Conklin v. Univ. of Wash. Sch. of Med.

JEREMY CONKLIN, DO, an individual, Appellant, v. UNIVERSITY OF WASHINGTON SCHOOL OF MEDICINE, a Washington public educational institution; UNIVERSITY OF WASHINGTON MEDICINE, a Washington public health system; and UNIVERSITY OF WASHINGTON MEDICAL CENTER, a Washington public hospital, Respondents.

No. 83200-0-I

Court of Appeals of Washington, Division 1

January 3, 2023

UNPUBLISHED OPINION

Coburn, J.

Dr Jeremy Conklin, personally and through his attorneys, made four separate Public Records Act (PRA) requests to the University of Washington (UW) mostly related to its surgical fellowship program. Conklin contends that UW violated the PRA by providing unreasonable response estimates, delaying release of records, and conducting an inadequate search to provide responsive records. Because UW did not conduct an adequate search and did not provide some responsive documents until after UW considered the request closed, we reverse the trial court's denial of claims related to that request and award attorney fees. We remand for the trial court to determine the amount of attorney fees and costs on appeal and below, and to proceed with the penalty phase of trial as well as reconsider Conklin's request for an in camera review. We otherwise affirm the trial court in denying Conklin's remaining PRA claims.

FACTS

Conklin is an osteopathic surgeon with a doctor of osteopathic medicine degree. In 2017, he applied but was not accepted to the UW's congenital cardiac surgery fellowship program. UW School of Medicine (SoM) participates in a fellowship "match" system operated by the Congenital Cardiac Surgery Fellowship Committee of the Thoracic Surgery Directors Association (TSDA). Over a period of about two years, he and his attorneys submitted to UW four separate records requests as Conklin pursued claims against UW and others in federal court, including a claim under the PRA.

UW's Public Records Request Process

UW's Office of Public Records and Open Meetings (OPR) is the institutional office at UW that is responsible for managing responses to public records requests. In January 2021, OPR had nine employees who helped manage responses to PRA requests. OPR also worked with many UW employees in other departments to collect and review documents in response to public records requests. OPR does not prioritize, dedicate extra resources to, or otherwise give preferential treatment to a requester that sues UW.

UW receives a high volume of public records requests, and OPR manages responses while considering the essential functions of the university. In 2019, OPR received 932 PRA requests and OPR staff reviewed approximately 3.2 million pages. In 2020, OPR received 831 PRA requests, and OPR staff reviewed approximately 1.3 million pages. As of January 1, 2021, OPR had 320 open requests and 1,424,924 pages in queue to be reviewed with many more documents in the process of being gathered and transferred to OPR by divisions and colleges throughout UW.

To gather responsive documents, OPR identifies the colleges schools, and divisions at UW that potentially have responsive records, notifies a point of contact, and asks for feedback on how long it will take to gather responsive documents. There are approximately 50 colleges, schools, and divisions at UW that OPR manages. OPR takes the feedback it receives from colleges, schools, and divisions with potentially responsive records on the time needed to gather those records and provides estimates to requesters on the length of time it will take to further respond to their requests. The colleges, schools, and divisions gather documents responsive to public records requests and submit them to OPR to review for any applicable exemptions.

OPR then reviews the records and determines whether the record is wholly releasable or partially exempt from release, in which case redactions are applied to portions of the record and marked with codes referencing the specific applicable exemption. If OPR decides the record is wholly exempt, OPR creates a log of those documents.

When OPR completes its review, it releases responsive records to the requester, including those that are partially releasable along with a cover letter explaining any exemptions applied, and, if applicable, a log of wholly exempt records. For requests for records that take a long time to respond to completely and/or include a large volume of records, OPR will make interim releases of records to requesters on a rolling basis as the review of records is completed.

If a request for public records seeks multiple categories of documents, OPR still refers to it as a single request and processes the review and release of records from that request collectively, closing the request only when responding to all components is complete. If OPR receives multiple separate requests submitted by the same requester at different times, OPR processes the requests in the order received, prioritizing its review of records responsive to the earliest request before moving to the subsequent requests. OPR considers the requester the individual who made the public records request even if they may be making the request on behalf of someone else.

The Public Records Requests

A. First Request: PR-2017-00920

On November 16, 2017, Conklin's attorney at the time, Kristi Favard, requested the following records from UW, which identified this request as PR-2017-00920 (PR-920):

-all agreements between UW Medical Center and the Thoracic Surgery Director's Association and/or American Board of Thoracic Surgery;

-all Medicare funding information, grants, agreements, etc. regarding UW Medical Center's Medicare grants for residencies and fellowships;

-all documents regarding any osteopathic physician application (individual or in general) to any residency or fellowship at UW Medical Center for the past 10 years, including but not limited to applications, correspondence, inter office emails or memos, etc.; -all documents regarding Dr. Jeremy Conklin's applications to the UW Medical [C]enter for residency/fellowship;

-all documents regarding RCW 70.41.235 from 1995 to present;

-all documents regarding osteopathic physicians as residents/fellows at UW Medical Center, including any lists of all residents and fellows and their professional titles (OD [v.] MD), selected over the past 10 years.

Tisa Escobar, a public records compliance officer at OPR, acknowledged receipt of the request that same day and estimated that UW would respond to the request by December 18. As of that day, OPR had 182 open requests and over 750,000 pages of records awaiting review. Escobar, who had worked in OPR since before the first request was submitted in 2017, described PR-920 as one of the broadest requests she had ever managed.

She then contacted UW Medicine, including SoM, to gather responsive records. On November 17, SoM received the request from OPR. On November 27, Courtney Ng, the records manager in the Dean's Office for SoM, sent initial notifications of the request to SoM's Graduate Medical Education Office (GME), the Department of Surgery, and SoM's Business Unit. Ng began to receive responsive records from SoM's Business Unit on November 30.

Generally, Ng or an assigned analyst assesses how long it will likely take to gather records by discussing with record holders the volume of records, technical assistance needed, as well as the schedules and functions of the personnel needed to locate and retrieve the records. Record holders in SoM often have responsibilities in education, patient care, research, and other critical functions. After receiving documents and before submitting to OPR, Ng or an analyst reviews the records to confirm they are responsive and screens for potential exemptions such as unpublished research and protected patient information, which must be redacted prior to disclosure. Although OPR conducts its own review for exemptions, SoM's review "identifies potentially exempt material which OPR may otherwise be unable to identify as easily, e.g., because the exemptions are unique to the SoM or because identifying the exempt material requires consultation with SoM record holders."

On December 6, GME notified Ng that it had some responsive records, including partial fellowship files, but determined that fellowship applications were stored in a third-party system and potentially with departments that oversee the particular residency and fellowship programs. The office needed additional time to research how to access the records but provided her with an initial batch of responsive records. On December 13, GME alerted Ng that because there was no central records system she would need to individually reach out to different departments. That same day, Ng requested OPR extend its initial internal target production date from December 5 to February 15, 2018. On December 18, Escobar emailed Favard stating OPR found it necessary to extend UW's response date to April 27, 2018. On December 20, Favard emailed Escobar objecting to the extension, alleging that the estimated response time was unreasonable.

In January or February 2018, Escobar became aware Conklin filed a lawsuit against UW,^[1] but stated she continued managing PR-920 in the same manner as she would any other request. When there were multiple open requests from the same requester, it was common for OPR to respond to the requests in the order received in order to balance the rights of all requesters. January 4, GME sent Ng a finalized list of departments and programs that matched parameters of PR-920. GME also provided all of its remaining responsive records to Ng on January 31, 2018.

On February 1, SoM reached out to 18 departments with an initial deadline for response set for February 8. Ng spent a majority of her...