). He requested '"all documents, correspondence, memos, statements, reports, and other contents of the [San Juan County Department of Community Development] code enforcement file"' and '"all documents, memos, statements, reports, correspondence and other records associated with the investigation of [IGA], related to the above referenced code enforcement file.'" Clerk's Papers (CP) at 17. Public Records Clerk Sally Rogers acknowledged the request and indicated a response would follow "within the next 5-10 business days." Id.

         On May 28, 2015, San Juan County Prosecuting Attorney Randall Gaylord called Kilduff to discuss his records request. Gaylord had previously directed the code enforcement officer to segregate the IGA file from the code enforcement file, and he testified that during the May 28 phone call, Kilduff agreed to accept the final redacted IGA report in lieu of his records request. Kilduff disputes that he agreed to limit his request, and claims he never received anything in writing memorializing the alleged modification of his request. The trial court did not make any finding as to whether Gaylord or Kilduff was more credible on this issue.

         Following the phone call, Rogers produced 45 pages of documents that were responsive to the code enforcement file request and indicated that "other records associated with the investigation of [IGA]" would arrive in another two weeks. Id. at 19. On June 12, Rogers e-mailed Kilduff the redacted IGA report. Her e-mail stated the following:

In final response to your public records request received on 5/20/15 for the remaining document, ("for copies of all documents, memos, statements, reports, correspondence and other records associated with the investigation of improper governmental action...)" per Randy Gaylord he spoke to you by phone it was agreed that the County would proceed with providing a copy of the final report redacted.
This email response and attachment fulfills your public records request.

Id. at 67. Rogers did not include an exemption log or indicate that any additional responsive records existed but were withheld.

         On June 1, 2016, Kilduff sued San Juan County, alleging that it violated the PRA by failing to conduct a reasonable search for responsive records and silently withholding records without an exemption. The county denied the allegations and raised the affirmative defense that Kilduff failed to exhaust administrative remedies as required by SJCC 2.108.130 and asserted that Kilduff never received a final decision concerning his records request.

         SJCC 2.108.130(C) provides in relevant part that "[administrative remedies shall not be considered exhausted until the prosecuting attorney has made a written decision, or until the close of the second business day following receipt of the written request for [the prosecuting attorney's] review of the action of the public records officer, whichever occurs first." It further provides, "No lawsuit to review the action taken, compel the production of a public record, or impose a penalty or attorney fees shall be brought before the administrative remedies set out in this section have been exhausted by the party seeking the record." SJCC 2.108.130(D).

         Between February and November 2017, the trial court held an evidentiary hearing on Kilduff s PRA claims. In its final order, the court found that San Juan County never issued a final decision on Kilduff s request, and therefore the court had no final decision to review. Accordingly, the court dismissed Kilduff s PRA claims with prejudice.

         B. Quo warranto claim and sanctions

         In the same complaint as his PRA claim, Kilduff brought an ouster action against Stephens, who served as both a county council member and the county public records officer. Kilduff asserted that the offices were incompatible because the public records officer is appointed by the county manager, while the county manager is subservient to the county council. His prayer for relief requested that the court order Stephens to vacate his county council seat.

         In response, Stephens moved to be dismissed from the suit, asserting that Kilduff did not have standing to bring a quo warranto claim. He also argued that Kilduff s claim was frivolous and therefore warranted CR 11 sanctions and costs pursuant to RCW 4.84.185. The court dismissed Kilduff s ouster claim but reserved ruling on sanctions.

         During the evidentiary hearing, Kilduff s attorneys argued that imposing sanctions would be improper, emphasizing that his ouster claim was brought in good faith and necessitated by the unique circumstances of his case. In particular, Kilduff argued that Gaylord's role in directing the segregation of the IGA file made it such that he would not bring a quo warranto claim against the county public records officer. The court disagreed, finding sanctions were warranted because Kilduff lacked standing. Although the court acknowledged that Kilduff sought to expand quo warranto standing, it ultimately held that his argument was "frivolous and advanced without reasonable cause." CP at 372. Accordingly, the court sanctioned Kilduff and his attorneys, holding them jointly and severally liable for $10, 000 in costs and fees pursuant to CR 11 and RCW 4.84.185.


         A. Does the PRA authorize an agency to create an internal review requirement that a requester must exhaust before filing suit?

         B. Did the trial court abuse its discretion when it awarded $10, 000 in sanctions ...

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