                                                                                               LED
                                                                                       COURT OF APPEALS
                                                                                           DIVISM"i IT
                                                                                   ZI

                                                                                   S




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION 11



DEREK E. GRONQUIST,
                              Appellant,                           No. 41897-
                                                                       11-  5


       V.

WASHINGTON STATE DEPARTMENT
OF LICENSING,




       VAN DEREN, J. —Derek      E. Gronquist appeals from the trial court's summary

judgment order in favor of the Department of Licensing ( icensing)on Gronquist's
                                                       L

Public Records Act ( RA)'
                   P    claim. Gronquist argues that the trial court erred when,it

granted Licensing"s summary judgment motion because 0)
                      - -                   -        Licensing failed torespond
                                                                       -
within five business days of his PRA request, thus entitling him to penalties; 2)
                                                                               ( the

information Licensing redacted from a master business license application was not

exempt from disclosure under the PRA; 3)
                                      ( Licensing failed to provide explanations for

each redaction, also entitling him to penalties; and (4) trial court erred in failing to
                                                        the

accept deposition transcripts for filing in support of his PRA claim.

       We hold that ( )
                    1 Licensing failed to respond to Gronquist's request within the

statutory time frame, 2)
                      ( none of the redacted information was exempt under the statutes

Ch.42. 6
     5      RCW.
41897 5 II
      - -



cited by Licensing at the time Gronquist made his PRA request, 3)
                                                               ( Licensing failed to

provide timely and adequate explanations for the redactions, and (4) trial court erred
                                                                   the

when it refused to file Gronquist's deposition transcripts.

       We further hold that Licensing wrongfully withheld the redacted information and,

thus, Gronquist was entitled to an award of costs and penalties and we remand this matter

to the trial court to determine that award. We also remand this matter to the trial court for


it to accept for filing,and for its consideration in determining the award of costs and

penalties, the deposition transcripts Gronquist attempted to file in 2010, and again in

2011, at our direction. Because the responsibility for the master business license

applications was transferred from Licensing to the Department of Revenue (Revenue) on

July 1, 2011, we do not rule on Revenue's duty to produce the records because the issue

is not properly before us.

                                              FACTS


       In a letter dated July 20, 2009, Gronquist, who at the time was an inmate at the Monroe

Correctional Complex, submitted a Pequest to Licensing Under the PRA requesting the master
                      -                      -                                  -

business license application for a company called "Maureen's House Cleaning."Clerk's Papers



2
  Master business license applications are administered by Washington's business license center.
Ch. 19. 2 RCW. The center is responsible for "[
       0                                       d]     eveloping and administering a computerized
one stop master license system capable of storing, retrieving, and exchanging license
    -
information with due regard to privacy statutes, as well as issuing and renewing master licenses
in an efficient manner. RCW 19. 2.
                                 a).
                                 030(   2)(
                                        0         The service collects license applicants'
information in an application and then seeks approval of the application from the agency that has
authority to issue the license. RCW 19. 2. At the time Gronquist made his PRA request,
                                      070. 0
Licensing administered the master license service, but on July 1, 2011, the service was
transferred from
              Licensing to Revenue.       LAWS   of   2011, ch. 298, § 1 ( included in the notes
following RCW 19. 2.
              020).0

                                                  2
41897 5 II
      - -



CP)at 186. Licensing responded in a letter dated July 31, 2009, in which it provided Gronquist

with the requested application with certain information redacted.
       Licensing redacted much of the application without providing a statutory basis for the

redactions. These redactions included the (1)
                                            business telephone number; 2)
                                                                       ( business electronic

mail address; 3) s home address, date of birth, Social Security number, home telephone
              ( owner'

number, marital status and bank; 4)
                                 ( percentage of the business owned by the applicant; 5)
                                                                                      (

business's estimated gross annual income; 6)
                                          ( business activities performed; 7)
                                                                           ( products or

services provided; and (8)existence of or plans to have employees. Licensing also redacted

information about whether the owner bought, leased, or acquired an existing business, or

purchased or leased any fixtures or equipment on which he or she did not pay sales tax, and

whether the business was located within the Seattle city limits.

       In February or March 2010, Gronquist sued Licensing, alleging that Licensing violated

the PRA by providing a redacted copy of the application. He asked the trial court to compel

disclosure of an unredacted copy of the application and asked for statutory costs and penalties

under thePRA -In a letterdatedMarch 1 - 2010; after Licensing receivedGronquist's comp aint,

Licensing wrote Gronquist a letter stating the reasons for redacting the information from the

application. The letter stated:


3 The record does not clearly reflect when Licensing received Gronquist's request. The letter
responding to his request stated that Licensing received the letter on July 31, 2009. But an
administrator of the master licensing service stated in a declaration filed in support of
Licensing's summary judgment motion that her office received the letter "[ n or about July 21,
                                                                             o]
2009."CP at 115.

4
  The timing of Gronquist's suit and the date Licensing provided an explanation for the
redactions are not clear.rom the record. The date stamp on the complaint says it was filed on
                          f
March 9,2010, but Licensing's brief,without citation, states that Gronquist filed his suit on
February 19, 2010. The date above the signature on the complaint is February 1, 2010. But
41897 5 II
      - -



       Applications contain some information that is exempt from public disclosure
       pursuant to the statutes governing the agencies on whose behalf the information is
       collected. The statutory basis for the exemptions is found at RCW 50. 3. 020 1
       Employment Security [Department]),       RCW 51. 6.Department of Labor and
                                                      070 (1
       Industries) and RCW 82. 2.Revenue]). was pursuant to the requirement
                               330 ([
                                    3                   It
       of these statutes that portions of the [application] for Maureen's House Cleaning
       were redacted.


CP at 205.


       On October 21, 2010, Gronquist filed a motion to show cause why an unredacted copy of

the application should not be provided and why he should not be awarded costs and penalties

under the PRA. On November 4,2010, Gronquist filed a motion for sanctions against Licensing,

alleging that it intentionally violated the PRA, lied to Gronquist, and failed to properly train and

supervise its employees. On November 19, Licensing filed a summary judgment motion

claiming that it properly redacted the information and ultimately provided Gronquist with an

explanation for the redactions; thus, Gronquist was not entitled to costs and penalties.

       On October 15, 2010, Gronquist mailed three deposition transcripts to the trial court for

filing to support his show cause motion, his motion for sanctions, and his response to Licensing's

motion for summaryjudgment -
                           Thetrial mirt clerk returned the transcripts to Gronquist wit a -
                               -    -    -                              -

letter stating that the depositions could not be filed, citing CR 32( ).
                                                                    a Gronquist returned the
depositions to the clerk, asserting that the depositions should be filed under CR 32( ) that he
                                                                                    a and


there is no dispute that Licensing failed to provide an explanation for its redactions until after
Gronquist filed suit.

5 CR 32( )
       a provides in relevant part:
        Use of   Depositions. At the trial or upon the hearing of a motion or an
        interlocutory proceeding, any part or all of a deposition, so far as admissible
        under the Rules of Evidence applied as though the witness were then present and
        testifying, may be used against any party who was present or represented at the
        taking of the deposition or who had reasonable notice thereof, in accordance with
        certain] provisions.
                                                  11
41897 5 II
      - -



needed them to support his upcoming motions. The clerk responded that the depositions had

been forwarded to the presiding judge in Gronquist's case and clarified the clerk's office's

previous letter to Gronquist: CR 32( )
                              "    a states, At the trial or upon the hearing of a motion ...'
                                             `

y]u may, at the time of your hearing, request the judge to publish the deposition. If the judge
 o

grants your request, the deposition will be filed into the court file. It cannot, however, be filed

until such time."
                CP at 218.


       On December 21, 2010, the trial court ordered Licensing to submit the unredacted

application for in camera review. Licensing submitted the document to the trial court

accompanied by the following " xplanation for redaction ":
                             e

                 The ...             question has four pages. The first page is not
                           application   in
       redacted. On the second page, all identifying information is redacted except for
       business type, i. sole proprietorship, starting date, name of business, owner
                       e..[,]
       and business address.    This is pursuant to Revenue statutes [ RCW]
        k)
        330(
        82. 2.
           1)(
           3   Marital                status and social security number were .
                                          .                 .                   also                  .
        withheld under the Employment Security general confidentiality statute RCW
        020       On
        50. 3. ....
          1                   the third page information about the owner's income, services
        sales tax, banking institution, and employee status is withheld pursuant to the
        strictures of RCW] 82. 2.referenced above.
                      [        330  3
                 Scrutiny of the un- redacted and redacted document reveal[
                                                                          s] errors. No
                                                                              no
        information was redacted that should have beenincluded. InfOrniation a out any -
                                             -                               -
        employees is redacted pursuant to RCW 51. 6. the Labor and Industries
                                              070
                                                1
        statute ....   The last page is not redacted.

CP at 145.


        The trial court granted Licensing's summary judgment motion and its order stated: .



6 RCW 82. 2. not exist in any version of the statute; thus, it appears that
      k)
      330(
         1 does
         3 )(
Licensing's reference to this statute was a typographical error. But RCW 82. 2.k)
                                                                               330(   3)(
                                                                                      3
provides that RCW 82. 2.does not prevent Revenue from
                           330  3
          d]     isclosing, in a manner that is not associated with other tax information, the
          taxpayer name, entity type, business address, mailing address, revenue tax
          registration numbers, reseller permit numbers and the expiration date and status of
          such permits,North American industry classification system or standard industrial
          classification code of a taxpayer, and the dates of opening and closing of business.
                                                   5
41897 5 II
      - -



                The court reviewed in camera the unredacted copies of documents that
         we[ e]provided to ... Gronquist with redactions. The court is satisfied that the
            r
         redacted material is not subject to disclosure, but is protected as confidential by
         RCW 50. 3.
               020,  1 RCW 51. 6.RCW 82. 2.and the [PRA],
                                 070, 1            330, 3                     RCW 42. 6.
                                                                                       5
                In this case, [ Licensing] produced materials for [ Gronquist] with
         redactions.  At the time of production, there was no accompanying brief
         explanation of the reason for the redactions. No request for an explanation was
         made. When the lawsuit was filed identifying [Gronquist]'  s issue, [Licensing]
         provided an explanation for the redactions. The Court is aware of the recent
         decision in [Sanders v. State],169 Wn. d 827, 240 P. d 120 (2010).The Court
                                                   2               3
         finds that no information was wrongfully withheld in this case. The court finds
         that the initial failure of [ icensing] to provide the explanation for the redactions
                                     L
         was not a violation of the [PRA] giving rise to penalties.

CP at 163 64.
          -


          On March 18, 2011, Gronquist filed a notice of appeal. We informed Gronquist and

Licensing that the trial court's summary judgment order did not comply with RAP 9.2,'which
                                                                                 1
requires that all evidence called to the attention of the trial court be specified in the order before

that order can be appealed. The letter directed Gronquist to obtain a complying order from the

trial court. On May 6,2011, the trial court issued a supplemental order granting Licensing's

motion for summary judgment that stated that two documents were called to its attention when

decidingLicensing s summary;udgment motion: a redacted and anunre acte copy o - t e
                           j

application.


7
    RAP 9.2 provides:
         1
                         SPECIAL RULE FOR ORDER ON SUMMARY JUDGMENT

                  On review of an order granting or denying a motion for summary
         judgment the appellate court will consider only evidence and issues called to the
          attention of the trial court. The order granting or denying the motion for summary
         judgment shall designate the documents and other evidence called to the attention
          of the trial court before the order on summary judgment was entered. Documents
          or other evidence called to the attention of the trial court but not designated in the
          order shall be made a part of the record by supplemental order of the trial court or
8
         by stipulation of counsel.
    The supplemental order provided:
          THE DOCUMENTS CALLED TO THE COURT'S ATTENTION WERE:
                                                    6
41897 5 II
      - -



         After the trial court granted Licensing's summary judgment motion, the legislature

transferred responsibility for master license applications and all records and personnel involved

in the master license   applications   from   Licensing   to Revenue. LAWS of   2011, ch. 298, §2

included in the notes following former RCW 19. 2.2011)). transfer became effective
                                           020 (
                                             0        The

on   July 1, 2011.   LAWS of   2011, ch. 298, §43 (included in the notes following former RCW

020).
19. 2.
  0

         On June 6,2011, Gronquist filed a designation of clerk's papers asking the trial court to

transfer the deposition transcripts that he had sent to the superior court to this court. The trial

court did not transfer the deposition transcripts because they were not part of the court file.

Gronquist filed a motion asking us to compel the superior court to transfer the depositions to this

court. We ruled that the depositions " re not on file with the clerk's office. Gronquist must seek
                                     a

relief in the trial court, directing its clerk to file the depositions, before they can be part of the

record in this court. Gronquist is granted a 45 day extension of time to do the above and file an
                                                -

amended brief."
              Ruling on Mot.to Show Cause, Gronquist v. Dep't ofLicensing,No. 41897 5-
                                                                                    -

II Wash-. App: Sept - 201-
   (    Ct          7;   1)-.------                                     -    -      .    -     -     -   -   -   -

         In October 2011, Gronquist filed a motion to settle the record in the trial court, asking

that the trial court allow him to file the deposition transcripts. The trial court denied the motion,




                  Two copies of a[ application] for " aureen's Housecleaning."One copy
                                 n                  M
         was  provided to . . . Gronquist with redactions. Another copy of the same
         document was lodged with the court for confidential in camera review pursuant to
         Thurston County Local Civil Rule 16 ( c)2).    ( The court is satisfied that the
         redacted material is not subject to disclosure, but is protected as confidential by
         RCW 50. 3.RCW 51. 6.and] RCW 82. 2.and the [PRA],
                020,1             070, [
                                       1                  330,  3                     RCW
         42. 6.
           5
CP at 167.


                                                      7
41897 5 II
      - -



stating, T] e Plaintiff did not make deposition transcripts part of the record[,] the
         "[ h                                                                  so

depositions were not considered by the court." at 221.
                                              CP

        Gronquist timely appeals both the trial court's summary judgment in favor of Licensing

and the trial court's denial of his motion to settle the trial record by filing the deposition

transcripts.

                                               ANALYSIS


        Gronquist argues that the trial court erred when it granted Licensing's summary judgment

motion because (1)Licensing failed to respond within five business days of his PRA request,

thus entitling him to penalties; 2) information Licensing redacted from the application was
                                 ( the

not exempt from disclosure under the PRA; 3)
                                          ( Licensing failed to provide a proper explanation

for the redactions, also entitling him to penalties; and (4) trial court failed to properly file the
                                                            the

deposition transcripts he submitted in support of his PRA claim.

        We agree with Gronquist that some of the redacted information was not exempt when

Licensing answered his request and that Licensing did not timely respond and failed to provide

explanations for its redactions; the'r e s iI entl y
                  -                        -           withho1d ing the iri ormatiori unti I after   ronquist- - -

filed his lawsuit. We remand to the trial court to determine an appropriate award of costs and

penalties after consideration of the entire record, including the depositions to be filed by the trial

court at our direction. Because all licensing records pertaining to business license applications,

both public and not public, were transferred to Revenue and Revenue is now statutorily

responsible for business license applications, we do not rule on Revenue's duty to produce the

application to Gronquist because     the matter is not    properly   before   us.
41897 5 II
      - -



1.       STANDARD OF REVIEW


         We review agency action under the PRA de novo. Neighborhood Alliance ofSpokane

County v. Spokane County, 172 Wn. d 702, 715, 261 P. d 119 (2011)citing RCW
                                2                  3              (

550(
42. 6.In a PRA case, the trial court " ay conduct a hearing based solely on affidavits,"
   3
   5 )).                             m

and where, as here, the "case presents a question of law which was decided by the trial court

solely on the basis of documentary evidence and legal arguments, review is de novo."RCW

550(
42. 6.
   3 Confederated Tribes v. Johnson, 135 Wn. d 734, 744, 958 P. d 260 (1998).
   5 );                                    2                  2

         We review an order granting summary judgment de novo, engaging in the same inquiry

as the trial court. Weden v. San Juan County, 1.5 Wn. d 678, 689, 958 P. d 273 (1998).
                                               3    2                  2

Summary judgment is appropriate when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. CR 56( ).
                                                       c Although we review agency action

under the PRA and summary judgment orders de novo, we review the amount of a trial court's

penalty award under the PRA for abuse of discretion. Double H, LP v. Dep't ofEcology, 166

Wn. App. 707, 712, 271 P. d 322, review denied, 174 Wn. d 1014 (2012).
                        3                             2

II.       UBLIC     CORDS   CT



         The PRA "equires all state and local agencies to disclose any public record upon request,
                 r

unless the record falls within certain very specific exemptions."Progressive Animal Welfare

Soc. v. Univ. of Wash.,125 Wn. d 243, 250, 884 P. d 592 (1994)PAWS).The PRA is a
                             2                  2             (      "
strongly worded mandate for broad disclosure of public records."Neighborhood Alliance, 172



9
 In PAWS, our Supreme Court interpreted and applied former chapter 42. 7 RCW, the public
                                                                     1
disclosure act (PDA).
                    Effective July 1, 2006, the PDA was renamed the PRA and was recodified
as   chapter   42. 6 RCW. LAWS
                 5               OF   2005, ch. 274, §§102 03. Although our Supreme Court
                                                           -
interpreted the former PDA in PAWS, we refer to the current PRA when discussing the case
because the relevant provisions are identical.

                                                  0
41897 5 II
      - -



Wn. d at 714. In light of this purpose, the PRA is liberally construed in favor of disclosure and
  2

its exemptions are narrowly construed. RCW 42. 6.
                                           030.
                                             5

        Under the PRA, agencies must respond within five business days of receipt of a public

records request. RCW 42. 6.West v. Thurston County, 168 Wn. App. 162, 182, 275 P. d
                     520;
                       5                                                        3

1200 (2012).But an agency may withhold all or part of a record if it falls within an exemption

under the PRA " r other statute which exempts or prohibits disclosure of specific information or
              o

records."RCW 42. 6.T] e PRA's other statute' exemption allows for a separate
             070(
                1
                5 ). "[
                    h          `

statute to   preclude   disclosure of specific information'
                                      `                           or   entire `
                                                                              records. "' Ameriquest   Mortg.

Co. v. Office ofAttorney Gen.,170 Wn. d 418, 440, 241 P. d 1245 (2010)quoting RCW
                                    2                  3               (

070(
42. 6.But if another exemption statute and the PRA conflict,the exemption provisions
   1
   5 )).

of the PRA govern. RCW 42. 6.
                       030.
                         5

        If an agency refuses to permit public inspection of particular records,t] burden of
                                                                               "[ he

proof shall be on the agency to establish that refusal to permit public inspection and copying is in

accordance with a statute that exempts or prohibits disclosure in whole or in part of specific

information or records: " RCW 42. 6.
                          -   550(
                                 1 Part of - -
                                 5 ): this burden                                      anageneywithholding - -

records to "nclude a statement of the specific exemption authorizing the withholding of the
           i

record ( r part)and a brief explanation of how the exemption applies to the record withheld."
       o

RCW 42. 6.
    210(
       3
       5 ).

        Our Supreme Court has characterized failure to provide an explanation as "silent

            which
withholding,"             occurs   when " n agency ...
                                        a                     retain[ ] record or portion without providing
                                                                    sa

the required link to a specific exemption, and without providing the required explanation of how

the exemption applies to the specific record withheld."PAWS, 125 Wn. d at 270. Providing the
                                                                   2

required explanation is important not only because it informs the requester why the documents

                                                         10
41897 5 II
      - -



are being withheld, but also because failure to provide the explanation "
                                                                        vitiate[
                                                                               s]" "
                                                                                 the reviewing

court's ability to conduct the statutorily required de novo review."PAWS, 125 Wn. d at 270;
                                                                                2

see also Sanders, 169 Wn. d at 846 ( Claimed exemptions cannot be vetted for validity if they
                        2            "

are unexplained. ")

        To comply with the PRA,the agency must provide an explanation that specifically

describes how the claimed exemption applies to the withheld information because "[
                                                                                a] llowing

the mere identification of a document and the claimed exemption to count as a `brief

explanation' would render [the PRA's]
                                    brief -
                                          explanation clause superfluous."Sanders, 169

Wn. d at 846. One method by which an agency can properly identify withheld information is
  2

with a privilege log. Rental Hous. Ass'n ofPuget Sound v. City ofDes Moines, 165 Wn. d 525,
                                                                                   2

538 39,199 P. d 393 (2009)noting WAC 44- 04004(
    -       3              (           14-
                                         b)(The log should include the
                                              ii)).
                                              4)(

type of information that would enable a records requester to make a threshold determination of

whether the agency properly claimed the privilege. WAC 44- 04004(
                                                         14-
                                                           b)(  ii);
                                                                4)(
                                                                  Rental Hous.

Ass'n,165 Wn. d at 539.
            2

        The PRA requires the trial court t0 award attorney fees and costs to a party 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.   RCW 42. 6.A PRA claimant " revails"against an agency if the agency
            550(
               4
               5 ).              p

wrongfully withheld the documents. Germeau v. Mason County, 166 Wn. App. 789, 811, 271

P. d 932, review denied, 174 Wn. d 1010 (2012).
 3                             2

        In   addition, it shall be within the discretion of the   court to award ...   an amount not less


than five dollars and not to exceed one hundred dollars for each day that he or she was denied the



                                                    11
41897 5 II .
      - -



right   to   inspect   or        a
                            copy [   wrongfully withheld] public      record. "   Former RCW 42. 7.
                                                                                             340(
                                                                                                4
                                                                                                2 )

     recodified
2005),                      as   RCW   42. 6. LAWS
                                          4 by
                                       550(
                                          5 )                   of   2005,ch. 274, § 103 (effective July 1,

2006).A PRA penalty determination involves a two step inquiry: 1)
      "                                          -             ( determining the

appropriate daily penalty amount; and ( )
                                      2 calculating the number of days the public agency

denied the party access to the records." West, 168 Wn. App. at 188.

             We review the trial court's penalty award for abuse of discretion. Double H, 166 Wn.

App. at 712 13. But because the penalty period is " trictly defined by the number of days a
            -                                     s

person has been denied a record after it should have been produced," is a matter of law that we
                                                                   it

review de novo. Double H, 166 Wn. App. at 712 13. T] e PRA requires the agency to pay a
                                              -   "[ h

penalty for each day the requester is unable to inspect or copy a nonexempt record"and the

penalty period includes the amount of time that any suit relating to production of the records was

pending. Sanders, 169 Wn. d at 863 64.
                        2          -

             A. Delayed Response to Gronquist's Public Records Request

             Gronquist contends that Licensing violated the PRA because Licensing failed to respond

PRA -
tohis request within five business days. -
   -                                     Licensing tespondsthat weshould decline to
                                                                         "

address Gronquist's claim because he raises it for the first time on appeal. Licensing also

contends that even if we were to address this issue, t] uncontroverted evidence in the record
                                                     "[ he

is that Gronquist's letter arrived on the 31 st of July, and was responded to timely on that date."

Licensing misrepresents the record in both of these arguments.

             First, the evidence surrounding Licensing's receipt of Gronquist's request was not

uncontroverted."Although the letter responding to Gronquist's request provides that Licensing


10 Before July 22, 2011, the PRA required courts to impose a minimum per day penalty of 5.
                                                                         -              $
Former RCW         340(
                   42. 7.
                      2 ) (  LAWS
                      4 2005);                      of   2011, ch. 273, § 1. Courts may now impose a daily
penalty ranging from $ to $
                     0 100. RCW 42. 6.
                                550(
                                   4 West,
                                   5 );168 Wn. App. at 188, n.9.
                                                             2
                                                           12
41897 5 II
      - -



received it on July 31, 2009, Licensing attached the declaration of one of its senior

administrators to both its summary judgment motion and its response to Gronquist's show cause

motion that stated, On or about July 21, 2009, our office received a request for the business
                    "

license   application   for Maureen's   Housecleaning [sic]from .   Gronquist."CP at 115.

          Second, Gronquist raised the timeliness issue at the trial court. Gronquist was not aware

of the' declaration stating that Licensing actually received the letter on July 21 instead of July 31

until he received Licensing's response to his motion to show cause and Licensing's summary

judgment motion. After receipt of that information, Gronquist addressed Licensing's late

response in both his reply in support of his show cause motion and his response to Licensing's

summary judgment motion.

          RCW 42. 6.requires agencies to respond to public records requests within five
              520
                5

business days. Here, Licensing responded after eight business days. Accordingly,Licensing

violated RCW 42. 6.
             520 when it failed to provide Gronquist with the application within the
               5

statutory time frame.

          B - Exemptions Wrong      - Withholding -

          Gronquist also argues that the trial court erred when it concluded that the information it

withheld was properly redacted from the application. Licensing responds that RCW 82. 2.
                                                                                 330,
                                                                                   3

RCW 50. 3.and RCW 51. 6.authorized its redacting the business license applicant's
    020,
      1           070
                    1

home address, home telephone number, business telephone number, income information,
                                                                I
employee information, banking information, and marital status.I




11
     Licensing fails to assert on appeal that any other information in the application was properly
withheld.
                                                     13
41897 5 II
      - -



        Licensing's letter to Gronquist after he filed his claim for violation of the PRA identified

Revenue statute RCW 82. 2.Employment Security Department ( mployment Security)
                    330,
                      3                                  E

statute RCW 50. 3.and Department of Labor and Industries (Labor and Industries) statute
            020,
              1

RCW 51. 6.as justification to support its redactions from the application without specifying
    070
      1

which statute justified each redaction. In Licensing's explanation to the trial court for the

redactions when it submitted the unredacted application for in camera review, Licensing

attempted to identify the particular portions of redacted information that correspond with the

cited statutes.


        But Licensing has failed to meet its burden to show that the information was covered by

an exemption for at least two of the redactions. Licensing's explanation fails to mention two

pieces of redacted information: 1) type of business activities performed in Washington and
                                ( the

2)
 whether the owner bought, leased, or acquired all or part of an existing business. Thus, the

information provided by Licensing is insufficient to enable a records requester to make a

threshold determination of whether the agency properly claimed the privilege. WAC 44 14—
                                                                                     -

b)(Rental Hous. AS ' Yip -1 Wn. d af539 --Because -
04004(
     ii)
     4)(                     -2                   Licensing as failed to

why any exemption applies to these redactions, it has failed to meet its burden of proving why it

redacted that information, and the trial court erred by granting summary judgment to Licensing.

RCW 42. 6.
    550(
       1
       5 ).

        We turn to the remaining redactions to determine whether the statutes cited by Licensing

support withholding that information.

                  1. RCW 82. 2.
                         330
                           3


        Licensing's explanation to the trial court stated that RCW 82. 2.exempted the
                                                                   330
                                                                     3

following information: 1) business telephone number, 2)
                       ( the                         ( whether the business was inside
                                                  14
41897 5 II
      - -



the city limits, 3) owner's home address, 4) owner's date of birth, 5) owner's
                 ( the                    ( the                     ( the

percentage of ownership of the business, 6) owner's home telephone number, 7)
                                         ( the                             ( the

owner's income, 8) services provided by the owner, 9)
                ( the                              ( whether the owner purchased or

leased any fixtures or equipment on which the owner did not pay sales tax, 10)the owner's
                                                                           (

banking institution, and (11)whether the owner had or planned to have employees.

        RCW 82. 2.
            330(
               2 provides, Returns and tax information are confidential and
               3 )         "

privileged, and except as authorized by this section, neither the department of revenue nor any

other person may disclose any return or tax information.
                                                               12] (
        Tax information" means      (  i)taxpayer's identity, [ ii) nature, source, or
                                           a                              the
        amount of the taxpayer's income, payments, receipts, deductions, exemptions,
        credits, assets, liabilities, net worth, tax liability deficiencies, overassessments, or
        tax payments, whether taken from the taxpayer's books and records or any other
        source, iii)
                 (    whether the taxpayer's return was, is being, or will be examined or
        subject to other investigation or processing, iv) part of a written determination
                                                          ( a
        that is not designated as a precedent and disclosed pursuant to RCW 82. 2.or
                                                                                   410, 3
        a background file document relating to a written determination, and ( other data
                                                                                   v)
        received by, recorded by, prepared by, furnished to, or collected by the
        department of revenue with respect to the determination of the existence, or
        possible existence, of liability, or the amount thereof, of a person under the laws
        of this state for a tax, penalty, interest, fine, forfeiture, or other imposition, or
        offense. However,data, material, or documents that do not disclose information
        related to a specific or identifiable taxpayer do not constitute tax information
        under this section. Except as provided by RCW 82. 2.   410, 3 nothing in this chapter
        requires any person possessing data, material, or documents made confidential
        and privileged by this section to delete information from such data, material, or
        documents so as to permit its disclosure.

RCW 82. 2.
    c).
    330(
       1)(
       3

        Gronquist notes that the statute Licensing cited in support of the exemptions authorizes

disclosure of tax information that is also maintained by another Washington state or local
              "

12 "`
    Taxpayer identity' means the taxpayer's name, address, telephone number, registration
number, or any combination thereof, or any other information disclosing the identity of the
taxpayer."RCW 82. 2.
                 e).
                 330(   1)(
                        3

                                                  15
41897 5 II
      - -



governmental agency as a public record available for inspection and copying under the [PRA]."

RCW 82. 2.At the time the information was redacted from the application, Licensing
    2).
    330(
       3)(
       3

was   responsible   for   administering the application, not Revenue.     LAWS of   2011, ch. 298, § 1

included in the notes following RCW 19. 2. Thus, even if the application contained " ax
                                    020).
                                      0                                            t

information,"
            RCW 82. 2.
                1) disclosure of the information by another agency,
                330(
                   3)(
                   3 authorizes

in this case Licensing.

         Although Licensing failed to cite the PRA in its explanations to Gronquist, it now argues

that the PRA itself authorizes application of the Revenue statute to the redacted information at

issue here. RCW 42. 6.
                230(
                   4 found
                   5 ),within the PRA's list of exemptions for " ersonal
                                                               p

information,"
            provides that the following information is exempt from public disclosure:

         Information required of any taxpayer in connection with the assessment or
         collection of any tax if the disclosure of the information to other persons would:
         a)Be prohibited to such persons by RCW 84. 8. 82. 2. 84. 0.
                                                           210,330,020,
                                                               0           3          4
          340,
          84. 0.or any ordinance authorized under RCW 35. 02.or ( )
                  4                                           145; b violate the
                                                                     1
         taxpayer's right to privacy or result in unfair competitive disadvantage to the
         taxpayer.

         Gronquist   contends that the PRA                                 i]
                                              exemption applies only to "` [ nformation required of

any   taxpayer in connection with the     assessment   or   collection of any tax, "'and, thus, does not


apply to the information in the application because "[ aster [1] [a]
                                                    m]         icense pplications have no

connection with the assessment or collection of taxes."Br. of Appellant at 27 (quoting RCW

230(
42. 6.Gronquist is correct.
   4)).
   5

         Our Supreme Court has held that business license applications are not a substitute for tax

returns. Ford Motor Co. v. City ofSeattle, 160 Wn. d 32, 56, 156 P. d 185 (2007).In Ford
                                                 2                3

Motor Co.,
         Ford sought to take advantage of a shorter statute of limitations period for collection

of taxes that could be used if a taxpaying entity had filed tax returns for the payment period at


                                                       K
41897 5 II
      - -



issue. 160 Wn. d at 55. Ford argued that although it had not filed tax returns for the years in
             2

question, it had filed annual business license applications; thus, the shorter statute of limitations

should apply. Ford Motor Co., Wn. d at 55. Our Supreme Court rejected Ford's
                            160 2

contention, holding that

         the annual business license application is exactly thata license application, not a
                                                                 —
         return. It is designed to license a company to engage in business, not to provide'
         financial information for taxation purposes. . . . [        A]   lthough the license
         applications may request some financial data, they do not require the provision of
         sufficient financial data to allow for a computation of the appropriate tax.

Ford Motor Co., Wn. d at 56. Because business license applications do not " rovide
              160 2                                                       p

financial information for taxation purposes," hold that the information contained in the
                                            we

application    was       required
                     not "          ... in connection with the assessment or collection of any tax."

Ford Motor Co., Wn. d at 56;RCW 42. 6.Accordingly, Licensing failed to meet its
              160 2             230(
                                   4
                                   5 ).

burden of proving that the information it redacted under RCW 82. 2.was exempt from
                                                             330
                                                               3
              13
disclosure.


                   2. RCW 50. 3.
                          020
                            1


         Lice nsing's   explanation to   the trial courtalso stated that RCW 50. 3:
                                                                         -   020 exer# e
                                                                               1     t           1--_--


the owner's Social Security number and ( ) owner's marital status. As a preliminary matter,
                                       2 the

Gronquist does not contest the redaction of the business owner's Social Security number from

the application. Thus, we need determine only whether RCW 50. 3.exempts the owner's
                                                          020
                                                            1

marital status from disclosure. RCW 50. 3.provides:
                                    020
                                      1

13
     Even if we were to hold that the information in the application was connected with the
assessment or collection of taxes, Gronquist argues, and we agree, that RCW 82. 2.does not
                                                                            3303
exempt all of the information Licensing claims. Applying RCW 82. 2.
                                                                330'    s
                                                                        3 definition of tax
                                                                                        "
information"to the claimed exemptions here reveals that only the owner's home and business
telephone numbers, home address, and estimated gross annual income would be exempt if the
statute applied. RCW 82. 2.Licensing fails to demonstrate how RCW 82. 2.
                       330(    2
                               3 ).                                         330  3
protects any of the other information it claims was exempt.
                                                     17
41897 5 II
      - -



       Any information or records concerning an individual or employing unit obtained
       by [Employment Security] pursuant to the administration of this title or other
       programs for which [Employment Security] has responsibility shall be private and
       confidential, except   as        provided in this chapter. . .. Information or
                                   otherwise
       records may be released by [Employment Security when the release is:
               1)Required by the federal government in connection with, or as a
       condition of funding for, a program being administered by [ Employment
       Security];or
               2)Requested by a county clerk for the purposes of RCW 9.
                                                                     760.
                                                                       94A.

       The PRA also authorizes exemptions under this statute, although Licensing failed to cite

the PRA provision in its explanation to Gronquist or to argue it on appeal. One PRA exemption

provides, Records maintained by [Employment Security] and subject to chapter 50. 3 RCW if
          "                                                                    1

provided to another individual or organization for operational, research, or evaluation purposes

are exempt from disclosure under this chapter."RCW 42. 6. Thus, the PRA authorizes
                                                   410.
                                                     5

application of RCW 50. 3.to records " aintained by"Employment Security, and the
                   020
                     1              m

Employment Security statute protects information " btained by"Employment Security. RCW
                                                 o

410;
42. 6.RCW 50. 3. The application here was maintained and obtained by Licensing,
  5       020.
            1

not Employment Security. Accordingly, neither RCW 50. 3. the PRA statute
                                                  020,
                                                    1 nor

authorizing its application,protect the owner's marital
                                     -                      status in   application

       Moreover, Gronquist argues, and we agree, that "[
                                                      r] of what agency maintains
                                                         egardless

the record, RCW 50. 3.simply does not apply to the information contained in the
                020
                  1

application]." of Appellant at 34. For the requirements of the Employment Security Act,
             Br.

Title 50 RCW,to   apply, an entity must be        employer, "'meaning that it must have " ersons
                                               an "`                                    p

in `
   employment.    "' Language Connection, LLC v. Emp't Sec. Dep't, Wn. App. 575, 581, 205
                                                                 149

P. d 924 (2009)quoting RCW 50. 4. Here, Maureen's House Cleaning is a sole
 3              (          080).
                             0

proprietorship and its application states that it has no employees. Accordingly,the Employment

Security Act and the confidentiality statute therein do not apply to the application here.

                                                       18
41897 5 II
      - -



                  3. RCW 51. 6.
                         070
                           1


           Licensing's explanation to the trial court also provided that RCW 51. 6.related to
                                                                             070,
                                                                               1

Labor and Industries, exempted information " bout any employees."CP at 145. RCW
                                           a

070(
51. 6.
   2 provides, Information obtained from employing unit records under the provisions
   1 )          "

of this title shall be deemed confidential and shall not be open to public inspection."

           Although Licensing fails to provide the particular redaction that it claims is exempt from

disclosure under this statute, the only redacted information regarding employees on the

application is whether the business has employees. Assuming that RCW 51. 6.is
                                                                     070
                                                                       1

Licensing's justification for that redaction, Licensing has failed to meet its burden to prove that

an exemption applies under the PRA.

           Gronquist argues, and we again agree, thatTitle 51 RCW does not apply to the

application because Maureen's House Cleaning is a sole proprietorship without employees.

Chapter 51 RCW governs all aspects of a worker's remedy against his or her employer for

injuries   sustained in the   course   of employment."Rafn Co. v. Dep't   of Labor & Indus.,104 Wn.

App.947, 17 P. d 7112001)citing RCW51. 4.
       949,  3      '(    (        010)
                                     0

           RCW 51. 6.requires all employers, subject to some exceptions, to pay quarterly
               060
                 1

premiums to the state industrial insurance fund. Rafn, 104 Wn.App. at 949. Sole proprietors are

exempted from this mandatory coverage. RCW 51. 2.Maureen's House Cleaning is a
                                           020(
                                              5
                                              1 ).

sole proprietorship and declined optional industrial insurance coverage. Accordingly,Title 51

RCW and its confidentiality provision do not apply to the information in the application.

           Moreover, even were we to apply the Labor and Industries confidentiality statute, it does

not apply to the information in the application. RCW 51. 6.
                                                     070(
                                                        2 provides that "[
                                                        1 )             i] nformation

obtained from employing unit records"is confidential. But the application is not an "employing
                                                     19
41897 5 II
      - -



unit record"because Maureen's House Cleaning is not an " mploying unit."
                                                       e               RCW 50. 4.
                                                                           090(
                                                                              1
                                                                              0 )

defines      employing
          an "           unit"as "any individual      or   any type of   organization ...   which has or


subsequent to January 1, 1937, had in its employ or in its `employment' one or more individuals

performing services within this state."

          Because Licensing failed to meet its burden to show that it properly exempted any of this

particular information from the application, we hold that the trial court erred when it concluded
                                                                               14
that   Licensing's redactions   were   proper   exemptions   under the PRA.


          Under the confidentiality statutes cited by Licensing,the information redacted in the

application was largely not exempt. Thus, Gronquist should have been the prevailing party at the

trial court and, as such, was entitled to costs and penalties. Former RCW 42. 6.
                                                                          550(
                                                                             4
                                                                             5 ).

          C. No or Inadequate and Untimely Explanation for Redactions

          Gronquist further argues that Licensing violated the PRA by failing to provide him with a

proper and timely explanation for its redactions. We agree.

          An agency withholding records under a PRA exemption must "nclude a statement of the
                                                                   i

spec ifc exemption authorizing the withholding of the
                                   -                          recor      or part an a brief explanation of


14 We do not hold that no federal, state, or local exemptions apply to requests for information
 from licensing applications. For example,the PRA contains multiple exemptions pertaining to
 licensing, none of which apply to the licensing application at issue here. RCW 42. 6.
                                                                                 240(  4
                                                                                       5 )
 concealed pistol licenses); . 1) (
                             250(    examination data used to administer a license); . 15)
                                                                                     270(
 fuel licenses); . ( embership lists in timeshares condominiums regulated by Licensing);
                 340 m                                /
 430( ) ( and wildlife licenses); .450 ( heck cashers and sellers licensing applications).
     3 fish                           and        c
         Licensing also appears to assert that its memoranda of understanding with Employment
                                                                              ,
 Security, Labor and Industries, and Revenue provide an independent basis for the redactions
 without argument or citation to authority. But the memoranda of understanding protect only
 information that Licensing obtains from other agencies, not information that Licensing obtains
for other agencies. Moreover, Licensing cannot create its own exemptions to public disclosure
through a multiagency agreement. Hearst Corp. v. Hoppe, 90 Wn. d 123, 137, 580 P. d 246
                                                             2                    2
1978) A] agency's promise of confidentiality or privacy is not adequate to establish the
        ( "[
           n
nondisclosability of information; promises cannot override the requirements of the disclosure
law. ").
                                                      20
41897 5 II
      - -



how the exemption applies to the record withheld."RCW 42. 6.Here, Licensing failed
                                                      210(
                                                         3
                                                         5 ).

to give any kind of explanation when it sent the redacted application to Gronquist. Clearly,

failure to provide any of the information required by RCW 42. 6. a violation of the
                                                          210(
                                                             3 was
                                                             5 )

PRA. See Citizens for Fair Share v. Dep't of Corr., Wn. App. 411, 431, 72 P. d 206 ( 003)
                                                  117                      3       2

failure to provide requester with specific exemption and explanation " learly violated"former
                                                                     c

RCW 42. 7.
    310,
      1   recodified           as   RCW 42. 6.
                                          5  210   by   LAWS of   2005, ch. 274, § 103 (effective July

1, 2006)).

       Licensing contends that although it failed to provide Gronquist with an explanation in its

response to his request for the application, it did not violate the PRA because it eventually

provided him with an explanation after he filed his lawsuit. But although Licensing provided

statutory authority for the exemptions after Gronquist sued Licensing, it failed to specify what

information had been redacted, which exemptions applied to each redaction, or how those

exemptions applied. Again, Licensing failed to comply with the requirements of RCW

210(
42. 6.Sanders, 169 Wn. d at 846.
   3
   5 ).              2

                  s ultimate
       Lie ens ing'            explanation   for   redactions that submitted With the unre acte

application for in camera review by the trial court also failed to meet the PRA requirements. In

this explanation, Licensing did connect some of the redacted information and the statutory

exemptions. But Licensing failed to identify each piece of redacted information it claims was

exempt under a particular statute. And Licensing gave no reason for withholding the type of

business activity performed in Washington and whether the owner bought, leased, or acquired all

or part of an existing business. Licensing's failure to provide the mandatory link between the

redacted information and a statutory exemption not only fails to comply with RCW 42. 6.
                                                                                 210(
                                                                                    3
                                                                                    5 ),



                                                   21
41897 5 II
      - -



but also fails to provide this court with a record that we can meaningfully review. Sanders, 169

Wn. d at 846.
  2


       Moreover, Licensing's explanation of its redactions on appeal differs from the

explanation Licensing offered to the trial court in two ways. First,the particular redacted

information Licensing claims was exempt differs. At the trial court, Licensing claimed that all

redacted information was exempt under particular statutes except the type of business activities

performed in Washington and whether the owner bought, leased, or acquired all or part of an

existing business. In contrast, Licensing argues on appeal that only the owner's home address,

home telephone number, business telephone number, income information, employee

information, banking information, and marital status are exempt, leaving the remaining redacted

information unexplained. Second, the statutes Licensing cited in support of the redactions differ.

Licensing claimed at the trial court that the information in the application was exempt under

RCW 82. 2.RCW 50. 3.and RCW 51. 6. On appeal, Licensing cited these
    330,
      3       020,
                1           070.
                              1

statutes, but for the first time also cited the PRA's exemption for "[
                                                                    p] ersonal information,"
                                                                                           RCW



       And although marked as an " xplanation"at the trial court, Licensing failed to explain
                                 e

how any of the exemptions apply to the particular information redacted. Moreover, Licensing

did not independently provide this particular explanation to Gronquist, but submitted the

explanation to the trial court with the unredacted application for in camera review. Accordingly,

Licensing violated the PRA because it failed to provide an adequate explanation for the

redactions at any stage. Sanders, 169 Wn. d 846.
                                        2

       D. Costs and Penalties




                                                22
41897 5 II
      - -



        Gronquist argues that he should be awarded costs and penalties because (1)
                                                                                 Licensing

exceeded the statutory time frame for responding to his request; 2) redacted information in
                                                                 ( the

the application was not exempt and, thus, Licensing wrongfully withheld the information; and

3)Licensing failed to properly explain the redactions.

        The PRA requires the trial court to award attorney fees and costs to a party who " revails
                                                                                         p

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."
     RCW 42. 6.A PRA claimant " revails"against an agency if the agency
         550(
            4
            5 ).              p

wrongfully withheld the documents. Germeau, 166 Wn. App. at 811. " n addition, it shall be
                                                                 I

within the discretion of the court to award ...   an amount not less than five dollars and not to


exceed one hundred dollars for each day that he or she was denied the right to inspect or copy [a

wrongfully withheld] public record."Former RCW 42. 7.
                                               340(
                                                  4
                                                  2 ).

        Here, Licensing provided a late response to Gronquist's PRA request, provided no

explanation of the redactions until after being sued, failed to provide an adequate explanation of

the redactions at any stage,and redactedinformation from the application that was not exempt
                             -

from disclosure. Accordingly, Gronquist should have been the prevailing party below and was

entitled to costs and penalties. RCW 42. 6.
                                     550(
                                        4 Germeau, 166 Wn. App. at 811. Because the
                                        5 );

amount of the penalty is within the trial court's discretion, we remand to the trial court to

determine the amount of the penalty.

        Gronquist also argues that Licensing's failure to provide an explanation for the redactions

violated the PRA and entitles him to penalties. Licensing responds that the trial court did not

abuse its discretion in failing to award penalties because (1)
                                                             Licensing eventually provided an

explanation and ( ) information was not wrongfully withheld; thus, Gronquist is not entitled
                2 the

                                                   23
41897 5 II
      - -



to penalties because Sanders does not authorize freestanding penalties for failure to properly

respond to a PRA request.

         Licensing is correct that " he penalty section [of the PRA] does not expressly authorize a
                                   t

freestanding penalty for the failure to provide a brief explanation."Sanders, 169 Wn. d at 860.
                                                                                    2

But " lthough the PRA does not expressly sanction a separate penalty for a brief explanation
    a

violation, the violation may aggravate the penalty for wrongfully withholding a record."

Sanders, 169 Wn. d at 860 61. Moreover, failure to provide an explanation is " ilent
               2          -                                                  s

            which
withholding,"         occurs   when " n agency ...
                                    a                 retain[s] record or portion without providing
                                                              a

the required link to a specific exemption, and without providing the required explanation of how

the exemption applies to the specific record withheld."PAWS, 125 Wn. d at 270.
                                                                   2

         Licensing did not attempt to explain its redactions until after Gronquist sued Licensing

under the PRA. The purpose of the penalty provision in the PRA is to "`
                                                                     discourage improper

denial of access to public records."'
                                    Yousozfan v. Office. ofKing County Executive, 152 Wn. d
                                                                                        2

421, 429 30,98 P. d 463 (2004)quoting Hearst Corp. v. Hoppe, 90 Wn. d 123, 140, 580 P. d
         -      3              (                                  2                  2

246 (1978).
          Under these circumstances,oil remand"the trial court may review all the evidence; - -
                                    -

including the timing of Licensing's response and Licensing's failure to properly explain the

redactions, to determine the penalty amount.

III.     MOTION TO SETTLE THE RECORD


         Gronquist next argues that the trial court erred when it denied his motion to settle the

record. We agree.




is
     Our Supreme Court in Yousoufian discussed former RCW 42. 7. the PDA, but
                                                          340(
                                                             4 in
                                                             1 )
because that statute is identical to the current RCW 42. 6. the PRA,we refer to the
                                                     550(
                                                        4 in
                                                        5 )
current version of the statute.
                                                     24
41897 5 II
      - -



        On two occasions, Gronquist mailed deposition transcripts to the trial court clerk in

support of his show cause motion, his motion for sanctions, and his summary judgment motion.

He claimed that the depositions contained information important to his case because they

revealed that Licensing did not know why the redacted information was exempt.

       The first time Gronquist attempted to file the depositions, the trial court clerk returned the

transcripts to Gronquist, and on the second occasion, the clerk refused to file them but

transferred them to the trial court judge,who apparently did not accept them for filing since they

were not part of the trial court record that Gronquist asked that we review. At our direction,

Gronquist made a third request that the trial court file the deposition transcripts, but the court

again refused his request.

        In refusing to file the depositions, the trial court clerk told Gronquist that under CR

32( ), " may, at the time of your hearing, request the judge to publish the deposition. If the
  a You

judge grants your request, the deposition will be filed into the court file. It cannot, however, be

filed until such time." at 218. CR 32( )
                       CP            a provides in relevant part:

        Use of   Depositions. At the trial or upon the hearing of a motion -or -an
                                                                         -
        interlocutory proceeding, any part or all of a deposition, so far as admissible
        under the Rules of Evidence applied as though the witness were then present and
        testifying, may be used against any party who was present or represented at the
        taking of the deposition or who had reasonable notice thereof, in accordance with
        certain] provisions.

        After Gronquist filed his appeal and asked that we review the deposition transcripts, we

directed Gronquist to seek relief in the trial court so they became part of the trial court's file for

our review. Gronquist complied, but the trial court denied his motion to settle the record, stating,

T] e plaintiff did not make deposition transcripts part of the record so the depositions were not
 h

considered by the court."CP at 221.


                                                  25
41897 5 II
      - -



         Gronquist argues that no authority supports the trial court's interpretation of CR 32( )
                                                                                              a to

require that Gronquist " ublish"the depositions. We recognize that RCW 2.2.
                       p                                               050(
                                                                          4 requires
                                                                          3 )

the   superior                  file all papers delivered to him
                 court clerk to "                                  or   her ...   in any action or proceeding

in the court as directed by court rule or statute."And although under CR 5( ),
                                                                          i depositions are

generally not to be filed with the trial court,they may be filed " or use in a proceeding or trial or
                                                                 f

on order of the court."Tegland has clarified the effect of CR 5( ): rule eliminates any
                                                               i The "

notion of publishing' a
          `                   deposition   and ...   contemplate[s] when a deposition is filed, the
                                                                  that

clerk will simply place it in the same public file containing the pleadings and related

documents."15A KARL B.TEGLAND & DOUGLAS J. ENDS, WASHINGTON PRACTICE:


WASHINGTON HANDBOOK             ON    CIVIL PROCEDURE ch. 2, § 3,
                                                              46. authors'          cents. at 417 (
                                                                                                  2012 13
                                                                                                       -

ed.).

         Tegland and Ende also note that in the Washington State Bar Association's WSBA)
                                                                                    (

comments to changes in the civil rules eliminating the " ublishing"requirement, the WSBA
                                                       p

stated that "`
            portions of the [deposition] transcript can be filed in support of a motion at any
time: "' 15A TEGLAND, - §- 3, -
                        46. autlors' cmts. at417 (internalquotation
                                              -                                      marks omitted).Thus,

we hold that the trial court erred by refusing to file Gronqust's depositions.

         Although the trial court erred by failing to allow Gronquist to file the depositions, the

depositions are unnecessary for our review. Determining whether the exemptions applied to the

redacted information is a matter of statutory interpretation. And there were no disputed facts

regarding Licensing's explanations for the redactions; thus, we are required only to determine as

a matter of law whether those explanations were adequate. Finally, although there was a

disputed factual issue regarding the date Licensing received Gronquist's PRA request, that issue

was    resolved   by   the record   already before   us.
41897 5 II
      - -



          But we order the trial court to file the depositions for two reasons. First, Gronquist

alleges that the transcripts contain evidence that Licensing admitted that there is no statute that

specifically exempts information contained in the application from public disclosure. Because

we remand to the trial court to determine the penalty amount, the trial court must have the filed

depositions to address Gronquist's claim that Licensing did not redact the application in good

faith. Second, we direct the trial court to file the depositions Gronquist has attempted to file to
                                                                         16
provide   a   proper record should this matter   require   further review.


IV.       COSTS ON APPEAL


          Gronquist also requests his costs on appeal under RAP 14. . RAP 14. provides that an
                                                                  2         2

appellate court " ill award costs to the party that substantially prevails on review."Because
                w

Gronquist substantially prevails here, we grant his request.

          We hold that Licensing wrongfully withheld the application and,thus, we remand

this matter to the trial court to determine an appropriate award of costs and penalties,

based on our holdings that ( )
                           1 Licensing failed to timely respond to Gronquist's PRA

request; 2)
         ( Licensing asserted exemptions for manyof the redactions, which exemptions
                                                                          -

we hold did not apply; and (3)Licensing withheld numerous portions of the requested

application without providing any explanation for its redactions until after Gronquist filed

his PRA claim. Because Revenue is the agency now responsible for the application, we




16
     Gronquist also argues that the trial court's failure to consider the evidence in his depositions
and other evidence he submitted with his show cause motion was error and demonstrates that the
trial court was " iased."Br. of Appellant at 20. He asks us to "
                b                                              remand the case back for a full
and fair hearing before a different judge."Br.of Appellant at 20. But the trial court judge is
now retired. Thus, Gronquist's case will presumptively be heard by a different judge on remand.

                                                      27
41897 5 II
      - -


                                                   17
do not rule   on   Revenue's   duty to produce   it.


          We further hold that the trial court erred when it refused to file deposition

transcripts that Gronquist asserts support his claim for penalties against Licensing. We

remand this matter to the trial court and direct it to file the deposition transcripts

Gronquist attempted to file in 2010 and again in 2011 at our direction. The deposition

transcripts will then be available for the trial court's consideration in determining the

amount of the penalties to be assessed against Licensing. Finally, we award Gronquist

his costs incurred on appeal in an amount to be determined by our Commissioner upon

compliance    with RAP 14.                                   i




                                                         VAN DEREN, J. .
                                                                    T.
                                                                     P
I concur:




17
     Although we do not rule on Revenue's duty to produce the application, we note that at the time
the legislature transferred responsibility for master license applications from Licensing to
Revenue, it also adopted a confidentiality provision applicable to all information contained in
licensing applications handled by Revenue. LAWS of 2011, ch. 298, § 12. The current Revenue
confidentiality statute provides:
        Licensing information is confidential and privileged, and except as authorized by
        this section, neither [Revenue] nor any other person may disclose any licensing
        information. Nothing in this chapter requires any person possessing licensing
        information made confidential and privileged by this section to delete information
        from such information so as to permit its disclosure.
RCW 19. 2.The statute defines "[
       115(   2
              0 ).                       l]    icensing information"as
        any information created or obtained by [Revenue] in the administration of this
        chapter and chapters 19. 0 and 59. 0 RCW, which information relates to any
                                  8          3
        person who: i) applied for or has been issued a license or trade name; or (ii)
                       ( Has
        has been issued an assessment or delinquency fee.           Licensing information
    includes initial and renewal business license applications, and business licenses.
RCW 19. 2.
    b).
    115(   1)(
           0
                                                        28
41897 5 II
      - -



     BRINTNALL, J.concurring in the result) — While I concur with my colleagues in
QuiNN-             (


believing that the Department of Licensing (
                                           Licensing)failed to respond to Derek Gronquist's

request within the Public Record Act's PRA)statutory timeframe or provide timely and
                                       (

adequate explanations for the redactions it made from the requested records, some of the

information in the requested master business license application should have been exempt from

disclosure. Accordingly, I concur only in the result.

       The PRA    provides   that "[   i]
                                        nformation required of any taxpayer in connection with the

assessment or collection of any tax"is exempt from public disclosure " f the disclosure of the
                                                                     i

information to other persons would: ( Be
                                    a)           prohibited   to such persons   by ... [ RCW]

330. RCW
82. 2. "
  3                  330(
                     82. 2.
                        2 provides that "[ eturns and tax information are confidential
                        3 )             r]

and privileged."Under RCW 82. 2. information"" "
                          c)(
                          330(
                             ii),
                             1)(
                             3 tax           includes the nature, source,

or amount of the taxpayer's income, payments, receipts, deductions exemptions, credits, assets,

liabilities,net worth, tax liability deficiencies ... or tax payments, whether taken from the

taxpayer's books and records or any other source."

       Gronquist contends, and the majority agrees,that this exemption is not to
                                                                       -

information in a master business license application because such applications "
                                                                               have no

connection with the assessment or collection of taxes."Br. of Appellant at 27. The majority

cites Ford Motor Co. v. City ofSeattle, Exec. Services Dep't, Wn. d 32, 156 P. d 185
                                                            160 2            3

2007)for the proposition that " usiness license applications are not a substitute for tax returns"
                              b

                          the information contained in the application was
and, accordingly, because "                                                              required
                                                                                     not `          ...   in


connection with the assessment or collection of any tax,"'
                                                        Licensing failed to prove that the



18
     RCW   230(
           42. 6.
              4
              5 ).
41897 5 II
      - -



information it redacted under RCW 82. 2.was exempt from disclosure. Majority at 17
                                  330
                                    3

quoting Ford, 160 Wn. d at 56 and RCW 42. 6.This overextends the Ford Motor Co.
                    2                 230(
                                         4
                                         5 )).

decision and misconstrues the importance of filing a business license application for purposes of

taxation.


          In the Ford Motor Co. case, the defendant asked the court to treat its business license

application as a proper tax return,thereby triggering a statute of limitations defense to requiring

payment of unpaid back taxes the city of Tacoma wished to collect. 160 Wn. d at 55 56. Our
                                                                         2         -

Supreme Court rejected this invitation, reasoning that a business license application is "
                                                                                         designed

to license a company to engage in business, not to provide financial information for taxation

purposes." 160 Wn. d at 56. In the context of the Ford Motor Co. case a situation where a
                 2                                                    —

defendant has registered with the Department of Revenue (DOR)for purposes of business and

occupation ( O)
           B & taxation but has failed to file appropriate tax returnsthis makes sense. A
                                                                       —

proper tax return is necessary to calculate B O taxation as that tax " s measured by the
                                              &                      i

application of rates against value of products, gross-roceeds of sales, or gross income of the
                                                     p

business as the case may be."
                            RCW 82. 4 220( ): - - -
                                  0 : 1

          But,while business license applications are not a substitute for appropriately filed tax

returns, registering such an application puts the appropriate taxation authority on notice that

B O tax will be due. See, e. ., re Disciplinary Proceeding Against Cramer, 168 Wn. d 220,
  &                        g In                                                  2

226, 225 P. d 881 (2010)because "
          3              (      registering a new business with DOR is required by law"

               charged with
DOR has agents "                   locating unregistered   business entities "). The Ford Motor Co.


decision itself recognizes this distinction:

19
     In Seattle, for instance, the B O tax is currently calculated for both retailers and retail service
                                     &
providers as being equal to the annual "gross proceeds of such sales of the business . . .
multiplied by the rate of 00215."SEATTLE MUNICIPAL CODE 5.5.
                          .                             050(  C
                                                              4 ).
                                                    30
41897 5 II
      - -



       E]en if the license applications could be considered returns, Ford failed to file
          v
       them until 2000. Had Ford filed them in the years they were due, Tacoma might
       have known to request tax returns and payment of taxes at that time. However,
       Fordfailed to provide such notice of its business activities in a timely manner. Its
       belated filing of license applications cannot now be used to avoid paying its fair
       share of the [B O] burden to Tacoma.
                       & tax

Ford Motor Co., Wn. d at 56 ( mphasis added).Accordingly, contrary to Gronquist.and the
              160 2         e

majority's assertions, the business license application plays an essential function in the

assessment and collection of B O taxes.
                               &


       Because a master business license application includes information required " n
                                                                                   i

connection with the assessment or collection of any tax,"
                                                        RCW 42. 6. exemption for tax
                                                            230,
                                                              5 the

information under RCW 82. 2.should be applicable. In result, whether the business owner
                      330
                        3

purchased    or                       viewed either
                  leased any fixtures (               as "assets"or "
                                                                    payments ")   and whether the


owner bought, leased, or acquired all or part of an existing business (again viewed as "assets"or

payments ") should have been redacted as required by as required by RCW 82. 2. For that
                                                                        330.
                                                                          3

reason, I concur only in the result.


                                                                                         l -


                                                 Q INN-
                                                      BRINTNALL, J.




                                                      31
