                                                                                                      COVRT OF /
                                                                                                                 APPEALS
                                                                                                           DIVISION   j.i.
                                                                                                    2014 OCT - 7 /
                                                                                                                   i1110: 56
                                                                                                    S TA
                                                                                                     v




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                   DIVISION II


    MIKE HOBBS,                                                                 No. 44284 -1 - II


                                          Appellant,


          v.



    STATE OF WASHINGTON, WASHINGTON                                       PUBLISHED OPINION
    STATE AUDITOR' S OFFICE, a Washington
    State Agency,

                                          Respondent.


         LEE, J. —         Mike Hobbs appeals the superior court' s order dismissing his Public Records
               1
Act ( PRA)          claim against     the State Auditor' s Office ( Auditor).   Hobbs argues that the superior


court erred in concluding that the Auditor cannot be liable for potential errors while a PRA request

is still pending, the Auditor' s initial response letter was adequate, and the scope of the Auditor' s

search was reasonable. Because we hold the superior court did not err, we affirm.

                                                        FACTS


          On November 28, 2011, attorney Christopher W. Bawn filed a PRA request to the Auditor

on    behalf   of   his   client   Mike Hobbs. The request was for public records related to the Auditor' s


investigation of a whistleblower complaint regarding the Department of Social and Health Services




1
    Ch. 42. 56 RCW.
No. 44284 -1 - II



 DSHS)     and   the use of " SSP' Dedicated Accounts"             for foster    children.   Clerk' s Papers ( CP) at


105. The request included a large amount of technical information related to the records and record


retention. Mary Leider, the Auditor' s public records officer, received the request.

A.        AUDITOR' S RESPONSE TO HOBBS' REQUEST


          On December 2, 2011, Leider            sent   Hobbs   a response    letter stating, " As we understand the


subject matter of your request, you are requesting all records related to investigations of DSHS

that   pertain   specifically to SSI Dedicated Accounts."           CP   at   108. The letter informed Hobbs that


the records would be provided in installments and that the Auditor expected the first installment

to be available     for inspection,     by   appointment, anytime after       December 16. The letter also stated


that DSHS client records would be sent first to DSHS to ensure all the appropriate redactions were


made to protect the foster children' s privacy.

          Leider    was   unable   to   contact   Hobbs'    attorney by phone or email to arrange for the

inspection of documents; so on December 21, the Auditor made the first installment of records


available   to Hobbs electronically.           As discussed in more detail below, Hobbs responded to this


first installment by filing suit against the Auditor for alleged PRA violations.3




2"
   SSI" is the acronym for Supplemental Security Income and is a federal income supplement
program designed to help aged, blind and disabled people who have little or no income. Available
at   Supplemental      Security    Income Home Page - 2014 Edition, U.S. SOC. SECURITY ADMIN.,

http: / www. ssa. gov /ssi/ ( last visited Sept. 26, 2014).
        /

3 Hobbs filed a lawsuit against the Auditor on December .23, two days after Leider made the
December 21 installment        available.
No. 44284 -1 - II




          On December 30, the Auditor provided Hobbs with a new copy of the documents, using

code numbers         the Auditor   created   to    correspond      to   explanations of   the   redactions.   Leider also


informed Hobbs that the next installment of records would be ready on January 13, 2012.

          On January 6, 2012, the Auditor' s counsel sent Hobbs a letter confirming his requested

prioritization of his three pending records requests (two of which are not the subject ofthis appeal).

and stating,


          In our conversation, I requested that you contact me if you believe the Auditor has
          made a mistake     in processing        your public records requests.       The Auditor wants to
          hear from you if you think there are problems, so the Auditor may address your
          concerns promptly if it is possible to do so. This request for cooperation from you
          pertains to any concerns you may have about redactions, validity or explanation of
          claimed exemptions,         or   other   concerns.       For example, you mentioned that the
          Auditor' s public records officer provided you with an updated version of the first
          installment of its response to your November 28, 2011 request, and that this update
          was provided promptly. This approach avoids unnecessary use of the court' s time
          and resources.




CP   at   121 -22.    Also on January 6, Leider sent Hobbs an e -mail informing him that the final

installment of records would be ready on February 13.

          On January 19, Leider contacted Hobbs to inform him of some technical issues that had

arisen    in providing     e -mails   containing     metadata.          After consulting with Pete Donnell, audit

manager for the statewide technology audit team, the Auditor developed a method to provide the

documents in the format that Hobbs had requested. Leider informed Hobbs that she would prepare


five e- mails, send them to Hobbs to confirm they were in an acceptable format, and then process

the remaining 88 e- mails.         After confirming the e -mails were in a format acceptable to Hobbs,

Leider told Hobbs the remaining 88 e -mails would be ready on March 1.




                                                               3
No. 44284 -1 - II




          On February 13, Leider sent Hobbs the first 1, 010 pages of the foster child records redacted

by   DSHS.    On February 14, Leider provided Hobbs with another updated copy of the December

30, 2011 production addressing additional concerns Hobbs attorney had raised. On February 16,

Leider provided the remaining 1, 010 pages of foster child records redacted by DSHS. On February

17, Leider sent Hobbs an e -mail stating that she had identified technical issues with some of the

files and sent Hobbs another copy of the DSHS records with corrections to resolve the technical

issues.


          On February 27, Leider sent Hobbs another e -mail stating that she had reviewed a

declaration he had submitted to the court complaining about technical issues involving the

metadata of the 17 different versions of the Auditor' s whistleblower investigation closure letter.

Leider stated that she had consulted with Donnell, corrected the problem, and was providing new

versions of the letter with the metadata issues resolved.


          On March 1, Leider provided Hobbs with the additional e- mails that Leider had contacted


Hobbs about on January 19. She also sent Hobbs an e -mail stating that the Auditor believed it had

provided all the responsive documents to Hobbs' public records request, and that Hobbs should


contact her with any concerns he may have.

          On March 29, Leider sent Hobbs an e -mail in which she noted that Hobbs had not

downloaded the final installment of the records from March 1 and that the link to the " Secure File

Transfer System" had      expired.   CP   at   302.   She notified Hobbs that she was reposting a new

transfer link so that he would be able to access the installment.




                                                       4
No. 44284 -1 - II



B.       HOBBS' LITIGATION AGAINST THE AUDITOR


         Meanwhile, on December 23, 2011, almost immediately after the Auditor had provided the

first installment of documents in response to Hobbs' public records request, H obbs filed suit

against the Auditor for alleged PRA violations, primarily complaining about redactions to the

records produced in the December 21, 2011 first installment. On January 20, 2012, Hobbs filed a

motion requesting in camera review of the Auditor' s December 21 and December 304 installments

of   produced   records.       The superior court heard the motion on February 14 and reviewed both the

December 21 and December 30 productions in camera. On February 15, the superior court ruled

that exemption codes the Auditor had used complied with the PRA requirements.


          On February 17, based on the superior court' s ruling after the in camera review, the Auditor

filed   a motion    seeking     a   ruling that ( 1) "    the redactions contained in the Auditor' s December 30,


2011 production, as supplemented by the 5 pages of updated redactions provided to the requester

on   February    14, 2012, [     were] proper ";         and ( 2) Hobbs had no cause of action with respect to the


December 21, December 30, and February 14 installments because the Auditor was still in the

process of responding to Hobbs' public records request and, thus, had not denied Hobbs any

records.    CP     at   143.    On March 30, the superior court ruled that the redactions made in the


December 30 installment, as updated in the February 14 installment, complied with the PRA. And,

the superior court ruled that Hobbs did not have a cause of action as to the December 21, December


30, and February 14 installments.




4 The December 30 response included the same documents provided in the December 21
installment, but with code numbers that corresponded to explanations for the redactions.


                                                                 5
No. 44284 -1 - II



          A final hearing on Hobbs' suit against the Auditor was held on August 17, 2012, after the

Auditor' s final installment        of   Hobbs'     public     records request.      Hobbs raised numerous issues,


including that ( 1) the Auditor' s response letter on December 2, 2011 violated the PRA because it

did   not contain a    date for    when   the   response       to his   request would    be   completed; (    2) the initial


copies of the letter closing the whistleblower investigation ( the December 21 installment) were

disclosed    with   improper      metadata; (    3) the investigator originally assigned to the case did not

properly    search   her   electronic    case    file,   and   thus,    certain records were       not   disclosed; ( 4) the


Auditor improperly interpreted Hobbs' public records request and did not include documents such

as    file folder tabs     and   documents      recovered       from disaster recovery tapes;            and (   5) the first


installment of records was improperly redacted.5
          The Auditor submitted numerous declarations from employees who had worked on

compiling the        responses     to   Hobbs'     public      records    request.    Leider submitted an affidavit


comprehensively explaining the entire process of responding to Hobbs' public records request.

Kim Hurley, the special investigations manager, declared that she had compiled numerous search

terms and used those terms to search " the Auditor' s Sharepoint program for documents related to


Whistleblower case 10 -005, my individual Outlook mailboxes, Teammate, and my Auditor

network    folder." CP     at   246. She had    also searched       the Auditor'   s " evault,"   which stores all Auditor


employee e -mails in a place where employees cannot delete them. CP at 246.




5 Hobbs also stated he would not " waive" this issue, despite the superior court' s earlier adverse
rulings. CP at 653.




                                                                6
No. 44284 -1 - II



          Julie Cooper, the special investigations coordinator, declared that she had searched her own

e -mail   box and two     other employees'       e -mail   boxes for     responsive e- mails and   documents.   She


had   also searched   the "   evault"   to   ensure all responsive e- mails were        disclosed to Leider. CP at


243. Jan Jutte, the director of legal affairs, declared that she had worked with Leider on compiling

the response to Hobbs' public records request, which work had included numerous discussions

and meetings to plan and coordinate the interpretation, search, collection, and redaction of

responsive records.




          Cheri Elliott   was   the   original   investigator    assigned   to the   whistleblower complaint.   She


stated that she maintained a paper file of the investigation after closing the complaint and that the

electronic documents were deleted after the investigation was closed and the paper file was


compiled. After being notified of the public records request, she had scanned the final paper file

into an electronic document for disclosure. She had also searched her e -mail boxes and her " Word


program     folder   on   the Auditor    network."      CP   at   252.    And, statewide technology audit team

manager Donnell submitted an affidavit explaining how he had performed the e -mail redactions

while maintaining the metadata. He also explained how he had corrected Hobbs' alleged problem

with the metadata in the 17 different versions of the Auditor' s letter closing the whistleblower

investigation.


          On November 9, 2012, the superior court issued its final order, ruling that the Auditor' s

initial response complied with the PRA requirement to provide a response within five days and


that, after the initial response, the Auditor had continued to communicate with Hobbs regarding

the dates additional responses would be provided. The superior court concluded that the Auditor


did not deny Hobbs access to the electronic records or .metadata because providing records in



                                                             7
No. 44284 -1 - II



updated installments while his public records requests were still pending was not a " denial" of

records   for PRA     purposes.        CP   at    1373.   The superior court also concluded that the scope of the


Auditor' s search was adequate and that the Auditor reasonably interpreted Hobbs' public records

requests.   Finally, the superior court declined to reconsider issues it had resolved in its previous

rulings. The superior court dismissed Hobbs' PRA action with prejudice. Hobbs appeals.

                                                           ANALYSIS


          Hobbs argues that the superior court erred by concluding that he had no cause of action

based on the Auditor' s December 21 first installment in response to his public records request. He


also argues that the superior court erred by concluding that the Auditor' s response letter was

adequate, that the scope of the Auditor' s search was reasonable, and that the Auditor reasonably

interpreted Hobbs' public records request such that it had disclosed all requested documents. We

disagree and affirm the superior court' s dismissal of Hobbs' PRA claim.


          We review agency actions challenged under RCW 42. 56. 030 through RCW 42. 56. 520 de

novo.     Rental Hous. Ass 'n ofPuget Sound v. City of Des Moines, 165 Wn.2d 525, 536, 199 P. 3d

393 ( 2009).   When interpreting a statute, we must determine and enforce the legislature' s intent.

Rental Hous. Ass 'n, 165 Wn.2d               at   536.    Where the meaning of statutory language is plain on its

face,   we give     effect   to that   plain      meaning    as an expression of   legislative intent. Rental Hous.


Ass 'n, 165 Wn.2d       at   536.   When interpreting provisions of the PRA, we consider the PRA in its

entirety to effectuate the PRA' s overall purpose. Rental Hous. Ass 'n, 165 Wn.2d at 536.

A.        PREMATURE LITIGATION


          Hobbs contends that the superior court erred by allowing the Auditor to supplement its

responses after      he had filed      suit      to   correct alleged violations of   the PRA.   Specifically, Hobbs



                                                                 8
No. 44284 -1 - II



argues that any violations in the original installment were violations at the time they occurred and

that he   was entitled      to   penalties regardless of whether   the   violations were   later   corrected.   Thus,


Hobbs takes the position that a requestor is permitted to initiate a lawsuit prior to an agency' s

denial and closure of a public records request. The PRA allows no such thing. Under the PRA, a

requestor may only initiate a lawsuit to compel compliance with the PRA after the agency has

engaged in some final action denying access to a record.

           1.    No PRA Cause of Action Until After Agency Denies The Public Records Requested

          Under RCW 42. 56. 550( 1),         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."

Therefore, being denied a requested record is a prerequisite for filing an action for judicial review

of an agency decision under the PRA. Although the statute does not specifically define " denial"

of a public record, considering the PRA as a whole, we conclude that a denial of public records

occurs when it reasonably appears that an agency will not or will no longer provide responsive

records.



          RCW 42. 56. 520 states, in relevant part,


          Denials of requests must be accompanied by a written statement of the specific
          reasons therefor. Agencies, the office of the secretary of the senate, and the office
          of the chief clerk of the house of representatives shall establish mechanisms for the
          most prompt possible review of decisions denying inspection, and such review shall
          be deemed completed at the end of the second business day following the denial of
          inspection and shall constitute final agency action or final action by the office of
          the secretary of the senate or the office of the chief clerk of the house of
          representatives for the purposes ofjudicial review.


 Emphasis         added).   The language in RCW 42. 56. 520 itself refers to " final agency action or final

action."        Thus, based on the plain language of the PRA, we hold that before a requestor initiates a




                                                          9
No. 44284 -1 - II



PRA lawsuit against an agency, there must be some agency action, or inaction, indicating that the

agency will not be providing responsive records.

          Here, there is no dispute that the Auditor was continuing to provide Hobbs with responsive

records until March 1, 2012, when the Auditor determined it provided all responsive documents


to Hobbs' public records request. Therefore, there could be no " denial" of records forming a basis

for judicial review until March 1, 2012. The plain language of the statute does not support Hobbs'

claim that a requester is permitted to initiate a lawsuit before an agency has taken some form of

final action in denying the request by not providing responsive documents. 6
          2.    Initial PRA violations


          Hobbs also argues that once an agency has allegedly violated the PRA, that PRA violation

exists as a basis for penalties and costs from the time of alleged violation until it is cured, even if

it is   cured   before the   requestor      would have       a cause of action against   the agency ( i. e., when the



agency takes final      action   in   denying   public records).        In other words, if there were violations in


the December 21 installment of records, he should be entitled to penalties and costs based on those

violations from December 21 until the time the violations are cured. We disagree.


          Hobbs cites four specific cases to support his contention that the superior court provided


the Auditor with improper " do- overs" while litigation was pending, rather than ruling that he was

entitled to penalties and fees because the Auditor had violated the PRA with its December 21

installment     production.    Br.    of   Appellant   at   33.   Specifically, Hobbs relies on City ofLakewood v.




6 Here the Auditor was producing records in installments. We do not address the situation where
an agency completely ignores a records request for an extended period.

                                                                  10
No. 44284 -1 - II



                                      8
Koenig,       Sanders   v.   State,        Gronquist    v.   State   Dep 't   of Licensing,9   and Resident Action Council v.

                                          I°
Seattle      Housing Authority.                 Hobbs' reliance on these cases is misplaced.


             First, this court' s recent decision in Koenig is inapplicable to this case. There was a single

issue   presented     in Koenig       —whether a requestor is entitled to penalties based solely on an agency' s

violation of       the " brief     explanation" requirement.                Koenig,   176 Wn.    App.   at   399.   Neither party

disputed whether the records were properly redacted, and the City did not argue that it subsequently

cured      the   violation   by    later explaining the          redactions.      See Koenig, 176 Wn. App. at 399 -400.

Accordingly, Koenig does not address the issue of whether a requestor is entitled to penalties and

fees for alleged violations of the PRA prior to the requestor having a cause of action under the

PRA based on an agency' s final action in denying requested records.

             Second, like Koenig, Sanders does not address the issue of whether a requestor is entitled
to penalties and fees for alleged PRA violations before the requestor has a cause of action.

However, Sanders does seem to suggest that agencies may have the opportunity for " do- overs."

Br.   of   Appellant    at   33.    In Sanders, our Supreme Court held that, if an agency violates the " brief

explanation" requirement                  in RCW 42. 56. 210( 3),           the agency is not precluded from subsequently

offering      an explanation        regarding how the            claimed exemption applies.             169 Wn.2d at 847 -48.




7
    City ofLakewood v. Koenig,                  176 Wn. App. 397, 309 P. 3d 610 ( 2013), review granted, 179 Wn.2d
1022 ( 2014).


8 Sanders v. State, 169 Wn.2d 827, 240 P. 3d 120 ( 2010).

9 Gronquist v. State Dep' t ofLicensing, 175 Wn. App. 729, 309 P. 3d 538 ( 2013).
19
     Resident Action Council               v.   Seattle Hous. Auth., 177 Wn.2d 417, 300 P. 3d 376, 327 P. 3d 600
    2013).




                                                                       11
No. 44284 -1 - II



Moreover, an agency is not precluded from arguing a different exemption applies to justify the

redaction or      withholding      of a record after a      lawsuit is initiated.    Sanders, 169 Wn.2d at 847;


Progressive Animal Welfare Soc' y              v.   Univ. of Wash., 125 Wn.2d 243, 253, 884 P. 2d 592 ( 1994).


The agency' s violation of the " brief explanation" requirement is only relevant insofar as it may

increase the    penalties    imposed if documents          are   improperly   redacted or withheld.   Sanders, 169


Wn.2d    at   848. Therefore, while Sanders fails to support Hobbs' assertion, Sanders does suggest


that even when the agency actually violates the PRA, the agency is not foreclosed from later curing

that violation by offering a satisfactory explanation for the redaction or withholding of documents.

         Finally, neither Gronquist nor Resident Action Council address the issue of whether an

agency can voluntarily cure an alleged violation of the PRA while the request remains open and

the agency is actively engaging in efforts to fully respond to the request. In these two cases, the

agencies maintained, in both the trial court and the appellate courts, that the documents at issue


were either    properly    withheld or redacted.          Gronquist, 175 Wn. App. at 746 -54; Resident Action

Council, 177 Wn.2d           at       40.
                                  439 -        That is not the      circumstance    here.   And Gronquist did not


completely foreclose the possibility that an agency may voluntarily cure a PRA violation after

litigation has    commenced.        Rather, Gronquist held that the agency' s continued attempts to cure

the   violation   during   litigation   were   inadequate.       175 Wn. App. at 754.

         Hobbs fails to cite to any authority to support his contention that an agency is categorically

precluded from voluntarily curing alleged PRA violations while they are actively making

reasonable efforts to fully respond to the public records request. However, Division Three of this

court recently addressed a similar issue and its decision supports the assertion that agencies can




                                                             12
No. 44284 -1 - II



cure PRA violations by voluntarily remedying the alleged problem while the records request is

open and the agency is actively working to respond to it.

        In Andrews       v.   Washington State Patrol," the Washington State Patrol ( WSP) responded to


a public records request              by   providing     an estimated response        date   of   May    1, 2012.     2014 WL


4627656   at *    1.   However, the WSP inadvertently forgot to send the requestor an extension letter

explaining that there would be additional delays caused by the complexity of the request. Andrews,

2014 WL 4627656           at *   1.   On May 3, the requester filed a lawsuit alleging that the WSP violated

the PRA by failing to respond to the request by their estimated response date. Andrews, 2014 WL

4627656   at. * 1.     On May 9, the WSP responded to the requester explaining the complexity of the

request and provided a new estimated                     time for responding to the          request.    Andrews, 2014 WL


4627656    at *   1.   On May 25, the WSP fully responded to the requester' s public records request.

Andrews, 2014 WL 4627656                    at *   2.   The requester continued to argue that he was entitled to


penalties for the entire period of time between the WSP' s estimated response date and the date the


WSP ultimately responded to the request. Andrews, 2014 WL 4627656 at * 2 -3.

        The      court   disagreed         and     declined to impose       a "   mechanically strict finding of a PRA

violation whenever        timelines        are missed."        Andrews, 2014 WL 462757,           at *   5.   Instead, the court


held that the PRA did not require an agency to comply with its own self -
                                                                        imposed deadlines as long

as the agency was acting diligently in responding to the request in a reasonable and thorough

manner.   Andrews, 2014 WL 4627656                      at *   5.   Because the WSP acted diligently in its attempts to

respond   to the PRA       request, and          the WSP' s " thoroughness of         response [ was] not an        issue[,]" the




11 No. 32288 -2 -III, 2014 WL 4627656 ( Wash. Ct. App. Sept. 16, 2014).

                                                                     13
No. 44284 -1 - II



court affirmed the trial court' s order granting summary judgment in favor of the WSP. Andrews,

2014 WL 4627656 at * 5.


         Here, the Auditor consistently made every effort to fully comply with Hobbs' public

records request and      voluntarily   cured each of   Hobbs'   alleged violations.   The Auditor produced


new exemption codes and explanations, produced updated copies of certain redacted pages, re-



produced 17 copies of the letter closing the whistleblower investigation in order to address Hobbs'

concern regarding the metadata, and consulted with the statewide technology audit team manager

to develop a method of providing the documents in a format that Hobbs had requested. And Hobbs

does not dispute that by the time of the final hearing, all of the issues he raised regarding the

Auditor'   s response   had been    cured.   When an agency diligently makes every reasonable effort to

comply with a requestor' s public records request, and the agency has fully remedied any alleged

violation of the PRA at the time the requestor 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. 12




12 We stress that this opinion should not be read to encourage requestors to remain silent and wait
until final agency action to voice concerns regarding agency actions or inaction. The purpose of
the PRA is to encourage open and transparent government by ensuring public access to
government records. RCW 42. 56. 030. As a policy matter, the purpose of the PRA is best served
by communication between agencies and requestors, not by playing " gotcha" with litigation. In
cases such as this, where an agency is making every effort to cooperate with a requestor to provide
the requested records, there certainly cannot be any legitimate purpose served by initiating a
lawsuit prior to the agency making a final decision regarding what documents it will and will not
produce.




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No. 44284 -1 - II



B.        INITIAL RESPONSE LETTER


          Hobbs asserts that the Auditor violated the PRA by failing to properly provide a prompt

response to his public records request. Although the Auditor sent Hobbs a response letter within


the statutory five -day response period and included an estimated date forr completion of the first

installment in response to Hobbs' public records request, Hobbs contends that this response was


insufficient because it did not provide him with an estimated date for completing the Auditor' s

entire response to his public records request. Hobbs is incorrect. The Auditor' s response complied


with the statutory five -day response period; thus, the Auditor did not violate the PRA.

          RCW 42. 56. 520 governs an agency' s initial response to a PRA request and states, in

relevant part:




          Within five business days of receiving a public record request, an agency, the office
          of the secretary of the senate, or the office of the chief clerk of the house of
          representatives must respond by either ( 1) providing the record; ( 2) providing an

          internet address and link on the agency' s web site to the specific records requested,
          except that if the requester notifies the agency that he or she cannot access the
          records through the internet, then the agency must provide copies of the record or
          allow the requestor to view copies using an agency computer; ( 3) acknowledging

          that the agency, the office of the secretary of the senate, or the office of the chief
          clerk of the house of representatives has received the request and providing a
          reasonable estimate of the time the agency, the office of the secretary ofthe senate,
          or the office ofthe chiefclerk ofthe house ofrepresentatives will require to respond
          to the request; or (4) denying the public record request.

 Emphasis     added).   In addition, RCW 42. 56. 080 allows an agency to produce records on a " partial

or   installment basis."   Here, the Auditor informed Hobbs that it would be producing the records in
                                                             f

installments.       We must, therefore, determine whether RCW 42. 56. 520 requires an agency to

respond to a public records request by providing a reasonable estimate of when the agency will be

able to provide the completed response to the request, or whether it is sufficient for the initial




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No. 44284 -1 - II



response to include only a reasonable estimate of the time it will take the agency to produce the

first installment of responsive records.


            Under the PRA, there     are    two   ways   for   an   agency to '   respond '   to a public records request.


The agency       can (   1)   make the records available for inspection or copying, or ( 2) respond by

including     an explanation of      the    exemption      authorizing the agency to          withhold    the   record.   See


Rental Hous. Ass'        n,   165 Wn. 2d   at   535 ( quoting RCW 42. 56. 210( 1)        and (   3)).   The plain language


of RCW 42. 56. 520 requires that the agency provide a reasonable estimate of the time required to

respond to the request. Here, the Auditor provided a reasonable estimate of the time required to


respond to Hobbs' public records request; the Auditor stated it would provide the first installment


of records by December 16. As noted, an agency can make the records available on an installment

basis. RCW 42. 56. 080. Because the Auditor complied with the plain language of RCW 42. 56. 520,


we hold that the superior court did not err in finding that the Auditor complied with the prompt

response requirement of the PRA.


            However, Hobbs        asks us   to   read additional       language into RCW 42. 56. 520.           Specifically,

he asks us to interpret RCW 42. 56. 520 as requiring the agency to provide an estimate of the

reasonable amount of time needed to fully or completely respond to the request. When interpreting

a statute, " we ` must not add words where               the legislature has chosen       not   to include them. "' Lake


v.   Woodcreek Homeowners Ass 'n, 169 Wn. 2d 516, 526, 243 P. 3d 1283 ( 2010) ( quoting                          Rest. Dev.,

Inc.   v.   Cananwill, Inc., 150 Wn.2d 674, 682, 80 P. 3d 598 ( 2003)).                       Accordingly, we will not

interpret RCW 42. 56. 520 to require agencies to provide an estimate of when it will fully respond

to a public records request when the legislature has declined to include such language in the statute.

C.          SCOPE OF RECORDS SEARCH




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No. 44284 -1 - II



        Finally, Hobbs argues that the scope of the Auditor' s records search was unreasonable

because ( 1) the investigator assigned to investigate the whistleblower complaint did not search all

of her electronic records and provided the employees responsible for responding to the request

with paper copies of     the      files   she   kept; ( 2) it did not include " Outlook appointment records, the


investigator' s diary of the time she spent on the investigation, and the invoices that were sent to

the DSHS    on   the basis   of the   diary     entries ";   and (3) the Auditor failed to search its disaster backup

tapes. Br. of Appellant at 46. We disagree.


          The adequacy of a [ records] search is judged by a standard of reasonableness, that is, the

search must   be reasonably        calculated      to uncover all relevant         documents.'      Forbes v. City of Gold

Bar, 171 Wn.      App. 857, 866,          288 P. 3d 384 ( 2012) (            quoting Neighborhood Alliance of Spokane

County v. Spokane County,           172 Wn.2d 702, 720, 261 P. 3d 119 ( 2011)), review denied, 177 Wn.2d


1002 ( 2013).       Washington courts have adopted the federal courts' reasonableness standard as


articulated by the 10th Circuit Court of Appeals:

          T] he focal point of the judicial inquiry is the agency' s search process, not the
        outcome of   its search. The issue is not whether any further documents might

        conceivably exist but rather whether the government' s search for responsive
        documents       was        adequate[,] [      which       is    determined      under]     a     standard    of

        reasonableness,        and    is dependent           upon      the    circumstances   of   the   case.      The

        reasonableness of an agency' s search turns on the likelihood that it will yield the
        sought -after information, the existence of readily available alternatives, and the
        burden of employing those alternatives."

Forbes, 171 Wn.       App.   at   866 ( alterations in       original) ( internal quotation marks omitted) ( quoting



Trentadue   v.   Fed. Bureau of Investigation, 572 F. 3d 794, 797 -98 ( 10th Cir. 2009)). At a minimum,


a person seeking documents under the. PRA must identify the documents with sufficient clarity to

allow the agency to locate them. Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P. 3d 26




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 2004).    Agencies     are not required     to be   mind readers.       Bonamy v. City of Seattle, 92 Wn. App.

403, 409, 960 P. 2d 447 ( 1998).


          As an initial matter, Hobbs presents an incorrect characterization of the issue for our


review. He points to specific pieces of the Auditor' s records search (i.e., the search by one specific

person) or to particular words in his request that he believes the Auditor did not adequately

interpret. But we inquire into the scope of the agency' s search as a whole and whether that search

was reasonable, not whether the requestor has presented alternatives that he believes would have


more accurately produced the records he requested.

          Here, the Auditor assigned numerous people to conduct the search for relevant records in


response to Hobbs' public records request, not just the investigator who had investigated the

original   whistleblower        complaint.    The people assigned to respond to Hobbs' public records


request identified numerous search terms that would reveal records related to the whistleblower


complaint.     They used these terms to search numerous places where electronic documents were

stored. The areas they searched included the Auditor' s shared file system, e -mail files, and paper

files.    Over the course of responding to Hobbs' public records request, the Auditor identified

thousands of pages of documents, including prior versions of documents, backup versions of

documents, Outlook e- mails, documentation regarding meetings and appointments related to the

investigation, and numerous other documents.


          Hobbs complains that this search was not reasonable because the Auditor did not ( 1) search


the   backup    tapes      kept   off site
                                      -      specifically   for disaster recovery; ( 2)      uncover   particular




 documents,"        such   as   tabs from file folders;     and (   3)   require the original whistleblower case


investigator to read Hobbs' entire public records request before copying her files for the employees



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gathering documents to compile a response. These alleged " failings" do not render the Auditor' s

records    search   unreasonable.       Rather,   the   record   shows   that the   Auditor   performed   a


comprehensive search of its paper and electronic files using numerous terms meant to

comprehensively identify records related to the whistleblower complaint and investigation that

was the subject of Hobbs' public records request. Simply because Hobbs later identified additional

documents he believed fell within the scope of his request does not mean that the Auditor' s search


was unreasonable. We hold that the Auditor' s search for records to produce in response to Hobbs'

public records request was reasonable, and Hobbs' PRA claim fails.

D.        ATTORNEY FEES


          Hobbs also requests attorney fees. RAP 18. 1 allows us to grant attorney fees if authorized

by statute. RCW 42. 56.550( 4) allows a person who prevails against an agency to be awarded costs

and   attorney fees.   Here, Hobbs is not the prevailing party. Accordingly, he is not entitled to an

award of attorney fees.

          We affirm the superior court' s dismissal of Hobbs' PRA action with prejudice.




 We concur:




                       Maxa, P.J.




                          1

                        ant, J. P. T.
