Recent Court Decisions on the
Jon Tunheim
Thurston County Prosecuting Attorney
The Myth of Sisyphus
King Sisyphus was punished for thinking
he was more clever than Zeus
 His punishment in death was to roll a rock
up a hill in Hades only to have it roll back
down just before he reached the top.
 He was sentenced to an after life of useless
work and unending frustration
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RCW 42.56.540 & 42.56.565
RCW 42.56.540
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The examination of any specific public record may be
enjoined if, upon motion and affidavit by an agency or its
representative or a person who is named in the record or
to whom the record specifically pertains, the superior
court for the county in which the movant resides or in
which the record is maintained, finds that such
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. An agency has the option of
notifying persons named in the record or to whom a
record specifically pertains, that release of a record has
been requested. However, this option does not exist where
the agency is required by law to provide such notice.
RCW 42.56.565
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Inspection or copying by persons serving
criminal sentences — Injunction.
(1) A court shall not award penalties under RCW
42.56.550(4) to a person who was serving a criminal
sentence in a state, local, or privately operated
correctional facility on the date the request for public
records was made, unless the court finds that the
agency acted in bad faith in denying the person the
opportunity to inspect or copy a public record.
(2) The inspection or copying of any nonexempt
public record by persons serving criminal sentences
in state, local, or privately operated correctional
facilities may be enjoined pursuant to this section.
Requirements

Injunction is sought by the agency, any
person named in the records, or a person
whom the request pertains to, and
 The request was made to harass or intimidate
the agency or employees, or
 Threaten the security of correctional facility, or
 Threaten the safety or security of any person, or
 Assist criminal activity
Constitutionality
Requester makes six requests for 13
categories of information
 42.56.540 injunction granted re: photos,
dates of birth, gender, race, height, weight,
and phone #’s
 After 42.56.565 passed, King County
obtained permanent injunction against
requester
 On appeal, statute found not to violate due
process or equal protection, and is not
vague or overbroad

King County Detention v. Parmelee, 162 Wn. App. 337 (2011)
No Harm, No foul? Not!
Requester made requests for records
from three agencies
 Agencies were granted injunctions
 A requester who is not entitled to
records cannot claim penalties for
failure to produce them
 A requester may claim attorney’s fees if
litigation is required to vindicate their
right to inspect and copy records

DeLong v. Parmelee, 164 Wn. App. 781 (2011)
No Harm, No foul? Not!
What if county fails to respond to a
request, and
 Had no responsive documents
 Requester does not get daily penalties
 Requester DOES get legal costs and
attorney’s fees because a lawsuit was
required to enforce their right to a
response.

DeLong v. Parmelee, 164 Wn. App. 781 (2011)
PRA Litigation
When is it really a PRA Request?
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Requester was a union rep for Detective who
was facing internal investigation
Wrote a letter indicating he was the union rep
Asserted union’s right to see investigative
documents
Asked to sit in on investigative interviews
No mention of the PRA
No documents produced in response
Detective later made a clear PRA request for
the documents and documents were provided
Germeau v. Mason County Sheriff, 166 Wn. App. 789 (2012)
When is it really a PRA Request?
Union Rep does have standing to
request records to sue for a PRA
violation because he had a personal
stake in the records as the
representative for the requester (union)
 The first letter was not a PRA request
because it did not give fair notice that it
was a PRA request and was interpreted
to be a demand for production under
contractual rights

Germeau v. Mason County Sheriff, 166 Wn. App. 789 (2012)
What part of 5 days did you not understand?
Requester makes multiple PR requests
including 2 yrs of emails from employee
 DNR does not respond within 5 days
 Responds on day 11 by producing
records
 Failure to respond is a per se violation
 “The PRA could not be clearer on the
requirements imposed upon agencies
following a request.”

West v. DNR, 163 Wn. App. 235 (2011)
When can we give up looking?
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Employees 2006 e-mail is on backup tape.
Backup tape is obsolete storage technology.
DNR spent time and $ trying to retrieve those emails from the backup tapes.
“DNR diligently pursued retrieval of the
records.”
The e-mails were “irretrievable.”
E-mails lost 1 yr. before West’s PRA request.
Thus, records sought by Mr. West did not exist.
West v. DNR, 163 Wn. App. 235 (2011)
The case of the smoking record…
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Alliance had information of a possible
nepotism hire in county planning dept.
Received copy of a seating chart from
anonymous source placing nepotism hires in
seats before jobs were posted
When jobs were filled with people whose first
names corresponded to seating chart, Alliance
requested copies of seating chart.
County produced a seating chart that matched
the anonymous one but had no date
Alliance requested records showing the date
that the seating chart was created
Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011)
The case of the smoking record…
Employee who created seating chart
assigned new computer and document
creation date was changed when hard drive
was copied
 Old computer was never searched and
eventually assigned to another employee
 Three issues raised:

 How is discovery conducted in PRA cases?
 How much searching must be conducted by the
agency for records under the PRA?
 Can a requester sue under the PRA when they
already have the record from another source?
Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011)
The case of the smoking record…

How is discovery conducted?
 Same as in any other civil case (rejecting the
limited discovery rules in the FOIA)

How much searching is required?
 Agency must conduct a “reasonable search”
(following the standards in the FOIA)
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Can a requester sue even if they have the
record?
 Yes (Reversing a prior decision)
Neighborhood Alliance v. Spokane County, 172 Wn.2d 702 (2011)
Back to Sisyphus
Requester can request the same record
over and over again and it must be
produced (absent an injunction)
 Pre-trial discovery can increase
attorney’s fees even if document is
produced during the litigation
 County must search in all locations
where a record is “reasonably likely to be
found”. County should track and list
every location searched

Does the punishment fit the crime?
The penalty imposed for non-compliance
should be proportionate to the misconduct
 Courts may group documents and/or
requests together in the same penalty
 A high volume of requests by the same
requester may justify a delay in fulfilling a
request
 There is no presumption that the court start
at the mid-point of the penalty range in
fixing the penalty

Zink v. City of Mesa, 162 Wn. App. 688 (2011)
When is a record really a public record?
Requester seeks invoices for outside
attorney who defended county in
employment lawsuit
 County paid invoices up to deductable
 Remaining invoices submitted to and
paid by the WCRP (risk pool)
 County did not see or manage bills of
outside counsel
 County produced invoices that it paid
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West v. Thurston County, 168 Wn. App. 162 (2012)
When is a record really a public record?

Public Record defined (RCW
42.56.010(2)
 A Writing
 Containing information relating to the
conduct of government or the performance
of any governmental or proprietary function
that is…
 Prepared, owned, used or retained by any
state or local agency
West v. Thurston County, 168 Wn. App. 162 (2012)
P.O.U.R.
Prepared – Only a public agency can
prepare a public record
 Owned – To be owned, an agency must
posses the record as its property
 Used – Only if a nexus between the
document and the agency’s decision
making process
 Retained – Document is not retained if
it was never possessed by the agency
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West v. Thurston County, 168 Wn. App. 162 (2012)
Pierce County Litigation
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Requester asked for personal cell phone
records of the Prosecuting Attorney
Prosecutor does not seek reimbursement
from the country for his cell phone
First request was work related calls only
Work related calls were provided
Second request was for all calls on a
specific date (not just work related)
Prosecutor voluntarily provided records
but county redacted personal calls
P.O.U.R. Test
Not prepared by Pierce County
 Owned by the cell phone company or by
the customer as an individual (not in his
role as a public official
 Not used by the county because no
reimbursement is requested
 Not retained by the county again
because no reimbursement is requested
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Questions?