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Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 1 of 15

5
THE HONORABLE JAMES L. ROBART
6

9
UNITED STATES DISTRICT COURT
10 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
11
LONDI K. LINDELL,
12 No. C 08-1827 JLR
Plaintiff,
13
v.
14
CITY OF MERCER ISLAND, a Washington PLAINTIFF LINDELL'S REPLY IN
15 municipal corporation; MERCER ISLAND CITY SUPPORT OF HER MOTION FOR
MANAGER RICHARD CONRAD, in his official SUMMARY JUDGMENT ON
16 and individual capacities; MERCER ISLAND PLAINTIFF'S PUBLIC RECORD ACT
DEPUTY MAYOR JIM PEARMAN, in his official CLAIMS
17 and individual capacities; MERCER ISLAND
COUNCILMEMBER ERNEST JAHNCKE, in his NOTE ON MOTION CALENDAR:
18 official and individual capacities; MERCER January 28, 2011
ISLAND FINANCE DIRECTOR CHARLES
19 CORDER, in his official and individual capacities,

20 Defendants.

21

22

23

24

25

26

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S PRA 1201 Third Avenue
CLAIMS (Cause No. C 08-1827 JLR) Page i Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 2 of 15

1 Defendant City of Mercer Island is a public agency, answerable to the citizens of this State,

2 and as such has a duty to conduct its business in an open and transparent manner. The City’s

3 deliberate and unprincipled two-year effort to avoid providing Ms. Lindell with public documents it

4 knew it was required to produce under PRA demonstrates a blatant disregard for the law and for the

5 principles of open government in general. Rather than comply with the PRA, the City intentionally

6 chose to wrongfully withhold public records in order to protect the interests of individual

7 employees and to limit its exposure to embarrassment and liability. The City’s misconduct is the

8 poster-child for why the PRA mandates strict penalties for non-compliance.

9 Indeed, the City expressly concedes that statutory penalties are mandatory given the

10 Court’s prior ruling that “neither the attorney-client privilege nor the work product doctrine apply.”

11 Nonetheless, despite the Court having ruled that the records at issue were discoverable, stating that

12 “there is no other evidence supporting another view, other than affidavits and declarations that

13 have been filed with conclusory statements to the opposite conclusion,” Defendant improperly

14 requests that the Court adopt an unsupported view. It cannot. At summary judgment, the

15 nonmoving party is entitled to reasonable inferences only.

16 Here, given that this Court already ruled that the City made a “stonewall effort” to withhold

17 “several thousand pages’ worth of documents,” all reasonable inferences support that the City acted

18 in bad faith in deliberately withholding the records at issue. Simply put, Defendant’s assertion of

19 “good faith” is blatantly contradicted by the record. Defendant’s attempt to group all of Lindell’s

20 PRA requests into one category is also unsupported by the law and facts. As the record

21 demonstrates, the City committed at least seventeen different violations of the PRA by withholding

22 thousands of pages of public records relating to seventeen different subjects, producing them at

23 different times and pursuant to separate requests.

24 Given these facts, a reasonable fact-finder can reach only one conclusion, the same

25 conclusion this Court already reached on October 4, 2010 and again on December 13, 2010;
26 namely, that the City of Mercer Island was not justified in withholding the records and always

knew they were not privileged and/or work product. Such disregard for the PRA by Mercer Island

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 1 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 3 of 15

1 justifies a substantial daily penalty. See Yousoufian v. Office of Ron Sims, 168 Wash.2d 444,

2 466 (2010)(finding that the trial court abused its discretion by awarding a penalty of only $15 a day

3 where the agency’s conduct was found to be “negligent,” but not in “‘bad faith’ in the sense of

4 intentional nondisclosure,” and instead instituting a $45 per day penalty).

5 A. Defendant’s Emphasis on the Summary Judgment Standard is Misplaced.


Although when determining whether an issue of material fact exists the court construes all
6
facts and inferences in favor of the nonmoving party, this does not mean that a court will accept as
7
true assertions made by the non-moving party that are contradicted by the record. Rather, the
8
nonmoving party is entitled to reasonable inferences only. Scott v. Harris, 550 U.S. 372, 380
9
(2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by
10
the record, so that no reasonable jury could believe it, a court should not adopt that version of the
11
facts for purposes of ruling on a motion for summary judgment.”). Moreover, “the court defers to
12
neither party in answering legal questions.” Wyant v. City of Lynnwood, 621 F.Supp.2d 1108,
13
1110 (W.D.Wash. 2008) (citing to Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999)
14
(noting that if “a motion for summary judgment is merely the conduit to bring [a] legal question
15
before the district court,” then “the usual tests of summary judgment, such as whether a genuine
16
dispute of material fact exists, do not apply.”). Here, however, Defendant’s entire motion is
17
premised on the City’s erroneous request that this Court not only ignore its previous factual
18
findings and adopt facts that are blatantly contradicted by the record, but also that the Court do so
19
when deciding purely legal questions. Such a request must be denied.
20
Indeed, under the PRA, “[w]hether a party is prevailing is a ‘legal question of whether the
21
records should have been disclosed on request.’” Kitsap County Prosecuting Attorney's Guild v.
22
Kitsap County, 156 Wash.App. 110, 119 (2010)(quoting Spokane Research, 155 Wash.at 103, and
23
citing RCW 42.56.550(4)). As already conceded by Defendant, the Court’s October 4, 2010 “ruling
24
that neither the attorney-client privilege nor the work product doctrine appl[ies]” to the withheld
25

26
documents is “decisive” on this issue (Dkt. 280, 2:3-5), and accordingly, it is undisputed that Ms.

Lindell is “entitled to costs and penalties” from the City of Mercer Island. Id.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 2 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 4 of 15

1 Thus, the only issue for this Court to decide is the amount of penalties to award;1 and again,

2 contrary to the assumption underlying Defendant’s motion, this determination is also primarily a

3 legal question for the Court. Yousoufian II, 152 Wash.2d at 438 (2004)(“[T]he determination of the

4 number of days is a question of fact. However, the determination of the appropriate per day penalty

5 is within the discretion of the trial court.”); RCW 42.56.550(4) (“it shall be within the discretion of

6 the court to award such person an amount not less than five dollars and not to exceed one hundred

7 dollars for each day . . . denied the right to inspect or copy said public record”). Moreover, as

8 discussed further below, because this Court already made findings regarding the propriety of

9 Defendant’s decision to withhold the documents at issue, with essentially the same evidence in

10 front of it then as now, few (if any) factual disputes remain.

11 In short, this Court – not a jury – is the fact finder pursuant to RCW 42.56.550(4). Given

12 that summary judgment is merely a mechanism for tendering the issue, there is no logical, fair,

13 expedient or legal reason why this Court should disregard its prior factual findings when accessing

14 penalties. Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 24 (1st Cir. 2003). However,

15 to the extent this Court believes it must award penalties by giving all reasonable inferences in favor

16 of Defendant and disregarding its prior rulings – which it does not – Plaintiff requests this Court

17 rule only as to liability and allow Plaintiff to present her damages to the Court at a later date.

18 B. The City’s “Stonewall Effort” of Nondisclosure, Justifies a Substantial Daily Penalty.


On October 4, 2010, in ruling that the Reed Investigation and surrounding documents were
19
not privileged or work product, the Court made numerous factual findings. It found that it “was
20
clear to the parties at the time, notwithstanding subsequent representations to the contrary, that Ms.
21
Reed was not an attorney hired to provide legal advice in connection with an anticipated claim.” It
22
found that “there was no threat of intended litigation at the time in order to . . . trigger the work
23
product doctrine,” but rather that it was “abundantly clear that the investigation was conducted
24
because Mr. Conrad wanted to clear his name.” Finally, the Court found that “even if [the Reed
25

26
Investigation] had been covered by the attorney- client privilege, the privilege was waived by the

1
As discussed in her Motion, to the extent this Court grants Ms. Lindell’s motion, Ms. Lindell will be submitting a
petition for reasonable fees and costs, but has not yet done so as it would be premature.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 3 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 5 of 15

1 city council.”2 The Court noted that “there is no other evidence supporting another view, other

2 than affidavits and declarations that have been filed with conclusory statements to the opposite

3 conclusion.” Dkt. 277-3, Exh. KK at 6:9-14; 8:4-9, 11-12:11. Subsequently, the Court ruled that

4 other withheld documents were discoverable. Dkt. 222.

5 Notably, these findings were made after the Court considered substantial briefing, including

6 supporting evidence from both parties,3 and conducted a thorough in camera review of “thousands

7 of pages of documents.” While Defendant has included additional factual background regarding the

8 PRA requests it actually properly responded to, because these record requests are not at issue here

9 and are merely a smokescreen,4 essentially no additional evidence has been provided by Defendant.

10 As such, the Court’s October 4, 2010 factual findings should be treated as undisputed facts

11 for purposes of summary judgment. J.Y. v. Seattle School Dist. No. 1, 2007 WL 4111202

12 (W.D.Wash.,2007) (because neither party challenged that ALJ’s findings of fact or conclusions of

13 law, the Court relied on the ALJ’s findings in ruling on summary judgment); Cintas Corp. v. Perry

14 517 F.3d 459 (7th Cir. 2008)(district court could rely on findings of fact and conclusions of law

15 from its prior ruling on employer’s motion for preliminary injunction in deciding whether to grant

16 employee’s motion for summary judgment with respect to non-competition agreement). Indeed,

17 Defendant has also already indicated that such factual findings should be binding. See Dkt. 271 at

18 17:12-20 (citing to the October 4, 2010 transcript and stating that “this Court has ruled,

19 unambiguously and as a factual matter . . . [that] ‘it is abundantly clear that the investigation was

20 conducted because Mr. Conrad wanted to clear his name’”).5

21 2
Further evidencing the City’s bad faith, the Court also stated: “We were not assisted in this matter by the City's
blanket designation of numerous documents as covered by the attorney-client privilege . . . ” Id. at 10:18-25.
22 3
See Dkts. 27-30, 33-37, 43-44, 47-57, 63, 71-72, 77, 82, 89-90, 97-100, 161-162, 175-176, 178, 180-183, 188-191, 196-198,
201, 228, 230.
23 4
Defendant spends substantial time discussing Lindell’s review of documents in the fall of 2008, essentially
arguing that the City made available for inspection thousands of documents, but these are not the documents at
24 issue here. This argument is entirely irrelevant to the issue before the Court as it has no bearing on the City’s
decision to improperly withhold the records at issue. Indeed, regardless of when Lindell reviewed records that were
25 disclosed, Defendant City of Mercer Island still withheld the non-disclosed records at issue. Indeed, to date,
Defendant still argues without factual support that it had a “good faith” basis for their withholding. Defendant’s
26 emphasis that Ms. Lindell filed her tort claim prior to filing her May 2008 PRA request is equally irrelevant.
5
The Court’s October 4 ruling addressed the same issue as the issue in this motion; namely, whether the City was
justified in withholding documents. In contrast, Defendant’s Motion improperly attempted to convert this Court’s
finding that the investigation was not done in anticipation of litigation into a finding that harassment did not occur.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 4 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 6 of 15

1 In light of these factual findings, 6 no reasonable fact-finder can conclude that the City’s

2 withholding of records for over two years only warrants a $5 per day penalty as proposed by

3 Defendant. Indeed, in determining the appropriate penalty for violation of the PRA, the trial court

4 must consider the entire penalty range established by the legislature. Yousoufian v. Office of Ron

5 Sims (Yousoufian IV), 168 Wash.2d 444, 466 (2010). Moreover, “while the act states that the court

6 has discretion in fixing the level of the penalty, prior appellate decisions have established

7 guidelines to assist courts in fixing an appropriate penalty and have stated that strict enforcement of

8 fees and fines will discourage improper denial of access to public records.” ACLU of WA v. Blaine

9 School Dist. No. 503, 95 Wash.App. 106, 111(1999)(internal citations omitted). Thus, this Court

10 should consider Yousoufian IV – the most recent decision analyzing the determination of the

11 appropriate per day penalty – when assessing penalties in this case.

12 In Yousoufian IV, the Supreme Court found that the trial court had abused its discretion by

13 awarding a penalty of only $15 a day for violations of the Act where the agency’s conduct was

14 found to be “negligent,” but not in “‘bad faith’ in the sense of intentional nondisclosure,” and

15 instead instituted a $45 per day penalty. Id. at 456. Given that the Yousoufian IV Court awarded a

16 $45 per day penalty, where the trial court specifically found no bad faith, it would be entirely

17 unreasonable to award “a penalty at the low end of the penalty range” in Ms. Lindell’s case, where

18 unlike the agency in Yousoufian, Mercer Island intentionally, strategically, and in bad faith

19 withheld the requested records under the guise of work product and privilege despite knowing that

20 such exemptions did not apply, as has already been determined by the Court. See also Dkt. 277-3,

21 Exh. KK at 15:1-7 (criticizing Defendant for its “stonewall effort” 7 to withhold thousands of

22 documents from Ms. Lindell); Dkt. 246, 2:1-8 (holding that Defendant was not “substantially

23 justified” under Rule 37(a)(5)(A) in withholding numerous investigative documents sought under

24 Rule 26).

25 6
The Court gave both parties ample opportunity to lodge objections. See Dkt. 277-3, Exh. KK at 19:13-16 (“I
would urge you to give me your best thought on the interlocutory appeal question, and if you think there are factual
26 errors in regards to my recitation of the record in this matter, I'm happy to have those pointed out.”). In response,
the City withdrew its motion for interlocutory appeal and pointed out no factual inaccuracies. Dkt. 197.
7
“Stonewall” is defined by Merriam Webster Dictionary as “to be uncooperative, obstructive, or evasive,” “to
refuse to comply or cooperate with.”

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 5 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 7 of 15

1 Indeed, the facts underlying this case far exceed those in Yousoufian in terms of

2 egregiousness. Mercer Island not only refused to provide Ms. Lindell clearly nonexempt records in

3 response to her May 2008 PRA request, but it simultaneously leaked some of the withheld

4 documents which were disparaging of Ms. Lindell to the Mercer Island Reporter in May 2008.

5 Dkts. 213, 214-1. The City made numerous misrepresentations to the Court, including moving for

6 reconsideration on the Court’s ruling in September 2010 based on “newly discovered” evidence

7 that had in fact been in Defendant’s possession since at least April 2008 when it was emailed to

8 defense counsel. Dkt 190. Moreover, during the entire time it withheld the records the City knew

9 that it had expressly waived attorney-client privilege relating to the Segle investigation and

10 Sterbank Memo. Dkt. 277-1, Exh. GGG.8

11 Simply put, Defendant City made the calculated, intentional decision to conceal public

12 records for over two years because it benefited the City. It did not in believe in good faith that the

13 documents were exempt, as evidenced by the fact that it produced some of the withheld documents

14 to the Mercer Island Reporter in May 2008. No evidence supports another conclusion. And indeed,

15 the City’s pleadings arguing privilege and work product are devoid of evidence supporting such

16 assertions. Indeed, even in its Response to Summary Judgment, Defendant failed to provide a

17 reasonable explanation for its withholding, curiously stating that it relied on the non-binding

18 decision Davis v. City of Seattle, 2007 WL 4166154, 1 (W.D.Wash. 2007), despite never citing

19 Davis in any of its numerous pleadings.9 Supp. NY Decl.

20 Given the City’s bad faith conduct compared to the agency’s in Yousoufian, the City of

21 Mercer Island should be penalized $100 per day.10

22

23 8
While Defendant still maintains such waiver was limited, had the City actually believed Reed was acting as “outside
counsel” as it falsely represented throughout the two-year battle for the records, such a waiver would not have been
24 necessary to allow Reed to speak freely with City employees, who would have been her clients. Upjohn Co. v US, 449
US 383 (1981) (communications between employees and corporation’s attorneys and outside counsel are privileged).
25 9
Even if the Defendant did rely on Davis, nothing in the Davis decision changes the fact that the Court made factual
findings that the City knew litigation was not anticipated, that Reed was not hired as a lawyer, and that any existing
26 privilege was waived. Thus, Defendant’s emphasis on Davis is misplaced, irrelevant, and non-binding authority.
10
Defendant’s statement that “much of Lindell’s claimed basis for the maximum authorized penalty . . . is her
assertion that she made a 2008 Public Records Request for metadata.” This is simply untrue. Ms. Lindell examined
eight of the nine aggravating factors and mentioned the lack of metadata once in her entire legal section.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 6 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 8 of 15

1 B. The City Committed At Least Seventeen Separate Violations of the PRA.

2 When calculating the mandatory daily penalty for records wrongfully withheld, courts have

3 discretion to make the award on a per record, per day basis. Yousoufian II, 152 Wn.2d at n.9.

4 However, where a PRA request encompasses numerous wrongfully withheld records, such as the

5 case here, courts have generally grouped the records by subject matter and time of production when

6 calculating the mandatory daily penalty. Id.; Sanders v. State, 240 P.3d 120, 127 (2010).

7 Here, the scope of Ms. Lindell’s PRA requests to the City encompasses at least seventeen

8 different subject areas and dates of production. Supp. NY Decl., Exh. III. The City itself admits that

9 Lindell’s initial request alone covers records relating to her employment and “a substantial number

10 of records on other subjects.”12 Dkt. 280 at 3. In fact, the City withheld or failed to disclose

11 numerous distinct records pertaining to each of these distinct subjects. For example, in her initial

12 request Ms. Lindell sought records relating to the internal investigation conducted by Ms. Reed into

13 the sexually harassing and retaliatory conduct engaged in by City Manager Conrad. Dkt. 277-1,

14 Exh. C. Within that subject area were many distinct records such as the interview notes from each

15 interview Reed conducted, Reed’s findings related to that investigation which were presented to the

16 City counsel, and numerous documents reviewed by Reed. Supp. NY Decl. Each of these records

17 was wrongfully withheld by the City. However, based on the precedents set by Yousoufian and

18 Sanders, Ms. Lindell determined that all of them were related to a single subject – the Reed

19 investigation – and believes that a daily penalty is appropriate for those records as a group rather

20 than each individual record on its own. Supp. NY Decl.

21 Likewise, Lindell sought, and the City wrongfully withheld, numerous records relating to

22 the City’s investigation of Rich Conrad by Amy Stephson in 2003 for his separate harassment and

23 retaliatory conduct against Tina Eggers. Dkt. 277-1, Exh. C. Records relating to this subject include

24
12
Despite this initial recognition of the multiple subjects upon which Ms. Lindell sought public records, the City
25 claims later in its response that Ms. Lindell’s request was solely related to a single subject. Dkt. 280.
14
The PRA distinguishes between records that are disclosed and then either produced or not produced, and
26 documents that are not disclosed at all. Sanders, 240 P.3d at 125. “[A] document is never exempt from disclosure;
it can be exempt only from production.” Id.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 7 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 9 of 15

1 both the draft and final reports completed by Stephson after her investigation into Eggers’

2 allegations. Supp. NY Decl. These documents, some of which were provided on different dates than

3 the Reed Investigation, involve a separate subject, and relate to a much earlier time period. Supp.

4 NY Decl., Exh. III. They are simply not the same records and should not be treated as such.

5 Incredibly, in addition to wrongfully withholding different groups of documents, the City

6 did not even disclose other groups of records for over two years.14 For example, Lindell sought

7 records relating to her employment with the City, including her contacts and calendar from

8 Microsoft Outlook. Dkt. 277-1, Exh. C. Inexplicably, the City failed to disclose these records until

9 they were eventually produced 842 days after Lindell made her initial request. Supp. NY Decl. This

10 was not a case of the City believing it had a legitimate reason to withhold documents; it is simply

11 another example of the City’s blatant disregard for the PRA’s strict mandates. Moreover, these

12 previously undisclosed records are in no way related to the other categories of records withheld or

13 not disclosed by the City. The City’s failure to disclose these records is a separate violation the

14 PRA and the City should be penalized separately for its intentional and bad faith conduct.

15 Not only do the records wrongfully withheld by the City represent different subjects, they

16 were also produced to Ms. Lindell at different times. For example, while the City wrongfully

17 withheld documents relating to the City Council’s investigation of the allegations against Conrad

18 for 937 days, it withheld records relating to the investigation and disciplining of Johnny Segle for

19 “only” 764 days. Supp. NY Decl., Exh. III. Yet despite producing different records at different

20 times, the City arbitrarily picks 882 days as the number of days the Court should use to calculate

21 the mandatory penalty under the PRA, ignoring records produced at later dates. There is simply no

22 principled basis for choosing 882 days to calculate the mandatory penalty unless one examines

23 what records were actually produced at that time and limits the penalty to those documents. But

24 clearly the City should not be allowed to produce some documents and wrongfully withhold others

25 and then claim it may not be penalized for the documents it wrongfully withheld longer.
26 Indeed, each of the seventeen categories of documents wrongfully withheld by the City

represent separate and distinct requests for records under the PRA. In addition to the records noted

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 8 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 10 of 15

1 above, Ms. Lindell sought, amongst other things, correspondence between key parties in her case,

2 documents relating to City policies and how they were implemented, the October 3 Sterbank

3 memo, records relating to the disciplining of HR Director Segle, and others. Supp. NY Decl., Exh.

4 III. Some of these records, when finally provided, were provided on a rolling basis. Id. In addition,

5 Ms. Lindell made PRA requests to the City in July and August 2010 which the City failed to

6 produce for nearly four months, including billing records, reservation of rights letters, and

7 documents the City provided to the Mercier Island Reporter.15 While these requests occurred after

8 Ms. Lindell filed her complaint, they demonstrate the City’s continuing disregard for the strict

9 mandates of the PRA and this Court is in the best position to hear these issues.

10 Ironically, despite the fact that the City withheld records relating to many subjects pursuant

11 to Ms. Lindell’s PRA requests, produced records on other subjects, and failed to even disclose still

12 more, it now suggests that this Court should view all the records it wrongfully withheld as one big

13 record relating to this entire case.16 Presumably, when determining how to respond (or not respond

14 at all in some cases) to Lindell’s various requests, the City made a determination based on the

15 differing subjects of records contained in the request in order to decide whether to produce,

16 withhold, or not disclose them. That same standard should be applied by this Court when it

17 determines how many records the City wrongfully withheld. Where the records requested relate to

18 the same subject, they should be treated the same for purposes of imposing a penalty. Where they

19 are different, as indicated by the subject matter or date of production, they should be treated as

20 separate violations; in this case there were 17 different violations.

21 Ms. Lindell’s approach better vindicates the purposes of the PRA by creating an incentive

22 for public agencies to act in good faith when receiving one request for multiple types of records and

23 ensuring that the agencies are deterred from wrongfully withholding all of them. In contrast, under

24 Defendant’s approach, the City avoids penalties for admittedly unlawful behavior simply because

25 15
While the 2010 PRA requests were filed after Ms. Lindell filed suit in this case, if the Court declines jurisdiction
over these requests, she may be forced to file a separate suit in state court addressing essentially the same issues.
26 16
Essentially the City asks this Court to base its determination of the number of records withheld on Ms. Lindell’s
reasons for requesting them. However, under the PRA, a citizen’s particular reasons for requesting a public record
are irrelevant as to whether the record must be produced under the Act. RCW 42.56.080; Yousoufian IV, 168 Wn.2d
at 461 n.8. They are likewise irrelevant for determining the mandatory daily penalty.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 9 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 11 of 15

1 Ms. Lindell made requests for separate records in one document rather than making each request

2 individually. Such an approach makes no sense considering the PRA’s goal of deterrence,

3 efficiency, and promoting public access. In fact, the City’s proposed scheme would create a

4 perverse incentive for agencies to withhold many different records sought in one request knowing

5 that they could only be penalized once, while forcing citizens to make multiple requests in order to

6 ensure the agency is properly incentivized to make each record available.

7 In contrast, the grouping procedure employed by Lindell is the same procedure approved

8 by the Washington Supreme Court in both Yousoufian and Sanders and ensures that agencies are

9 deterred from making multiple wrongful withholdings. In Yousoufian, Mr. Yousoufian sent a single

10 PRA request seeking information relating to various studies conducted relating to the financing of

11 new sports stadiums in Seattle. Yousoufian II, 152 Wn.2d at 425. Based primarily on that single

12 request, the trial court arranged the records wrongfully withheld from Yousoufian into ten groups

13 based on subject matter and time of production. Id. at 427. The Court approved this procedure

14 finding that the PRA’s purpose in promoting access to public records is better served by increasing

15 the penalty based on an agency's culpability.17 Id. This culpability is best determined by analyzing

16 the subject matter and timing of the records actually withheld. See Id. n.10.

17 As such, because the record here clearly shows that the City committed at least seventeen

18 separate violations of the PRA by failing to timely disclose and produce various records, the Court

19 should award the maximum penalty of $100 per day for each violation.

20 C. Defendant’s Remaining Arguments are Factually or Legally Incorrect.


As discussed briefly above, the majority of Defendant’s recitation of the facts is a
21
smokescreen and entirely irrelevant to this motion, supra fn. 4, and as such, Plaintiff is not further
22
addressing them. Other allegations by Defendant, however, require clarification:
23
Exemption log: Defendant’s recitation of the facts surrounding its exemption log is false.
24
The facts show that Lindell made numerous requests for an adequate exemption log prior to
25

26

17
The trial court employed a similar procedure in Sanders, separating one request into two categories of records.
Sanders, 240 P.3d at 127. The state Supreme Court expressly approved of this grouping. Id. at 139.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 10 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 12 of 15

1 December 2008, making requests in writing in May, June, August, October, and November of

2 2008. Dkt. 277-1, Exhs. C, F, J, L; Dkt. 282, Exh. M. Defendant’s suggestion that its November 12,

3 2008 letter to Lindell constituted a “brief explanation” is without merit,19 and as such Ms. Lindell

4 continued requesting a proper log. Dkt. 277-1, Exh. L; Dkt. 282, Exh. V; Dkt. 157. See Rental

5 Housing Ass'n of Puget Sound v. City of Des Moines, 165 Wash.2d 525 (2009)(agency’s letter did

6 not adequately describe individually the withheld records by stating type of record withheld, date,

7 number of pages, and author and recipient, or explain which individual exemption applied to which

8 individual record, rather than generally asserting the exemptions as to all withheld documents).

9 The undisputed facts also show that despite Sanders’ holding that “a document is never

10 exempt from disclosure; it can be exempt only from production,” Defendant’s first exemption log

11 only identified forty-two emails, failing to disclose thousands of other documents the City was

12 withholding as required under the PRA. Dkt. 277-1, Exh. H; Sanders, 240 P.3d at 125. It was not

13 until December 2008 that Defendant supplemented its log, yet still refused to provide the

14 mandatory “brief explanation.” Dkt. 277-1, Exh. N. Over a year and a half later, Defendant

15 supplemented its exemption log and added 14 pages to their list of withheld documents. Dkt. 277-2,

16 Exh. DD. Yet Defendant continued adding documents to the log in August 2010, revealing its

17 failure to disclose withheld documents for over two years. Dkt. 161; Dkt. 277-2, Exh. DD. Under

18 Sanders, this lack of compliance with the PRA procedural requirements justifies an aggravator.

19 Ms. Lindell’s possession of certain documents does not negate her penalties: Ms.

20 Lindell’s possession of some investigative documents obtained during mediation does not remove

21 her from the protection of the PRA. Not only was Ms. Lindell prohibited from using the documents

22 in litigation pursuant to the parties’ mediation agreement, but the documents were also being

23 withheld from public disclosure, the very purpose of the PRA. Dkts. 28, 30. As such, Defendant is

24 mistaken in arguing that by requesting documents “she already had, which she had created herself,

25 19
Defendant’s suggestion that Defendant is somehow not at fault because “Ms. Lindell never provided any legal
authority” standing for the proposition that its letter was inadequate is equally misguided. It is not Ms. Lindell’s
26 burden to educate the City of Mercer Island on the PRA.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 11 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 13 of 15

1 or both,” precludes her from statutory penalties. See e.g., Gendler v. Batiste, 242 P.3d 947,

2 954 (2010)(rejecting the agency’s argument that under Daines v. Spokane County, 111 Wash.App.

3 342 (2002),20 the plaintiff was not entitled to penalties because she could obtain the records from

4 the WSP, noting that “[t]he State ignores, however, that [plaintiff] could not obtain the records

5 from the WSP without agreeing that he would not use them in litigation against the State”).

6 Mercer Island Was Equipped to Handle the Requests: In one sentence addressing one

7 of the mitigating factors from Yousoufian IV, the City claims that it is a small agency with limited

8 resources. One might feel sympathy for the City on this point if this were a case of simple

9 negligence or un-timeliness in producing records. Here, however, the City located the records

10 requested (through its City Attorney Knight who already had knowledge of the records, see Dkt.

11 280 at 4) and then made an intentional decision to unlawfully withhold them. Even an agency of

12 limited resources has the ability to make the right decision. Defendant elected to do otherwise.21

13 D. This Court Should Immediately Assess Penalties Against The City.

14 Without citation to any authority, the City requests that this Court not award penalties or

15 fees until after final judgment on all the pending claims in this case. This request should be denied.

16 Ms. Lindell waited over two years while the City stonewalled and delayed providing her with

17 public records. Unbelievably, despite the PRA’s policy of awarding penalties in order to deter such

18 conduct, the City claims that, hypothetically, they might be entitled to an offset on their counter-

19 claims and thus should not have to make immediate payment. However, it is hard to imagine how

20 the City would be deterred from unlawfully withholding public records in an effort to delay

21 litigation if it were also able to delay payment of the very penalties which are intended to prevent

22 such a strategy. Defendant should be required to pay the mandatory daily penalty in a reasonable

23 amount of time after this Court assesses them.

24 20
Daines is also distinguishable from this case because the plaintiff in Daines had previously received the records
at issue through CR 26. 111 Wash. App. at 349 (noting that the PRA does not stand for the proposition that “the
25 very same records can be demanded under the PDA by a party who has already received the documents under the
court rules [CR 26]”).
26 21
Defendant also erroneously states it repeatedly sought clarification from Lindell,” citing to one example where
defense counsel inquired about two discrete issues not relevant to this motion. Dkt. 280 at 22. However, clarification is
irrelevant here as the issue had nothing to do with “clarity” but Defendant’s insistence on withholding public records
under the guise of privilege and work product.

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 12 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 14 of 15

2 DATED this 28th day of January, 2011.

4 THE BLANKENSHIP LAW FIRM, P.S.


5

6
By: /s/ Scott C. G. Blankenship
7 Scott C. G. Blankenship, WSBA No. 21431
Nazik S. H. Youssef, WSBA No. 39762
8 Rick Goldsworthy, WSBA No. 40684
The Blankenship Law Firm, P.S.
9
1201 Third Avenue, Suite 2880
10
Seattle, WA 98101
Telephone: (206) 343-2700
11 Fax: (206) 343-2704
Email: sblankenship@blankenshiplawfirm.com
12 nyoussef@blankenshiplawfirm.com
rgoldsworthy@blankenshiplawfirm.com
13
Attorneys for Plaintiff
14

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THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 13 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 295 Filed 01/28/11 Page 15 of 15

1
DECLARATION OF SERVICE
2

3 The undersigned hereby declares under penalty of perjury under the laws of the State of

4 Washington that, on the below date, I mailed or caused delivery and/or electronically filed a true

5 copy of this document, which will send notification of such filing, to the following persons:

6
Stephanie R. Alexander, Esq.
7 Suzanne K. Michael, Esq.
Thomas P. Holt, Esq.
8 Michael & Alexander, PLLC
One Convention Place
9 701 Pike Street, Suite 1150
Seattle, WA 98101
10 Telephone: (206) 442-9696
Fax: (206) 442-9699
11 Email: stephanie@michaelandalexander.com
suzanne@michaelandalexander.com
12 thomas@michaelandalexander.com
13 Attorneys for Defendants
14

15
DATED this 28th day of January, 2011, at Seattle, Washington.
16

17

18
/s/ Scott C.G. Blankenship
Scott C. G. Blankenship, WSBA No. 21431
19 The Blankenship Law Firm, P.S.
1201 Third Avenue, Suite 2880
20 Seattle, WA 98101
Telephone: (206) 343-2700
21
Fax: (206) 343-2704
22
Email: sblankenship@blankenshiplawfirm.com

23

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fa270401
THE BLANKENSHIP LAW FIRM, P.S.
PLAINTIFF LINDELL'S REPLY IN SUPPORT OF HER 28th Floor, Washington Mutual Tower
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S 1201 Third Avenue
PRA CLAIMS (Cause No. C 08-1827 JLR) Page 14 Seattle, Washington 98101
(206) 343-2700

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