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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE HONORABLE RICHARD B. SANDERS, Appellant/Cross Respondent, v. STATE OF WASHINGTON, Respondent/Cross Appellant.

NO. 82849-1

EN BANC

Filed September 16, 2010

STEPHENS, J.--Justice Richard B. Sanders sued the attorney general's office (AGO) for inadequately responding to his public records request and for withholding nonexempt documents in violation of the Public Records Act (PRA). Resolving the suit requires an examination of numerous topics under the PRA, including the form of the request, the adequacy of AGO's disclosure, the adequacy of AGO's production, the appropriate penalty, and the award of costs and fees at trial and on appeal. One major issue is whether AGO violated the PRA by failing, in its response to Justice Sanders's PRA request, to provide a brief explanation of how its claimed exemptions applied to the records withheld, and what remedy

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follows from such a violation. We hold that AGO's failure to provide a brief explanation violated the PRA and should be considered as an aggravating factor when setting penalties for withholding nonexempt documents. Other issues pertain to the attorney-client and work product privileges and their use to claim exemptions under the PRA. We hold that the trial court correctly interpreted the work product privilege and do not reach its interpretation of the attorney-client privilege. TERMINOLOGY This case involves interpretation and application of the PRA.1 Because PRA analysis uses technical terms that are sometimes confusing, we begin by identifying the terminology used throughout this opinion: 1. Records are either "disclosed" or "not disclosed." A record is disclosed if its existence is revealed to the requester in response to a PRA request, regardless of whether it is produced. 2. Disclosed records are either "produced" (made available for inspection and copying) or "withheld" (not produced). A document may be lawfully withheld if it is "exempt" under one of the PRA's enumerated exemptions. A document not covered by one of the exemptions is, by contrast, "nonexempt."
1

Withholding a nonexempt document is "wrongful

At the time of Justice Sanders's records request, the PRA was called the Public Disclosure Act and was codified at chapter 42.17 RCW. Former ch. 42.17 RCW (2003). Effective July 1, 2006, the act was renamed and recodified as chapter 42.56 RCW. Laws of 2005, ch. 274. The 2003 version is applicable to Justice Sanders's request. See, e.g., Zink v. City of Mesa, 140 Wn. App. 328, 332 n.1, 166 P.3d 738 (2007). The current and former statutes are identical as to the provisions at issue in this case, however. For ease of reference, we cite the current PRA and merely cross-reference the former act.
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withholding" and violates the PRA. Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 429, 98 P.3d 463 (2004) (Yousoufian I). 3. A document is never exempt from disclosure; it can be exempt only from production. An agency withholding a document must claim a "specific exemption," i.e., which exemption covers the document. RCW

42.56.210(3).2 The claimed exemption is "invalid" if it does not in fact cover the document. FACTS AND PROCEDURAL HISTORY On January 27, 2003, Justice Sanders visited the Special Commitment Center on McNeil Island. Sanders v. State, 166 Wn.2d 164, 168, 207 P.3d 1245 (2009). This visit led to an inquiry by the Commission on Judicial Conduct (CJC). Id. Justice Sanders believed that he was entitled to have AGO defend him before the CJC at public expense and sued to compel AGO to do so. Id. Separately, on June 15, 2004, Justice Sanders delivered a written public records request to AGO pursuant to the PRA, requesting all records pertaining to his visit to McNeil Island and the related CJC action. Clerk's Papers (CP) at 475, 47879. AGO had already compiled a response to a broader request for similar materials from the Building Industry Association of Washington (BIAW). To expedite Justice Sanders's request, an AGO representative contacted Justice Sanders's attorney, Kurt Bulmer, to ask if he "wished to expand [his] request for documents to those which were disclosed to . . . BIAW." CP at 171, 187. Mr. Bulmer agreed to accept
2

Former RCW 42.17.310(4) (2003).
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the additional documents. CP at 475-76. AGO sent Justice Sanders a copy of its response to the BIAW request on July 8, 2004. CP at 481-84. BIAW never objected to, or sued to supplement, the response AGO gave it. CP at 170. AGO's response included some 1,000 pages of material and an entire document index (EDI). CP at 171, 187-224. The EDI disclosed the 334 documents that AGO was producing, producing in redacted form, or withholding, and provided information about them such as their author, recipient, and date of creation. CP at 1717, 187-224. It also specified AGO's claimed exemptions for the 144 documents redacted or withheld. Id. The EDI did not contain any facts or explanation of how its claimed exemptions applied to each document withheld. Id. Justice Sanders did not contact AGO to object to any of the withholding or to request further explanation. CP at 171. On July 21, 2005, he sued in Thurston County Superior Court, claiming that AGO had violated the PRA by failing to provide a brief explanation of how its claimed exemptions applied to each record withheld and by withholding nonexempt documents. CP at 5, 7. Upon notice of the suit, AGO hired outside counsel to review the disputed documents. CP at 1763. AGO's counsel refined the claimed exemptions for several documents, as it continued to do during this litigation. CP at 1084-1125; see also CP at 127-54 (State's "Appendix A" addressing each document in detail). Outside counsel also determined that AGO considered several disputed documents "innocuous," and so counsel produced them for Justice Sanders despite AGO's claim that the documents were exempt, nonresponsive, or previously produced. CP
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at 1763-64, 1084-88.

The productions either expressly disclaimed waiver or

proceeded as if AGO continued to claim that the documents were exempt. CP at 115, 378, 1090-91, 1093, 1113. The parties refer to these documents, which were produced subsequent to litigation, as the subsequent-production documents (SPDs). See Opening Br. of Hon. Richard B. Sanders (Sanders's Opening Br.) at 6-7 & n.3; cf. Br. of Resp't & Cross-Appellant State of Wash. (Br. of Resp't) at 10 n.34. The SPDs are distinguished from those documents that AGO never produced, which the State submitted to the trial court for an in camera determination of whether they were exempt (in camera documents). CP at 1719-20. Justice Sanders sought discovery regarding how AGO's claimed exemption applied to each document it withheld. He noted a CR 30(b)(6) deposition,

requesting that AGO supply an expert who could testify as to "[t]he grounds for each exemption claimed" and details about the privileges underlying the exemptions. CP at 499-501. At the deposition, however, the State's expert could do no more than read the EDI. CP at 564-65. Justice Sanders eventually obtained a full explanation of how each claimed exemption applied when the State moved for summary judgment. The State submitted an Appendix A summarizing each

document and arguing why it was exempt from disclosure. CP at 127-54. It also made all of the disputed documents available for in camera review. See CP at 1724 (describing the process for litigating the exemptions in the trial court). Justice Sanders had the opportunity to review all of the in camera documents and to respond to Appendix A. Id. Justice Sanders objected to Appendix A as unsworn
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testimony and argument based on facts not in evidence, but the trial court rejected this argument. CP at 382-89; see CP at 1724 (considering Appendix A). The trial court incorporated the summaries of the disputed documents, both sides' arguments, and its own rulings into trial court's Appendix A, CP at 1375-1434 (in camera documents), and trial court's Appendix B, CP at 1435-37 (SPDs).3 Both parties moved for summary judgment. The State argued that Justice Sanders agreed to narrow his request to accept only those documents produced for BIAW, and even if not, AGO had complied with the PRA and withheld only exempt documents. CP at 106-26. Justice Sanders argued that (1) he agreed to expand his request to include additional documents but never agreed to narrow his request, (2) AGO had failed to provide a brief explanation of how its claimed exemptions applied to the records withheld and thus waived exemption or was estopped from arguing that the documents were exempt, (3) AGO waived exemption by producing the SPDs or was estopped from arguing that they were nonexempt, and (4) AGO continued to wrongfully withhold some records. CP at 391-415. For these alleged violations of the PRA, Justice Sanders requested costs and attorney fees, as well as statutory per diem penalties. Id. The trial court viewed the dispute over the alleged narrowing of Justice Sanders's request as a dispute over the legal sufficiency of AGO's search and disclosure. CP at 1713-17. Because Justice Sanders could not identify any

documents that AGO should have disclosed but did not, and because AGO's search
3

References to "Appendix A" are to the State's Appendix A.
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responded to BIAW's broader request, the trial court ruled that AGO's search for documents was legally sufficient. Id. The dispute over disclosure, the trial court concluded, was irrelevant to the issue of production. Id. at 1716. The trial court determined that AGO's response to Justice Sanders's request violated the PRA. Although the EDI specifically identified AGO's claimed

exemptions, it failed to contain a brief explanation of how the claimed exemptions applied to each record withheld. CP at 1718. The remedy for this violation was not waiver or estoppel, however, but consideration when imposing penalties for wrongfully withholding records. CP at 1718-19. Nor had AGO waived or been estopped from claiming exemption for any of the SPDs. CP at 1719-20. The question was whether any SPD or in camera document had been withheld wrongfully and what fees, costs, and penalties award should follow. Id. The trial court examined each disputed document and ruled on whether it was exempt from production. CP at 1373-74, 1375-1437. The relevant exemptions were the attorney-client privilege, under RCW 42.56.070(1)4 and RCW 42.56.290,5 and the work product privilege, under the latter provision. In making its rulings, the trial court held that the attorney-client privilege protects all communications arising from the attorney-client relationship, once formed, not merely those pertaining to
Former RCW 42.17.260(1) (1997). RCW 42.56.070(1) exempts anything exempted under some "other statute." In this case, the "other statute" is the attorneyclient privilege statute, RCW 5.60.060(2)(a). See Hangartner v. City of Seattle, 151 Wn.2d 439, 452-53, 90 P.3d 26 (2004) (recognizing RCW 5.60.060(2)(a) as an "other statute" under the PRA). 5 Former RCW 42.17.310(1)(j). RCW 42.56.290 exempts records relevant to a "controversy" to which the agency is a party if the records would not be available in civil discovery.
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legal advice. CP at 1724. It also held that, under the "common interest" doctrine, AGO could claim certain documents were privileged even if it shared them with other agencies. Id. Furthermore, it implicitly held that the work product privilege could apply to documents that did not on their faces specify the controversy to which they were relevant, if the controversy could be determined from the context. E.g., CP at 1395 (describing the dispute over in camera document 35). Finally, the trial court held that several documents were work product relevant to some controversy and so were exempt. CP at 1375-1437. However, a few documents were nonexempt and AGO's withholding of them had violated the PRA. CP at 1724-25. Because Justice Sanders prevailed on some of his claims and showed that about 5 percent of the withheld documents were nonexempt, the trial court awarded him $55,443.12, which was 37.5 percent of his costs and attorney fees.6 CP at 184548. It also imposed a penalty against AGO for wrongfully withholding the

documents, which the trial court grouped into two broadly categorized "records." CP at 1847. Finding that AGO acted in good faith throughout the process, the trial court imposed a penalty of $5 per day that the records were withheld, plus an additional $3 per day for AGO's failure to explain how the claimed exemptions applied to the records withheld, for a total of $8 per day per record. Id. Over the State's objection, the trial court included the number of days it took to adjudicate the case in its per diem calculation. Id. The total penalty came to $18,112. Id.
Justice Sanders requested that the attorney fees award be multiplied by 1.5 because his attorneys took the case on contingency. The trial court declined. CP at 1858.
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Both parties appealed. Justice Sanders challenges several aspects of the trial court's disposition of the case, as outlined below. The State responds to each of those contentions and cross-appeals on its claim that it is entitled to summary judgment because Justice Sanders agreed to accept only the production given to BIAW. The Court of Appeals certified the case directly to this court, and we accepted review. Wash. Supreme Court Order Accepting Certification, Sanders v. State, No. 82849-1 (Mar. 26, 2009). ISSUES7 1. Is there a genuine issue of material fact precluding summary judgment as to whether Justice Sanders's attorney agreed to accept the production given to BIAW as full satisfaction of his PRA request? Conclusion: Yes. The trial court is affirmed on different grounds. See infra at pp. 12-14. 2. Did AGO's response violate the PRA if it did not contain a brief explanation of how its claimed exemptions applied to the records withheld, and if so, what is the remedy for such a violation? Conclusion: Yes. The remedy is consideration when awarding costs and fees or when imposing penalties for failure to produce nonexempt records. The trial court is affirmed. See infra at pp. 14-18. 3. Did AGO's subsequent production of the SPDs waive objection to or admit
The legal issues in this case are numerous, as a consequence of which the opinion is lengthy. For ease of reading, we indicate our disposition on each issue and cross-reference our analysis of it.
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the proposition that the SPDs were nonexempt? Conclusion: No. The trial court is affirmed. See infra at pp. 18-20. 4. For each document withheld, was the failure to produce that document a PRA violation, i.e., was each document exempt from production? a. Did the trial judge abuse its discretion by considering the State's Appendix A? Conclusion: No. The trial court is affirmed. See infra at pp. 20-22. b. Does the attorney-client privilege protect every confidential

communication between lawyers and clients, once the attorney-client relationship exists? Conclusion: We assume, without deciding, that the privilege protects only legal advice, and that the trial court interpreted the privilege too broadly. See infra at pp. 22-23. c. Did the trial court err in relying on the "common interest" doctrine, allowing AGO to claim exemptions for documents it had shared with other agencies? Conclusion: No. The trial court is affirmed. See infra at pp. 24-25. d. Did the trial court misinterpret the law when applying the work product privilege? Conclusion: No. The trial court is affirmed. See infra at pp. 25-29. e. Did the court err in determining that some documents were exempt? Conclusion: Yes, four documents were nonexempt. The trial court is
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reversed as to these four documents and affirmed as to all others. See infra at pp. 29-31. 5. Did the trial court abuse its discretion in setting AGO's penalty? a. Did the trial court abuse its discretion in assessing the "brief explanation" penalty as a $3 per day aggravator to the penalty for wrongfully withholding documents? Conclusion: No. The trial court is affirmed. See infra at pp.32-34. b. Did the trial court abuse its discretion in setting the penalty for failure to produce nonexempt documents at the bottom of the statutory range? Conclusion: No. The trial court is affirmed. See infra at pp. 34-35. c. Did the trial court err when, for the purposes of calculating the penalty, it included the number of days the court took to adjudicate the case? Conclusion: No. The trial court is affirmed. See infra at pp. 35-37. d. Did the court err in treating the 6-9 wrongfully withheld documents as two "records" for the purposes of penalties? Conclusion: No. The trial court is affirmed. See infra at p. 37. e. What penalty applies to the documents deemed nonexempt on appeal? Conclusion: The trial court's penalty is appropriate. See infra at p. 38. 6. Did the trial court abuse its discretion in awarding Justice Sanders 37.5 percent of his fees and costs and in refusing to multiply his fees by 1.5? Conclusion: No. The trial court is affirmed. See infra at pp. 38-44. 7. Is Justice Sanders entitled to fees and costs on appeal?
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Conclusion: Yes, to some extent. See infra at pp. 44-46. ANALYSIS 1. Agreement to Alter PRA Request The State argues that it is entitled to summary judgment because Justice Sanders's attorney, Mr. Bulmer, agreed to accept the production given to BIAW as a full response to Justice Sanders's records request. Because Justice Sanders got

everything he requested, the State contends, he cannot seek additional production. Justice Sanders counters that Mr. Bulmer agreed to expand his request to accept additional documents but never agreed to narrow his request in any respect. The trial court avoided this issue by viewing the debate as one over the legal sufficiency of AGO's search for records in response to Justice Sanders's request. Since

BIAW's request was broader and Justice Sanders did not identify any documents that should have been disclosed to him but were not, the trial court held the search to be sufficient. But, it denied the State's motion for summary judgment because the search and disclosure issue was independent of the production issues making up the rest of the case. From the parties' refinement of their argument on appeal, it appears that the dispute is not over whether AGO searched for the appropriate records. The

question on summary judgment is whether Mr. Bulmer agreed to accept the production given to BIAW or the disclosure given to BIAW. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ranger Ins. Co. v. Pierce County, 164
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Wn.2d 545, 552, 192 P.3d 886 (2008).

In reviewing a motion for summary

judgment, we construe the facts in the light most favorable to the nonmoving party. Id. Our review is de novo. Id. The record shows that Mr. Bulmer agreed to modify his PRA request to match BIAW's. CP at 171, 187. But, there is a genuine issue of fact as to what this modification meant. The State argues that Mr. Bulmer agreed to accept the

production given to BIAW. When considered in the light most favorable to Justice Sanders, however, the evidence suggests that Mr. Bulmer agreed only to accept the disclosure given to BIAW. See id. (AGO employee quoting Mr. Bulmer as saying that he "wished to expand [his] request for documents to those which were disclosed to . . . BIAW" (emphasis added)). Therefore, Justice Sanders could rightfully object to AGO's failure to produce some of the disclosed documents, even if BIAW did not do so. See CP at 475-76 (including Mr. Bulmer's statement that he never agreed to waive production of any requested documents). The trial court's denial of summary judgment on this issue was appropriate. 2. Brief Explanation Requirement and Remedy Justice Sanders argues that AGO violated the PRA because its response to his records request (the EDI) did not provide a brief explanation of how the claimed exemptions applied to the records withheld. The State argued in the trial court that it had "explained" the claimed exemptions by identifying each withheld document's author, recipient, date of creation, and broad subject matter along with its specification of the exemption. See CP at 1069-70 (using an example from the EDI
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to illustrate). The trial court disagreed. CP at 1717-18. It construed the PRA to require an agency claiming an exemption to "`include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.'" CP at 1717 (quoting RCW 42.56.210(3)8 (emphasis added)). The EDI was "devoid of any explanation," and so violated the brief explanation requirement. CP at 1718. The trial court's interpretation of the statute is correct: an agency withholding or redacting any record must specify the exemption and give a brief explanation of how the exemption applies to the document. RCW 42.56.210(3).9 The State's argument that the EDI "explains" the application of each claimed exemption is untenable, which may explain why the State has not renewed it on appeal. The identifying information about a given document does not explain, for example, why it is work product under the PRA's "controversy" exemption. See CP at 187-224 (claiming the controversy exemption for numerous records without specifying details such as the controversy to which each record is relevant). Allowing the mere identification of a document and the claimed exemption to count as a "brief explanation" would render the brief-explanation clause superfluous. Furthermore, we have consistently enforced the PRA's disclosure requirements to advance its policy of public access. See Progressive Animal

Welfare Soc. v. Univ. of Wash., 125 Wn.2d 243, 269-71, 884 P.2d 592 (1994) (PAWS II) (declaring "silent withholding" illegal and noting that an "agency's
8 9

Former RCW 42.17.310(4). Id.
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compliance with the Public Records Act is only as reliable as the weakest link in the chain"); Rental Hous. Ass'n v. City of Des Moines, 165 Wn.2d 525, 540, 199 P.3d 393 (2009) (relying on PAWS II to conclude that failure to require an indication of "whether there is a valid basis for a claimed exemption for an individual record" would "defeat[] the very purpose of the PRA"). Claimed exemptions cannot be vetted for validity if they are unexplained. Thus, AGO's failure to explain its claimed exemptions violated the PRA. The remedy for such a violation is a more difficult issue. Justice Sanders argues that the remedy is waiver or estoppel. See Sanders's Opening Br. at 36-41; CP at 1718-19. In other words, by failing to adequately explain a claimed

exemption, AGO either waived the right to claim the exemption or is estopped from arguing an explanation other than one found in the EDI. Since the EDI contained no explanation, AGO would be estopped from offering any explanation. Id. The State's position is that the only remedy for the brief explanation violation is to compel the agency to explain. Br. of Resp't at 48-49. This is because an agency can meet the explanation requirement in court submissions. See id. (citing PAWS II). The trial court adopted neither position. It concluded that an exempt public record does not lose its exemption because of an inadequate response to a request. CP at 1718. Rather, the PRA gives the requester the right to sue and authorizes the imposition of penalties against an agency for wrongfully withholding the record. Id. The trial court therefore held that the remedy for a brief explanation violation is consideration when awarding costs, attorney fees, and penalties. CP at 1719.
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We have already rejected the waiver or estoppel argument that Justice Sanders advances. In PAWS II, the agency initially explained its claimed

exemptions to the requester but then sought to argue different explanations during litigation. 125 Wn.2d at 253. We held that a court may consider an agency's new explanations, expressing concern that agencies' responses to PRA requests would be too slow if their initial responses were binding. Id. If Justice Sanders's view of the law were correct, the initial, incorrect explanation would have led to waiver or estoppel and the State would not have been able to argue new explanations in court. This is exactly the outcome we wished to avoid in PAWS II. On the other hand, the State's interpretation contravenes the PRA's purpose. If the only remedy for a failure to explain is to sue to compel explanation, the agency has no incentive to explain its exemptions at the outset. This forces

requesters to resort to litigation, while allowing the agency to escape sanction of any kind. Cf. Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005) (refusing to allow agencies to resist complying with the PRA until after a suit is filed without facing a penalty). The trial court's conclusion reflects a fair middle ground under the PRA: the agency's failure to provide a brief explanation should be considered when awarding costs, fees, and penalties, but the agency is not foreclosed from offering a satisfactory explanation. Such an interpretation serves the PRA's policy of

disclosure by providing incentives for the agency to explain its claimed exemptions, while avoiding the negative consequences warned of in PAWS II. Cf. Rental Hous.
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Ass'n, 165 Wn.2d at 540 (requiring a detailed privilege log based on similar considerations). The interpretation also follows from the PRA's text. The PRA entitles a prevailing party in an action "seeking the right to inspect or copy any public record or the right to receive a response to a public record request" to costs and reasonable attorney fees. RCW 42.56.550(4)10 (emphasis added). The "brief

explanation" requirement is one aspect of the "response[s]" referred to in this provision. See RCW 42.56.210(3)11 ("Agency responses refusing, in whole or in part, inspection of any public record shall include . . . a brief explanation of how the exemption applies to the record withheld." (emphasis added)). In addition, as discussed below in part 5, an agency's failure to explain its claimed exemptions is relevant to the agency's "lack of strict compliance . . . with all the PRA procedural requirements," which may aggravate the penalty for wrongfully withholding public records. Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467, 229 P.3d 735 (2010) (Yousoufian II). In sum, AGO's failure to provide a brief explanation of its claimed exemptions violated the PRA. The remedy for the violation is consideration when awarding costs, fees, and penalties. 3. Subsequent Production Justice Sanders contends that AGO waived its right to claim that the SPDs were exempt when it produced them after suit was filed. He urges us to hold that
10 11

Former RCW 42.17.340(4) (1992). Former RCW 42.17.310(4).
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agencies may not force a requester to sue and then escape penalties by producing the documents after litigation begins. AGO responds that it has always maintained that the documents were exempt, but, after outside counsel reviewed them, AGO determined that it considered several of the documents "innocuous" and so produced them in a good-faith effort to narrow the area of dispute. The trial court found that the State had disclaimed waiver and had maintained that the documents were exempt. CP at 1720. It therefore held that the State had not waived the right to claim exemptions, nor was it estopped from doing so. Id. The determination of waiver is a mixed question of law and fact. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41, 191 P.3d 879 (2008). The record supports the trial court's crediting of the State's claim that it did not intend to relinquish its claimed exemptions. CP at 115, 378, 1090-91, 1093, 1113. AGO simply determined that it did not care if certain documents were produced and so it produced them. We decline to penalize agencies that cooperate with PRA litigants in this manner by construing such cooperation as a waiver. Nor do we believe that production of documents after the requester files suit ipso facto admits that the initial withholding of the documents was wrongful. The PRA's purpose is to increase access to government records. See RCW 42.56.030.12 If an agency were deemed to concede wrongdoing simply because it produced documents during litigation, it would reduce the incentive for agencies to produce the documents. This outcome would be antithetical to the legislative intent. Rather,
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Former RCW 42.17.251 (1992).
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the appropriate inquiry is whether the records are exempt from disclosure. If they are exempt, the agency's withholding of them was lawful and its subsequent production of them irrelevant. If they are nonexempt, the agency wrongfully

withheld the records and the appropriate penalty applies for the numbers of days the record was wrongfully withheld

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