* Cedar Grove Composting Incorporated, Respondent / X-app. V. City Of Marysville, Appellant / X-res.

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'y.i •:: OF
2015 JUL -6 	Ari 9= I ,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CEDAR GROVE COMPOSTING, 	) 	No. 71052-4-1
INCORPORATED, 	)
) 	DIVISION ONE
Respondent, 	)
) 	PUBLISHED OPINION
v. 	)
)
CITY OF MARYSVILLE, 	)
)
Appellant. 	) 	FILED: 	July 6,2015
)
Leach, J. — In this appeal, we 	apply the Public Records Act (PRA)1 to
records 	prepared 	and 	held by a 	private third-party contractor who provided
professional services to the city of Marysville (Marysville or City). 	The City
appeals 	trial 	court 	decisions 	finding 	the 	City 	violated the 	PRA, 	imposing
penalties, and awarding attorney fees and costs. 	The City claims that Cedar
Grove Composting Inc. did not have standing to sue, that documents created by
and in the possession of its private contractor were not public records subject to
the PRA, and that the trial court abused its discretion in awarding penalties,
attorney fees, and costs. 	Cedar Grove cross appeals the trial court's award of
less than half of the fees it requested.
1 Ch. 42.56 RCW.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71052-4-1/2
Because Cedar Grove had a personal stake in the outcome of this action,
it had standing to sue under the PRA. 	Under the exceptional facts of this case,
the records prepared by a contractor acting as the functional equivalent of a city
employee were public records for purposes of the PRA. 	Because the record
establishes that Marysville violated the PRA by wrongfully withholding these and
other public records, we affirm the trial court's PRA decisions. 	And because the
court did not abuse its discretion 	in assessing 	penalties, striking Marysville's
declarations or reducing Cedar Grove's fee request, we affirm the court's award
of costs and attorney fees and denial of reconsideration.
FACTS
In Maple Valley and Everett, Washington, Cedar Grove operates two of
the largest commercial composting operations in Washington and among the
largest in the United States. 	The Everett facility is just over half a mile from the
city limits of Marysville. 	The City received a number of complaints about odors
attributed to Cedar Grove. 	The Puget Sound Clean Air Agency (PSCAA) issued
notices of violation and imposed fines against Cedar Grove, though the Pollution
Control Hearings Board 	reduced some fines in 2011 	after finding that Cedar
Grove had made efforts in odor mitigation.2
2 In its order, the board concluded that the PSCAA "erred by attributing
such a large part of the combined penalty to the non-responsiveness of Cedar
Grove" and reduced the penalties from $169,000 to $119,000.
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No. 71052-4-1/3
Cedar 	Grove 	believed 	that 	a 	hostile 	public 	relations 	campaign 	was
"spreading disinformation" about the company, particularly that Cedar Grove was
the 	primary source of offensive odors 	in the 	Marysville area. 	A mailer, for
example, encouraged residents to contact PSCAA if they "want to lodge an odor
complaint—whether [they] believe it originates from Cedar Grove Composting in
Everett or another industrial activity."3 	Cedar Grove learned that some of the
mailers came from a mailing address and a printing company associated with a
public relations firm, Strategies 360.
On 	November 1, 2011, Kris Cappel, of the Seabold Group, e-mailed a
PRA request to Amy Hess, deputy clerk and public records officer for the City of
Marysville.4 	Cappel 	requested 	documents 	including 	"any 	and 	all available
information" 	about 	communications 	and 	professional 	services 	agreements
"between or among" the City and Strategies, local citizen Mike Davis, the group
"Citizens for a Smell Free Marysville," the Tulalip Tribes, media outlets, and a
number of other parties. 	Cappel also 	requested 	records 	of communication
"between or among" the City and 	other parties "relating or referring to Cedar
Grove Composting, odor complaints, composting, permits or licensing."
3 A PSCAA inspector told an 	attorney that the mailer, which residents
received 	as a 	postcard 	and 	in a 	Parks and 	Recreation 	Department flier, 	"is
designed to look like it comes from us but it does not" and that the PSCAA
"[does] not solicit."
4 The Seabold Group is an investigative and consulting firm. 	Cappel is an
attorney not currently practicing law.
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No. 71052-4-1/4
In her e-mail, Cappel did not identify Cedar Grove as a client or otherwise
indicate 	her 	representative 	capacity. 	A 	November 	2, 	2011, 	e-mail 	among
Strategies employees, 	however, 	indicates that Marysville Chief Administrative
Officer Gloria Hirashima knew that Cappel made the requests on behalf of Cedar
Grove. 	According to this e-mail, the day Cappel submitted the PRA request,
Hirashima called Strategies Senior Vice President Al Aldrich to "give [Strategies]
a heads up that after a quiet period, Cedar Grove has picked up their activity
level. . . . [Hirashima] thought they might try to bootstrap a Records Request into
our emails."5 	The record before us does not indicate that Hirashima spoke to
Hess about Cedar Grove's interest in the records request or the phone call to
Aldrich.
Hess's 	initial 	queries 	identified 	over 	10,000 	documents 	potentially
responsive to Cappel's request. 	The City provided a first installment of "easily
available" 	records 	on 	November 	30, 	2011, 	and 	a 	second 	installment 	on
December 29, 2011. 	A portion of the documents produced were reproductions of
Cedar Grove's 	own 	documents 	or 	documents from 	other agencies. 	These
installments did not include responsive e-mail, which the City did not produce for
several months.
5 Aldrich 	noted in his e-mail that Strategies "did get bootstrapped into
doing a Records Request a few years ago" in a lawsuit involving a different client.
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No. 71052-4-1/5
On 	February 	2, 	2012, 	the 	City 	produced 	several 	e-mail 	messages
between Kristin Dizon of Strategies and Grant Weed, Marysville city attorney.
The 	City 	completely 	redacted 	the 	content 	of 	the 	e-mail, 	explaining 	in 	an
exemption/redaction 	log 	that 	the 	redaction 	was 	for 	"Attorney 	Client
Privilege/Work Product." 	The City produced additional installments of records on
March 8, 2012, and April 5, 2012. 	Redaction logs for these installments claimed
additional exemptions for "Attorney Client Privilege/Work Product."
In June 2012, Cappel asked Hess whether e-mail communications "to and
among Strategies 360 representatives" had been "inadvertently redacted" under
attorney-client privilege. 	Hess replied that the redacted e-mail were privileged:
Strategies 360 was hired as a professional consultant to the City.
The emails that are 	redacted 	are Work 	Product/Attorney Client
communications between the City Attorney Grant K. Weed and the
City Consultant and are legal advice, direction and input related to
the project the City Consultant was working on for the City and
within the scope of work product and attorney client privilege—the
same as if the City Attorney were communicating with a City Staff
member working on the project.
Two weeks later, Hess received a letter from a different attorney, Michael
Moore, challenging the City's attorney-client privilege/work product claim. 	The
letter requested that the City produce "all of the communications" by July 13,
2012, "[t]o avoid the costs of litigation and penalties for the improper withholding
of the documents at issue."
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71052-4-1/6
On August 2, 2012, the City produced unredacted versions of the e-mail it
withheld from the fifth installment, stating in a cover letter that it did not waive the
attorney-client 	privilege 	or 	work 	product 	doctrine 	exemption 	beyond 	those
specific records. 	In several of these e-mail, Dizon asked Weed to forward e-
mailed 	information 	to 	Hirashima 	and 	Marysville 	Mayor Jon 	Nehring. 	Dizon
explained in one e-mail that she was asking Weed to forward her e-mail, rather
than sending it directly to Hirashima, "so it comes as privileged information from
you," and said in a later e-mail, "I definitely do not want Cedar Grove to see the
trail on this." 	Weed forwarded the e-mail as Dizon requested.
On 	August 	28, 	2012, 	Cedar 	Grove 	filed 	suit 	under 	the 	PRA. 	In
September, Cedar Grove subpoenaed documents directly from Strategies 360.
The subpoena sought "communications, emails, 	or other documents sent to,
received 	from 	or 	exchanged 	between 	Strategies 	360 	and 	any 	third 	party
(including the City of Marysville, the City of Seattle, the Tulalip Tribes, 	Mike
Davis, 	Citizens 	for 	a 	Smell 	Free 	Marysville," 	among 	others, 	that 	"mention,
reference, or relate" to Cedar Grove or the odor dispute. 	Comparison between
Strategies' 	production 	and 	Marysville's 	earlier 	productions 	revealed 	17
responsive 	e-mail 	between 	Marysville 	and 	Strategies 	that the 	City 	had 	not
produced. 	The City also located two 	responsive e-mail on 	Mayor Nehring's
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71052-4-1/7
personal computer. 	The City later stipulated that it initially withheld these 19
records.
In November 2012, Cedar Grove moved for partial summary judgment,
alleging 	that Marysville wrongfully withheld 	22 	responsive 	records6 	under an
improper claim of attorney-client privilege. 	The City filed a response and cross
motion for summary judgment. 	The summary judgment hearing occurred on
April 19,2013.
After noticing references in the City's productions to two particular types of
document, Cedar Grove became concerned that Marysville and Strategies had
not 	yet 	produced 	all 	responsive 	records. 	First, 	certain 	e-mail 	referred 	to
Strategies' work with 	Mike Davis, leader of a local anti-Cedar Grove citizens'
group, but records produced up to that time contained no information about the
nature of that work. 	Also, Marysville had not produced any records related to
mailers Strategies created, though several e-mail referred to this work. 	In June
2013, Cedar Grove moved to compel Strategies to produce additional documents
related to "the Mailers and Strategies 360's work with Mike Davis."
On July 2, 2013, the court entered its order on cross motions for summary
judgment, in which it found that the City had violated the PRA by withholding 15
e-mail under an improper claim of attorney-client privilege and work product. 	On
6 In the verbatim report of proceedings (Oct. 3, 2013, hearing on fees), the
attorney for Cedar Grove referred to 24 documents at issue at the April 2013
summary judgment hearing, but the court refers to only 22 in its order.
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No. 71052-4-1/8
July 22, the parties stipulated that the City did not produce or disclose in an
exemption log 19 more records responsive to Cappel's requests. 	And two days
later, the court granted Cedar Grove's motion to compel, after which Strategies
produced 	173 	responsive 	records, 	including 	160 	e-mail 	communications
concerning Mike Davis and Strategies and 13 records relating to the mailers.
These e-mail indicate that Strategies worked closely with Davis and the
City in the campaign against Cedar Grove. 	Strategies acted as a liaison between
Marysville and Davis and relayed instructions to him for the City.7 	In one e-mail,
Aldrich advised Davis to attend a city council meeting and "tell the Mayor, Gloria
and Council that as citizens you 	really appreciate what they are doing. 	That
should shore them up and keep them in the game, which is the biggest dynamic
at work right now." 	Dizon also ghostwrote letters to the editor that Davis and
others signed, wrote press releases, and prepared Davis with "talking points" for
a radio interview.
Certain e-mail 	indicate that Marysville sometimes worked 	directly with
Davis.8 	Other e-mail suggest that Strategies worked with the City, Davis, and
7 In a 2010 e-mail, Aldrich told Hirashima about attending a meeting of
Davis's citizens' group: 	"I talked with Mike Davis afterwards, explained who I
was and 	told 	him that Strategies 360 	wanted 	to 	help them, 	with the 	City's
blessing and paying us. 	He appreciated that and said he would call me next
week to set up a meeting." 	The following day, Aldrich told Hirashima in another
e-mail, "I'm having breakfast with Mike Davis on the 29th. 	Let me know if you
want to discuss this further."
8 City leaders took a letter on an environmental impact statement to a city
council 	meeting 	at which 	Davis 	presented 	petitions from his citizens' group,
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No. 71052-4-1/9
other third parties to circumvent the requirements of the PRA. 	Aldrich told Dizon
and Davis that he was going to "tell Gloria by phone so it doesn't get caught up in
[Cedar Grove]'s public records request." 	In a later e-mail, Aldrich told Tulalip
Tribes members, "I will separately convey the [Cedar Grove] letter to Gloria and
Jon at Marysville and have a phone discussion with them about the points above
(their emails are all being reviewed by [Cedar Grove] under a Public Records
request)." 	In another e-mail, Aldrich asked an 	attorney and Strategies staff,
"[Mayor] Nehring's email below is his personal email, which should be separate
from Open Records disclosures, right?" And Aldrich wrote Steve Gobin, a Tulalip
Tribes member, 	an e-mail with the subject line "Cedar Grove" that informed
Gobin that Aldrich had a sample of an anti-Cedar Grove mailer that would be
sent to homes in Everett and Marysville. 	Aldrich told Gobin, "We are trying not to
share the draft with Gloria and Marysville folks, primarily to give them 'plausible
deniability' about the mailer and its contents."
Shortly 	after 	Strategies 	produced 	the 	173 	responsive 	records, 	Cedar
Grove filed a motion for summary judgment for penalties. 	The trial court granted
this motion on September 9, 2013, and imposed penalties of $70 a day for the 15
records 	improperly withheld 	as 	privileged, 	$40 	a 	day for the 	19 	stipulation
which Dizon called "a [n]ice two for one punch." 	Davis referred in e-mail to a
meeting with Hirashima and Nehring and to documents related to grants which
were "started by [Davis] and finished by Gloria at Marysville."
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No. 71052-4-1/10
records, and $90 a day for the 173 Strategies records. 	The penalties against the
City totaled $143,740.
The City moved for reconsideration. 	On October 30, 2013, the trial court
entered three orders: 	a 	revised order granting summary judgment to Cedar
Grove regarding penalties, an order granting costs and attorney fees to Cedar
Grove, and an order denying the City's motion for reconsideration. 	The court
also struck three declarations the City submitted in support of its motion for
reconsideration. 	The court awarded $127,644.83 for costs and attorney fees,
less than half of the roughly $283,000.00 Cedar Grove sought.
The City appeals. 	Cedar Grove cross appeals the court's award of fees
and costs.
ANALYSIS
In 1972, Washington voters overwhelmingly approved 	Initiative 276,9 a
strongly worded mandate for public disclosure.10 	This initiative declared a broad
public policy of disclosure that included the following elements:
9 Voters passed this initiative by a margin of 72.02 percent (959,143 in
favor) to 27.98 percent (372,693 against), 	http://www.sos.wa.gov/elections
/initiatives/statistics_initiatives.aspx 	In addition to 	provisions for disclosure of
public records, the initiative included provisions on campaign finance and created
a public disclosure commission. 	In 2005, the legislature recodified the initiative
provisions pertaining to public records as the Public Records Act, chapter 42.56
RCW. 	Laws of 2005, ch. 274.
10 Hearst Corp. v. Hoppe. 90 Wn.2d 123, 127, 580 P.2d 246 (1978).
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No. 71052-4-1/11
(2) 	That the 	people 	have 	the 	right 	to 	expect from 	their
elected representatives at all levels of government the utmost of
integrity, honesty, and fairness in their dealings.
(5) That public confidence 	in government at all 	levels 	is
essential and must be promoted by all possible means.
(6) That public confidence in government at all levels can
best be sustained by assuring the people of the impartiality and
honesty of the officials in all public transactions and decisions.'11]
This policy also requires that courts liberally construe the PRA in favor of
disclosure.12 	While these declarations of policy do not have any independent
operative effect, they "serve as an important guide in determining the intended
effect of the operative sections" of the PRA.13
Upon request, every government agency must produce for inspection and
copying 	any 	public 	record 	unless 	it 	falls 	within 	a 	specific, 	enumerated
exemption.14 	The 	act provides for judicial review to challenge an 	agency's
withholding of a 	public record "[u]pon the motion of any person having been
denied an opportunity to inspect or copy a public record by an agency."15 	This
court reviews agency actions under the PRA de novo.16
11 RCW42.17A.001 (2), (5), (6).
12 RCW 42.56.030.
13 Hearst Corp., 90 Wn.2d at 128.
14 RCW 42.56.070(1); Sanders v. State. 169 Wn.2d 827, 836, 240 P.3d
120(2010).
15 RCW 42.56.550(1).
16 RCW 42.56.550(3); 	Neigh. Alliance 	of Spokane County v. Spokane
County. 172 Wn.2d 702, 715, 261 P.3d 119 (2011).
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No. 71052-4-1/12
Standing
As 	a 	threshold 	matter, 	Marysville 	contends 	that 	Cedar 	Grove 	lacks
standing to sue under the PRA because it did not make the requests at issue. 	A
nonparty, Cappel, made them. 	We rejected a similar argument in Kleven v. City
of Des Moines.17 	In Kleven. a city argued that because Kleven's attorney made
the contested records requests, Kleven lacked standing.18 	This court concluded
that the city of Des Moines read the statute "too narrowly, contrary to the stated
purpose of the [act]."19 	We observed, "The doctrine of standing requires that a
claimant must have a personal stake in the outcome of a case in order to bring
suit," concluding that the record "amply supported] Kleven's personal stake" in
the requested records.20
Marysville unpersuasively attempts to distinguish Kleven. 	It asserts that
"the attorney disclosed that the request was made on the client's behalf." 	But
Marysville 	misstates 	the 	case's 	facts. 	In 	Kleven. 	the 	same 	attorney 	who
submitted his client's public records requests later filed the lawsuit, and "[t]he
petition commencing this case, which [the attorney] signed, clearly alleges that
[he] made the requests for records on behalf of Kleven."21 	But the challenged
17 111 Wn. App. 284, 44 P.3d 887 (2002).
18 Kleven. 111 Wn. App. at 290.
19 Kleven. 	111 Wn. 	App. 	at 290. 	At issue in Kleven 	was the Public
Disclosure Act (PDA), chapter 42.17 RCW, which was renamed the PRA and
recodified as chapter 42.56 RCW.
20 Kleven, 111 Wn. App. at 290.
21 Kleven. 111 Wn. App. at 290.
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No. 71052-4-1/13
PDA requests, made by Kleven's attorney, did not disclose his representative
capacity or 	his 	client: 	"[n]either [this] 	request 	nor any 	communication 	that
followed mentioned Kleven."22 	Holding that Kleven nonetheless had standing,
this court emphasized that it "will not read into the act a requirement that counsel
must identify the fact of representation or the name of the client when making a
request for public records on behalf of a client."23
The City also cites McDonnell v. United States24 and other federal cases
decided 	under the Freedom of Information Act (FOIA)25 to argue that only a
records requester has standing to sue. 	But in Kleven, this court also rejected this
argument. 	Observing that "the FOIA provisions underlying McDonnell differ from
the PDA provisions at issue here,"26 the court concluded, "For this reason alone,
FOIA does not provide any useful guidance in applying the PDA."27
The City points to WAC 44-14-030(4)28 to argue that "Washington law is
now akin to FOIA in regard to the precision by which the request must be made,"
22 Kleven. 111 Wn. App. at 288.
23 Kleven. 111 Wn. App. at 291.
244F.3d 1227(3dCir. 1993).
25 5 U.S.C. §552(1970).
26 Kleven. 111 Wn. App. at 292. 	For example, in McDonnell, the Third
Circuit noted that FOIA "'conditions the agency's duty upon receipt of a request
that is made in accordance with published rules'" and reasoned that "'a person
whose name does not appear on a request for records has not made a formal
request for documents within the meaning of the statute'" and thus may not sue
"'because he has not administratively asserted a right to receive them in the first
place.'" 	Kleven. 111 Wn. App. at 291-92 (quoting McDonnell. 4 F.3d at 1236-37).
27 Kleven. 111 Wn. App. at 293.
28 WAC 44-14-030 provides in pertinent part:
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No. 71052-4-1/14
noting that "the name of the requestor is required." 	But this model rule aims to
facilitate communication between the agency and the person making the request,
something not at issue in this case. 	It does not prescribe rules for standing to
bring a lawsuit.
Finally, citing Burt v. Department of Corrections.29 the City claims that CR
19 makes a person requesting records an indispensable party to a PRA lawsuit.
We disagree. 	In Burt. Department of Corrections (DOC) employees filed suit
against DOC to enjoin the release of records an inmate had requested, basing
their claim on privacy.30 	The trial court denied the inmate's motion to intervene,
and 	the 	inmate 	never 	participated 	in 	the 	lawsuit.31 	After 	DOC 	filed 	a
memorandum 	in 	support 	of 	the 	requested 	protective 	order, 	the 	trial 	court
permanently enjoined the release of the records.32 	Our Supreme Court noted
(4) Making a request for public records.
(a) Any person wishing to inspect or copy public records of the (name of
agency) should make the request in writing on the (name of agency's) request
form, 	or by letter, fax, 	or e-mail addressed to the public records officer and
including the following information:
• Name of requestor;
• Address of requestor;
• Other contact information, including telephone number and any e-mail
address;
• Identification of the public records adequate for the public records officer
or designee to locate the records; and
• The date and time of day of the request.
29 168 Wn.2d 828, 231 P.3d 191 (2010).
30 Burt. 168Wn.2dat830.
31 Burt. 168 Wn.2d at 830-31.
32 Burt, 168Wn.2dat830.
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No. 71052-4-1/15
that "because of the parties' employee/employer relationship, no party was in a
position to zealously advocate for the release of the records, which made for a
proceeding that was not truly adversarial."33 	By excluding the requester—the
person with a personal stake in the action—the trial court frustrated the PRA's
purpose of protecting the public's interest in access to public records.34 	For that
reason, the court vacated the injunction and remanded with instructions to join
the inmate as a necessary party.35
Here, by contrast, the party with a personal stake in the action, Cedar
Grove, filed the lawsuit. 	Cappel's absence does not create the danger of a
proceeding that is not "truly adversarial." 	In Burt, the inmate was a necessary
party not because he was the requester but because he had the only adverse
personal stake in the litigation. 	He would have had no less of an interest in the
action had an agent made the PRA requests for him—a scenario the court did
not address. 	Burt does not support the City's position. 	We hold that Cedar
Grove had standing to sue.
15 Records: 	Improper Claim of Exemption for Attorney-Client Privilege
The City challenges the imposition of PRA penalties for 15 e-mail records
withheld 	under 	an 	improper 	claim 	of 	attorney-client 	privilege. 	Marysville
contends that its ultimate production of these records before litigation precludes
33 Burt. 168Wn.2dat835.
34 Burt. 168Wn.2dat835.
35 Burt. 168Wn.2dat838.
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No. 71052-4-1/16
the trial court's imposition of penalties. 	The City does 	not dispute that the
records were not privileged, 	as it previously claimed. 	Rather, 	it argues that
because it "corrected any error it might have made" in asserting the privilege
before 	Cedar 	Grove 	filed 	suit, 	the 	trial 	court 	erred 	in 	assessing 	penalties,
"particularly for the excessive amount imposed at $70 per day."
We disagree. 	Our Supreme Court has held that "once a trial court finds an
agency violated the 	PRA, daily penalties are mandatory."36 	In Neighborhood
Alliance 	of 	Spokane 	County 	v. 	Spokane 	County,37 	the 	court 	held 	that
"'[subsequent events do not affect the wrongfulness of the agency's initial action
to withhold the records if the records were wrongfully withheld at that time'"38 and
that "the remedial provisions of the PRA are triggered when an agency fails to
properly disclose and produce records, and any intervening disclosure serves
only to stop the clock on daily penalties, rather than to eviscerate the remedial
provisions altogether."39 	Thus, 	the 	City's eventual 	production 	of unredacted
versions of the 15 e-mail reduced the number of days for which penalties could
be assessed and may affect the court's decision about the daily penalty amount.
36 Neigh. Alliance. 172 Wn.2d at 726.
37172Wn.2d702, 261 P.3d 119(2011).
38 	Neigh. 	Alliance. 	172 Wn.2d 	at 726 	(quoting 	Spokane 	Research 	&
Defense Fund v. City of Spokane. 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005)).
39 Neigh. Alliance. 172 Wn.2d at 727.
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No. 71052-4-1/17
But 	it would 	not "relieve an 	agency of 	its statutory duties, 	nor diminish the
statutory remedies allowed if the agency fails to fulfill those duties."40
At oral argument, Marysville cited a recent case from Division Two of this
court, Hobbs v. Washington State Auditor's Office.41 for the rule that an agency's
denial of records is a "necessary predicate" of a cause of action under RCW
42.56.550. 	Thus, Cedar Grove had no cause of action as to the 15 records. 	But
the facts in Hobbs differ. 	There, the agency advised Hobbs that it would produce
the requested documents in installments.42 Hobbs filed suit immediately after the
agency produced its first installment, while the request was still open and the
agency was still gathering records.43 He complained mainly about redactions, all
of which the superior court later found to comply with the PRA.44 	Division Two
affirmed the dismissal of Hobbs's case:
When an agency diligently makes every reasonable effort to comply
with a requester's public records request, and the agency has fully
remedied any alleged violation of the PRA at the time the requester
has a cause of action (i.e., when the agency has taken final action
and denied the requested records), there is no violation entitling the
requester to penalties or fees.[45]
Here, 	unlike 	in 	Hobbs. 	the 	requester's 	first 	response 	to 	the 	City's
production 	was 	not 	to 	file suit 	but 	to 	inquire 	of 	the 	City whether 	it had
40 Neigh. Alliance. 172 Wn.2d at 727.
41 183 Wn. App. 925, 335 P.3d 1004 (2014).
42 Hobbs. 183 Wn. App. at 929.
43 Hobbs. 183 Wn. App. at 932.
44 Hobbs. 183 Wn. App. at 932.
45 Hobbs. 183 Wn. App. at 940-41.
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No. 71052-4-1/18
"inadvertently" redacted the records under an inappropriate claim of attorney-
client privilege. 	The City then responded by reiterating its claim of exemption,
thus denying the request. 	This 	constituted "final agency action" under RCW
42.56.520. 	Marysville violated the PRA by improperly claiming the attorney-client
privilege exemption, and penalties are appropriate even though the City later
produced the unredacted e-mail. 	No PRA provision or case law supports the
City's claim that its prelitigation production of the 15 records somehow insulates it
from all PRA penalties.
19 Records: 	Stipulation
The trial court also ruled that Marysville violated the PRA by withholding
"19 records that Marysville's search should have located but did not and that
Marysville has stipulated were public records not produced to 	Cedar Grove."
Marysville argues that "questions of fact preclude a finding of liability under the
PRA for almost all of the 19 documents" and that in any case, the documents are
"inconsequential" and "certainly provide no basis for a penalty of $40 a day."
In the July 22, 2013, stipulation, Marysville agreed that the 19 responsive
records listed "were not released by either being produced to Cedar Grove or
disclosed 	in an 	exemption 	log" and 	that "the 	briefing 	and 	argument for the
hearing regarding assessment of penalties will address, among other things, the
19 documents listed above." 	A stipulation signed by the parties' attorneys is a
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No. 71052-4-1/19
contract, and contract principles govern 	its construction.46 	Marysville cites no
authority 	in support 	of 	its 	claim 	that 	this 	court 	should 	now 	set 	aside 	this
agreement. 	We affirm the trial court's ruling that Marysville violated the PRA by
withholding the 19 records.
173 Strategies Documents Created bv Strategies and "Used" by Marysville
Marysville challenges the trial court's decision that 173 documents created
by Strategies and never possessed by Marysville are public records. 	The trial
court found the records to be public records for two reasons. 	First, because of
the intertwined relationship of Marysville and Strategies in which Strategies acted
as the functional equivalent of a city employee, the records created by Strategies
while acting as this functional equivalent were public records. 	Second, Marysville
used 	the 	173 	records 	because Strategies created these documents for and
applied them to a governmental purpose identified by Marysville, resolving odor
issues allegedly caused by Cedar Grove. 	Marysville contends that the court's
first 	reason 	reflects a 	misapplication 	of the 	law and 	that the second 	is 	not
supported by the factual record. 	It describes the court's decision as "a massive
expansion of the PRA far beyond the specific contours of the Act."
Marysville contends that because Strategies is not a "public agency,"47 the
PRA does not apply to its records. 	This argument misses the issue. 	The trial
46 Allstot v. Edwards. 114 Wn. App. 625, 636-37, 60 P.3d 601 (2002).
47 RCW 42.56.010(1) defines "agency" as including "every state office,
department, 	division, bureau, 	board, 	commission, 	or other state agency" 	or
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No. 71052-4-1/20
court did not rule that the 173 documents were public records because Strategies
was a public agency. 	It ruled that because, as Marysville itself acknowledged
when claiming the attorney-client privilege, Strategies acted as the functional
equivalent of a Marysville employee, the documents that Strategies generated in
that capacity pertaining to the conduct of government were public records subject
to the PRA.
The PRA defines a "public record" as "any writing containing information
relating to the conduct of government or the performance of any governmental or
proprietary function 	prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics."48 	This definition does not
limit the term to 	documents prepared 	by government officials. 	Courts have
construed it as referring to "'nearly any conceivable government record related to
the conduct of government.'"49 	Public records may include records of a for-profit
corporation acting as the functional equivalent of a public agency.50
The City contends that the court's decision "conflates the two concepts" of
attorney-client privilege and a public record and forces governments to make a
"every county, city, town, municipal corporation, quasi-municipal corporation, or
special 	purpose 	district, 	or 	any 	office, 	department, 	division, 	bureau, 	board,
commission, or agency thereof, or other local public agency."
48 RCW 42.56.010(3).
49 Nissen v. Pierce County. 183 Wn. App. 581, 590, 333 P.3d 577 (2014)
(guoting O'Neill v. City of Shoreline. 170 Wn.2d 138, 147, 240 P.3d 1149 (2010)),
review granted. 182 Wn.2d 1008 (2015).
50 Clarke v. Tri-Cities Animal Care & Control Ctr.. 144 Wn. App. 185, 194-
95, 181 P.3d881 (2008).
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No. 71052-4-1/21
"Hobbesian choice": 	assert attorney-client privilege and risk PRA penalties or
waive privilege and lose its protection. 	Marysville characterizes the trial court's
ruling as concluding that because the City asserted that Strategies was the
functional equivalent of an employee for purposes of attorney-client privilege,
"this acted as the functional equivalent of an admission that all other Strategies'
documents were therefore public records, including the 173 documents not sent
to the City." 	According to Marysville, the trial court decision has a "pernicious"
effect, 	resulting 	in 	a 	situation 	where 	"[vjirtually all 	records 	of 	government
contractors potentially now become public records, 	even 	if the records were
never sent to, or used by, the government. 	This is a distortion of the PRA and an
unprecedented expansion of its scope." 	Similarly, amicus curiae Washington
State Association of Municipal Attorneys (WSAMA) contends the trial court's
decision 	"would 	bring 	all 	documents 	generated 	by 	a 	government contractor
working on a government contract within the scope of the PRA" and "open the
floodgates of public records liability for Washington's cities."
But Marysville and WSAMA overstate the trial court's ruling. 	The trial
court did not rule that all records of government contractors are public records.
Instead, the court applied Washington precedent holding that a 	private entity
acting as the functional equivalent of a public agency is subject to the PRA to an
analogous situation: 	a private company acting as the functional equivalent of a
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No. 71052-4-1/22
public employee.51 	As noted by Division Three of this court, a local government
may delegate performance of a public function to a private entity, but it cannot
avoid 	its statutory 	responsibility to 	perform 	its 	PRA 	obligations through 	this
delegation.52 	Otherwise, a local government could "contravene the intent of the
PDA and the public records act by contracting with private entities to perform
core government functions."53 	Similarly, a local government could thwart the
intent of the PDA and the PRA by contracting with a private entity to perform its
employees' work. 	For this 	reason, 	the 	PRA should 	apply to 	those 	records
created by a private entity performing as the functional equivalent of a public
employee in the same manner it applies to the records such an entity creates
performing as the functional equivalent of a public agency. 	Otherwise, a local
government could by piecemeal contracts avoid its PRA obligations.
In Telford v. Thurston County Board of Commissioners.54 Division Two of
this court adopted a four-factor functional equivalent balancing test to determine
if an entity should be treated as a 	public agency for PRA purposes: 	(1) the
extent the entity performed a governmental function, (2) the extent public funds
paid for the activity, (3) the extent of government involvement or regulation, and
(4) if the government created the entity. 	A balancing of these factors rather than
51 	Clarke. 	144 Wn. App. at 	194-95; Telford v. Thurston County Bd. of
Comm'rs. 95 Wn. App. 149, 161-63, 974 P.2d 886 (1999).
52 Clarke. 144 Wn. App. at 194.
53 Clarke. 144 Wn. App. at 194.
54 95 Wn. App. 149, 162, 974 P.2d 886 (1999).
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No. 71052-4-1/23
a satisfaction of all four determines if the entity is the functional equivalent of a
state or local agency.55 We apply an analogous test here.
Marysville 	necessarily 	conceded 	that 	Strategies 	was 	performing 	a
governmental function 	when the City represented and the court accepted for
purposes of asserting an attorney-client privilege its claim that Strategies acted
as the functional equivalent of a city employee. 	Marysville makes no claim that a
city employee would do work that was not performance of a government function.
Marysville cites no authority to support its assertion that a government
may claim that a contractor is the functional equivalent of an employee in order to
assert attorney-client privilege, 	while 	simultaneously claiming that documents
generated by these de facto employees in the scope of their de facto public
employment 	are 	not 	public 	records 	for 	purposes 	of the 	PRA. 	Marysville's
unsupported statement that attorney-client privilege is "necessarily broad," while
"[t]he definition of a public record is necessarily narrower," does not persuasively
distinguish 	these 	two 	consequences—one 	a 	privilege 	and 	the 	other 	a
responsibility—that flow from Strategies' status as the functional equivalent of a
city employee.
Marysville paid Strategies for at least the majority of the work at issue.
The trial court found, and the record shows, that Marysville was heavily involved
55 Telford, 95 Wn. App. at 162.
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No. 71052-4-1/24
in the work performed by Strategies. 	Strategies took a 	number of significant
actions 	after 	direct 	consultation 	with 	Marysville 	or 	at 	Marysville's 	direction.
Strategies and Marysville appear to have taken conscious steps to have records
created by Strategies rather than Marysville with the express goal of avoiding the
PRA.
Although the fourth factor is not satisfied, a balancing of all four factors
leads to the conclusion that Strategies acted as the functional equivalent of a
public employee performing a 	governmental function. 	Its activities served a
public function, were paid in large part with public funds, and were directed and
approved by Marysville. 	The evidence before the trial court shows that city
officials 	and 	employees 	repeatedly 	took 	affirmative 	steps 	to 	avoid 	creating
records they would normally create during the course of their work. 	Members of
city government, together with Strategies personnel, pursued a deliberate policy
to 	conceal 	the 	City's 	role 	in 	the 	campaign 	against 	Cedar 	Grove. 	They
accomplished this by directing and delegating activities to Strategies and then
disavowing knowledge of those activities, with the express object of avoiding the
reach of the PRA.
Given the purposes of the PRA and Initiative 276, the trial court correctly
determined 	that 	the 	records 	created 	by 	Strategies 	while 	performing 	these
functions were public records. 	In response to Marysville's floodgate argument,
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No. 71052-4-1/25
we emphasize that Strategies records not relating to its actions as the functional
equivalent of a city employee are not subject to PRA requests.56
Marysville also argues that the 173 Strategies documents were not public
records because the City did not "use" them. 	Our decision does not require us to
address this argument. 	We nonetheless conclude that Washington case law
supports the trial court's ruling that Marysville "used" the records in the meaning
of the PRA.
In Concerned Ratepayers Ass'n v. 	Public Utility District No. 1 of Clark
County.57 	our 	Supreme 	Court 	held 	that 	an 	agency 	"uses" 	information 	for
purposes of the PRA when the information is "applied to a given purpose or
instrumental to [a governmental] end or process" and where "a 	nexus exists
between 	the 	information 	and 	an 	agency's 	decision-making 	process." 	In
Concerned 	Ratepayers, 	citizens 	requested 	a 	document 	describing 	technical
specifications of a turbine generator that the public 	utility district (PUD) was
considering for a proposed power plant.58 	The PUD argued that the document
was not a 	public record 	because the PUD 	never possessed or 	used 	it and
ultimately chose to install a different generator model.59 	The court concluded,
56 See Nissen. 183 Wn. App. at 592-93.
57 138 Wn.2d 950, 952, 983 P.2d 635 (1999).
58 Concerned Ratepayers. 138 Wn.2d at 952-53. 	The citizens who formed
the Concerned 	Ratepayers Ass'n sought to determine if the proposed power
plant would be capable of generating more than 250 megawatts of power, thus
necessitating a public vote under RCW 80.52.040.
59 Concerned Ratepayers. 138 Wn.2d at 958.
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No. 71052-4-1/26
however, 	that 	the 	PUD 	reviewed 	and 	"carefully 	evaluated" 	the 	technical
specifications in the document as part of negotiations with the manufacturer and
that this consideration was "clearly instrumental to the process of building the
power plant."60 	The court held that although "mere reference to a document that
has no 	relevance to an agency's conduct or performance may not constitute
'use,'" 	information 	that 	"bears 	a 	nexus 	with 	the 	agency's 	decision-making
process" 	is within the 	parameters 	of the 	PRA.61 	Under 	this 	analysis, 	the
generator specifications were a public record for purposes of the PRA.
Marysville emphasizes that "the City never received the documents or in
any way possessed them; it obviously could not 'use' documents it never had."
But the court in Concerned Ratepayers concluded that the agency did not have
to possess a document to "use" it for purposes of the PRA, agreeing with the
Court of Appeals that "possession of information 	is not determinative of the
issue."62
Marysville also argues that unlike the court in Concerned Ratepayers, the
trial court here did not specifically explain how the City applied the documents to
any 	governmental 	decision, 	and 	"[t]hus, 	there 	is 	no 	essential 	nexus 	to
governmental decisionmaking." 	Here, the trial court did not make a finding like
the finding in Concerned Ratepayers that the agency "carefully evaluated" any
60 Concerned Ratepayers. 138 Wn.2d at 961, 962.
61 Concerned Ratepayers. 138 Wn.2d at 961, 960.
62 Concerned Ratepayers. 138 Wn.2d at 959-60.
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No. 71052-4-1/27
specific 	Strategies 	document. 	But 	the 	trial 	court 	identified 	specific actions
Strategies employees took and memorialized in e-mail that "clearly furthered the
interests of Marysville." 	For example, the court noted that documents Strategies
generated on behalf of Marysville, such as communications Mike Davis issued to
media outlets, "were made instrumental to Marysville's governmental ends or
purposes" in the campaign against Cedar Grove.
Marysville also cites West v. Thurston County63 to argue that records are
not "used" where the agency never received them. 	In West, the records at issue
were attorney billing invoices for amounts exceeding the county's 	insurance
deductible.64 	Noting that the county never "'reviewed, evaluated, referred to or
otherwise 	considered'" 	the 	invoices 	because 	they 	were 	not 	the 	county's
responsibility to pay,65 Division Two of this court held that there was no indication
that 	the 	invoices 	"'had 	a 	nexus 	with 	Thurston 	County's 	decision-making
process.'"66 Therefore, the invoices were not public records under the PRA. 	In
its brief and at oral argument, the City argued that like the county in West, while
Marysville generally benefited from the work of the third-party contractor, the City
did not "use" the specific documents at issue under the PRA definition.
63 168 Wn. App. 162, 275 P.3d 1200 (2012).
64 West. 168 Wn. App. at 166-67.
65 West. 168 Wn. App. at 185-86.
66 West. 168 Wn. App. at 186.
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No. 71052-4-1/28
We distinguish West. 	Unlike the extraneous invoices in that case, the
Strategies records at issue, including communications with third parties, directly
related to activities Strategies performed "at the behest of Marysville" to further
the City's interests. 	One of the challenged Strategies e-mail particularly supports
this conclusion. 	Although not addressed to the City, it contains the subject line
"Cedar Grove" and directly refers to "Gloria and [the] Marysville folks" and the
need to give them "'plausible deniability'" about materials Strategies created for
the 	campaign 	against 	Cedar 	Grove. 	These 	communications, 	considered
together with evidence that the City suspected from the day of Cappel's first
request that Cedar Grove might pursue access to Strategies' records, establish a
nexus between the 173 Strategies documents and Marysville's decision-making
process. 	They show that Marysville used the Strategies documents within the
meaning of the PRA.
The trial court found that "Marysville knew what Strategies was doing, paid
them for those activities, was generally aware that there were documents in
Strategies' 	possession 	created 	during 	those 	activities, 	and 	discussed 	the
contents of some of those documents with Strategies." 	Contrary to the City's
assertion at oral argument that it was "utterly oblivious" to the existence of these
documents, the record before us shows that nine months before Cedar Grove
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No. 71052-4-1/29
filed suit, Marysville knew about them and knew further that Cedar Grove might
attempt to obtain these records with a PRA request.
Marysville violated the PRA when it failed to disclose these records.
PRA Penalties
Marysville argues that even if the City violated the PRA, the penalties
totaling $143,740 that the court imposed were "unreasonable and excessive."
Once the trial court finds that an agency violated the PRA, daily penalties are
mandatory, and the court must consider the entire statutory penalty range.67 The
amount, however, is in the trial court's discretion.68 	A court abuses its discretion
when 	it 	exercises 	that 	discretion 	on 	untenable 	grounds 	or 	for 	untenable
reasons.69 The trial court has discretion to award a party who prevails against an
agency in a PRA action "an amount not to exceed one hundred dollars for each
day that he or she was denied the right to inspect or copy said public record."70
Determining the appropriate PRA penalty involves two steps: 	(1) calculating the
67 Neigh. Alliance. 172 Wn.2d at 726 (citing Yousoufian v. Office of King
County 	Exec. 	152 	Wn.2d 	421, 	433, 	98 	P.3d 	463 	(2004) 	(Yousoufian 	II));
Yousoufian v. Office of Ron Sims. 168 Wn.2d 444, 466, 229 P.3d 735 (2010)
(Yousoufian V).
68 Neigh. Alliance, 172 Wn.2d at 726 (citing Yousoufian II, 152 Wn.2d at
433).
69 Chuong Van Pham v. City of Seattle. 159 Wn.2d 527, 538, 151 	P.3d
976 (2007).
70 RCW 42.56.550(4).
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No. 71052-4-1/30
number 	of 	days 	the 	agency 	improperly 	denied 	access 	to 	records 	and 	(2)
determining the appropriate daily penalty, depending on the agency's actions.71
In Yousoufian v. Office of Ron Sims.72 our Supreme Court adopted a
multifactor test for determining the daily penalty amount. 	Mitigating factors that
may decrease any penalty are
(1) a lack of clarity in the PRA request; (2) the agency's prompt
response 	or legitimate follow-up 	inquiry for 	clarification; 	(3) 	the
agency's good faith, 	honest, timely, and strict compliance with all
PRA procedural requirements and exceptions; (4) proper training
and supervision of the agency's personnel; (5) the reasonableness
of 	any 	explanation 	for 	noncompliance 	by 	the 	agency; 	(6) 	the
helpfulness of the agency to the requestor; and (7) the existence of
agency systems to track and retrieve public records.1731
On the other hand, aggravating factors may support an increased penalty:
(1) a delayed response by the agency, especially in circumstances
making time of the essence; (2) lack of strict compliance by the
agency with all the PRA procedural requirements and exceptions;
(3) 	lack 	of 	proper 	training 	and 	supervision 	of 	the 	agency's
personnel; 	(4) 	unreasonableness 	of 	any 	explanation 	for
noncompliance by the agency; (5) negligent, reckless, wanton, bad
faith, or intentional noncompliance with the PRA by the agency; (6)
agency dishonesty; (7) the public importance of the issue to which
the request is related, where the importance was foreseeable to the
agency; 	(8) 	any actual personal economic loss to the requestor
resulting 	from 	the 	agency's 	misconduct, 	where 	the 	loss 	was
foreseeable to the agency; and (9) a penalty amount necessary to
deter future misconduct by the agency considering the size of the
agency and the facts of the case.[74]
71 Bricker v. Dep't of Labor & Indus.. 164 Wn. App. 16, 21, 262 P.3d 121
(2011) (citing Yousoufian V. 168 Wn.2d at 459).
72 168 Wn.2d 444, 467-68, 229 P.3d 735 (2010) (Yousoufian V).
73 Yousoufian V, 168 Wn.2d at 467 (footnotes omitted).
74 Yousoufian V, 168 Wn.2d at 467-68 (footnotes omitted).
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No. 71052-4-1/31
Our Supreme Court emphasized that these factors "may overlap, are offered only
as guidance, 	may not apply equally or at all in every case, 	and are not an
exclusive list of appropriate considerations."75 	No one factor controls, and the
factors "should not infringe upon the considerable discretion of trial courts to
determine PRA penalties."76
Here, the trial court considered the aggravating factors. 	The court found
that Marysville delayed its response with respect to the 19 documents and the
Strategies records but also found that time was not of the essence. 	The court
found a 	lack of strict compliance with the PRA as to the 15 records wrongly
withheld as privileged. 	The court also found a lack of reasonable explanation for
the withholding of most of the records from the group of 19. 	The court also noted
that the City made the wrong determination about the 15 records it withheld
under a claim of privilege. 	Consequently, the City did not provide a reasonable
explanation.
With respect to the 173 Strategies documents, the court found negligent,
reckless, bad faith, or intentional noncompliance with the PRA. 	Specifically, the
court found, 	"Marysville's 	explanation 	regarding 	these 	documents—that they
were not allegedly within the possession or control of Marysville—was a situation
only created 	to 	intentionally 	provide 	Marysville with 'plausible 	deniability' 	of
75 Yousoufian V, 168 Wn.2d at 468.
76 Yousoufian V, 168 Wn.2d at 468.
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No. 71052-4-1/32
Strategies' activities and to attempt to insulate the documents created during
those activities from production." 	The court stated that it did not find dishonesty
but 	did 	find 	"strategic 	planning 	on 	Marysville's 	part 	to 	avoid 	or 	delay 	the
production of the documents in Strategies' possession." 	The court found that the
issue is "extremely important," both because of the odor issue in the region and
because of Marysville's attempts to avoid the reach of the PRA: 	"Simply put,
'plausible deniability' of the law should not be a part of our government." 	With
respect to economic loss to the requester, 	the court found 	that "Marysville's
conduct has had a significant impact on Cedar Grove." 	Finally, the court found
that a penalty was necessary to deter future misconduct.
The City contends that the trial court abused its discretion by considering
only 	the 	Yousoufian 	aggravating 	factors 	without 	explicitly 	considering 	the
mitigating 	factors. 	But 	our 	Supreme 	Court's 	discussion 	in 	Yousoufian 	V
emphasizes the trial court's discretion in applying the factors. 	Moreover, as
Cedar Grove points out in its brief, several of the aggravating factors are mirror
images of the mitigating factors. 	Therefore, it is fair to say that when the trial
court found, for example, a delayed response by the agency, it implicitly also
found the lack of a prompt response.
Marysville also argues that its search and compliance were reasonable
and that despite producing thousands of documents, the trial court "pilloried" the
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No. 71052-4-1/33
City for withholding a small number of "inconsequential" documents as well as
documents 	it never 	had 	or 	used. 	In 	a 	statement of additional 	authorities,
Marysville cites Andrews v. Washington State Patrol77 to argue for a "flexible
approach 	that focuses 	upon the thoroughness and diligence of an agency's
response." 	In Andrews, the "beleaguered" agency, due to the volume of the
requested records and the number of other pending requests, did not comply
with 	its self-imposed 	time estimates.78 	The 	plaintiff alleged 	that the 	agency
violated the PRA by not providing "'the fullest assistance'" and '"the most timely
possible action'" as the statute requires.79 	Division Three disagreed, holding that
a "mechanically strict finding of a PRA violation" whenever a government agency
missed a timeline would not further the purpose of the PRA, which is to ensure
that agencies respond with "reasonable thoroughness and diligence to public
records 	requests."80 	Finding that there was 	no dispute 	about the agency's
diligence or thoroughness, the court affirmed the trial court's summary dismissal
of the PRA lawsuit.81
But Andrews does not support Marysville's position. 	Here, although the
process the City's public records officer used complied with the PRA, the record
77 183 Wn. App. 644, 646, 334 P.3d 94 (2014), review denied. 182 Wn.2d
1011 (2015).
78 Andrews. 183 Wn. App. at 646.
79 RCW 42.56.100; Andrews, 183 Wn. App. at 646.
80 Andrews. 183 Wn. App. at 653.
81 Andrews. 183 Wn. App. at 653-54.
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No. 71052-4-1/34
as 	a 	whole 	does 	not 	show 	that 	the 	City 	responded 	with 	"reasonable
thoroughness and diligence to 	public records 	requests." 	Rather, 	the record
demonstrates 	that 	certain 	members 	of 	city 	government 	and 	Strategies
intentionally withheld responsive records and pursued a policy of evading the
requirements of the PRA. 	The PRA makes clear that it is not up to an agency to
decide which records are consequential or inconsequential.82 	And Marysville's
position ignores the fact that a court assesses penalties on the basis of what
documents the government withheld, not what it produced.
In its discretion, 	the trial 	court considered the entire statutory penalty
range and 	made findings on 	the aggravating Yousoufian factors. 	Especially
given that the trial court found most of the aggravating factors to be present, it did
not abuse its "considerable" discretion in assessing penalties.83
Marysville's Motion for Reconsideration
In denying 	Marysville's 	motion for 	reconsideration, 	the court excluded
declarations the City submitted from 	Gloria Hirashima, Al Aldrich, and Tulalip
Tribes Manager Martin Napeahi. 	Citing Sligar v. Odell.84 the court ruled, "These
declarations constitute new evidence that could have been presented at the time
82 See RCW 42.56.030.
83 See 	Bricker. 	164 	Wn. App. 	at 	29 	($90 	daily penalty not abuse of
discretion where trial court found almost all the Yousoufian aggravating factors
and "given Bricker's need to institute legal action before the agency adhered to
its obligations under the law").
84 156 Wn. App. 720, 734, 233 P.3d 914 (2010).
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No. 71052-4-1/35
the court was considering the original Motion, and the Court therefore refuses to
consider them." 	The City challenges the trial court's ruling as an abuse of
discretion.
CR 59(a)(4) permits a trial court to grant reconsideration if the moving
party introduces "[n]ewly discovered evidence, material for the party making the
application, which he could not with reasonable diligence have discovered and
produced at the trial." 	This court reviews a trial court's order on reconsideration,
including its admission or exclusion of additional evidence, for manifest abuse of
discretion.85
Marysville argues that the court should have admitted the declarations
because they show "why the Court's findings are in error" and because "it is
obvious the trial court's decision was predicated upon a visceral reaction to the
'plausible deniability' comment and a lack of understanding of the relationship of
Strategies with the Tulalip Tribe[s]." 	But the three declarations do little more than
reargue disputed issues, and the City offers no reason why it could not have
presented this evidence earlier. 	We affirm 	the trial 	court's exclusion of the
declarations and denial of Marysville's motion for reconsideration.
85 Sligar. 156 Wn. App. at 734; Morinaga v. Vue. 85 Wn. App. 822, 831,
935 P.2d 637 (1997).
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No. 71052-4-1/36
Cedar Grove's Cross Appeal: Attorney Fees
Cedar Grove cross appeals the trial court's attorney fee award. 	Although
conceding that the court had discretion to reduce the hourly rates or time billed,
Cedar Grove asserts that the court's additional 40 percent reduction of billable
hours was a "manifestly unreasonable" abuse of discretion.
A prevailing party in a PRA action "shall be awarded all costs, including
reasonable attorney fees, incurred in connection with such legal action."86 	The
amount of attorney fees is within the discretion of the trial court.87 	To calculate
attorney fees, courts use the lodestar method, in which the court multiplies a
reasonable 	attorney 	rate 	by 	a 	reasonable 	number 	of 	hours 	worked.88 	In
determining a reasonable number of hours, the court "discounts hours spent on
unsuccessful claims, duplicated effort, or otherwise unproductive time."89 	The
court "may consider the necessity of adjusting [the lodestar] to reflect factors not
86 RCW 42.56.550(4); Kitsap County Prosecuting Attv's Guild v. Kitsap
County. 156 Wn. App. 110, 122, 231 P.3d 219 (2010) (fees and fines mandatory
under PRA when agency wrongfully denies access to public records).
87 Sanders. 169 Wn.2d at 867; Haines-Marchel v. Dep't of Corr.. 183 Wn.
App. 655, 674-75, 334 P.3d 99 (2014) (citing Neigh. Alliance. 172 Wn.2d at 728);
Berrvman v. Metcalf. 177 Wn. App. 644, 656-57, 312 P.3d 745 (2013), review
denied. 179 Wn.2d 1026 (2014).
88 Sanders. 169 Wn.2d at 869.
89 O'Neill v. City of Shoreline. 183 Wn. App. 15, 25, 332 P.3d 1099 (2014).
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No. 71052-4-1/37
considered up to this point."90 	Courts have also recognized the utility of applying
percentage reductions to fee requests.91
The fee applicant has the burden to show that a fee is reasonable.92 	A
trial court must support its fee award by entering findings of fact and conclusions
of law.93 	The court's findings "must do more than give lip service to the word
'reasonable.' 	The findings must show how the court resolved disputed issues of
fact and the conclusions must explain the court's analysis."94
Here, the court made three separate reductions in Cedar Grove's fee
request. 	First, the court reduced the requested hourly rates. 	Cedar Grove's
counsel requested $375 per hour for the principal attorney's time, $275 per hour
for associates' time, and $130 per hour for the paralegal's time. 	The court found
that 	attorneys 	of 	comparable 	skill 	and 	experience 	in 	Snohomish 	County,
including PRA specialists, do not charge more than $300 an hour. 	The court also
90 Bowers v. Transamerica Title Ins. Co.. 100 Wn.2d 581, 598, 675 P.2d
193 (1983); see also Sanders. 169 Wn.2d at 869.
91 See Clausen v. Icicle Seafoods. Inc.. 174 Wn.2d 70, 82, 272 P.3d 827
(2012) (appellate courts have used a percentage reduction when the specifics of
a case make segregating actual hours difficult); Welch v. Metro. Life Ins. Co.. 480
F.3d 942, 948-49 (9th Cir. 2007) (20 percent reduction appropriate where trial
court "expressly correlated its reduction for quarter hour billing to [law firm's]
actual over-billing"); Gates v. Deukmeiian. 987 F.2d 1392, 1400 (9th Cir. 1992)
(use of percentages acceptable as long as trial court 	independently reviews
applicant's fee 	request and 	sets forth "concise 	but clear" 	explanation 	of its
reasons for choosing given percentage).
92 Berrvman. 177 Wn. App. at 657.
93 Berrvman. 177 Wn. App. at 657-58.
94 Berrvman. 177 Wn. App. at 658.
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No. 71052-4-1/38
found that this case involved a "relatively straightforward application of PRA law
and the attorney-client privilege." 	Finally, the court noted that the fee was fixed,
not contingent. 	The court reduced reasonable hourly rates to $300 per hour for
the principal attorney's work, $200 per hour for associates' work, and $100 per
hour for the paralegal's work.
Next, the court reduced the reasonable number of hours in two ways.
First, the court considered the April summary judgment motion and determined
that because the City wrongfully withheld only 15 of the 22 documents at issue,
some 	of 	the 	862.2 	hours 	Cedar 	Grove 	billed 	were 	spent 	on 	unsuccessful
theories. 	The court therefore reduced the number of hours proportionately for a
reduction of 37.5 percent. 	Second, the court found that the total hours billed
included "wasteful, duplicative hours" and warranted a reduction for that reason
as well. 	The court noted in particular the "relatively straightforward nature of the
case," the fact that the hours billed by Cedar Grove's counsel were double those
billed by Marysville's counsel, and the large number of hours Cedar Grove billed
after it prevailed on summary judgment and therefore knew it would receive an
attorney fee award. 	The court reduced the total number of Cedar Grove's billable
hours by 40.0 percent, resulting in a total fee award of $121,110.
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No. 71052-4-1/39
Citing Sargent v. Seattle Police Department.95 Cedar Grove argues that
the court abused its discretion by excluding fees billed after April 2013 for the
reason that these fees related to claims on which it prevailed at the second
summary judgment hearing in August 2013. 	The record supports Cedar Grove's
contention that much of the work its attorneys billed after the April 2013 summary
judgment hearing was 	in conjunction with successful theories 	related to the
second and third groups of documents. 	Under Sargent, therefore, it would have
been error for the trial court to exclude those fees simply because they followed
the first successful summary judgment hearing. 	But unlike the court in Sargent,
the trial court here did not completely exclude fees incurred after the hearing—it
reduced them by 40 	percent. 	As Cedar Grove acknowledges, the court has
discretion to adjust rates and hours. 	It also has discretion to make additional
adjustments after applying the lodestar analysis.
Cedar 	Grove 	also 	argues 	that 	the 	court's 	40 	percent 	reduction 	is
manifestly unreasonable because of the procedural posture of the case and the
City's intransigence. 	First, Cedar Grove argues that as the moving party, it had
to file more briefs, as well as a motion to compel, that the defendant Marysville
did not have to file. 	Cedar Grove contends that although "this case should have
been relatively straightforward," Marysville's intransigence forced Cedar Grove's
95 167 Wn. App. 1, 25-26, 260 P.3d 1006 (2011), rev'd in part on other
grounds. 179 Wn.2d 376, 314 P.3d 1093 (2013).
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No. 71052-4-1/40
counsel to spend "hundreds of hours" 	pursuing the Strategies documents in
particular. 	Cedar Grove also points out that while Marysville could reduce the
hours the City billed for outside counsel by using the assistance of salaried city
employees, Cedar Grove's counsel billed on an hourly basis for all its work on
the case. 	These arguments do 	not establish that the trial 	court abused 	its
discretion in reducing the fee request.96
Finally, 	Cedar 	Grove 	argues 	that 	the 	court's 	40 	percent 	reduction
"undermined the liberal purpose of the PRA," noting that this court has observed
that the purpose of the fee-shifting provisions in remedial statutes is different
from the purpose of similar provisions in other statutes. 	But our Supreme Court
has recognized the trial court's discretion to adjust fee awards not only in cases
involving private tort claims but also in cases involving remedial statutes such as
the 	PRA 	and 	the 	Consumer 	Protection 	Act.97 	Contrary 	to 	Cedar 	Grove's
assertion that the trial court's 40 percent reduction was "arbitrary," the court
supported its order with findings and conclusions that explain its analysis and
show how it resolved disputed issues of fact. 	Because Cedar Grove does not
establish any abuse of discretion in the court's methodology, we affirm the court's
award of fees and costs.
96 See Sanders. 169 Wn.2d at 868 ("While we may quibble with some of
the trial court's reasoning, on the whole its award of fees and costs was within its
discretion.").
97 Ch. 19.86 RCW; see, e.g.. Sanders. 169 Wn.2d at 868; Bowers. 100
Wn.2d at 593-600.
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No. 71052-4-1/41
Fees and Costs on Appeal
Cedar Grove requests attorney fees on appeal under RAP 18.1 and RCW
42.56.550(4). 	A party may recover attorney fees only for work on successful
issues.98 	We grant Cedar Grove's 	request for those costs and 	reasonable
attorney fees related to the PRA issues on which it prevailed on appeal, subject
to its timely compliance with RAP 14.4(a) and 18.1.
CONCLUSION
We wish to be clear about what we are not doing in this opinion. 	We are
not articulating a new standard that makes every record a government contractor
creates during its engagement with an agency a public record subject to the
PRA. 	Nor do we create a new duty on the part of a public agency to search the
records of all its third-party contractors each time it receives a 	PRA request.
Instead, we have applied established precedent about a private entity acting as
the functional 	equivalent of a 	public agency to 	the analogous situation of a
private entity acting as the functional equivalent of a public employee.
Because this 	record 	supports the trial court's decision that Strategies
acted as the functional equivalent of a Marysville employee and that Marysville
used 	the 	records 	Strategies 	created 	while 	acting 	in that capacity, 	the 	PRA
applies to those 	records. 	We affirm the trial court's decision that 	Marysville
98 O'Neill. 183 Wn. App. at 25.
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No. 71052-4-1/42
violated the PRA by wrongfully withholding public records. 	We affirm the court's
orders 	assessing 	penalties, 	awarding 	costs 	and 	attorney fees, 	and 	denying
reconsideration. 	We grant Cedar Grove's request for costs and 	reasonable
attorney fees related to the issues on which it prevailed on appeal, subject to its
timely compliance with RAP 14.4(a) and 18.1.
WE CONCUR:
VQ/^e&C^
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