Kamal Mahmoud, Appellant / Cross-respondent V.snohomish County, Respondent / Cross-appellant

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20Jf;OCT 27 	,';;!!: 1,3
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KAMAL MAHMOUD,
Appellant,
SNOHOMISH COUNTY, a political
subdivision of Washington state,
Respondent.
NO. 70757-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	October 27, 2014
Leach, J. — Kamal Mahmoud appeals trial court orders dismissing his
claims 	against 	Snohomish 	County 	(County) 	arising 	from 	five 	of 	six 	Public
Records 	Act1 	(PRA) 	requests. 	He 	contends 	that 	because 	the 	County's
responses violated the PRA, no statute of limitations bars his claims. 	Mahmoud
also 	appeals 	the 	court's 	attorney 	fee 	award 	and 	denial 	of 	his 	motion 	for
reconsideration. 	The County cross appeals, arguing that the statute of limitations
bars 	all 	six 	of 	Mahmoud's 	claims. 	The 	County's 	responses 	to 	each 	of
Mahmoud's 	public 	records 	requests 	triggered 	the 	one-year 	PRA 	statute 	of
limitations, which bars all six of Mahmoud's claims. 	Accordingly, we affirm the
trial court as to the dismissal of five claims on the basis of the PRA statute of
limitations and reverse the trial court's order and penalties relating to the sixth
Ch. 42.56 RCW.

NO. 70757-4-1 / 2
claim. We affirm the trial court's denial of Mahmoud's motion for reconsideration
and reverse the trial court's award of costs and attorney fees.
FACTS
Mahmoud worked as a civil engineer for Snohomish County from July
2006 	to 	December 	31, 	2009. 	In 	May 2009, 	he 	filed 	an 	internal 	Equal
Employment 	Opportunity 	(EEO) 	complaint, 	alleging 	unlawful 	discrimination
and/or retaliation. 	Mahmoud later made six requests to the County under the
PRA, 	seeking documents related to his termination.2 	The County claimed a
categorical exemption for one request and produced responsive records for five
requests.
1. 	09-05374
On August 3, 2009, 	Mahmoud requested a copy of the County's EEO
investigation file "to include all interview notes, documents, emails, and findings
related to my complaint." 	On August 7, the County notified 	Mahmoud that
responsive 	records were exempt from 	production "at this time" under RCW
42.56.250(5).3 	In 	letters dated 	October 20, 	2009, 	and 	February 11, 	2010,
2 Mahmoud 	made 	a seventh 	request (10-08644) not at issue 	in this
appeal.
3 Former RCW 42.56.250(5) (2005) exempts from public inspection and
copying"[i]nvestigative records compiled by an employing agency conducting a
current investigation of a possible unfair practice under chapter 49.60 RCW or of
a possible violation of other federal, state, or local laws prohibiting discrimination
in employment."
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NO. 70757-4-1 / 3
Mahmoud's 	attorney 	wrote 	"to 	follow 	up" 	and 	"check 	on 	the 	status" 	of
Mahmoud's request for the investigation file and of a second request filed the
same day. 	The County did not respond to either of these letters. 	The EEO
investigation closed in late March 2010.
2. 	09-05375
Also on August 3, 2009, Mahmoud requested "all emails sent to and from"
six county employees, "including any archived emails on the individuals [sic] C
drive, P drive, or any other county network drive," from January 1, 2008, to the
present. 	The County first responded on August 5, 2009, and next on October 21,
2009, when Department of Public Works Manager Pamela Miller produced a CD
(compact disc) of "approximately 4,700 emails." 	On April 2, 2010, Miller notified
Mahmoud that a DVD (digital video disk) with a second installment was ready for
him, along with a redaction log for both installments. 	On June 4, 2010, Mahmoud
e-mailed Miller that the records did not include "most of the info I requested." 	On
June 7, Miller responded that the County's Department of Information Services
(DIS) captured "all emails within the parameters you specified," but that due to
earlier deletions and the "state recommended archive schedule ... it may very
well be that many of the emails were not required to be retained."
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NO. 70757-4-1/4
3. 	10-01666
On March 15, 2010, Mahmoud requested all e-mail sent or received by
four county employees between January 1, 2009, and March 1, 2009. 	Mahmoud
also requested "policies or procedures related to preservation, back-up, and/or
archiving of emails by the Department of Information Services." 	On May 20, the
County produced an installment of records. 	It produced four more installments
and an exemption log on June 11, June 29, July 12, and November 22, 2010.
4. 	10-05383
On July 23, 2010, Mahmoud requested
any and all entries made by [supervisor] Max Phan from January
2008 to August 2009 in his "journal" and/or other notes and files,
concerning Kamal Mahmoud. 	This request is intended to include
but 	not 	be 	limited to 	any 	entries 	regarding 	alleged 	complaints
regarding Mr. Mahmoud received by Mr. Phan from [certain county
employees], or any other individual.
After initially responding on July 28, the County attached to an August 16
e-mail "all documents responsive to your request." 	The e-mail noted that there
were no redactions and that the County withheld one document: 	a memorandum
from 	Phan 	to 	Steven 	Bladek 	"exempt 	from 	disclosure 	pursuant 	to 	RCW
5.60.060(2)(a)."4 The e-mail concluded, "This request is now considered closed."
In March 2012, in response to Mahmoud's discovery requests, the County
produced additional journal entries that it had not provided previously or claimed
4 RCW 5.60.060(2)(a) concerns the attorney-client privilege.
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NO. 70757-4-1 / 5
as exempt. 	Phan conceded 	in a declaration that he 	had "additional journal
entries related to Mr. Mahmoud and his work with the County," but that because
these were not directly 	related 	to complaints 	about Mahmoud, 	he "did 	not
understand 	his request to be seeking those records. 	As a result, 	I did 	not
produce those records in response to PDR #10-05383. 	This was a mistake on
my part."
5. 	10-05392
On December 5, 2010, Mahmoud requested all e-mail sent or received by
three 	county 	employees 	between 	October 	1, 	2008, 	and 	January 	31, 	2009,
"including any archived emails on the individuals [sic] C drive, P drive, or any
other county 	network drive," 	as well 	as copies of policies 	related 	to e-mail
preservation. 	On December 9, 2010, the County produced records related to e-
mail preservation. 	On January 19, 2011, Miller notified Mahmoud that DIS had
completed 	the 	search 	and 	found 	no 	e-mail 	responsive 	to 	his 	request. 	In
response to Mahmoud's question about what happened to the e-mail, she said
that "since its [sic] 2 years ago it would be my assumption that they have been
deleted since they weren't located."
6. 	10-08593
On 	January 	14, 	2011, 	the County 	produced 	records 	in 	response to
Mahmoud's request for e-mail records of two county employees from September
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NO. 70757-4-1 / 6
1, 2009, to December 31, 2009. 	On February 25 and 28, 2011, the County
produced two more installments and an exemption log.
On June 30, 2011, Mahmoud filed a complaint against the County in King
County Superior Court, alleging discrimination and retaliation.5 	On August 30,
2012, 	sometime after receiving the County's discovery 	responses, 	Mahmoud
amended his complaint to add claims for PRA violations.
The trial court denied the County's motion for summary judgment, ruling
that Mahmoud's claims were not time barred. 	The court granted in part the
County's motion for reconsideration, ruling that Mahmoud's claims arising from
request 09-05374 were barred by either the one-year PRA statute of limitations,
RCW 42.56.550(6), or the general two-year statute, 	RCW 4.16.130. 	But the
court denied the County's motion for reconsideration as to Mahmoud's other five
claims, again ruling that they were not time barred.
On April 17, 2013, after a show cause hearing, the court dismissed with
prejudice 	Mahmoud's 	claims 	arising 	from 	requests 	09-05375, 	10-01666, 	10-
08592, and 10-08593, ruling that the County had complied with the PRA. 	But the
court held that the County violated the PRA when it "failed to provide seven
journal entries and one note responsive to public records request #10-05383."
5The parties resolved these claims through mediation, and they are not at
issue in this appeal.
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NO. 70757-4-1 / 7
The court imposed penalties of $18,0006 and 	awarded 	Mahmoud $18,055 in
attorney fees: 	one seventh of his request.
Mahmoud appeals the court's dismissal of five of his claims, the attorney
fee 	award, 	and 	denial 	of 	his motion for 	reconsideration. 	The County cross
appeals the trial court's denial of its motion for summary judgment, contending
that the trial court should have dismissed all six claims on the basis of the statute
of limitations. 	Mahmoud has also filed a motion to strike a portion of the County's
reply brief under RAP 10.1(c). 	Mahmoud seeks attorney fees and costs for his
appeal, as well as fees, costs, and sanctions for the motion to strike.
STANDARD OF REVIEW
We review agency actions 	under the 	PRA and questions of statutory
interpretation 	de 	novo.7 	We 	also 	review de 	novo 	a 	trial court's 	summary
judgment 	decision.8 	Although a 	party generally 	may 	not appeal 	denial 	of
summary judgment,9 we may consider this issue when it involves a purely legal
question.10 A court should grant summary judgment only if
6 The court assessed a penalty of $30 a day for a period of 600 days.
7 Neigh. Alliance of Spokane County v. County of Spokane. 172 Wn.2d
702, 715, 261 P.3d 119 (2011); 	Rental Hous. Ass'n of Puqet Sound v. Citv of
Pes Moines, 165 Wn.2d 525, 536, 199 P.3d 393 (2009); RCW 42.56.550(3).
8 Walston v. Boeing Co., 173 Wn. App. 271, 279, 294 P.3d 759 (2013),
aff'd, No. 88511-7, 2014 WL 4648090 (Wash. Sept. 18, 2014).
9 Waller v. State, 64 Wn. App. 318, 338, 824 P.2d 1225 (1992).
10 See Walston, 173 Wn. App. at 288; 	McKasson v. Johnson, 178 Wn.
App. 422, 423-24, 315 P.3d 1138 (2013).
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NO. 70757-4-1 / 8
"after 	considering 	all 	the 	pleadings, 	affidavits, 	depositions 	or
admissions and all reasonable inferences drawn therefrom in favor
of the nonmoving party, it can be said (1) that there is no genuine
issue as to any material fact, (2) that all reasonable persons could
reach only one conclusion, and (3) that the moving party is entitled
to judgment as a matter of law."[11]
Whether to award costs and attorney fees is a question of law reviewed de novo,
while this court reviews the reasonableness of attorney fee awards for abuse of
discretion.12 	An abuse of discretion standard also applies to a trial court's denial
of a motion for reconsideration.13 A court abuses its discretion when its decision
is manifestly unreasonable or based upon untenable grounds or reasons.14
ANALYSIS
The PRA
The PRA "'is a strongly worded mandate for broad disclosure of public
records.'"15 	Courts liberally construe the PRA in favor of disclosure and narrowly
construe 	its exemptions.16 	The 	PRA requires 	every 	government agency to
produce for inspection and copying any public record upon request unless it falls
within a specific, enumerated exemption.17
11 Walston, 173 Wn. App. at 279 (quoting Baker v. Schatz, 80 Wn. App.
775, 782, 912 P.2d 501 (1996)).
12 Sanders v. State, 169 Wn.2d 827, 866-67, 240 P.3d 120 (2010).
13 Brinnon Grp. v. Jefferson County, 159 Wn. App. 446, 485, 245 P.3d 789
(2011).
14 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239(1997).
15 Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007)
(quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)).
16 RCW 42.56.030.
17 Sanders, 169 Wn.2d at 836; RCW 42.56.070(1).
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NO. 70757-4-1 / 9
A party must file a PRA action "within one year of the agency's claim of
exemption or the last production of a record on a partial or installment basis."18
The PRA does not require an agency to "'create or produce a record that is
nonexistent,'"19 and so an agency response may also include notice that the
requested documents do not exist.20
The 	agency 	has 	the 	burden 	to 	establish 	that 	a 	specific 	exemption
applies.21 	An agency response withholding any public record "shall 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."22 This "brief explanation" should cite the statute granting an exemption
and "'should provide enough information for a requestor to make a threshold
determination of whether the claimed exemption is proper.'"23 	An insufficient
18 RCW 42.56.550(6).
19 Fisher Broad .-Seattle TV LLC v. Citv of Seattle, 180 Wn.2d 515, 522,
326 	P 3d 	688 	(2014 	(internal 	quotation 	marks 	omitted) 	(quoting 	Gendler v.
Batiste 	174 Wn.2d 244, 252, 274 P.3d 346 (2012)); WAC 44-14-04004(4)(a).
20 see Greenhalgh v. Dep't of Corr., 170 Wn. App. 137, 148, 282 P.3d
1175 (2012); WAC 44-14-04004(4)(a) ("An agency is only required to provide
access to public records it has or has used. 	An agency is not required to create
a public record in response to a request.").
21 Neioh. Alliance, 172 Wn.2d at 715.
22 RCW 42.56.210(3).
23 	Rental 	Hous. 	Ass'n, 	165 	Wn.2d 	at 	539 	(quoting 	WAC 	44-14-
-04004(4)(b)(ii)). -9-

NO. 70757-4-1/10
claim of exemption does not trigger the one-year statute of limitations under
RCW42.56.550(6).24
County's Cross Appeal
In its cross appeal, the County argues that the trial court erred by not
dismissing all six of Mahmoud's claims on summary judgment based on the
statute of limitations. 	Mahmoud argues that because the County violated the
PRA, 	no statute of limitations began to run. 	We agree with the County. 	In
response to each of Mahmoud's six requests, the County claimed an exemption,
produced records, or both. 	For each request, 	Mahmoud filed 	his PRA claim
more than one year later.
Reouest 09-05374
Mahmoud 	argues that the County's 	incomplete 	categorical 	exemption
claim for the EEO file and its failure to respond to his two "re-requests" prevented
the PRA statute of limitations from beginning to run. 	Citing Rental Housing Ass'n
of Puget Sound v. Citv of Des Moines,25 Mahmoud challenges the sufficiency of
the 	County's 	exemption 	claim 	because 	it 	did 	not 	"explain 	which 	individual
exemption applied to which individual record rather than categorically asserting
the investigative process exemption as to all withheld documents." 	Thus, he
24 Rental Hous. Ass'n. 165 Wn.2d at 539.
25 165 Wn.2d 525, 539-40, 199 P.3d 393 (2009).
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NO. 70757-4-1 /11
claims, just as in Rental Housing Ass'n, the County's response did not to trigger
the PRA statute of limitations.
We 	disagree. 	In 	Rental 	Housing 	Ass'n, 	the 	City did 	no 	more 	than
"generally assert[ ] the controversy and deliberative process exemptions as to all
withheld documents."26 	Here, 	the County cited the applicable portion of the
statute, which exempts "[investigative records compiled by an employing agency
conducting a current investigation of a 	possible unfair practice under chapter
49.60 	RCW or 	of 	a 	possible violation 	of 	other federal, 	state, 	or local 	laws
prohibiting discrimination in employment."27
Mahmoud also cites Sargent v. Seattle Police Department28 to support his
assertion 	that 	our Supreme 	Court "recently declined 	to 	recognize 	a 	similar
categorical 	exemption 	as 	proper 	under 	the 	PRA." 	But 	Mahmoud
mischaracterizes Sargent. 	In Sargent, the plaintiff requested records from the
Seattle Police Department (SPD) about criminal and internal investigations into
his 	confrontation 	with 	an 	SPD 	officer.29 	The 	SPD 	claimed 	a 	categorical
exemption under RCW 42.56.240(1), the effective law enforcement exemption.30
26 Rental Hous. Ass'n. 165 Wn.2d at 539-40.
27 Former RCW 42.56.250(5) (2005).
28 179 Wn.2d 376, 314 P.3d 1093 (2013).
29 Sargent, 179 Wn.2d at 383.
30 This provision exempts "[s]pecific intelligence information and specific
investigative records compiled by investigative, law enforcement, and penology
agencies" where nondisclosure "is essential to effective law enforcement or for
the protection of any person's right to privacy."
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NO. 70757-4-1/12
The 	court 	held 	in 	Sargent 	that 	once 	the 	police 	referred 	the 	case 	to 	the
prosecutor, 	"nondisclosure 	[was] 	not 	categorical 	and 	automatic"31 	because
"referral to prosecutors signals the police's conclusion of its investigation and is a
bright 	line 	for 	termination 	of the 	categorical 	exemption."32 	But 	the court
reaffirmed its holding in Newman v. King County33 that to protect the integrity of
an ongoing police investigation, a categorical exemption may apply to an "'open
active 	police investigation file.'"34 	In 	Newman, 	the court concluded that the
requested documents pertained to an open case, their production would have
placed a burden on the agency's ability to perform its given role, and the agency
still 	contemplated enforcement 	proceedings.35 	Although 	the County did 	not
conduct a criminal investigation of Mahmoud's EEO claim, as in Newman the
relevant records pertained to an open case, future remedial proceedings were
possible, and production before the case was closed would have impaired the
investigating agency's ability to perform its given role. 	The County's explanation
provided Mahmoud with sufficient information to make a threshold determination
about the County's exemption claim and if he had a cause of action under the
PRA.
31 Sargent, 179 Wn.2d at 388 (citing Cowles Publ'g Co. v. Spokane Police
Dep't, 139 Wn.2d 472, 479-80, 987 P.2d 620 (1999)).
32 Sargent. 179 Wn.2d at 389.
33 133 Wn.2d 565, 947 P.2d 712 (1997).
34 Sargent, 179 Wn.2d at 392 (quoting Newman, 133 Wn.2d at 575).
35 Newman, 133 Wn.2d at 575.
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NO. 70757-4-1/13
Mahmoud also argues that his attorney's letters to the County on October
20, 2009, and February 11, 2010, "re-issued" his request for the investigation file
and 	that 	the 	County 	failed 	either to 	claim 	an 	exemption 	or 	to 	produce 	a
responsive record, as the statute requires. 	But on August 7, 2009, the County
responded 	to 	Mahmoud's request 	for the 	investigation 	file 	by claiming 	an
exemption. 	We disagree that these letters constitute two new public records
requests that the County improperly ignored. 	Additionally, 	in the letters, the
attorney appears to confuse request 09-05374 with Mahmoud's second request,
09-05375, for which the 	County had 	provided time estimates for production.
Mahmoud's contention that the County made no response ignores the fact that
the County produced records for 09-05375 on October 21, 2009, and April 2,
2010: 	one installment following each of the letters.
Under RCW 42.56.550(6), 	the 	limitations period for request 09-05374
expired on August 7, 2010. 	Because Mahmoud did not amend his complaint to
include his PRA claims until August 30, 2012, his claims are time barred under
the PRA.
Reouests 09-05375. 10-01666. 10-08592. and 10-08593
Mahmoud also contends that the County's exemption logs for 09-05375,
10-01666, and 10-08593 were "deficient and violated the PRA" and thus did not
trigger the one-year limitations period. 	Again citing Rental Housing Ass'n, he
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NO. 70757-4-1 /14
argues that an agency does not make a sufficient exemption claim unless the
claim includes the number of pages of each withheld document. 	This argument
fails. 	In Rental Housing Ass'n. the court found the City's response deficient
because it lacked not only the number of pages but also the type of record, date,
author, recipient, or any explanation of which specific exemption applied to each
record.36 	Such a response would 	not give a requester enough information to
know if the claimed exemptions were proper. 	Here, the fact that the County did
not list each record's number of pages does not "defeat[ ] the very purpose of the
PRA to achieve broad public access to agency records."37 	To the contrary, the
County's logs satisfied the "brief explanation" requirement of RCW 42.56.210(3)
by including the date, citation to statutory exemption, author, recipient, and type
and description of each record. 	This triggered the one-year statute of limitations,
which expired for the last of these three requests no later than late February
2012.
Mahmoud also argues that the County's single production in response to
request 10-08592 was incomplete and therefore could not trigger the limitations
period. But "it would be an absurd result to conclude that the legislature intended
no statute of limitations for PRA actions involving the production of a single
36 Rental Hous. Ass'n. 165 Wn.2d at 539-40.
37 Rental Hous. Ass'n, 165 Wn.2d at 540.
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NO. 70757-4-1/15
volume of documents."38 	Courts avoid a literal reading of a statute if it would
result in "'unlikely, absurd, or strained consequences.'"39 	The County's single
production of records on December 9, 2010, or, alternatively, its final response
on January 19, 2011, triggered the one-year statute of limitations, which expired
at least seven months before Mahmoud filed his PRA claims.
Request 10-05383
For request 10-05383, the County produced records and claimed a partial
exemption on August 16, 2010. 	The County concedes it did not produce all
responsive records. 	But we do not reach the merits of this claim because the
PRA statute of limitations also bars this claim.
Finally, Mahmoud argues that under a common law discovery rule, any
statute 	of 	limitations 	should 	have 	been tolled 	until 	March 	2012, 	when 	he
"discovered the responsive records" during the course of litigation. 	He contends
that until this 	point, 	he was "forced to 	rely upon the County's multiple false
assurances," not realizing that he had a cause of action.
ss Bartz v. Dep't of Corr. Pub. Disclosure Unit, 173 Wn. App. 522, 536, 297
P 3d 737 	review denied, 177 Wn.2d 1024 (2013); see also Johnson v. Dep't of
Corr 	164 Wn. App. 769, 777, 265 P.3d 216 (2011). 	But see Tobin v. Worden,
156 Wn. App. 507, 514, 233 P.3d 906 (2010).
39Johnson, 164 Wn. App. at 777-78 (quoting Cannon v. Dep't of Licensing,
147 Wn.2d 41, 57, 50 P.3d 627 (2002)).
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NO. 70757-4-1/16
The 	discovery 	rule 	provides 	an 	exception 	to 	the 	general 	rule 	that a
plaintiff's cause of action accrues at the time that the act or omission occurred.40
"Under the discovery rule, a cause of action accrues when the plaintiff knew or
should have known the essential elements of the cause of action."41 	Washington
courts have applied the rule to claims "in which the plaintiffs could 	not have
immediately known of their injuries due to professional malpractice, occupational
diseases, self-reporting or concealment of information by the defendant."42 	But
courts "continue[ ] to emphasize the exercise of due diligence by the injured
party."43 	The rule postpones the running of a statute of limitations only until a
plaintiff, 	through 	the 	exercise 	of due 	diligence, 	"knows or should 	know the
relevant facts" of a cause of action.44
As a threshold matter, we note the incompatibility of Mahmoud's discovery
rule argument with his argument that the County's responses never triggered the
PRA statute of limitations. 	A statute that never began to run cannot be tolled.
We also note that no Washington state court has applied the discovery rule in the
40 In re Estates of Hibbard, 118 Wn.2d 737, 744-45, 826 P.2d 690 (1992).
41 Allen v. State, 118 Wn.2d 753, 757-58, 826 P.2d 200 (1992) (footnote
omitted).
42 Hibbard. 118 Wn.2d at 749-50.
43 	Hibbard. 	118 Wn.2d 	at 746; 	Reichelt v. Johns-Manville 	Corp., 	107
Wn.2d 761, 772, 733 P.2d 530 (1987).
44 Allen. 118Wn.2dat758.
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NO. 70757-4-1/17
context of the PRA.45 	But even if the discovery rule applies to PRA claims, we
decline to 	apply it here. 	The record shows that Mahmoud 	and 	his 	counsel
repeatedly asserted the existence of records he now claims the County silently
withheld. 	Given that many of the requested documents came from Mahmoud's
own files, he had reason to know of their existence. 	Even the diary entries the
County 	concedes 	it 	improperly 	withheld 	concerned 	interactions 	between
Mahmoud and his supervisor, not communications between parties unknown to
Mahmoud. 	Mahmoud knew or should have known the relevant facts of his cause
of action within the PRA limitations period, and his arguments to the contrary are
unpersuasive.46
The PRA statute of limitations contains triggering events that enable a
requester to know if a cause of action has accrued, and the legislature enacted
no discovery 	rule exception.47 	For all of Mahmoud's 	requests, 	the 	County
45 Two federal district courts have applied an "inherent discovery rule" to
PRA claims. 	See Anthony v. Mason County. No. C13-5473, 2014 WL 1413421,
at *4-5 (W.D. Wash. Apr. 11, 2014) (order granting motion to amend and strike);
Reed v. Citv of Asotin, 917 F. Supp. 2d 1156, 1166-67 (E.D. Wash. 2013).
46 See Gevaart v. Metco Constr., Inc.. 111 Wn.2d 499, 502, 760 P.2d 348
(1988) (personal injury claim time barred because plaintiff knew injury-causing
step sloped downward and could have determined by exercise of due diligence
that step did not conform to code and was a construction defect); Reichelt, 107
Wn.2d at 770-73 (because of his own knowledge, consultations with an attorney,
and Occupational Safety and Health Act training, plaintiff reasonably should have
known 	the 	essential 	elements 	of 	his 	negligence 	claim 	before 	three-year
limitations period ran).
47 See O'Neil v. Estate of Murtha. 89 Wn. App. 67, 73-74, 947 P.2d 1252
(1997).
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NO. 70757-4-1/18
claimed an exemption, produced records, or both. 	This triggered the one-year
statute of limitations under RCW 42.56.550(6). 	For each request, Mahmoud filed
his PRA claims more than a year after this limitations period expired.
Because 	Mahmoud's 	claims 	fail 	under 	the 	one-year 	PRA 	statute 	of
limitations, we do not analyze them under RCW 4.16.130, the two-year "catchall"
statute of limitations that applies to claims "not otherwise provided for," as two
Division Two cases have done for certain PRA claims.48 	But we agree that "it
would be an absurd result to contemplate that in light of two arguably applicable
statutes of limitations, the legislature intended no time limitation" for PRA actions
where the agency's response is a single production or incomplete.49
Our state legislature recently enacted a 	law requiring training 	in PRA
compliance for public officials after finding that "inadvertent error or a lack of
knowledge on the part of officials and agencies regarding their legal duties to the
public" 	has 	resulted 	in PRA violations as well as 	burdensome litigation 	and
administration costs for state and local governments.50 	Among the legislature's
goals are "improving citizen access to public records and encouraging public
48 See Bartz. 173 Wn. App. at 536-38; Johnson, 164 Wn. App. at 778
n.14.
49 Johnson, 164 Wn. App. at 777; see also Bartz. 173 Wn. App. at 537
(also absurd to conclude that legislature intended different statutes of limitations
for 	different 	categories 	of 	PRA 	requests, 	given 	its 	deliberate 	shortening 	of
limitations period from five years to one year).
50 Engrossed S. B. (E.S.B.) 5964, at § 1, 63d Leg., Reg. Sess. (Wash.
2014).
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NO. 70757-4-1/19
participation in governmental 	deliberations."51 	These 	goals 	do 	not 	include
promoting gamesmanship or the exploitation of stale claims in order to exact
cumulative penalties and attorney fees from shorthanded local governments.
"[T]he rights of citizens to observe the actions of their public officials and
to have timely access to public records are the underpinnings of democracy and
are essential for meaningful citizen participation in the democratic process."52
But citizens have the responsibility not to sleep on those rights. 	Here, Mahmoud
knew or could have known the relevant facts related to his cause of action within
the one-year PRA statute of limitations. Because he filed his PRA claims outside
that period, his claims are time barred.
We may affirm the trial court on any ground the record supports.53 	On the
basis of the PRA statute of limitations, we affirm the trial court's dismissal of
claims related to requests 09-05374, 09-05375, 10-01666, 10-08592, and 10-
08593 and reverse the trial court's order and penalties related to request 10-
05383. 	We 	affirm 	the 	trial 	court's 	denial 	of 	Mahmoud's 	motion 	for
reconsideration.
51 E.S.B. 5964, at §1.
52 E.S.B. 5964, at§1.
53 Otis Hous. Ass'n v. Ha, 165 Wn.2d 582, 587, 201 P.3d 309 (2009).
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NO. 70757-4-1 / 20
Attorney Fees
The PRA entitles a 	prevailing 	party to "all costs, 	including 	reasonable
attorney fees."54 	Because Mahmoud is not a prevailing party under the PRA, we
reverse the trial court's award and deny Mahmoud's request for appellate fees
and costs.
Mahmoud's Motion to Strike
The County filed a reply brief containing sections "related to the County's
cross appeal" and "related to Mr. Mahmoud's appeal." 	Mahmoud asks us to
strike the latter section as an improper surreply under RAP 10.1(c). 	Mahmoud
also 	requests 	attorney fees 	and 	costs for bringing 	the 	motion, 	as 	well 	as
sanctions against the County under RAP 10.7.
Under RAP 10.1(c), a respondent seeking review may file a brief in reply
"to the issues presented 	by respondent's 	review." 	While the first half of the
County's reply addresses Mahmoud's response to its cross appeal, the second
half consists of additional arguments related to Mahmoud's appeal, exceeding
the scope of the rule. 	We grant Mahmoud's motion to the extent of disregarding
54 RCW 42.56.550(4). 	Our Supreme Court has interpreted this provision
to include fees and costs on appeal. 	Sanders, 169 Wn.2d at 869.
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NO. 70757-4-1/21
the material not related to the cross appeal55 but do 	not award sanctions or
attorney fees related to the motion.
CONCLUSION
Because 	Mahmoud 	filed 	his 	PRA 	claims 	outside 	the 	one-year 	PRA
limitations period, all of his claims are time barred. 	On this basis, we affirm the
trial 	court's 	dismissal 	of five 	claims 	and 	reverse 	the trial 	court's 	order and
penalties relating to the sixth claim. 	We also reverse the trial court's award of
costs and attorney fees, affirm the trial court's denial of Mahmoud's motion for
reconsideration, 	and 	grant 	Mahmoud's 	motion 	to 	strike 	to 	the 	extent 	of
disregarding the portion of the County's reply that exceeds the scope of its cross
appeal. 	We decline to award sanctions or attorney fees related to the motion to
strike.
U*fit s.
WE CONCUR:
£a t ft/v^.. ( ,\)
ss see Yousoufian v. Office of Ron Sims. 168 Wn.2d 444, 469-70, 229
P.3d 	735 	(2010) 	(granting 	motions 	to strike 	portions 	of amicus 	briefs 	as
noncompliant).
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