Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

RICHARD GERMEAU, an individual,                                  No.  41293-4-II

                             Appellant,

       v.

MASON COUNTY, a county; and MASON                           PUBLISHED OPINION
COUNTY SHERIFF'S OFFICE, a department 
of Mason County,

                             Respondents.

       Hunt, J.  --  Richard Germeau appeals the superior court's summary judgment rulings (1) 

that he lacked standing to bring a Public Records Act (PRA)1 action against Mason County and 

the Mason County's Sheriff's Office; and (2) that even if he did have standing, his letter to the 

Sheriff's Office did not provide fair notice that the letter was a PRA request.  Germeau argues 

that (1) although he requested documents in his capacity as the Mason County Sheriff's Office 

Employees Guild representative, he nevertheless had standing to bring the PRA action;2 and (2) 

his letter provided fair notice to the County that it was a PRA request.  Holding that Germeau had 

1 Chapter 42.56 RCW.

2 The County contends that the Guild itself, not Germeau personally, should have brought the 
PRA action. 

No.  41293-4-II

standing to bring this PRA action, we nevertheless affirm the superior court's summary judgment 

dismissal of his action on alternative grounds -- that Germeau's letter did not provide fair notice to 

the County that his letter was a request for documents under the PRA.

                                            FACTS

                                I.  Records Request Background

       At the time of the events in this case, Mason County Deputy Sheriff Richard Germeau was

the representative of the Sheriff's Office Employees Guild (Guild), which has a collective 

bargaining agreement with Mason County.3  In 2008, Germeau signed and dated a "Verification 

of Receipt" acknowledging his receipt of a Mason County Sheriff's Office general order that 

adopted the County's public records requests policy, which states, in part:

       (a) Public records may be inspected and/or copies  may be obtained under the 
       following procedures:

              1.  Requests for public records should be in writing and directed to the 
              designated public records officer and should include the following 
              information:
                  [. . .]
                  (C)  A clear indication that the    document is a "Public Records 
                  Request[.]"

Clerk's Papers (CP) at 187 (emphasis added).  In addition, the Sheriff's Office has its own "Public 

Disclosure" webpage,4 which contains a link to the Sheriff's Office's "Public Records Request 

3 See Collective Bargaining Agreement By and Between Mason County and Mason County 
Sheriff's Office Employees Guild (September 16, 2010-December 31, 2012), 
http://www.co.mason.wa.us/human_resources/bargain_agreements/deputy_sheriffs.PDF (last 
visited February 7, 2012).

4 See CP at 200-01 (printouts dated August 11, 2010, of screenshot webpage); see also Public 
Disclosure, Mason County Sheriff's Office, http://so.co.mason.wa.us/index.php - id=96,0,0,1,0,0 
(last visited February 7, 2012).

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No.  41293-4-II

Form."5

5See   CP at 202-03 (printout of              public records request form); see also 
http://so.co.mason.wa.us/documents/PublicRecordsRequestForm.pdf (form itself).

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No.  41293-4-II

                        A.  Germeau's Previous Public Records Requests

       Before the events that gave rise to the instant action, Germeau made a public records 

request to the County (not the Sheriff's Office) dated February 13, 2009, using the "Mason 

County Public Records Request Form,"6 seeking  "all records/documents, all tests, all score 

sheets/tally sheets related to the Mason County Sherriff[']s Office sergeant[']s exam intact in its 

original form."  CP at 246.  Germeau had also made other public records requests to "other 

County departments (other than the Sheriff's Office) such as the Civil Service Commission and 

another County department regarding the purchase of a building."    CP at 30-31.  Germeau also 

used the "Mason County Public Records Request Form" for these requests.  CP at 30, 246.

        B.  Germeau's August 13 Letter to Sheriff Concerning Borcherding Investigation

       On August 9, 2009, Guild member Mason County Sheriff's Detective Sergeant Martin 

Borcherding, who was off-duty at the time, was allegedly involved in a physical altercation at a 

bar and a domestic dispute with his girlfriend, neither of which resulted in criminal charges.  

Nevertheless, according to Borcherding, Chief Deputy Osterhout advised Borcherding that the 

Sheriff's Office had opened an internal affairs investigation of his role in these incidents.  In his 

capacity as Borcherding's Guild representative, Germeau wrote a letter dated August 13, 

addressed to "Chief Byrd" and "[a]ny individuals associated in an [i]nvestigator[y] capacity" on 

letterhead that read, "Mason County Deputy Sheriffs Guild." CP at 10.

       The letter, which did not expressly represent that it was a Public Records Request, stated:

       I will be representing Martin Borcherding as his guild representative regarding any 
       internal affairs investigation or line investigation.  From this point forward if 

6 This form is available online.
See http://www.co.mason.wa.us/forms/commissioners/public_records_request.pdf

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No.  41293-4-II

       contact is needed with Martin for investigative purposes either formal or non-
       formal arrangements will need to be made through me.

       At the time any active investigation begins either official or unofficial the guild will 
       assume that an internal affairs investigation has begun.  Also we are aware that 
       there may be a related criminal investigation with Martin being a victim.  We will 
       assume at this time that there is an arterial [sic] motive to use any findings or 
       evidence in this investigation in any current active internal affairs/line investigation 
       or any additional personnel investigations which may occur as [a] result of any 
       findings.  The guild will assume at this time that any investigation regarding 
       Martin, being administrative or criminal in nature, is with the intention to be used 
       ultimately in a personnel matter.

       Upon receipt of this memo understand that the guild is requesting and has the right 
       to be privileged to any work product, or investigative findings regarding any 
       investigation involving Martin.  This includes any notes, interoffice memo's [sic] or 
       emails that may be related.

       Also I am requesting that I be afforded the opportunity to sit in as an observer 
       during any witness interviews which are conducted as [a]           result of any 
       investigation regarding Martin.

       Please respond to this memo in writing.

       Regards
       Rich Germeau

CP at 10.  Germeau "personally submitted" a copy of this letter to Chief Deputy Osterhout and 

"placed a second copy of it on the desk" of Chief Deputy Byrd.  CP at 31.

       A few hours later Germeau went to a Sheriff's Office building where he spoke with 

Undersheriff Jim Barrett, to whom Byrd had earlier given a copy of Germeau's letter.  During 

their conversation, Barrett handed Germeau a copy of the letter and told Germeau that (1) there 

was no "internal affairs (IA) investigation being conducted regarding . . . Borcherding at the time 

and thus no records to provide to [Germeau]," but (2) he (Germeau) could resubmit the letter "if 

                                               5 

No.  41293-4-II

an IA was ever conducted."7    CP at 205.  According to Germeau, Barrett also said that "the 

Borcherding case was being identified as a criminal matter" and that Barrett "'d[id]n't have to 

give [Germeau] sh[*]t related to a criminal investigation.'" CP at 31.

       When Germeau tried to hand the letter back to Barrett, Barrett refused it and told 

Germeau to resubmit the letter only after Germeau removed any request for criminal investigation 

records from the letter.  Germeau told Barrett that he (Germeau) "would let the request stand as 

it was and handed [the letter] back to Barrett," who took it back.  CP at 32.  Germeau left the 

Sheriff's Office building.

       Barrett wrote a note and placed it on top of Germeau's letter, which read:

       08/13/09   Meet [sic] with Germeau in Det. Sgts office.  Det Gardner present.  
       Told NO IA/LR.  Due to injuries and new info MB [Martin Borcherding] is victim 
       of assault and we are treating it that way.  Initial memos from responding officers 
       did not not[e] these injuries/victim.  Offered Germeau to take this back -- he 
       refused.

CP at 206.  The Sheriff's Office never provided Germeau with a written acknowledgement of his 

letter, as the letter requested.

       Although Germeau had previously used the County's public records request form for PRA 

requests, he did not use the form for his August 13 correspondence because, according to him, (1) 

he was requesting public records from his employer, the Sheriff's Office, so he believed that he 

"did not need to get the rest of the County involved by using a County-wide record request 

form"; and (2) he "was not aware that the Sheriff's Office had its own public records request form 

7 Detective Jack Gardner, the "Sheriff's Office primary internal affairs investigator," was also 
present during this conversation; according to Gardner, there was no "up coming[sic] or current 
administrative investigation" of Borcherding as of August 13, 2009.  CP at 212.

                                               6 

No.  41293-4-II

and did not know the procedure for filing a public records request with the Sheriff's Office." CP 

at 31. Nevertheless, nowhere in his August 13 letter did Germeau mention that it was a request 

for public records under the PRA.  See CP at 10.

       Thus, it did not appear to Barrett that Germeau's August 13 letter was a PRA request that 

required the Sheriff's Office to comply with PRA disclosure requirements and timelines.  Instead, 

Barrett believed that Germeau had written the letter in his capacity as Guild representative and 

that the letter's purpose was "to assist [the Guild] in [its] role of representing [Borcherding]"; 

thus, in Barrett's view, there was no need for clarification.  CP at 214.  According to Germeau, 

the Guild had never requested documents from the Sheriff's Office in the past, either "formally or 

informally." CP at 30.

               C.  Borcherding's December 10 Public Records Request to Sheriff

       On December 10, 2009, Borcherding filled out, signed, and submitted to the Sheriff's 

Office 14 separate official Mason County Public Records Request Forms seeking:  (1) emails and 

memoranda that "pertain to case #09-12002 and 09-12004 and/or [his] related internal/personnel 

issues with same," CP at  255; and (2) "any and all documents and or electronic/digital records 

pertaining to the internal investigation that was suspended on or about 8/12/09."8   CP at 256.  

The Sheriff's Office provided records in response to Borcherding's requests.

8 The requests apparently were for documents related to the August 9, 2009 incidents, but the 
record does not confirm that.

                                               7 

No.  41293-4-II

                                 D.  Six Disclosed Documents

       Germeau came into possession of six documents,9 but he did not believe that the County 

and the Sheriff's Office had provided these documents under the PRA.  The first document was a 

Sheriff's Office memorandum from Deputy La France to Sergeant Drogmund dated August 9, 

describing La France's response to and a detailed account of the reported bar fight and the 

domestic disturbance on August 9 involving Borcherding.  The second document was a Sheriff's 

Office memorandum from Deputy Ellis to Sergeant Drogmund dated August 9, describing Ellis's 

response to the domestic disturbance call with La France.  The third document was a Sheriff's 

Office memorandum from Sergeant Drogmund to Chief Deputy Osterhout dated August 9, 

recounting some details from Deputies La France and Ellis's memoranda, together with 

Drogmund's description of the domestic disturbance response.

       The fourth document was a Sheriff's Office memorandum from Undersheriff Barrett to 

Chief Deputy Osterhout dated August 12, the subject line of which read, "Investigative FIR/Case 

Report." CP at 84.  The memorandum stated:

       After review of your memorandum regarding the incident involving Sergeant 
       Borcherding on August 9th, 2009 you are directed to take the following action.  
       Sergeant Drogmund will complete an FIR[10] based on the initial information at 
       time of incident/s.  Refer that casefile to Detective Sergeant Dracobly for follow 
       up.

9 The record does not reveal exactly when, how, or from whom Germeau received these 
documents.  The record does show, however, that after Germeau filed his PRA action, Sheriff's 
Office Chief Civil Deputy Jan Alvord, the employee responsible for handling the Sheriff's Office's 
public records requests, gave the Mason County Prosecuting Attorney's Office the documents 
that the Sheriff's Office had previously provided to Borcherding.  Alvord believed that the 
Prosecutor's Office then passed these documents along to Germeau.  

10 The record does not explain this "FIR" acronym.

                                               8 

No.  41293-4-II

CP at 84.

       The fifth document was an email from Chief Deputy Osterhout to Sergeant Drogmund on 

August 12, stating:

       Martin Borcherding has suffered a concussion from the incident which occurred 
       early Sunday morning.  Apparently he was struck with we believe a rock when he 
       exited Leonard K's.  He needed 5 staples to close the wound.  We need an FIR 
       completed since we now have a felony assault against a county employee.  I realize 
       there is not much information concerning the incident at the bar, but put down 
       what you have and I will forward it to the detectives for follow-up.

CP at 86.

       The sixth document was a memorandum from Undersheriff Barrett to Chief Deputy 

Osterhout dated February 22, 2010, but created on August 12, 2009, at 7:30 a.m.  The 

memorandum described the August 9, 2009 events, and included opinions about Borcherding's 

possible violations of Sheriff's Office's policies and a recommendation that "Sergeant 

Borcherding's conduct during this entire incident could be classified as serious misconduct and an 

Internal Investigation should be initiated." CP at 90.

                                         II.  Procedure

       Believing that the County and the Sheriff's Office were withholding additional records, 

Germeau filed a complaint against the County and the Sheriff's Office (collectively, "the 

County")11 under the PRA.  He alleged that the County had failed to respond to his "public 

records request" in a timely manner, had not provided him "with any withholding indices 

describing the basis for withholding records or portions of records," and, therefore, had "violated 

11 According to Germeau, although he named the County's Civil Service Commission as a 
defendant in his original complaint, he removed it from his August 2, 2010 amended complaint.

                                               9 

No.  41293-4-II

the Public Records Act." CP at 7-8.  Germeau asked the superior court (1) to order the County 

"to properly respond to [Germeau's] August 13, 2009 public records request and promptly 

provide all non-exempt public records"; (2) to impose monetary penalties on the County for each 

day that it failed to comply with that order; and (3) to award him attorney fees and costs.  CP at 

8.

                                     A.  County's Answer

       The County answered that it had received Germeau's August 13, 2009 letter.  But it 

denied that Germeau's letter was a PRA request, asserted that "[t]he content of the [letter] speaks

for itself," and argued that the letter did not trigger the County's production obligations under the 

PRA.  CP at 144.  The County also asserted an affirmative defense that Germeau "[wa]s not the 

real party in interest and lack[ed] standing to pursue the [PRA] claims asserted in the complaint."  

CP at 147.

       The County admitted having provided Germeau with the same six records it had provided 

in response to Brocherding's December 10, 2009 explicit PRA request.  But the County averred 

that it had given those six records to Germeau, not in response to his August 13 letter (because 

"[t]he documents referred to in Deputy Germeau's [letter] did not exist at the time of [his 

letter])," but rather because in that letter Germeau had notified the County that he was the Guild 

representative for Borcherding in connection with the investigation, about which Germeau asked 

to be kept informed.  CP at 145.

                                    B.  Summary Judgment

       On August 12, 2010, Germeau moved for summary judgment, arguing that (1) his August 

                                               10 

No.  41293-4-II

13 letter was "a valid request for records pursuant to the PRA because he requested identifiable 

public records and gave fair notice to the agency both through his written request and through his 

interaction with Undersheriff Barrett," and (2) the County had violated the PRA by failing to 

respond to his (Germeau's) letter in a timely manner.  CP at 19.

       The County opposed Germeau's summary judgment motion, contending                 that (1)

Germeau's August 13 letter was not a public records request under the PRA because it did not 

give "'fair notice' . . . that [Germeau] was requesting records under the public records act"; and 

(2) even if the letter had been a public records request, the County did not violate the PRA 

because the records that Germeau requested did not exist for the County to produce at the time 

he presented the letter.  CP at 99.

       The County also filed its own summary judgment motion, echoing these same arguments; 

in addition to maintaining that Germeau's August 13 letter was not a PRA request, the County 

asserted that Germeau "[wa]s not the real party in interest and lack[ed] standing" because the 

Guild, not Germeau, had requested the information from the County.  CP at 151.  In response, 

Germeau argued that he had standing to bring his PRA action under the "zone of interest"

doctrine because his interest in obtaining records about Borcherding fell within the "zone of 

interests" that the PRA protected and because Borcherding suffered an injury-in-fact.  CP at 228.

       On September 10, the superior court (1) granted the County's motion for summary 

judgment, (2) denied Germeau's motion for summary judgment, and (3) dismissed Germeau's 

PRA action.  The superior court explained:

       I'm going to grant the [County] summary judgment [motion] on both standing, 
       saying [Germeau] doesn't have standing because he wasn't making [the request] in 

                                               11 

No.  41293-4-II

       his personal capacity, but I'll say as a footnote that I think that's a weak reed for 
       me to rely on because if you liberally construe the act . . . he could have standing 
       based on the zone of interest argument.  . . .  [B]ut I'm going to rule [Germeau]
       doesn't have standing so that if this goes up, that will be addressed by the Court 
       of Appeals.
              What I think this case turns on is the Wood[12] case and the Bonamy[13] case.  
       This is not a clear request for a public record, particularly in light of the fact that
       it's a guild asking for ongoing information, things that don't even exist yet, for 
       protection of one of its own members.  So I'm going to grant summary judgment 
       to Mason County.

Verbatim Report of Proceedings (VRP) at 17-18 (emphasis added).  Germeau asked the superior 

court to clarify whether it was "reaching a question of whether there was a [PRA] violation."  

VRP at 18.  The superior court responded, "I'm not finding a violation because I'm granting 

Mason County's request, so no violation, no attorney fees, penalties." VRP at 18.

       Germeau appeals.

                                          ANALYSIS

                                     I.  Summary Judgment

       Germeau argues that the superior court erred in granting summary judgment to the 

County.14 We disagree.

                                    A.  Standard of Review

       We review summary judgment orders de novo, "stand[ing] in the same position as the trial 

12 Wood v. Lowe, 102 Wn. App. 872, 10 P.3d 494 (2000).

13 Bonamy v. City of Seattle, 92 Wn. App. 403, 960 P.2d 447 (1998), review denied, 137 Wn.2d 
1012 (1999).

14 Germeau also asks us to decide whether the County violated the PRA.  We decline this 
invitation as premature:  The superior court did not decide whether the County failed to comply 
with the PRA, and it made no findings of fact on that issue for us to review.

                                               12 

No.  41293-4-II

court."  Greenhalgh v. Dep't of Corr., 160 Wn. App. 706, 713-14, 248 P.3d 150 (2011); see also 

Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).  "Summary judgment is 

proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the 

nonmoving party, show there is no genuine issue of material fact and demonstrate that the party 

making the motion is entitled to judgment as a matter of law."  Bratton v. Welp, 145 Wn.2d 572, 

576, 39 P.3d 959 (2002).

       We also review de novo challenges to agency actions under the PRA.  RCW 42.56.330(3); 

Greenhalgh, 160 Wn. App. at 713-14.  Where the record consists only of affidavits, memoranda 

of law, and other documentary evidence, we stand in the same position as the superior court, and 

the superior court's factual findings on disputed issues do not bind us.  DeLong v. Parmelee, 157 

Wn. App. 119, 143, 236 P.3d 936 (2010).15

       "The PRA must be 'liberally construed and its exemptions narrowly construed' to ensure 

that the public's interest is protected."  City of Federal Way v. Koenig, 167 Wn.2d 341, 344, 217 

P.3d 1172 (2009) (quoting RCW 42.56.030).  "In construing the PRA, we look at the act in its 

entirety in order to enforce the law's overall purpose."  Rental Hous. Ass'n of Puget Sound v. 

City of Des Moines, 165 Wn.2d 525, 536, 199 P.3d 393 (2009).

                                          B.  Standing

       Germeau first argues that the superior court erred by ruling that he lacked standing to 

bring a PRA action against the County because "he wasn't making [the request] in his personal 

capacity." VRP at 17.  The County counters that the trial court did not err because the Guild, not 

15 Remanded on other grounds by DeLong v. Parmelee, 171 Wn.2d 1004, 248 P.3d 1042 (2011).

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No.  41293-4-II

Germeau himself, requested the records and therefore the Guild should have brought the PRA 

action.  We agree with Germeau that he had standing.

       "The PRA is a 'strongly worded mandate for broad disclosure of public records.'"  

Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768 (2011) (quoting Soter v. 

Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007)).  "The purpose of the PRA is to 

'ensure the sovereignty of the people and the accountability of the governmental agencies that 

serve them' by providing full access to information concerning the conduct of government."  

Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110, 118, 231 P.3d 

219 (2010) (quoting Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997)).  Under 

the PRA, all state and local agencies must disclose any public record upon request unless the 

record falls under a statutory exemption.  RCW 42.56.520, .550(1); Wood v. Lowe, 102 Wn. App. 

872, 876, 10 P.3d 494 (2000).  An agency must respond within five business days of receiving a 

public records request.  RCW 42.56.520.  If the agency fails to do so, then

       [u]pon the motion of any person having been denied an opportunity to inspect or 
       copy a public record by an agency, the superior court in the county in which a 
       record is maintained may require the responsible agency to show cause why it has 
       refused to allow inspection or copying of a specific public record or class of 
       records.

RCW 42.56.550(1) (emphasis added).

       In Kleven v. City of Des Moines, 111 Wn. App. 284, 289-93, 44 P.3d 887 (2002), recons. 

denied (2002), Division One of our court addressed the meaning of "any person" under this 

provision of the PRA and held that an attorney's client had standing to bring a PRA action against 

an agency, even though the attorney had made the original PRA requests.  As the court explained, 

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No.  41293-4-II

"The doctrine of standing requires that a claimant must have a personal stake in the outcome of a 

case in order to bring suit."  Kleven, 111 Wn. App. at 290 (emphasis added) (citing Gustafson v. 

Gustafson, 47 Wn. App. 272, 276, 734 P.2d 949 (1987), review denied, 109 Wn.2d 1024 

(1988)).  Division One reasoned that, because the client's attorney requested the records "on 

behalf of" his client, the client had "a personal stake in seeking relief under the P[R]A."  Kleven, 

111 Wn. App. at 290-91.

       Similarly here, Germeau clearly had "a personal stake" in his PRA action against the 

County.  Kleven, 111 Wn. App. at 290.  As the County asserts, most likely the Guild itself, not 

Germeau personally, would represent Borcherding in any internal disciplinary or adversarial 

proceeding if one arose.  Nonetheless, Germeau was the Guild representative and, even in that 

capacity, he had "a personal stake" in receiving the requested information.  Kleven, 111 Wn. App. 

at 290.  Holding to the contrary -- that Germeau lacked standing -- would be a "hypertechnical 

barrier" that would frustrate the PRA's goal of liberal public records disclosure.  Wood, 102 Wn. 

App. at 878.  Thus, we hold that Germeau had standing to bring his PRA action against the 

County.

                     C.  Failure To Provide Fair Notice of "PRA Request"

       Germeau next argues that the superior court erred in ruling that his August 13 letter did 

not trigger any County disclosure obligations under the PRA because the letter "[wa]s not a clear 

request for a public record" and did not provide fair notice that it was an actual PRA request  

VRP at 18.  We disagree.

       "[T]he P[R]A 'only applies when public records have been requested.  In other words, 

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No.  41293-4-II

public disclosure is not necessary until and unless there has been a specific request for records.'"  

Wood, 102 Wn. App. at 876-77.16     A "'specific request for public records'" occurs when "the 

person requesting documents from an agency . . . state[s] the request with sufficient clarity to 

give the agency fair notice that it had received a request for a public record."  Wood, 102 Wn. 

App. at 877-78 (emphasis added).  In other words, at a minimum, the PRA "require[s] that 

requests be recognizable as PRA requests."  Beal v. City of Seattle, 150 Wn. App. 865, 876, 209 

P.3d 872 (2009).  The issue here is not whether the County adhered to the PRA's disclosure 

requirements but, rather, whether Germeau's letter triggered any obligation by the County to 

comply with the PRA.

       There is no single, comprehensive definition of "fair notice" for PRA purposes.  Wood, 

102 Wn. App. at 878.  Cases from our Supreme Court and Divisions One and Three of our court

have advanced factors that comprise "fair notice." These factors fall under two broad categories:  

(1) characteristics of the request itself, and (2) characteristics of the requested records.  We 

examine each category and their accompanying factors in turn.

       Although most of the factors weigh in favor of Germeau, one factor is dispositive in favor 

of the County:  As the superior court found, nothing in Germeau's August 13 letter put the 

County on notice that he was requesting records under the PRA.  On the contrary, Germeau's 

letter appeared to request documents and ongoing information in connection with the Sheriff's 

Office's investigation of Borcherding under the Guild's collective-bargaining agreement with the 

16 Quoting  Bonamy v. City of Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998), review 
denied, 137 Wn.2d 1012 (1999)); see also RCW 42.56.080 ("[A]gencies shall, upon request for 
identifiable public records, make them promptly available[.]")  (Emphasis added).

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No.  41293-4-II

Sheriff's Office, not the PRA.  We affirm the superior court's ruling that this factor is fatal to 

Germeau's argument and his action under the PRA.

                               1.  Characteristics of the Request

       The first group of "fair notice" factors concerns the characteristics of the request itself:  

(1) the request's language, see Wood, 102 Wn. App. at 879; (2) its format, see Hangartner v. City 

of Seattle, 151 Wn.2d 439, 447-48, 90 P.3d 26 (2004); and (3) the recipient of the request.  See 

Parmelee v. Clarke, 148 Wn. App. 748, 754-56, 201 P.3d 1022 (2008), review denied, 116 

Wn.2d 1017 (2009).  Two of these factors (the letter's format and its recipient) do not defeat 

Germeau's argument.17    The  remaining factor, however, does; and it is determinative.  The 

language of Germeau's letter did not provide fair notice that it was a PRA request.

       Although "fair notice" does not require the requestor to cite the PRA in his request, the 

17 We note, and the County does not dispute, that Germeau's letter format, instead of using the 
County's or Sheriff's Office's PRA forms, was not instrumental in failing to provide fair notice to 
the County.  On the contrary, we note, but do not hold determinative, that (1) Germeau's 
previous PRA requests to the County had used the County's PRA forms and had expressly stated 
that they were PRA requests; and (2) this time he did not use the County form or follow the 
Sheriff's Office's "Public Records Procedures" policy, which states:  "Requests for public records 
. . . should include the following information:  . . .  (C) A clear indication that the document is a 
'Public Records Request.'" CP at 187 (emphasis added).  As our Supreme Court has made clear, 
"[T]here is no official format for a valid P[R]A request."  Hangartner, 151 Wn.2d at 447; see 
also Beal, 150 Wn. App. at 874, 878.
       Nor, in our view, does Germeau's submission of his letter to Chief Deputy Byrd instead of 
to the Sheriff's Office public disclosure coordinator, Jan Alvord, render his claim fatal.  Division 
One's decision in Parmalee does not change our conclusion here, despite Division One's rejecting 
Parmalee's argument that the PRA allowed him to submit a valid PRA request to any agency 
office he chose.  Parmelee, 148 Wn. App. at 754.  Division One did not articulate an exhaustive 
list of Department of Corrections employees to whom Parmalee could submit his public records 
request; instead, the court simply eliminated two particular employees from the list of acceptable 
PRA request recipients.  See Parmelee, 148 Wn. App. at 754-55.

                                               17 

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request must state with sufficient clarity that it is a request for a public record and "give the 

agency fair notice that it ha[s] received" a PRA request.  Wood, 102 Wn. App. at 878.  In this, 

Germeau's letter failed.  In the first sentence of the letter, Germeau identified himself as 

Borcherding's  "guild representative regarding any internal affairs investigation or line 

investigation." CP at 10.  In the next sentence, Germeau wrote, "From this point forward if 

contact is needed with [Borcherding] for investigative purposes either formal or non-formal 

arrangements will need to be made through me."     CP at 10 (emphasis added).  These opening 

lines of Germeau's letter evince only that he was establishing himself as the point-of-contact for 

any Mason County Sheriff's Office probe into Borcherding's conduct.

       Germeau did not mention any type of documents or requests until the third paragraph of 

the letter, in which he wrote, "[T]he guild is requesting and has the right to be privileged to any 

work product, or investigative findings regarding any investigation involving [Borcherding].  This 

includes any notes, interoffice memo's [sic] or emails that may be related."  CP at 10.  Again, 

however, the focus was on the Borcherding investigation; there was no mention of a PRA 

request.  On the contrary, this language indicated that the purpose of Germeau's request for 

notes, emails, memos, and findings was to become privy to any investigation into the August 9, 

2009 incidents involving Borcherding.

       We hold that the language of Germeau's August 13 letter did not provide "fair notice" to 

the County that it was a PRA request.  Wood, 102 Wn. App. at 878.  Despite this lack of notice in 

the language of his letter, Germeau might have been able to argue that his letter provided "a clear 

indication" that it was a PRA request had he submitted his letter on a Sheriff's Office's public 

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records form; but he did not do that either.  CP at 187.

                             2.  Characteristics of requested records

       The second group of "fair notice" factors concerns the characteristics of the requested 

records themselves:  (1) whether the request was for specific records, as opposed to information 

about or contained in the records, Beal, 150 Wn. App. at 876 (footnote omitted); (2) whether the 

requested records were actual public records, RCW 42.56.010(2);18 and (3) whether it was 

reasonable for the agency to believe that the requestor was requesting the documents under an 

independent, non-PRA authority.  Wood, 102 Wn. App. at 880-81.  Although the first two factors 

support Germeau's argument, the third factor supports the County's argument.  This third factor 

is determinative because it was reasonable for the County to have believed that Germeau was 

requesting the documents under the collective-bargaining agreement between the Guild and the 

Sheriff's Office, independent of and unrelated to the PRA.19

       Again, Germeau's letter stated:  "[T]he guild is requesting and has the right to be 

privileged to any work product, or investigative findings regarding any investigation involving 

[Borcherding].  This includes any notes, interoffice memo's [sic] or emails that may be related."  

CP at 10.  Most important, the letter's language strongly suggested that the collective-bargaining 

18 RCW 42.56.010(2) defines "'[p]ublic record'" as "any writing containing information relating 
to the conduct of government or the performance of any governmental or proprietary function 
prepared, owned, used or retained by any state or local agency regardless of physical form or 
characteristics."

19 Because we hold this third factor dispositive, we do not address the County's argument that 
Germeau's letter requested particular documents about an internal affairs investigation that did 
not exist at the time of his request.

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agreement entitled Germeau (in his capacity as Guild representative) to the requested records or, 

at the very least, that Germeau was making the request in such a capacity, not as a PRA request.  

CP at 10 ("I will be representing . . . Borcherding as his guild representative regarding any 

internal affairs investigation . . .  Upon receipt of this memo understand that the guild is 

requesting and has the right to be privileged to any work product, or investigative findings 

regarding any investigation involving [Borcherding].")  As the County correctly notes,

       The Guild ha[d] a right [under  RCW 41.56.030(4)'s  definition of "collective 
       bargaining"] to receive information from the Sheriff's Office to enable it to 
       represent its members in internal affairs investigations.  It was therefore reasonable 
       for the officials who received the memo to view it in that context, not as a public 
       records request.

Br. of Resp't at 25-26.  We agree with the County that, "as in Wood, there [was] an independent 

statutory basis for the request"; here, that independent statutory basis was RCW 41.56.030(4).  

Br. of Resp't at 24.

       In Wood, an independent, non-PRA authority, namely RCW 49.12.250(1), required an 

agency to make a personnel file available "'within a reasonable period of time' after the [entitled] 

employee requests the file."  Wood, 102 Wn. App. at 880 (quoting RCW 49.12.250(1)).  Because 

of this statutory requirement and because the employee's letter did not specifically mention the 

PRA, Division Three concluded, "Given the ambiguous nature of [the employee's] letter, [the 

agency] would not have been in error in thinking [the employee] had made a request under RCW 

49.12[.250(1)]," and not under the PRA.  Wood, 102 Wn. App. at 881.

       Just as Wood involved a non-PRA statutory basis for a document  request,20 here the 

20 The Wood analysis focused on whether the agency reasonably believed that the employee made 
the request under a non-PRA based authority, not on whether the non-PRA based authority 

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No.  41293-4-II

County argues that the collective bargaining statute, RCW 41.56.030(4),  was an independent 

statutory basis that entitled Germeau to request information in his capacity as Guild 

representative:

       Collective bargaining means the performance of the mutual obligations of the 
       public employer and the exclusive bargaining representative to meet at reasonable 
       times, to confer and negotiate in good faith, and to execute a written agreement 
       with respect to grievance procedures and collective negotiations on personnel 
       matters, including wages, hours and working conditions, which may be peculiar to 
       an appropriate bargaining unit of such public employer, except that by such 
       obligation neither party shall be compelled to agree to a proposal or to be required 
       to make a concession unless otherwise provided in this chapter.

RCW 41.56.030(4).  Germeau responds, "This statute says nothing about obtaining records."  

Reply Br. of Appellant at 13.  We disagree.

       Under RCW 41.56.030(4), "[C]ollective bargaining includes the duty to provide relevant 

information the other party needs to carry out its collective bargaining responsibilities."  City of 

Bellevue v. Int'l Ass'n of Firefighters, Local 1604, 119 Wn.2d 373, 383, 831 P.2d 738 (1992) 

(emphasis added).  Local 1604 strongly suggests that "the duty to provide relevant information"

is statutory, and therefore implied in any collective-bargaining agreement.  See Local 1604, 119 

Wn.2d at 383.  Here, the Guild has a collective-bargaining agreement with the County;21 thus, 

RCW 41.56.030(4) entitled Germeau, in his Guild representative capacity, to the requested 

documents.  Under Wood, given the "ambiguous nature" of Germeau's letter and its request for

actually entitled the employee to the requested documents.  See Wood, 102 Wn. App. at 881 
("Given the ambiguous nature of Ms. Wood's letter, Mr. Lowe would not have been in error in 
thinking she had made a request under RCW 49.12[.250(1)].")  (Emphasis added).
21 See Collective Bargaining Agreement By and Between Mason County and Mason County 
Sheriff's Office Employees Guild (September 16, 2010-December 31, 2012), 
http://www.co.mason.wa.us/human_resources/bargain_agreements/deputy_sheriffs.PDF (last 
visited February 7, 2012).

                                               21 

No.  41293-4-II

information about Borcherding's investigation to which Germeau was entitled under the collective-

bargaining agreement, it was reasonable for the County to have believed that Germeau's letter 

requested documents under the collective-bargaining agreement rather than under the PRA.

       For the foregoing reasons, we hold that Germeau's October 13 letter did not provide fair 

notice to the County that he was making a PRA request and, therefore, the letter did not trigger 

the PRA or obligate the County to comply with PRA disclosure requirements.

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No.  41293-4-II

                                       II.  Attorney Fees

                                          A.  Germeau

       Germeau asks for attorney fees and costs on appeal under RCW 42.56.550(4), which 

provides, "Any person who prevails against an agency in any action [under the PRA] shall be 

awarded all costs, including reasonable attorney fees." RCW 42.56.550(4) requires an award of 

attorney fees when a person "prevails" under the PRA as follows:

       Any person who prevails against an agency in any action in the courts seeking the 
       right to inspect or copy any public record or the right to receive a response to a 
       public record request within a reasonable amount of time shall be awarded all 
       costs, including reasonable attorney fees, incurred in connection with such legal 
       action.  In addition, it shall be within the discretion of the court to award such 
       person an amount not to exceed one hundred dollars for each day that he or she 
       was denied the right to inspect or copy said public record.

(Emphasis added).

       But as our Supreme Court recently held, a person "prevails against an agency" only when 

that agency wrongly withheld documents.  Neighborhood Alliance of Spokane County v. County 

of Spokane, 172 Wn.2d 702, 753, 261 P.3d 119 (2011).  Applying  Neighborhood Alliance's 

definition, we hold that Germeau did not "prevail" because Mason County did not wrongfully 

withhold records:  Because Germeau's letter did not give fair notice that it was a PRA request, 

Mason County was not obligated to comply with the PRA and, therefore, it did not violate the 

PRA.  Germeau did not prevail before the superior court, and he does not prevail on appeal; 

accordingly, we deny his request for attorney fees under the PRA.

                                        B.  The County

       The County also requests attorney fees and costs, arguing that Germeau's appeal is 

                                               23 

No.  41293-4-II

frivolous.  "[A]n appeal is frivolous if there are no debatable issues upon which reasonable minds 

might differ, and it is so totally devoid of merit that there was no reasonable possibility of 

reversal."  Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 

1014 (1980).  Holding that Germeau's appeal is not frivolous, we deny the County's request.

       We affirm the superior court's grant of summary judgment to the County and its dismissal 

of Germeau's PRA action.

                                                 Hunt, P.J.
We concur:

Van Deren, J.

Johanson, J.

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