Freedom Found. v. Wash. State Dep't of Soc. & Health Servs.

9 Wash.App.2d 654

445 P.3d 971

FREEDOM FOUNDATION, a Washington nonprofit organization, Appellant,

v.WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES ("DSHS"), an agency of the State of Washington, Respondent.

No. 51498-2-II

Court of Appeals of Washington, Division 2.

Filed August 6, 2019

Eric Rolf Stahlfeld, Attorney at Law, 145 Sw. 155th St. Ste. 101, Burien, WA, 98166-2591, Sydney Paige Phillips, Attorney at Law, 800 Yauger Way Sw. Unit D105, Olympia, WA, 98502-8915, Counsel for Appellant(s).

Margaret C. Mclean, Office of the Attorney General, P.o. Box 40145, Olympia, WA, 98504-0124, Susan Sackett Danpullo, Office of the Attorney General, 7141 Cleanwater Dr. Sw., P.o. Box 40145, Olympia, WA, 98504-0145, Counsel for Respondent(s).

PUBLISHED OPINION

Maxa, C.J. ¶1 The Freedom Foundation (Foundation) appeals the trial court’s ruling that the Department of Social and Health Services (DSHS) did not violate the Public Records Act (PRA), chapter 42.56 RCW, in responding to the Foundation’s requests for records pertaining to at-home care providers (individual providers) who provide personal care services to functionally disabled persons.

¶2 The Foundation made a PRA request with DSHS in April 2017, seeking records regarding the time and location of contracting appointments for individual providers and of opportunities for individual providers to view safety and orientation training videos. The Foundation in January 2016 had made a virtually identical request but for an earlier time period. This court affirmed the trial court’s denial of an injunction regarding the January 2016 PRA request in SEIU 775 v. DSHS , 198 Wash. App. 745, 396 P.3d 369, review denied 189 Wash.2d 1011, 402 P.3d 828 (2017). The April 2017 request was made on the same day that this court issued its decision in SEIU 775 .

¶3 DSHS notified the Foundation that it would not be able to produce the records responsive to the April 2017 PRA request until about June 13. DSHS also informed SEIU, the union representing the individual providers, and the SEIU Healthcare NW Training Partnership (Training Partnership) of the Foundation’s PRA request. The Training Partnership responded by requesting from DSHS the same records the Foundation had requested. DSHS produced the records to the Training Partnership in installments on May 12 and June 9 and set deadlines for the Training Partnership to enjoin production of the records to the Foundation. But DSHS did not produce the same records to the Foundation until later. The Foundation filed suit against DSHS, claiming that DSHS’s conduct in responding to the April 2017 request violated the PRA. The trial court dismissed the lawsuit.

¶4 We hold that (1) the Foundation’s lawsuit was not untimely even though the Foundation filed its compliant before DSHS took a final action on its PRA request, (2) DSHS’s estimate of the time needed to respond was reasonable because DSHS’s regional and area offices needed time to compile the responsive records, (3) DSHS did not unlawfully distinguish between the Foundation and the Training Partnership because the PRA allows an agency to delay production of requested records to allow a person affected by the production to obtain a court order preventing disclosure, and (4) DSHS did not violate the PRA by failing to produce the records to the Foundation on June 9, 2017.

¶5 Accordingly, we affirm the trial court’s judgment dismissing the Foundation’s lawsuit.

FACTS

Original PRA Request

¶6 The Foundation filed a PRA request with DSHS on January 12, 2016, requesting "[t]he times and locations of all contracting appointments for individual providers" and the "times and locations of any state-sponsored or facilitated opportunities for individual providers to view the initial safety and orientation training videos," both between November 1, 2015 and December 31, 2016. Clerk’s Papers (CP) at 40.

¶7 SEIU sought an injunction to prevent DSHS from releasing the requested records. SEIU 775 , 198 Wash. App. at 747, 396 P.3d 369. The trial court denied SEIU’s request and SEIU appealed. Id. at 749, 396 P.3d 369. This court issued a stay prohibiting DSHS from releasing the records while the case was pending on appeal. This court subsequently held that the requested records did not fall within an exception to the PRA and affirmed the trial court’s denial of SEIU’s request for an injunction.

SEIU 775 , 198 Wash. App. at 756-57, 396 P.3d 369. The opinion was issued on April 25, 2017. Id. at 745, 396 P.3d 369.

The Foundation’s April 25, 2017 PRA Request

¶8 On the same day that this court filed its April 25 opinion in SEIU 775 , the Foundation filed a new PRA request. The Foundation requested "[t]he times, dates, and locations of all contracting appointments for individual providers" and the "times, dates, and locations of all state-sponsored or facilitated opportunities for individual providers to view the initial safety and orientation training videos," both between January 1 and December 31, 2017. CP at 410.

¶9 DSHS responded on May 2, which was within five business days of the Foundation’s request. In order to locate and assemble the responsive records, the DSHS public records officer needed to contact three regional offices and 14 area offices. And on the same day that DSHS received the Foundation’s request, DSHS also received approximately 79 other PRA requests and already was processing about 60 PRA requests. DSHS stated in its response letter, "Due to workload, the number of other pending requests and the scope of your request, we estimate it will take up to 30 business days or until about June 13, 2017, to find, review, copy and produce any available records." CP at 311.

The Training Partnership’s May 8, 2017 PRA Request

¶10 Also on May 2, DSHS notified SEIU and the Training Partnership that it had received a PRA request and that the responsive records related to SEIU and union members. DSHS informed SEIU and the Training Partnership that they had until May 16 to seek an injunction preventing the release of the requested records.

¶11 On May 8, the Training Partnership replied that it typically received a copy of responsive records before determining if it was appropriate to seek an injunction and requested that DSHS provide a copy of the records. DSHS treated this request for records as a PRA request. DSHS responded to the Training Partnership’s request by producing some of the requested records on May 12. DSHS also extended the deadline for the Training Partnership to obtain an injunction to May 26.

Subsequent Developments

¶12 On April 26, 2017, this court had entered an order stating that the previously issued stay prohibiting DSHS from releasing the records sought in the January 2016 PRA request would continue in force until a mandate was issued. The parties disagreed whether the stay extended to the April 2017 request. On May 15, this court issued a stay prohibiting the release of the records responsive to the April 2017 PRA request pending further briefing on the issue. DSHS informed the Training Partnership on June 2 that it could not produce the remainder of the requested records because of the stay.

¶13 On June 9, this court entered an order clarifying that DSHS was not enjoined from releasing the records the Foundation requested in its April 2017 PRA request. On that same day, the Foundation emailed DSHS and stated its expectation that the requested records would be produced by the end of the day. Counsel for DSHS replied, "DSHS previously sent a letter estimating its response date. We will let you know if there are changes to that estimated time frame." CP at 308. Also on June 9, DSHS produced to the Training Partnership the reminder of the records it had requested on May 8. DSHS extended the deadline for the Training Partnership to obtain an injunction to June 12.

¶14 Meanwhile, on May 24 SEIU had filed a petition for discretionary review of this court’s decision in SEIU 775 with the Supreme Court. On June 12, SEIU notified DSHS and the Foundation that it planned to file an emergency motion in the Supreme Court to enjoin DSHS from releasing the records sought in the Foundation’s April 2017 PRA request. DSHS told the Foundation that it would not release those records to the Foundation pending receipt of the motion. On June 13, the Supreme Court temporarily enjoined DSHS from releasing records in response to the Foundation’s April 2017 PRA request. The temporary stay expired on July 10.

¶15 On July 11, DSHS produced to the Foundation the records responsive to its April 2017 PRA request. The records produced consisted of a 12-page spreadsheet providing the information the Foundation had requested.

Lawsuit Against DSHS

¶16 On June 12, the Foundation filed a complaint against DSHS based on its April 2017 PRA request. The Foundation alleged that DSHS had violated the PRA by providing an unreasonable estimate of the time necessary to respond to the request. In its answer to the Foundation’s complaint, DSHS argued that the Foundation’s claims were untimely because the agency had not yet taken a final action on the Foundation’s PRA request.

¶17 The Foundation did not assert claims for other PRA violations relating to the delay in producing records in its complaint. Those claims were first asserted in the Foundation’s summary judgment motion in October 2017.

¶18 In November, the trial court held a hearing on the merits pursuant to RCW 42.56.550(2).¹ The Foundation argued that DSHS had violated the PRA by (1) providing an unreasonable time estimate, (2) distinguishing between requestors, (3) failing to provide the fullest and timeliest assistance, and (4) delaying the release of records. DSHS argued that the trial court should dismiss the Foundation’s claims because the Foundation’s lawsuit was filed before DSHS produced the records, and therefore was not timely.

¶19 The trial court issued written findings of fact and conclusions of law. The court initially concluded that all of the Foundation’s claims were...