                                                                                                             TEED
                                                                                                 COURT OF APPEALS
                                                                                                            0l   ISIOH I1

                                                                                                                        a
                                                                                                                              I
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
                                                                                                  t   fii        crir       rV k   ON
                                                  DIVISION II

GLENDA NISSEN, an individual,                                                No. 44852 -1 - II


                                         Appellant,


             v.




PIERCE COUNTY, a public agency; PIERCE                                    PUBLISHED OPINION
COUNTY PROSECUTOR' S OFFICE, a
public agency,


                                         Respondent.


PROSECUTOR MARK LINDQUIST,


                                         Intervenor.


             HUNT, J. —     Glenda Nissen appeals the superior court' s CR 12( b)( 6) dismissal of her

                                     1
Public Records Act ( PRA)                action against Pierce County and the Pierce County Prosecutor' s

Office ( County); she also appeals several other related superior court orders. At issue is whether


a government employee' s private cellular telephone call log records and text messages are

    public    records"    subject   to   disclosure    under   the PRA.   We hold that ( 1)      call logs for a


government .official' s private cellular phone constitute " public records" only with regard to the


calls that relate to government business and only, if these call logs are used or retained by a

government        agency; ( 2)      text messages sent or received by a government official constitute

    public records"      only if the text messages relate to government business; and ( 3) because some

of the private cellular phone call logs and text messages Nissen requested may qualify as " public



1
    Chapter 42. 56 RCW.
No. 44852 -1 - II



records,"      the superior court erred in granting the County' s CR 12( b)( 6) motion to dismiss her

PRA     complaint.       We also hold that the superior court did,not err in staying discovery until after

the CR 12( b)( 6)        hearing. We reverse the superior court order granting the County' s motion to

dismiss and remand to the superior court to reinstate Nissen' s action and to develop the record.2
                                                             FACTS


                                              I. PUBLIC RECORDS REQUESTS


          Glenda Nissen is a detective with the Pierce County Sheriff' s Department ( Department)

and a member of          the Pierce     County Deputy       Sheriff' s Guild ( Guild). The Department hired her in


1997;    she    has    worked     there as a detective since 2000.            Mark Lindquist is the elected Pierce


County Prosecutor. Lindquist has a County- provided cellular phone, which he rarely uses,

apparently preferring instead to use his personal cellular phone to conduct government business.
                                                                                                             3
          In    connection       with    a   separate    whistleblower      action   that Nissen    filed,       the County

produced ( 1) records showing that Lindquist generally used his County- provided cellular phone

less than 10 minutes per month, and ( 2) heavily redacted records of Lindquist' s personal cellular

phone     use.     These     redacted    personal       cellular   phone   call   logs   showed:   9 work -
                                                                                                          related calls


totaling 41 minutes on August 3, 2011; 13 work -
                                               related calls totaling 72 minutes on August 2,

2011;     10 work -
                  related calls totaling 46 minutes on June 7, 2010; and 16 work -
                                                                                 related text

messages on August 2 and 3, 2011.

          On June 3, 2011, Nissen              submitted a     PRA     request    asking the, County to      preserve "   any


and    all . . .      cellular   telephone    records"     for Lindquist' s personal cellular telephone number.


2
    Therefore, we do not address Nissen' s challenge to the superior court' s other orders.

3
    Nissen' s whistleblower claim is not at issue in this appeal.




                                                                   2
No. 44852 -1 - II



Clerk'     s   Papers ( CP)     at   29.   On August 3, Nissen sent another PRA request to the County, which

stated:




               Please produce any and all of Mark Lindquist' s cellular telephone records for
               number 253- 861 - [redacted here but provided in Nissen' s records request4] or any
               other cellular telephone he uses to conduct his business including text messages
               from August 2, 2011.


CP at 15.


               On September 16, the County produced the first installment of requested records; on

September 28 the            County         was "   prepared" to release the remaining records that it considered

responsive         to Nissen'    s request.    CP     at   16.   The County also provided a log of exemptions that it

had   used       to   support   redacting the        produced records.       These claimed exemptions variably cited

 RCW 42. 56. 050"; " Invasion                  of   Privacy "; " Non-Public Information, Personal Phone Calls ";

 Non- Public Information, Last 4 digits                          of employee' s personal phone number redacted ";


 Residential          or personal wireless phone numbers,                last 4 digits   redacted"; "   Non- Public Personal


Phone Calls ";         or " Non- Public      Personal Text Messages."           CP at 88.


               On September 13, Nissen              submitted another     PRA   request, which stated, "     The new public


records request is for Mark Lindquist' s cellular telephone records for number 253- 861 - [redacted




4 To protect Lindquist' s privacy, the superior court redacted from its records the last four digits
of   his       personal cellular phone number.               We issued a similar order redacting from the appellate
record the last four digits of Lindquist' s personal cellular phone number.




                                                                     3
No. 44852 -1 - II


                                                                               5
here but    stated    in the   records request]       for June 7, [ 2010]. "       CP   at   17.   This request, however,


omitted     Nissen'   s   previous   request' s     qualifier   that the   records   be      work related.      The County

responded on September 19 with heavily redacted records of Lindquist' s personal cellular phone

use and an exemption log citing the same exemptions it had previously cited when it produced

records in response to Nissen' s earlier request.


                                                       II. PROCEDURE


           On October 26, 2011, Nissen sued the County, asserting that it had claimed improper

exemptions and        had wrongfully         redacted records       in responding to her PRA           requests.   6 Lindquist

intervened.       The superior court entered orders ( 1) striking and sealing all court filing references

disclosing the last four digits of Lindquist' s personal cellular phone number, and ( 2) staying all
                                                                                                        8
discovery       pending   a   hearing   on   the   County' s   CR 12( b)( 6)   motion    to dismiss.        Later ruling that

private cellular phone records of elected government officials are not public records subject to




5 Although Nissen' s September 13, 2011 public records request initially requested records from
    June   7,   2011,"    this was      a typographical error that the parties                     clarified in subsequent
communications. Neither Nissen nor the County disputes that they understood the request to be
for records from June 7, 2010. CP at 17.
6
 Despite Nissen' s complaint' s lack of specificity, her counsel told the superior court that she
was seeking records responsive to both her August 3 and September 13, 2011 requests.
7
    As an intervenor in the superior court proceedings below, Lindquist is also involved in this
appeal, even though the superior court did not rule on his motion for temporary restraining order
and preliminary injunction.
8
    This latter order is also called the " November 23, 2011 status conference order."




                                                                4
No. 44852 -1 - II



the PRA, the superior court granted the County' s motion to dismiss Nissen' s complaint.9 The
superior court later denied Nissen' s motion for reconsideration.


           Nissen sought direct review by the Washington State Supreme Court of the superior

court' s    orders (      1)   striking    and      sealing    Lindquist' s         personal    cellular   phone   number, (   2)


postponing     discovery        until after   the    hearing    on    the    County' s    motion   to dismiss, (   3) dismissing

her   complaint, and (         4)   denying   her   motion     for   reconsideration.          On May 1, 2013, the Supreme

Court transferred Nissen' s appeal to our court.


                                                          ANALYSIS


           Nissen argues that the PRA does not, as a matter of law, insulate Lindquist' s personal


cellular phone call logs and text messages from public records release requests, especially where




9
    Although the superior court' s written order did not set forth its reasoning, its oral ruling
explained:

           I find that [ RCW] 42. 56. 050, the invasion privacy is simply that. I go back to
                                                                           of

           number one, it is not a public record. The private cell phone records of a public
           elected    official      or   a public    employee        are    not public records.       Number two.       I
           believe that [ Lindquist] has a right to privacy as a valid exemption; and three, I do
           think that I have absolutely no power to require the third - arty provider, without a
                                                                        p
           search    warrant        application with probable              cause,   to disclose    records.   I have no
           power     to   do   so under [   the   PRA].       Whether or not [ the PRA] violates the elected
           official or public official' s constitutional rights, be either state or federal, I find
           that they still have those rights; that just because you run for public office does
           not make you exempt in your maintaining of your right against search and seizure,
           either under the state constitution or the federal constitution, and that' s my ruling.
Verbatim Report           of   Proceedings ( Dec. 23, 2011)            at   94 -95 (   emphasis added).
No. 44852 -1 - II


                                                                                    10
such records contain communications about government                    business.        To the extent that an elected


public official uses a private cellular phone to conduct government business, we agree.

                                      I. STANDARD AND SCOPE OF REVIEW


         We     review    de   novo   a   superior   court' s   CR 12( b)( 6) dismissal of a plaintiff' s action.


Burton   v.   Lehman, 153 Wn.2d 416, 422, 103 P. 3d 1230 ( 2005).                  Dismissal under CR 12( b)( 6) is


appropriate     only "   if `it appears beyond doubt that the plaintiff cannot prove any set of facts

which would      justify   recovery. "'    Burton, 153 Wn.2d at 422 ( quoting Tenore v. AT & Wireless
                                                                                            T

Servs., 136 Wn.2d 322, 330, 962 P. 2d 104 ( 1998)).                 We presume Nissen' s allegations to be true;


and we '       may   consider   hypothetical facts     not   included in the     record. "'    Burton, 153 Wn.2d at


422 ( quoting Tenore, 136 Wn.2d at 330).

         We interpret the PRA in light of the principle that full access to information concerning

the conduct of every level of government is a fundamental and necessary precondition to the

sound    governance      of a   free society.    Neighborhood Alliance of Spokane County v. Spokane

County,       172 Wn.2d 702, 714 -15, 261             P. 3d 119 ( 2011).         We balance this free and open


government principle against the countervailing principle that individuals, including government

employees, should be free from unreasonable searches and intrusions into their private affairs.




1° Nissen 'similarly argues that the superior court erred in granting the County' s CR 12(b)( 6)
motion    to   dismiss her     complaint   by " wrongly      presum[   ing]"   that a public official' s government -
related records on a personal cellular phone can never                 be disclosed. Br.      of   Appellant   at   9. The
County responds that the superior court properly dismissed Nissen' s complaint because, as a
matter of law, the PRA did not convert Lindquist' s personal phone records into " public records."
Br. of Resp' t at 13.
         Nissen also argues that the trial court considered evidence outside of her complaint' s
allegations, thereby converting the motion to dismiss into a motion for summary judgment.
Because we decide the underlying PRA issue on unrelated grounds, we do not further address
this summary judgment argument.



                                                                6
No. 44852 -1 - II



WASH. CONST.         art.   I § 7; U. S. CONST. amend. IV; see Freedom Found. v. Gregoire, 178 Wn.2d


686, 695, 310 P. 3d 1252 ( 2013) ( " PRA                 must give way to constitutional mandates ").

                                       II. CR 12( B)( 6) DISMISSAL OF PRA CLAIM


           The PRA       applies      only to   requests   for " public   records,"   which consist of three elements:


 1). "   any writing "; ( 2) "        containing information relating to the conduct of government or the

performance         of   any     governmental       or   proprietary function "; ( 3) "      prepared,         owned,     used,   or



retained     by    any   state   or    local agency      regardless   of physical     form   or        characteristics."     RCW


42. 56. 010( 3).     Washington          courts "   liberally   construe"   the term "   public record"             as referring to

 nearly any        conceivable government record related               to the   conduct of government."                 O' Neill v.


City     of Shoreline, 170 Wn.2d 138, 147, 240 P. 3d 1149 ( 2010).                     We address each of these three


public record components in turn.


                                                            A. Writing

           Nissen'   s   PRA      requests      included two types        of " writings ": (      1)     a   call   detail loge of


incoming and outgoing calls from Lindquist' s personal cellular phone, and ( 2) copies of text

messages sent and received by Lindquist from his personal cellular phone. Both types of records

fit within the PRA' s broad definition of a " writing" as

            h] andwriting, typewriting, printing, photostating, photographing, and every other .
            means of recording .any form of communication or representation including, but
            not   limited to, letters,          words,    pictures,   sounds,   or    symbols,         or    combination

            thereof, and all papers, maps, magnetic or paper tapes, photographic films and
            prints, motion picture, film and video recordings, magnetic or punched cards,
            discs, drums, diskettes, sound recordings, and other documents including existing
            data compilations from which information may be obtained or translated.

RCW 42. 56. 010( 4).

11
     A call log includes information about the duration of a phone call, the phone number from
which a call was made or received, and, sometimes, the origin and destination of a phone call.


                                                                  7
No. 44852 -1 - II



        The County does not contend that cellular phone text messages do not constitute writings.

A copy of a text message is plainly a " communication or representation" within the meaning of

the PRA'   s   definition     of a "   writing." RCW 42. 56. 010( 4).     The County does argue, however, that

Lindquist' s personal cellular phone call logs do not constitute disclosable " writings" under the


PRA because       a    third party      provider prepared   them.    But the PRA does not limit disclosure to


documents prepared only by government officials.

                                          B.    Relating to Government Conduct

        Lindquist       admits    that he      conducted government work on     his   personal   cellular   phone.   He


and the County concede that some of his personal cellular call logs contained records of his

government- related communications and that some of his personal cellular text messages


discussed      government      business. Therefore, at least some of Lindquist' s personal cellular phone


records satisfy the second element of a public record because they contain " information relating

to the conduct of government or the performance of any governmental or proprietary function."

RCW 42. 56. 010( 3).


        Nissen argues that all of Lindquist' s personal cellular phone records are public records


because he      used   that   phone     to   conduct government    business.   Lindquist and the County contend

that not all of Lindquist' s personal cellular phone records related to government business and


that   some      of    the    information        Nissen   sought    was   purely   personal.       Purely     personal
No. 44852 -1 - II


                                                                                                                          12
communications of government officials are not public records subject                        to PRA disclosure.                See


Forbes     v.
                 City   of Gold Bar, 171 Wn.        App.   857, 868, 288 P. 3d 384 ( 2012), review denied, 177


Wn.2d 1002 ( 2013) ( purely              personal    emails      not   public   records).     Nor does a government


employee' s use of a single device for both work and personal communications transform all


records    relating to that device into " public       records."       Forbes, 171 Wn. App. at 868.

          We take judicial notice that the unique nature of Lindquist' s employment as Pierce


County Prosecutor requires him to be available to fulfill "public duties 24 hours a day 7 days a

week."      CP     at   453.    But Nissen' s broad interpretation of what constitutes a " public record "13

could conceivably subject all records of . public prosecutor' s personal phone calls to a PRA
                                         a

request,    whether made on a government -
                                         owned device or on a personal device, thereby

eradicating protections for purely personal information.



12 See also amici curiae' s argument that Lindquist' s private cellular phone records are not
 public     records"       because they fall       under   the       exempt   categories    of " personal     notes,      phone

messages,        and personal       appointment    calendars."         Br. of Amici Curiae of WA Fed' n of State
Empls.,     at    5(    citing Yacobellis v. City of Bellingham, 55 Wn. App. 706, 712, 780 P. 2d 272
 1989),    review       denied, 114 Wn.2d 1002 ( 1990)).               Yacobellis, however, excluded those records
from PRA disclosure because they were
          created        solely for the [   government      official' s]      convenience    or    to   refresh [   the

          official' s]     memory, [    were]   maintained in a way indicating a private purpose,
           were]        not circulated or   intended for distribution         within    agency    channels, [ were]

       not under agency control, and [ could] be discarded at the writer' s sole discretion.
Yacobellis, 55 Wn.   App. at 712. Here, in contrast, neither Lindquist nor the County argues that
Lindquist' s private cellular phone call logs were created solely for his personal convenience.
Nor does Lindquist argue that he could require his cellular phone service provider to destroy the
records at his sole discretion.  Thus, Yacobellis does not necessarily exempt all of Lindquist' s
personal cellular phone records from being " public records."

13 Despite Nissen' s argument that the public would want to know how a government employee
spends the work day, her standalone assertion is inadequate to show that a government
employee' s        purely      personal records,   made    on a private       device,   are " public records"       subject to

disclosure. Forbes, 171 Wn. App. at 868.



                                                                 9
No. 44852 -1 - II



           Nevertheless, Lindquist' s decision to forego his County- issued cellular phone in favor of

using his    personal cellular phone           to    conduct government- related communications (             1) rendered


his cellular phone use no longer purely personal; and ( 2) thus, potentially subjected his personal

cellular phone call detail log and text message records to agency scrutiny before release in

response     to   a   PRA     request.     Lindquist' s     personal   cellular phone   records   that " relat[ e]   to the


                       14
conduct of government "              satisfy the     second element of a public record.        On the other hand, the


portions of the cellular phone call logs relating to Lindquist' s personal calls and his personal text

messages      do      not   satisfy the    second, "    government"       element   and,   therefore,   are   not " public



records."




           The record before us on appeal, however, is inadequate to determine which portions of


Lindquist' s personal cellular phone records and which text messages satisfy the second element

of   the   definition       of " public   record."     The superior court must make this determination after


developing the necessary record on remand.

                                    C. Used or Retained by Government Agency

           The third element of a " public record" is whether Lindquist' s personal cellular phone call


logs and text messages were " prepared, owned, used, or retained by [ a] state or local agency."

RCW 42. 56. 010( 3).           Lindquist is an elected official in charge of a local government agencythe

Pierce County Prosecutor' s Office. Here, we focus on the " used" or " retained" components.

                                                       1.   Text messages


           Text messages relating to government business that Lindquist sent and received on his

personal cellular phone            clearly   were " prepared"        and " used" in his capacity as a public official,

14
     RCW 42. 56. 010( 3).




                                                                10
No. 44852 -1 - II



and,    therefore, satisfy the third " public               record" element.             That such government- business -related


text    messages were contained on a personal cellular phone                                   is immaterial.    Our Supreme Court


has refused to exempt personal device communications from records subject to the PRA, stating,

 If government employees could circumvent the PRA by using their home computers for

government          business, the PRA          could     be    drastically    undermined."          O' Neill, 170 Wn.2d at 150.


                                                                 2. Call logs


             Lindquist' s      personal       cellular    phone      call     log   records       are   more   problematic.   Neither


Lindquist       nor     the   County    prepared      these      records.      Rather, Lindquist' s cellular phone provider


prepared       them      and   apparently       mailed         them to him          at   his    private    address.   Under the plain


language       of   RCW 42. 56. 010( 3),          Lindquist' s personal cellular phone records do not qualify as

 public records" if he ( or a prosecutor' s office employee) did not review, refer to, or otherwise


use them in his capacity as a government official or if he did not store them in his government

office. The issue here is whether Lindquist used or retained his personal cellular phone call logs


in his capacity as a government official so as to satisfy the third element of the " public record"
        15
test.



             More specifically, the third element of a " public record" under RCW 42. 56. 010( 3) is that

the government agency " used" the records, not the cellular phone to which the records relate.

Thus, the more specific issue is not whether Lindquist " used" his personal cellular phone in his


capacity       as   a   government       official,       but    rather   whether         he "   used"     his personal cellular phone


records       in that capacity.          For example, Lindquist might have consulted his personal cellular


15 The County also asserts that Lindquist himself is not a " state or local agency" and, thus, his
personal       cellular       phone    call    logs   are     not   subject     to the PRA.             Br. of Resp' t County at 18
 emphasis omitted).             We disagree. As an elected public official, Lindquist is subject to the PRA
if he owned, used, or retained records relating to government business in his official capacity.


                                                                         11
No. 44852 -1 - II



phone call logs to determine when he talked to a particular person about government business or


to track the       number of calls    relating to    a particular governmental        issue.   If so, he would have


been " using" these logs in his capacity            as a government official.         Lindquist' s personal cellular


phone     call    logs   also would   be "   public records"     under   RCW 42. 56. 010( 3) and subject to PRA


disclosure if he " retained" them in his capacity as a government official by storing them in the

prosecutor' s office or in some other government office.

          The record before us on appeal is inadequate to determine whether portions of


Lindquist' s personal cellular phone call logs relating to government business satisfy the third

element of       the definition   of "public record,"      namely whether Lindquist ( or a prosecutor' s office

employee)         actually   reviewed,   referred   to,   or   otherwise " used"   these call logs for government


purposes.         The superior court must make this determination after developing the record on
           16
remand.




                                                      D.       Summary

          Based on our analysis of the three elements of RCW 42. 56. 010( 3)' s definition of "public


record"     and on Lindquist' s admission that he conducted some government work using his

personal cellular phone, at least some of Lindquist' s personal cellular phone call records and text


messages         may qualify    as " public records,"      subject to PRA disclosure, sufficient to defeat CR


12( b)( 6) dismissal.        Lindquist' s    personal cellular phone call     logs   are " public records"   if ( the
                                                                                                                 1)


calls reflected in the logs related to government business; and ( 2) Lindquist ( or another public




16 Because we reverse the superior court' s dismissal order and remand for further development of
the record, we do not reach the question of whether Lindquist' s personal cellular phone call logs
became "        public records"    when he delivered them to the prosecutor' s office for the agency to
redact.




                                                                12
No. 44852 -1 - II



employee) reviewed, referred to, or otherwise " used" these records for government purposes or


stored the records at a public office. Similarly, text messages that Lindquist sent and received on

his personal cellular phone are " public records" subject to disclosure under the PRA only if they

related   to government      business.   But any portions of the call log records reflecting Lindquist' s

private calls are not public records and, thus, are not subject to disclosure under the PRA.


Similarly,   Lindquist' s purely    private     cellular phone       text    messages are not " public records"        and




are not subject to disclosure under the PRA.


          Because we consider even hypothetical facts when reviewing a superior court' s CR

12( b)( 6) dismissal,   we    hold that ( 1)    Nissen stated a claim that at least some of Lindquist' s


personal cellular phone call      logs   and   text   messages are subject           to PRA disclosure, ( 2) it does not


                                                                                                                            17
appear "`   beyond doubt that [ she]     cannot prove        any    set of   facts   which would   justify   recovery, "'


and (   3) the   superior court erred    in    dismissing     Nissen'    s    action under    CR 12( b)( 6).    Thus, we


reverse   and remand     to the   superior court (      1)   to   reinstate   Nissen'   s complaint; (   2) to develop a

record necessary for determining which of Lindquist' s personal cellular phone text messages and

call logs, if any, pertained to the conduct of government business; and ( 3) to determine which

portions of the records Nissen requested, if any, constitute public records that must be disclosed

under the PRA.


          Because we remand to the superior court, we do not address Nissen' s and Lindquist' s


constitutional     privacy   arguments.        Instead, we leave these arguments for the superior court,


which will be in a better position to consider them on remand after developing the appropriate

record.




17 Burton, 153 Wn.2d at 422.


                                                             13
No. 44852 -1 - II


                                             IV. ORDER ON STATUS CONFERENCE


          Nissen also appeals the superior court' s November 23, 2011 status conference order, ,


arguing that ( 1) this order improperly stayed discovery pending the hearing on the County' s CR

12( b)( 6)    motion,      and (   2)      the superior court improperly considered declarations and matters

outside      her   complaint when            it decided the CR 12( b)( 6)        motion.
                                                                                            The County argues that the

superior court properly stayed discovery and that its consideration of documents referenced in

Nissen' s complaint did not convert CR 12( b)( 6) review into a CR 56 summary judgment motion.

          We review a superior court' s decision to stay proceedings for an abuse of discretion. See

King v.      Olympic Pipeline Co., 104 Wn.               App.     338, 348, 16 P. 3d 45 ( 2000).      Although we reverse


the superior court' s CR 12( b)( 6) dismissal of Nissen' s complaint, we nevertheless hold that CR


26( c)( 1) gave the superior court discretion to stay discovery until after the CR 12( b)( 6) hearing,

which discretion the superior court did not abuse. 18

                                                        V. ATTORNEY FEES


          Nissen asks us to award attorney fees and costs for both appellate and superior court

proceedings,         as   well   as       penalties   under   the   PRA.       The County does not expressly contest

Nissen' s request for attorney fees; instead, it relies on its argument that we should affirm the

superior court' s CR 12( b)( 6) dismissal.


          RCW 42. 56. 550( 4) of the PRA provides:



18
     Because we reverse the superior court' s CR 12( b)( 6) dismissal of Nissen' s complaint, we do
not   address (      1)   Nissen'     s    argument    that, in     deciding   the   County' s   CR 12( b)( 6)   motion, the

superior court improperly considered declarations and matters outside her complaint; and ( 2)
Nissen' s motion for reconsideration.
          Because Nissen failed to present adequate argument in her opening brief, contrary to
RAP 10. 3(     a)(   6), we do not address her appeal from the superior court' s November 4, 2011 order
granting motion to strike and seal or its November 23, 2011 status conference order.


                                                                    14
No. 44852 -1 - II



          Any person who prevails against an agency in any action in the courts seeking the
          right to inspect or copy any public record or the right to receive a response to a
          public record request within a reasonable amount of time shall be awarded all
          costs, including reasonable attorney fees, incurred in connection with such legal
          action.




 Emphasis       added.)     Nevertheless,         our   Supreme Court has held that attorney fees " should be


granted       only   when   documents       are    disclosed to     a   prevailing party,"   and "    where further fact


finding is necessary to determine whether the PRA was violated, the question of attorney fees

should   be    remanded     to the trial   court."      O' Neill, 170 Wn.2d at 152 ( citing Concerned Ratepayers

Ass' n   v.   Pub. Util. Dist. No. 1 of Clark             County,   138 Wn.2d 950, 964, 983 P. 2d 635 ( 1999)).


Because we do not reach the question of whether the County violated the PRA, and because we

do not decide whether the County must disclose particular documents, we do not award fees.

Instead,      we   leave that issue for the         superior   court    to   address   on remand     if   appropriate.   See


O' Neill, 170 Wn.2d at 152.


          We reverse the superior court' s CR 12( b)( 6) dismissal of Nissen' s PRA action against the

County. We remand to the superior court to reinstate Nissen' s action and to determine whether,
under the specific facts of this case, Lindquist' s personal cellular phone call logs and text

messages constitute " public records" as defined in RCW 42. 56. 010( 3).




We concur:




                                                               15
