City Of Seattle, Appellant-cross App V. James Egan, Resp-cross App

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE, a Washington
municipal corporation,
Appellant/Cross-Respondent,
v.
JAMES EGAN, an individual,
Respondent/Cross-Appellant,
FISHER BROADCASTING-SEATTLE
TV LLC, d/b/a KOMO 4,
Intervenor.
Grosse, J. — Sanctions under CR 11 are not warranted where an agency
brings an action for declaratory and injunctive relief under the Public Records Act
(PRA), chapter 42.56 RCW, in response to a requestor's threat to sue. 	Here, the
city of Seattle (City) sought guidance on whether a provision of the Washington
privacy act1 is an "other statute" within the meaning of the PRA, thus permitting
the City to deny the respondent's requests for Seattle Police Department "dash-
cam" videos.2 	The trial court found that even though the privacy act applied and
the City's suit was not frivolous, it was brought for an improper purpose becaiiSfe
•c-
the City was already defending an action involving a similar violation of the Pf^.
This was an abuse of discretion. 	Accordingly, we vacate the award of attorney
fees under CR 11.
1 RCW 9.73.090(1 )(a),(c).
2 RCW 42.56.070(1).
No. 69420-1-1
(consolidated with No. 69723-4-1)
DIVISION ONE
UNPUBLISHED OPINION
FILED: February 18, 2014
v?
cop-.:

No. 69420-1-1/2
FACTS
On September 23, 2011, James Egan requested records from the Seattle
Police 	Department's 	Office 	of 	Professional 	Accountability's 	(OPA) 	internal
investigation regarding 	complaints 	that 	had 	been 	made 	against four police
officers. The records requested included copies of 36 dash-cam videos reviewed
in connection with the investigations of those complaints. 	The City provided
Egan with some records but refused to release 35 of the 36 dash-cam videos,
claiming those were exempt from disclosure under RCW 9.73.090(1 )(c). 	RCW
9.73.090(1)(c) prohibits the City from providing videos to the public until final
disposition of any criminal or civil litigation that arises from the event or events
that were recorded.3
Egan disputed 	the application of that exemption and wrote a letter to
Police Chief John Diaz requesting that the documents be produced or Egan
would seek "statutory damages at the 	maximum level based on the 	Public
Disclosure Act, which trumps the exceedingly broad, self-protective interpretation
of RCW 9.73.090(1 )(c) recently provided by your office."
After receiving that letter, the City filed a complaint for declaratory and
injunctive 	relief 	seeking 	a 	declaratory judgment 	that 	RCW 	9.73.090(1 )(c)
prohibited the City from releasing copies of the videos at this time. 	The City
3 RCW 9.73.090(1 )(c) provides:
No sound or video 	recording 	made under this subsection
(1)(c) may be duplicated and made available to the public by a law
enforcement agency subject to this section until final disposition of
any criminal or civil litigation which arises from the event or events
which were recorded. Such sound recordings shall not be divulged
or 	used 	by any 	law enforcement 	agency 	for any 	commercial
purpose.

No. 69420-1-1/3
further sought injunctive relief, under RCW 42.56.540, to enjoin the release of the
dash-cam videos until final disposition of any criminal or civil litigation arising
from the recorded events.
Fisher Broadcasting-Seattle TV LLC, d/b/a KOMO 4 (KOMO) moved to
intervene in this matter because it had sued the City to compel disclosure of
public records, including police dash-cam videos.4 	One of the issues in KOMO's
litigation was whether a provision of the Washington privacy act5 prohibiting such
disclosure falls within the ambit of an "other statute" within the meaning of the
PRA.6 	If so, the dash-cam 	videos would 	be exempt from 	disclosure.7 	On
February 	1, 	2012, 	the 	trial 	court 	granted 	KOMO's 	CR 	24(b)(2) 	motion 	to
intervene. 	Because KOMO filed a summary judgment motion in its litigation with
the City, Judge Dean Lum continued the City's motion until Judge Jim Rogers
had an opportunity to rule on the matter.
On 	the 	issue 	pertinent 	to 	this 	case, 	Judge 	Rogers 	ruled 	that 	RCW
9.73.090(1 )(c) fits the "other statute" exemption to the PRA within the meaning of
RCW 42.56.070, and prohibits disclosure of Seattle Police Department dash-cam
videos 	to 	the 	public 	until at 	least three 	years 	after the 	date 	of the 	event
recorded.8
4 Fisher Broadcasting-Seattle TV LLC, d/b/a KOMO 4 v. City of Seattle and
Seattle Police Department. King County No. 11-2-31920-2.SEA.
5 RCW 9.73.090(1 )(a),(c).
6 RCW 42.56.070(1).
7 Ch. 42.56 RCW.
8 KOMO appealed this issue and others directly to the Supreme Court, which
heard argument on May 14, 2013. 	Fisher Broadcasting-Seattle TV LLC, d/b/a
KOMO 4 v. City of Seattle, No. 87271-6, argued before the Supreme Court on
May 14, 2013.

No. 69420-1-1/4
In the 	case presently before us, Judge Lum found the City's position
untenable, ruling that the KOMO case would resolve the central issue in the case
against Egan and that the City's suit was improper "because it was unnecessary
and was filed to obtain litigation advantage" in the KOMO case. 	The trial court
concluded that the City had violated CR 11 by filing the declaratory judgment
action and imposed fees of $14,676.25 against the City as a sanction under CR
11.
The City appeals the award of fees under CR 11, contending its action
was properly brought. 	In a separate appeal, consolidated with the City's appeal,
Egan contends the court improperly reduced the attorney fees he submitted.
ANALYSIS
This court reviews a trial court's imposition of CR 11 sanctions for abuse
of discretion.9 	A trial court abuses its discretion when its order is manifestly
unreasonable or based on untenable grounds.10 	In deciding whether the trial
court abused 	its discretion, this 	court must "keep in mind 	[tjhat the purpose
behind CR 11 is to deter baseless filings and to curb abuses of the judicial
system."11 	"CR 11 is not meant to act as a fee shifting mechanism, but rather as
a deterrent to frivolous pleadings."12 CR 11 addresses two types of problems: (1)
filings 	that are 	not grounded 	in 	fact and warranted by law and 	(2) filings
9 	Biggs v. Vail. 	124 Wn.2d 	193, 197, 876 P.2d 448 (1994); 	In re Recall of
Lindguist, 172Wn.2d 120, 141. 258 P.3d 9 (2011) (citing Wash. State Physicians
Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993)).
10 Lindguist, 172 Wn.2d at 141.
11 Biggs, 124 Wn.2d at 197 (alteration in original) (quoting Brvant v. Joseph Tree,
Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992)).
^acDonald v. Korum Ford, 80 Wn. App. 877, 891, 912 P.2d 1052 (1996).

No. 69420-1-1/5
interposed for an improper purpose.13 	Washington courts recognize that CR 11
sanctions may have a "potential chilling effect."14 	Under CR 11 the court may
impose sanctions if pleadings are filed for an improper purpose or without a basis
in law or fact.15
CR 11 provides in pertinent part:
The signature of a party or of an attorney constitutes a certificate by
the 	party or attorney 	that 	the 	party or attorney 	has 	read 	the
pleading, motion, or legal memorandum, and that to the best of the
party's or attorney's knowledge, 	information, 	and 	belief, 	formed
after an inquiry reasonable under the circumstances: (1) it is well
grounded in fact; (2) it is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law
or the establishment of new law; (3) it is not interposed for any
improper purpose, 	such 	as to 	harass or to 	cause 	unnecessary
delay or needless increase 	in the cost of litigation; and (4) the
denials of 	factual contentions are warranted on the evidence or, if
specifically 	so 	identified, 	are 	reasonably based 	on 	a 	lack of
information 	or 	belief. 	... 	If 	a 	pleading, 	motion, 	or 	legal
memorandum is signed 	in violation of this 	rule, the court, 	upon
motion or upon its own initiative, may impose upon the person who
signed it, a represented 	party, or both, an appropriate sanction,
which may include an order to pay to the other party or parties the
amount of the reasonable expenses incurred because of the filing
of 	the 	pleading, 	motion, 	or 	legal 	memorandum, 	including 	a
reasonable attorney fee.
The trial court dismissed the City's suit because it believed that the suit
was unnecessary and was brought for an improper purpose to gain a litigation
advantage. 	In his June 26, 2012 order, Judge Lum stated:
By requesting a preliminary injunction, the City was able to obtain
an expedited hearing that would be heard in this Court prior to the
summary judgment hearing scheduled with Judge Rogers.
13 Bryant, 119 Wn.2d at 217 (quoting CR 11).
14 Bryant, 119 Wn.2d at 219: see also Skimming v. Boxer, 119 Wn. App. 748,
755, 82 P.3d 707 (2004).
15 Biggs. 124 Wn.2d at 201.

No. 69420-1-1/6
KOMO argued and the trial court agreed that the City's motive was to obtain a
ruling on the pending issue with more advantageous facts than those that were
before Judge Rogers. 	A party cannot be faulted for trying to gain a litigation
advantage. 	Moreover, Judge Lum was not required to accept Judge Rogers'
ruling. 	There 	is no 	evidence that this 	action was 	brought for an 	improper
purpose. 	It was not brought to harass Egan or to cause unnecessary delay or
needlessly increase the cost of litigation.16 	Nor was the City collaterally estopped
from bringing this action as there was no privity of parties.
Egan threatened to sue the City for not releasing the dash-cam videos and
the plain language of the PRA permits agencies to seek injunctive relief in such
circumstances. 	RCW 42.56.540 provides:
The examination of any specific public record may be enjoined if,
upon motion and affidavit by an agency or its representative or a
person 	who 	is 	named 	in 	the 	record 	or 	to 	whom 	the 	record
specifically pertains, the superior court for the county in which the
movant resides or in which the record is maintained, finds that such
examination would clearly not be in the public interest and would
substantially 	and 	irreparably 	damage 	any 	person, 	or 	would
substantially and irreparably damage vital governmental functions.
An agency has the option of notifying persons named in the record
or to whom a record specifically pertains, that release of a record
has been requested. However, this option does not exist where the
agency is required by law to provide such notice.[17]
Judge Lum adopted Judge Rogers' ruling that the privacy act was an "other
statute" within the meaning of the PRA and thus precluded the release of the
16 See Chambers v. NASCO, Inc., 501 U.S. 32, 46 n.10, 111 S. Ct. 2123, 115 L
Ed. 2d 27 (1991) (person filing 	paper with the court warrants that it "'is not
interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increases in the cost of litigation'") (quoting Federal Rule of
Civil Procedure 11).
17 (Emphasis added.)
6

No. 69420-1-1/7
dash-cam videos. 	Judge Lum was not required to defer to Judge Rogers' ruling
and could have decided the issue differently. 	Here, the information sought was
exempt from disclosure under the privacy act. 	The City is essentially penalized
for winning its action.
Judge Lum also found the City's suit deficient because the City failed to
comply with RCW 42.56.540. 	RCW 42.56.540 is a specific procedural statue that
controls 	the 	generalized 	provisions 	contained 	in 	the 	Uniform 	Declaratory
Judgment Act, 	chapter 7.24 	RCW. 	RCW 42.56.540 	requires 	a 	three 	part
showing:
(1) A specific applicable PRA exemption exists;
(2) Nondisclosure would be in the public interest;
(3) Disclosure would substantially and irreparably damage a person
or vital government interest.
The trial court noted that because of Judge Rogers' order, the City established
the 	first 	and 	third 	prongs, 	but 	failed 	to 	address 	the 	second 	prong—that
nondisclosure would be in the public interest. 	Because of that failure, the trial
court concluded that the City's suit would have been dismissed on procedural
grounds without ever reaching the issue of whether the privacy act provided a
valid exemption to disclosure under the PRA. 	But the fact that a complaint "does
not prevail on its merits is by no means dispositive of the question of CR 11
sanctions."18 	Moreover, the legislature enacted the bill to remove restrictions and
requirements 	regarding 	the 	intercepting, 	recording, 	or 	divulging 	of 	private
18 Bryant, 119 Wn.2d at 220.

No. 69420-1-1/8
communication by law enforcement. 	The public's right to privacy is paramount.19
The legislature permitted law enforcement to record in limited circumstances and
then imposed criminal sanctions for violation of the restrictions imposed on the
recordings. That necessarily involves the public's interest in nondisclosure.
We vacate the court's imposition of CR 11 sanctions. 	Because sanctions
should not have been imposed, no attorney fees should have been awarded and
we therefore need not address whether the amount of those attorney fees were
appropriate.20
WE CONCUR:
'~*
19 See Bainbridge Island Police Guild v. City of Puvallup, 172 Wn.2d 398, 420,
259 P.3d 190 (2011) (holding police officer's identity exempt from disclosure
under the 	Criminal 	Records 	Privacy Act even 	though 	the 	remainder 	of the
investigative records were subject to disclosure).
20 CR 11. 	We deny the City's motion to take judicial notice that Egan filed a
complaint under the PRA requesting these same documents in Miguel Oregon v.
City of Seattle, King County No. 12-2-38162-3.SEA.
8