                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          April 14, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 THE CHURCH OF THE DIVINE EARTH,                                    No. 53804-1-II

                                Appellant,

           v.

 CITY OF TACOMA,
                                                              UNPUBLISHED OPINION
                                Respondent.

       WORSWICK, J. — The Church of Divine Earth (Church) filed a Public Records Act

(PRA), chapter 42.56 RCW, request with the City of Tacoma (City), seeking job performance

evaluations for two City employees. The City responded, redacting some material and

explaining those redactions in a privilege log. The Church filed this action, alleging that the City

violated the PRA. The City filed a motion for summary judgment dismissal, which the trial court

granted.

       On appeal, the Church argues the trial court erred in granting summary judgment

dismissal because the City’s redactions did not comply with the PRA’s “personal information”

exemption, and the City’s explanations in the privilege log were insufficient.

       We hold that the City properly redacted information in the performance evaluations and

that the City provided adequate explanations in its privilege log. Thus, we affirm.

                                              FACTS

       Peter Huffman and Kurtis Kingsolver are employed by the City as department directors.

Huffman leads the Department of Planning and Development Services, and Kingsolver leads the
No. 53804-1-II


Department of Public Works. These men are two of several department directors for the City.

The assistant city manager directly supervised Huffman and Kingsolver in their roles as

department directors.

       The Church submitted a PRA request to the City, seeking, among other documents, five

years of performance evaluations for Huffman and Kingsolver. The City responded, providing

the performance evaluations in partially redacted form.1

       The performance evaluations in question vary slightly depending on the year and the

position evaluated. The performance evaluations generally contain four sections: (1) basic

employee information, (2) rating the employee’s performance based on different categories and

stating specific examples of the employee’s work, (3) goal setting and analysis of progress on

previous goals, and (4) comments, overall rating, and signatures. The performance evaluations

begin by stating the City’s mission and values and basic employee information including name,

division, job title, supervisor conducting the evaluation, and review time period. The City did

not redact this information.

       The next section involves performance expectations. This section lists different

categories for evaluating the employee, such as accountability and resourcefulness in problem

solving. In each category, the employee’s performance is rated, ranging from “Exceeds

Expectations” to “Does Not Meet Expectations.” Clerk’s Papers (CP) at 3. The performance

evaluation contains a column next to each category for “Specific Examples.” CP at 3. The City

redacted the ratings and specific examples but did not redact the evaluation categories.



1
 The record on appeal includes the redacted and unredacted versions of the performance
evaluations.


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No. 53804-1-II


       The third section is the employee’s goal development plan which provides spaces to list

employee goals, how to achieve those goals, progress on those goals, and the approximate date

those goals will be completed. The City redacted the employee’s listed goals, steps toward

achievement, progress, and dates, but did not redact the section headings. Finally, the

performance evaluations provide sections for employee comments, supervisor comments, an

overall rating on the employee’s performance, and signatures of the employee and supervisor.

The City redacted the comments and overall rating, but did not redact the headings or signatures.

       The City included a privilege log that identified and gave reasons for the redactions. The

privilege log stated:

       EMPLOYEE PERFORMANCE EVALUATIONS (NO SPECIFIC
       MISCONDUCT) - These records, consisting of performance evaluations which do
       not discuss specific instances of misconduct, are protected from disclosure and have
       been withheld in their entirety based on the following authority:

       RCW 42.56.230 Personal information
       (3) Personal information in files maintained for employees, appointees, or elected
       officials of any public agency to the extent that disclosure would violate their right
       to privacy.

       RCW 42.56.050 Invasion of privacy, when.
       A person’s “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,”
       as these terms are used in this chapter, is invaded or violated only if disclosure of
       information about the person: (1) Would be highly offensive to a reasonable person,
       and (2) is not of legitimate concern to the public. The provisions of this chapter
       dealing with the right to privacy in certain public records do not create any right of
       privacy beyond those rights that are specified in this chapter as express exemptions
       from the public’s right to inspect, examine, or copy public records.

       -AND-

       Dawson v. Daly, 120 Wn.2d 782, 797[, 845 P.2d 995] (1993), overruled in part
       on other grounds by Progressive Animal Welfare Soc’y v. Univ. of Wash., 125
       Wn.2d 243, 257-58, 884 P.2d 592 (1994).




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No. 53804-1-II


CP at 298. Following the production of the partially redacted performance evaluations and

accompanying privilege log, the City closed the Church’s request.

       The Church filed a complaint, alleging that the City wrongfully redacted the performance

evaluations and that the City’s brief explanation in its privilege log was inadequate. The Church

moved for in camera review of the performance evaluations and for summary judgment

regarding its claims.

       The City opposed the Church’s motion for summary judgment, but not the Church’s

motion for in camera review. Regarding its response to the Church’s motion for summary

judgment, the City attached the affidavit of Catherine Journey. Journey is the City’s Training

and Development Manager and oversees the performance evaluation process. She explained that

the City’s performance evaluation process occurs annually between the employee and their direct

supervisor. The review process is the same for department directors. Journey stated, “The

purpose of the process is to bring out the best performance in all of our employees so that we can

provide excellent service to our community.” CP at 376-77. The evaluation process allows

employees to raise issues regarding their work or department and provides an opportunity for

supervisors to “coach the employee on a wide variety of performance issues.” CP at 377.

Journey stated that the effectiveness of the performance evaluation process would be “seriously

undermined” if the performance evaluations were subject to disclosure. CP at 377.

       By letter opinion, the trial court stated that it reviewed the performance evaluations in

camera and confirmed that no specific instances of misconduct were redacted. It concluded that

the redactions made were not of public concern and disclosure would risk detrimental effects. It

continued, “There is nothing further that Defendant City of Tacoma must do with respect to the



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No. 53804-1-II


substance of its privilege log, and all redactions reviewed in camera were appropriate.” CP at

392. Following this, the City moved for summary judgment dismissal of the case. The trial

court granted the City’s motion.

       The Church appeals the trial court order granting the City’s motion for summary

judgment dismissal. The Church petitioned the Supreme Court for direct review. The Supreme

Court denied the Church’s petition, and transferred the case to this court.

                                           ANALYSIS

                                     I. PUBLIC RECORDS ACT

       The Church argues that the performance evaluations do not meet the requirements for the

claimed PRA exemption and that the City violated the PRA by not providing adequate

explanations in its privilege log.2 We disagree.

A.     Legal Principles

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

Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013). Its purpose is

to increase governmental transparency and accountability by making public records accessible to

Washington’s citizens. John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d 63

(2016). We liberally construe the PRA to promote the public interest. Soter v. Cowles Publ’g

Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007); RCW 42.56.030. When evaluating a PRA claim,

we “take into account the policy of this chapter that free and open examination of public records

is in the public interest, even though such examination may cause inconvenience or


2
 The Freedom Foundation filed an amicus curiae brief to the Supreme Court in support of the
petition for direct review, raising the same arguments as the parties.



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No. 53804-1-II


embarrassment to public officials or others.” RCW 42.56.550(3). We review agency actions

under the PRA de novo. John Doe A, 185 Wn.2d at 370-71; RCW 42.56.550(3).

       We review a trial court’s order granting summary judgment de novo. Greenhalgh v.

Dep’t of Corr., 160 Wn. App. 706, 714, 248 P.3d 150 (2011). Summary judgment is appropriate

when there are no genuine issues of material fact and the moving party is entitled to judgment as

a matter of law. CR 56(c).

B.     Performance Evaluations

       The Church argues that Huffman’s and Kingsolver’s performance evaluations do not

meet the requirements for the claimed PRA exemption. Following our in camera review of the

performance evaluations, we disagree.

       A government agency must disclose public records upon request unless a specific

exemption in the PRA applies. RCW 42.56.070(1); Ameriquest Mortg. Co. v. Office of the Att’y

Gen., 177 Wn.2d 467, 485-86, 300 P.3d 799 (2013). The agency claiming the exemption bears

the burden of proving that the withheld records are within the scope of the exemption. Resident

Action Council, 177 Wn.2d at 428. We narrowly construe PRA exemptions. RCW 42.56.030.

       Performance evaluations are not a specifically enumerated exemption in the PRA.

However, RCW 42.56.230(3) may prevent disclosure of performance evaluations as “personal

information.” This statute exempts “[p]ersonal information in files maintained for employees,

appointees, or elected officials of any public agency to the extent that disclosure would violate

their right to privacy.” RCW 42.56.230(3). A person’s right to privacy is violated when

disclosure of the information “(1) [w]ould be highly offensive to a reasonable person, and (2) is

not of legitimate concern to the public.” RCW 42.56.050.



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No. 53804-1-II


       “Employee evaluations qualify as personal information that bears on the competence of

the subject employees.” Dawson, 120 Wn.2d at 797. Because performance evaluations contain

an employer’s criticisms and observations, performance evaluations are not information most

individuals willingly disclose to the public. Dawson, 120 Wn.2d at 797. As a result, the

disclosure of performance evaluations, which do not discuss specific instances of misconduct, is

“presumed to be highly offensive.” Dawson, 120 Wn.2d at 797. This presumption may be

overcome where the agency can effectively remove identifying information from the

performance evaluations to protect employee privacy. Dawson, 120 Wn.2d at 797 (citing Ollie

v. Highland Sch. Dist. 203, 50 Wn. App. 639, 749 P.2d 757 (1988)).

       The presumption that disclosure would be highly offensive applies only to the first

consideration of the right to privacy. Dawson, 120 Wn.2d at 797. For a performance evaluation

to be exempt from disclosure, the governmental agency must also establish the absence of

legitimate public concern. Dawson, 120 Wn.2d at 797. In this context “legitimate public

concern” means reasonable public concern. Dawson, 120 Wn.2d at 798. Courts do not conduct

a test that balances an individual’s privacy interests against the public’s interest in disclosure.

Dawson, 120 Wn.2d at 798. Instead, courts balance the public’s interest in disclosure against the

public’s interest in efficient administration of government. Dawson, 120 Wn.2d at 798.

       The Church argues the City’s redactions do not fall within the claimed exemption

because: (1) the material is not personal information, (2) disclosure of the material would not be

highly offense to a reasonable person, and (3) the material is of legitimate concern to the public.

We disagree on all three points.




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No. 53804-1-II


       1.      Performance Evaluations Are Personal Information

       The Church argues that the City failed to show that the performance evaluations were

personal information. The Church notes that the PRA’s “right to privacy” exemption applies

only to personal information, and then argues that the right to privacy extends only to the

intimate details of one’s personal life. Br. of Appellant at 14. The Church then argues that “here

nothing redacted appears by context related to the intimate details of either Directors Huffman

[or] Kingsolver’s personal life.” Br. of Appellant at 15. The Church argues that because the

performance evaluations contain comments on Huffman’s and Kingsolver’s public job

performance, the records must be disclosed. The Church is mistaken; performance evaluations

are personal information.

       The Church relies on a quote from Dawson to support its position. In Dawson, our

Supreme Court made mention that the employee’s performance evaluations at issue did not

discuss “specific instances of misconduct or public job performance,” in support of its holding

that the records were not subject to disclosure. 120 Wn.2d at 800. But that quote is part of the

court’s balancing of the harms of disclosure over the public’s interest; the quote does not stand

for the proposition that the records were not personal information.

       Performance evaluations contain an employer’s criticisms and observations, and these

comments are not information most individuals willingly disclose to the public. 120 Wn.2d at

797. As a result, Dawson explicitly stated, “Employee evaluations qualify as personal

information that bears on the competence of the subject employees.” 120 Wn.2d at 797

(emphasis added). Our Supreme Court has determined that performance evaluations are personal

information.



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No. 53804-1-II


       Because performance evaluations are personal information, we next consider whether the

disclosure of this personal information would violate Huffman and Kingsolver’s right to privacy.

As mentioned above, a person’s right to privacy is violated when disclosure of the information

would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

RCW 42.56.050.

       2.      Disclosure of Performance Evaluations Is Highly Offensive

       The Church argues that disclosure of the performance evaluations would not be highly

offensive to a reasonable person. We disagree.

       Dawson created a presumption that the disclosure of performance evaluations would be

highly offensive to a reasonable person. 120 Wn.2d at 797. This presumption may be overcome

when the agency can effectively remove identifying information from the performance

evaluations to protect employee privacy. Dawson, 120 Wn.2d at 797 (citing Ollie, 50 Wn. App.

639). In Ollie, a former school employee sought the performance evaluations as well as

personnel and disciplinary records of other employees during discovery for her wrongful

discharge suit. Ollie, 50 Wn. App. at 640-41. The school argued that the records were exempt

from disclosure. Ollie, 50 Wn. App. 643. Division Three of this court held that “not all the

information contained in personnel evaluations and personnel records of school district

employees is privileged; information about public, on-duty job performances should be

disclosed. Deletion of the employees’ names and identifying details would protect the privacy of

the employees.” Ollie, 50 Wn. App. at 645.

       Here, it was impossible to delete the identifying details to sufficiently protect the privacy

of the employees. The Church requested the performance evaluations of two specific employees:



                                                 9
No. 53804-1-II


one from Public Works and the other from Planning and Development Services. One set of

evaluations discusses tasks related with Public Works and the other discusses tasks related to

Planning and Development. Our review of the unredacted performance evaluations clearly

reveals the identity of the employee based on the information in the “specific examples” column

or goals section, which details different projects or tasks related to that employee’s departmental

role. It would have been impossible for the City to effectively remove identifying information

from the performance evaluations. Accordingly, we hold that the Church cannot overcome the

presumption that disclosure of the performance evaluations is highly offensive to a reasonable

person.

          The Church relies on Ollie which stated that “not all the information contained in

personnel evaluations and personnel records of school district employees is privileged;

information about public, on-duty job performances should be disclosed. . . . [The school] has the

burden to show information contained in the evaluations is intimate personal information.” 50

Wn. App. at 645. The Church argues that the City’s blanket redactions are contrary to Ollie and

that information within evaluations regarding on-duty job performance must be disclosed.

However, Ollie involved an employee file that contained more than just performance

evaluations. Moreover, to the extent this statement in Ollie applied to performance evaluations,

it was abrogated by Dawson, which created the presumption that disclosure of performance

evaluations would be highly offensive. Dawson, 120 Wn.2d at 797. The court in Dawson,

stated, “We hold that disclosure of performance evaluations, which do not discuss specific

instances of misconduct, is presumed to be highly offensive within the meaning of [former]




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No. 53804-1-II


RCW 42.17.255 [(1987)].”3 120 Wn.2d at 797. The Supreme Court has reaffirmed this.

Bellevue John Does 1-11 v. Bellevue Sch. Dist. 405, 164 Wn.2d 199, 223, 189 P.3d 139 (2008)

(“In Dawson, we assumed a prosecutor had a right to privacy in his or her performance

evaluations. See 120 Wn.2d at 796-99, 845 P.2d 995. We see no reason to depart from this

precedent.”). We hold that the performance evaluations are highly offensive within the meaning

of RCW 42.56.050 and that this presumption could not be overcome by deleting the employee

identifying information.

         3.     No Legitimate Public Concern Justifies Disclosure

         The Church argues that legitimate public concerns justify disclosure. We disagree.

         To prevent disclosure of the performance evaluations, the City must establish the absence

of legitimate public concern. Dawson, 120 Wn.2d at 797. In determining whether an agency has

met its burden, we balance the public’s interest in disclosure against the public’s interest in

efficient administrative of government. Dawson, 120 Wn.2d at 798. Our courts have conducted

this public interest balancing test regarding performance evaluations for a county deputy

prosecutor, an elementary school principal, and a city manager. Dawson, 120 Wn.2d 782;

Brown v. Seattle Pub. Sch., 71 Wn. App. 613, 615, 860 P.2d 1059 (1993); Spokane Research &

Def. Fund v. City of Spokane, 99 Wn. App. 452, 453, 994 P.2d 267 (2000).

         In Dawson, a requester sought disclosure of a deputy prosecutor’s personnel file, which

contained performance evaluations. 120 Wn.2d at 787. The Court considered whether

disclosure of the deputy prosecutor’s performance evaluations was of legitimate public concern.

Dawson, 120 Wn.2d at 797. Although the Court acknowledged that the performance evaluations


3
    RCW 42.17.255 was recodified as RCW 42.56.050. LAWS OF 2005, ch. 274, §103.


                                                 11
No. 53804-1-II


were undoubtedly of “some interest” to the public, the potential harm to efficient government

that could result from disclosure weighed against disclosure. Dawson, 120 Wn.2d at 798-99.

       The Court reasoned that disclosure could harm the public in two ways. Dawson, 120

Wn.2d at 799. First, if public employees knew their performance evaluations were freely

available to anyone, including coworkers or the press, employee morale would be seriously

undermined and employee performance would suffer. Dawson, 120 Wn.2d at 799. Second,

disclosure of performance evaluations could prevent supervisors from providing candid

evaluations. Dawson, 120 Wn.2d at 799. As a result, employee performance would suffer

because employees are not receiving the guidance or constructive criticism that would be

necessary to improve in their position. Dawson, 120 Wn.2d at 799. Dawson held that these

harms to the public interest in efficient government outweighed the public interest in disclosure

where the prosecutor’s performance evaluations did not contain “specific instances of

misconduct or public job performance.” 120 Wn.2d at 800.

       In Brown, Division One of this court considered the disclosure of an elementary school

principal’s performance evaluations. Brown, 71 Wn. App. at 617. That court applied Dawson’s

presumption against disclosure, and then balanced public interests. Brown, 71 Wn. App. at 617-

18. Citing the necessity for effective school district evaluation systems and that this system

would be undermined by disclosure, that court held, “Legitimate public concern is lacking here

for the same reasons found in Dawson.” Brown, 71 Wn. App. at 619.

       In Spokane Research & Defense Fund, a split panel of Division Three held that the

performance evaluations of the Spokane city manager were subject to disclosure. 99 Wn. App.

at 457. For an annual evaluation of the city manager, the city council sent 125 questionnaires to



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No. 53804-1-II


various stakeholders in the community. 99 Wn. App. at 454. The city council hired an outside

consulting firm to compile and analyze the questionnaire responses. 99 Wn. App. at 454. This

information factored into the city council’s decision to retain the city manager. 99 Wn. App. at

454. The Spokane Research & Defense Fund made a PRA request regarding the questionnaires

and resulting report, and the city claimed the records were exempt. 99 Wn. App. at 454.

         Division Three recognized that “[e]valuations of public employees ordinarily are not

subject to public disclosure” because the employee and supervisor reasonably expect evaluations

to remain confidential. 99 Wn. App. at 456. However, that court explained the unique position

of city manager:

         The Spokane City Manager is the City’s chief executive officer, its leader and a
         public figure. The performance of the City Manager’s job is a legitimate subject of
         public interest and public debate. A person in the position of Spokane City
         Manager cannot reasonably expect that evaluations of the performance of his or her
         public duties will not be subject to public disclosure. Additionally, each year the
         Spokane City Council evaluates the job performance of the City Manager. In part,
         the purpose of that evaluation is to determine whether the employment of the City
         Manager should be continued. Because the City Council used this information in
         making its determination to retain the City Manager, there is a legitimate public
         interest in the information.

                 We hold the public has a legitimate interest in disclosure of [the City
         Manager’s] performance evaluation. For that reason, the information is not exempt
         even if it would otherwise qualify under [former] RCW 42.17.310(1)(b)[4] [(2003)].

99 Wn. App. at 457.

         The case here, is most similar to Brown. Here, the performance evaluation process was

meant to bring out the best performance in all of the City’s employees so that the City may better

service the public. The evaluation process allowed employees to raise issues regarding their



4
    RCW 42.17.310 was recodified as RCW 42.56.210. LAWS OF 2005, ch. 274, §103.


                                                 13
No. 53804-1-II


work or department and provided an opportunity for supervisors to candidly guide employees on

a wide variety of performance issues. The City stated that the effectiveness of the performance

evaluation process would be “seriously undermined” if the performance evaluations were subject

to disclosure. CP at 377.

       In balancing the public’s interest in disclosure against the public’s interest in efficient

administrative of government, we hold that no legitimate public concern justifies disclosure.

Preventing disclosure of Huffman’s and Kingsolver’s performance evaluations protects the vital

functions of effective government. Unlike a city manager, Huffman and Kingsolver are two of

several department directors for the City. Department directors are neither the City’s leader nor

public figureheads. Huffman’s and Kingsolver’s performance evaluations were individual

conversations with a supervisor; the public was not involved at any stage of the performance

evaluation process. Although department directors assume leadership and decision-making

roles, their position is more analogous to a school principal.

       The performance evaluations were personal information, the release of which would be

highly offensive to a reasonable person, and were not of legitimate concern to the public.

Accordingly, our in camera review shows that the City was not required to disclose unredacted

performance evaluations.

C.     Brief Explanations

       As an initial matter, the Church argues that, because the Church challenged the City’s

previous brief explanations in a different case and prevailed, the City is collaterally estopped

from arguing that its brief explanations in this case comply with the PRA. We disagree.




                                                 14
No. 53804-1-II


       The party asserting collateral estoppel must show, among other elements, that the issue

decided in the earlier proceeding was identical to the issue presented in the later proceeding.

Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 307, 96 P.3d 957 (2004).

Regarding brief explanations, the amount of detail necessary to determine whether an exemption

is properly invoked depends on the nature of the exemption and the document or information

withheld. City of Lakewood v. Koenig, 182 Wn.2d 87, 95, 343 P.3d 335 (2014). Here, the

previous proceeding referenced by the Church addressed a different records request where the

City withheld documents based on attorney-client privilege. The issue of a brief explanation for

a previous request regarding the attorney-client privilege exemption presents a different issue

than the current request for performance evaluations. Collateral estoppel does not apply.

       The Church argues that the City violated the PRA by not providing adequate explanations

in its privilege log. We disagree.

       When an agency refuses to produce a record or part of a record, the agency must include

a statement of the specific exemption and a brief explanation of how that exemption applies to

the withheld record. RCW 42.56.210(3). The amount of detail necessary to determine whether

an exemption is properly invoked depends on the nature of the exemption and the document or

information withheld. Koenig, 182 Wn.2d at 95. Where a statute provides for a categorical

exemption, citing the statute for that specific exemption may be a sufficient explanation.

Koenig, 182 Wn.2d at 95. However, where no categorical exemption exists, an additional

explanation is required to adequately inform the requester. Koenig, 182 Wn.2d at 95.

       The purpose of the brief explanation is to inform the requester why the records are being

withheld and provide for meaningful judicial review of the agency’s withholding. Koenig, 182



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No. 53804-1-II


Wn.2d at 94. As a result, the agency must provide sufficient explanatory information for a

requester to determine whether the exemptions are properly invoked. Koenig, 182 Wn.2d at 95;

WAC 44-14-04004(5)(b). Merely specifying the claimed exemption and identifying the

withheld document’s author, recipient, date of creation, and broad subject matter is insufficient.

See Sanders v. State, 169 Wn.2d 827, 846, 240 P.3d 120 (2010). The agency should identify

with particularity the specific information being withheld and the specific exemption that

supports the withholding. Koenig, 182 Wn.2d at 94.

       Here, performance evaluations are not a specifically enumerated exemption in the PRA,

thus, the City was required to provide additional information to explain the redactions. The

City’s explanation cited the personal information of the employees statute, the right to privacy

statute, and a pinpoint citation to Dawson, where the Court explained why the performance

evaluations are typically exempt. We hold that the City’s brief explanation adequately provided

the Church with sufficient explanatory information for the Church to determine whether the

exemption was properly invoked. The citation to Dawson noted the page where the case

specifically addresses performance evaluations, and the statutes provide the foundation of the

cited Dawson analysis. We hold that the City did not violate the PRA’s brief explanation

requirement.

                                       ATTORNEY FEES

       Both parties request attorney fees. The Church requests its attorney fees based on RCW

42.56.550(4), which provides for an award of costs and attorney fees when a party prevails in a

PRA action against an agency. Because the Church does not prevail in this action, we deny the

Church’s request.



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No. 53804-1-II


       The City summarily requests costs and attorney fees in the last sentence of its conclusion,

citing only RAP 18.1. RAP 18.1(a) allows a party on appeal to recover costs or attorney fees if

applicable law so grants. Additionally, RAP 18.1(b) requires a party to devote a section of its

opening brief to its request for fees or costs. Here, the City fails to cite any applicable law

granting it the right to recover its costs and attorney fees. Further, the City fails to devote a

section of its briefing to its request. We also deny the City’s request for costs and attorney fees.

       We affirm.

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

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

2.06.040, it is so ordered.



                                                       _______________________________
                                                                  Worswick, J.


_________________________________
 Lee, C.J.



_________________________________
 Melnick, J.




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