                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          July 21, 2020


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    BRIAN CORTLAND,                                                 No. 52739-1-II

                        Respondent,

          v.

    LEWIS COUNTY, a Municipal Corporation,                   UNPUBLISHED OPINION

                        Appellant.



         SUTTON A.C.J. — Lewis County appeals the superior court’s order finding Brian Cortland

to be the prevailing party in a Public Records Act (PRA)1 lawsuit. Preliminarily, Cortland argues

that Lewis County does not have standing because it is not an aggrieved party under RAP 3.1

because it stipulated to the PRA violation when it signed a CR 2A stipulation, waived any issue,

and invited any error. Lewis County argues that it is aggrieved by the superior court’s ruling and

has standing, and that it agreed to a CR 2A stipulation on PRA penalties only, and thus, it did not

waive its right to appeal or invite error. Cortland argues that Lewis County violated the PRA by

withholding 18 records from production, claiming an invalid exemption under GR 31.1, and failing

to conduct an adequate search. Cortland also argues that he is entitled to an award of appellate

attorney fees and costs under RCW 42.56.550(4).




1
    Ch. 42.56 RCW.
No. 52739-1-II


       We hold that Lewis County did not deny Cortland access to a public record, and thus,

Cortland has no PRA cause of action. The PRA does not require an agency to prove to the

requestor the adequacy of its search while the search is ongoing, and Lewis County proved the

search was adequate up until the point where Cortland abandoned his PRA request. We also hold

that Cortland is not entitled to an award of appellate attorney fees and costs under the PRA as he

is not the prevailing party. We reverse the merits order and judgment in favor of Cortland and

remand with an order for the superior court to enter a merits order and judgment in favor of Lewis

County, and we deny Cortland’s request for an award of appellate attorney fees and costs.

                                             FACTS

            I. PRA REQUEST AND LEWIS COUNTY’S RESPONSES AND INSTALLMENTS

       Cortland’s current November 2016 PRA request to Lewis County sought “[a]ny and all

records from Chief Civil Deputy Prosecuting Attorney Glenn Carter that Mr. Carter created and/or

maintained that concern judicial records, either under the common law, Nast v. Michels, or

Washington State Court Rule GR 31.1.” Clerk’s Papers (CP) at 15. The county records center

responded to Cortland on November 23, informing him that his request was going to be forwarded

to the relevant department. Casey Mauermann, Lewis County Prosecuting Attorney’s Office’s

public records officer, acknowledged the request in an email to Cortland on November 30, 2016.

Mauermann asked for clarification as to the time frame for the requested records and estimated a

response by January 4, 2017, but she later extended the ready date to February 3. She also advised

Cortland that the records would be provided in installments.

       Lewis County produced three initial installments of records under GR 31.1 because the

records were judicial records. Cortland received the first installment of 101 records on February



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No. 52739-1-II


3. He received the second installment of 100 records on March 7. He received the third installment

of 106 records on June 27.

         By the time of the fourth installment, two other people had made PRA requests identical

to Cortland’s. Lewis County concluded that during the ongoing litigation between Cortland and

the county regarding his PRA request, Carter and his office had “used, created, and maintained”

material that “concerned” judicial records in its own capacity as the prosecutor’s office, not merely

as a custodian of the records for the Superior Court. Thus, these amassed records were no longer

GR 31.1 judicial records, but were county records subject to the PRA. As a result, the county

decided to produce all such records under the PRA to the two new requestors, and to provide a

copy to Cortland. Lewis County produced these records, over 3600 in total, to Cortland in his

fourth installment under the PRA.

         Mauermann emailed Cortland on August 2, 2017, to inform him that the fourth installment

to his records request was available, and that she would be continuing to search for responsive

records and would send him the next installment by October 2. Mauermann then emailed Cortland

on October 12 to inform him that a new law2 imposed fees for copying and providing PRA records,

and advised him that she would be sending him a cost estimate by December 7.

                                         II. PRA LAWSUIT

         On October 13, 2017, Cortland served Lewis County with a PRA summons and complaint,

but he did not file the complaint with the court until November 17. In his complaint, Cortland

alleged that he received no communication from Lewis County after August 2, 2017, that the




2
    LAWS OF 2017, ch. 304 (effective July 23, 2017).


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No. 52739-1-II


county had denied him access to public records, and that it failed to conduct an adequate search,

and thus, it violated the PRA. Lewis County denied the allegations.

       After the suit was filed, Lewis County continued to search for responsive records and

communicate with Cortland. On December 10, Mauermann emailed Cortland to inform him that

a fifth installment was ready for copying and inspection. She provided him an estimated cost,

which he never paid. Cortland exchanged emails with Mauermann until December 12. When he

did not claim the fifth installment of records, Mauermann notified Cortland that failure to pay or

respond within 30 days would constitute an abandonment. Because Cortland failed to pay or

respond within the 30 days, Mauermann concluded that he abandoned his request, closed the PRA

file, and stopped providing responsive records.

                        III. PRA LAWSUIT–MERITS HEARING AND ORDER

       Cortland and Lewis County disputed whether the county improperly claimed an exemption

under GR 31.1 for the first three installments, whether the county conducted an adequate search

and proved it did so, and whether compliance with GR 31.1 satisfies the PRA.

       After a merits hearing, the superior court ruled that in regard to the first three installments,

Lewis County produced the records in an incorrect form under GR 31.1 records rather than

producing them under the PRA, and Lewis County had a duty to prove that its search was adequate

under the PRA and failed to do so.

       The court found that Lewis County continued to search for and produce records after

Cortland filed the lawsuit. The court also concluded that the duty to search is not satisfied even if

the requestor abandons the PRA request, and thus, it ordered the county to conduct a re-search for




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No. 52739-1-II


responsive records. The court stated, however, that Lewis County’s production was ongoing, and

that it had provided a substantial number of records up until that point:

       Lewis County clearly provided a large number of records. Lewis County was
       continuing to provide records. I don’t find that there had been a stoppage of the
       flow of records, but the difficulty is, and I think [Cortland’s attorney] has made this
       point, it’s difficult for [Cortland] to know what Lewis County is doing. It makes it
       difficult for [Cortland] to know what was being searched, where it was searched,
       what is being provided, what isn’t provided, whether the disclosure of records is
       exempted. Lewis County is simply provided records, but without any way for
       [Cortland] to know all these things that a requestor’s entitled to know.

Verbatim Report of Proceedings (VRP) (June 1, 2018) at 4-5.

       The court entered the following relevant finding of fact at issue: “The record is absent of

an affidavit or declaration detailing the search Lewis County made for the Public Records Act

request at issue in this lawsuit.” CP at 266. The court entered the following relevant conclusions

of law at issue and entered an order on the merits:

       13. As a matter of law Lewis County improperly withheld records because it failed
       to meet its mandatory burden of proof identifying it performed a sincere and
       adequate search under the Public Records Act, causing a violation of the right to
       inspect and copy, RCW 42.56.550(1). “An adequate search is a prerequisite to an
       adequate response, so an inadequate search is a violation of the PRA because it
       precludes an adequate response.” A failure to properly respond is a denial under
       the Public Records Act.

       14. First, as a matter of law Plaintiff Brian Cortland is the prevailing party on the
       issue of the denial of the right to inspect and copy records because Lewis County
       did not meet its mandatory burden of proof, beyond a material doubt, that Lewis
       County demonstrated it made an adequate search for records pursuant to the Public
       Records Act. An inadequate search “constitutes an improper withholding”
       violating the right to inspect and copy records.

       15. Second, as a matter of law Plaintiff Brian Cortland is the prevailing party on
       the issue of the denial of the right to inspect and copy records because Lewis
       County’s cobbled together attempt to demonstrate the adequacy of the search made
       it impossible for [Cortland] to determine what records he would receive or not




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No. 52739-1-II


       receive under the Public Records Act. This is a denial of adequate response, which
       is a violation of the right to inspect and copy under the Public Records Act.

       16. As to the prevailing party on the issue of being denied the right to copy and
       inspect records pursuant to RCW 42.56.550(1), Plaintiff Brian Cortland shall be
       awarded: all costs, reasonable attorney’s fees, and a statutory penalty

       ....

       18. After this Court has made a determination that Lewis County has fulfilled its
       mandatory burden of demonstrating, beyond a material doubt, that it has search[ed]
       for and identified the responsive records to Mr. Cortland’s request at issue in this
       lawsuit, the parties jointly or this Court will set the date for the Penalty Hearing.

CP at 267-69 (internal quotation marks and citations omitted).

       Lewis County moved for reconsideration, arguing that the court’s rulings were inconsistent

because at the hearing, the court orally ruled that Lewis County was producing records to Cortland

at the time Cortland filed the lawsuit, and the court then ruled in its written order that Lewis County

failed to prove the adequacy of its search. Lewis County argued that it did not have a duty to prove

the adequacy of its search since its production of records in installments was still ongoing. The

court denied the motion.

       Lewis County performed the re-search as ordered by the court and produced more records

to Cortland. Based on the court’s ruling, Lewis County offered to sign a CR 2A stipulation to

PRA penalties in order to “speed the entry of a final order.”3 CP at 349. Lewis County made it

clear that it did not agree with the court’s ruling on the underlying merits:

              Lewis County proposes to stipulate to the penalty analysis above for
       purposes of speeding entry of a final order in this matter. This is not an offer of
       settlement, for Lewis County wishes to maintain its ability to claim that the judge’s



3
  The 18 records that Lewis County stipulated to withholding were judicial records Lewis County
found in the re-search that it had not produced in the original three installments


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No. 52739-1-II


       order on the merits was erroneous. It is instead a stipulation designed to speed you
       to a final judgment.

CP at 350. The parties did not agree on whether Lewis County could appeal the merits order if it

entered into the CR 2A stipulation regarding PRA penalties. They filed an agreed motion for entry

of the final order and judgment. In the motion, the parties state,

       The parties ask the Court to enter a final order consistent with this stipulation. . . .
       Please note that the parties dispute whether the attached stipulation affects any right
       to appeal this matter.

CP at 315. The stipulation provided that it was predicated on the superior court’s merits order

being binding.

       At the hearing, Lewis County brought to the court’s attention the parties’ disagreement

over whether it was waiving its right to appeal, and it made it clear to the court that it was

preserving its right to appeal.

       I think it’s important for Lewis County to make one additional thing on the record.
       You’ll see from the written documents the parties dispute what effect, if any, this
       proposed agreed order would have on either party’s rights to appeal, and I just
       thought it was worth pointing out that there is a dispute over that. There isn’t any
       specific agreement on that.

       ....

       [I]n candor to the court, Lewis County wishes to preserve its right to appeal
       potentially the underlying merits ruling and does not believe that stipulating to the
       penalty that follows from that merits ruling, while that ruling is binding on Lewis
       County because this court made it, would waive its right to appeal the underlying
       merits ruling. And so it wished to reflect that the parties don’t have any agreement
       on that in the order to avoid waiver.

VRP (Nov. 16, 2018) at 5-6. Cortland argued that Lewis County would be inviting error if it

appealed the order. The court understood the disagreement, and it signed the stipulation. The final




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No. 52739-1-II


order stated that “[t]he parties disputed whether the stipulation effects any right to appeal.” CP at

323.

       Lewis County appeals the order on the merits hearing, the order denying its motion for

reconsideration, and the final order and judgment.

                                           ANALYSIS4

       “The PRA is a strongly worded mandate for broad disclosure of public records.”

Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 714, 261 P.3d 119

(2011). The PRA “stands for the proposition that[] full access to information concerning the

conduct of government on every level must be assured as a fundamental and necessary

precondition to the sound governance of a free society.” Progressive Animal Welfare Soc’y v.

Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994). And when evaluating a claim within

the framework of the PRA, a court must “take into account the policy of this chapter that free and

open examination of public records is in the public interest, even though such examination may

cause inconvenience or embarrassment to public officials or others.” RCW 42.56.550(3).

       RCW 42.56.070(1) directs government agencies to disclose public records upon request

unless a specific exemption in the PRA or another statute applies that exempts or prohibits

disclosure of specific information or records. Ameriquest Mortgage Co. v. Office of Attorney

General of Wash., 177 Wn.2d 467, 485-86, 300 P.3d 799 (2013). Consistent with the PRA’s




4
 Cortland argues that Lewis County’s “inconsistent act of signing the CR 2A Stipulated Statutory
Penalty agreement . . . waived the argument that it did not violate[] the Public Records Act.” Br.
of Resp’t at 11. He also argues that Lewis County failed to preserve error and invited error. The
parties stipulated to the penalties, but Lewis County properly preserved its right to appeal the
underlying merits.


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No. 52739-1-II


purpose, RCW 42.56.030 expressly requires that the PRA be “liberally construed and its

exemptions narrowly construed . . . to assure that the public interest will be fully protected.”

       Denial of the right to inspect or copy a public record is a prerequisite to a PRA action.

RCW 42.56.550(1). Denial of public records occurs “when it reasonably appears that an agency

will not or will no longer provide responsive records.” Hobbs v. State Auditor’s Office, 183 Wn.

App. 925, 936, 335 P.3d 1004 (2014). The superior court may hear a motion to show cause when

a person has “been denied an opportunity to inspect or copy a public record by an agency.” RCW

42.56.550(1). “Therefore, being denied a requested record is a prerequisite for filing an action for

judicial review of an agency decision under the PRA.” Hobbs, 183 Wn. App. at 937. When an

agency produces records in installments, the agency does not deny access to the records until it

finishes producing all responsive records. Hobbs, 183 Wn. App. at 936. “If a requestor fails to

claim or review the records or an installment after the expiration of thirty days, an agency is

authorized to stop assembling the remainder of the records or making copies.” WAC 44-14-

04005(1); RCW 42.56.120(4).

       The court may decide a PRA action on affidavits alone. RCW 42.56.550(3); O’Neill v.

City of Shoreline, 170 Wn.2d 138, 153-54, 240 P.3d 1149 (2010). Agency actions under the PRA

are reviewed de novo. Neigh. All., 172 Wn.2d at 715.

       Cortland served the complaint only one day after Mauermann emailed him to inform him

of the new estimated fees he would have to pay under the new law. Cortland filed the complaint

with the superior court the next month, at which time the county was still amassing over 3600

responsive records to provide to Cortland. Once Lewis County informed Cortland that the fifth

installment was ready and he would receive it once he paid the fee, Cortland expressed his



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No. 52739-1-II


discontent with the fee and the handling of the requested records, and did not claim the records

from the fifth installment. Lewis County notified him that if he did not pay or respond within 30

days, it would consider his request abandoned. When Cortland failed to pay or respond, the county

closed its file and stopped producing responsive records.

       Until this point, Lewis County did not deny Cortland’s access to records because it did not

reasonably appear that Lewis County would no longer provide responsive records. And it never

denied Cortland’s access to a public record because it continued to make available records for

copying and inspection, including preparing a final fifth installment of records, until Cortland

abandoned his PRA request. Because there was no denial of access, there was no final agency

action under RCW 42.56.550(1), and thus, we hold that Cortland had no PRA cause of action.

Therefore, the superior court erred by ruling that Cortland was the prevailing party on the merits.5

                                         CONCLUSION

       We reverse the superior court’s merits order and judgment in favor of Cortland and remand

with an order for the court to enter a merits order and judgment in favor of Lewis County, and

deny Cortland’s request for an award of appellate attorney fees and costs.




5
  “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on
review . . . the party must request the fees or expenses as provided in this rule.” RAP 18.1(a).
RCW 42.56.550(4) allows a prevailing party in a PRA action to receive an award of attorney fees
and costs. Because Cortland is not the prevailing party, we deny Cortland’s request for an award
of appellate attorney fees and costs.


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No. 52739-1-II


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, A.C.J.
 We concur:



 MELNICK, J.




 CRUSER, J.




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