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                                                           FILED
                                                       DECEMBER 14, 2017
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                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division Ill
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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE                                                   II
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RICHARD EGGLESTON, an individual,             )
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                                                       No. 34340-5-111
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                      Appellant /             )                                                '
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                      Cross Respondent,       )                                                l
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      v.

ASOTIN COUNTY, a public agency; and
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                                                       UNPUBLISHED OPINION                     I
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ASOTIN COUNTY PUBLIC WORKS
DEPARTMENT, a public agency,
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                      Respondents I
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                                              )
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                      Cross Appellants.       )
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      PENNELL, J. -    Richard Eggleston submitted several public records requests to
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Asotin County related to work on the Ten Mile Creek Bridge Project (the Project). After

failing to receive copies of three specific documents, Mr. Eggleston filed a lawsuit against
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the County alleging violations of the Public Records Act (PRA), chapter 42.56 RCW.             i
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Mr. Eggleston's claims as to the first document were dismissed through summary
No. 34340-5-III
Eggleston v. Asotin County


judgment. He later prevailed at a bench trial as to the remaining two documents and was

awarded $49,385.00 in penalties and $50,133.67 in attorney fees, staff fees and costs.

The parties cross appeal the trial court's rulings. We affirm.

                                          FACTS

       This case concerns Richard Eggleston's multiple public records requests for three

specific records from the County. The initial record sought is a January 2002 e-mail

written by archeologist Kevin Cannell to Thomas Dean & Hoskins (TD&H), an

engineering firm hired by the County. The other two records consist of preliminary

Project drawing sets, referred to as "the April Plans" and "the July Plans." Clerk's Papers

(CP) at 553.

Background

       In 2001, Asotin County decided to replace the Ten Mile Creek Bridge. In

November 2001, TD&H received a letter from the County confirming it had been

selected to provide engineering services for the Project. The contract was entered into

on March 4, 2002, and provided that: "[a]ll designs, drawings, specifications, documents,

and other work products prepared by the CONSUL TANT [TD&H] prior to completion

or termination of this AGREEMENT are instruments of service for this PROJECT and

are property of the AGENCY [Asotin County]." CP at 1029.



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No. 34340-5-111
Eggleston v. Asotin County


       TD&H was concerned about possible archaeological sites in the Project area and

retained the services of Kevin Cannell to perform a "preliminary archaeological and

cultural review of the proposed roadway" for the Project. CP at 276. In its June 5, 2002,

retention letter to Mr. Cannell, TD&H referenced a "Cultural Resource Compliance

Scope of Work" that Mr. Cannell had sent to TD&H via e-mail on January 11, 2002.

CP at 276, 1024.

Requests regarding TD&H's agreement with archeologist Kevin Cannell

       Richard Eggleston is a resident of Asotin County. Mr. Eggleston made several

requests, spanning 2004-2011, for correspondence between TD&H and Mr. Cannell. Of

particular concern to Mr. Eggleston was the original solicitation for Mr. Cannell to

perform archeological services on the Project and Mr. Cannell's response to the

solicitation. See CP at 38. The County provided some materials in response to Mr.

Cannell's requests, but it also noted Mr. Cannell was contracted through TD&H and,

therefore, the County may not have all correspondence. Eventually, the County provided

Mr. Eggleston a copy of Mr. Cannell's Cultural Resource Program Scope of Work that

had been sent to TD&H in January 2002. See CP at 53. However, the County never

provided a copy of the 2002 e-mail Mr. Cannell sent to TD&H along with his proposed

scope of work.



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Eggleston v. Asotin County


Commencement of the Project and discovery of archaeological sites

       Construction on the Project commenced during June 2010. But by October, crews

working on the Project encountered human remains and realized they had unearthed

Native American graves. The Project then stalled to allow for negotiations between the

County, the Nez Perce tribe and other agencies on how to handle the remains. During this

delay, the project plans went through numerous changes. A final set of plans for the

Project were not completed until September 2012.

Requests for "current sheets" of the Project plans and initiation of litigation

       Mr. Eggleston's next records request came on April 26, 2012. At this point, he did

not ask for documents related to Mr. Cannell or his archaeological work. Instead, he

sought copies of the current drawing sheets (the April Plans) for the Project. Mr.

Eggleston indicated he had received page one of the April Plans 1 at a meeting with the

County and he wanted to view the remaining pages. The County responded on May 16,

2012, claiming the April Plans were exempt from disclosure under RCW 42.56.280. The

County reasoned that this exemption applied because the April Plans were preliminary




       1
         Apart from the page Mr. Eggleston obtained at the County meeting, Mr.
Eggleston had actually received a copy of the April Plans from the Nez Perce Tribe. Mr.
Eggleston sought a copy of the plans at the behest of the tribe because the tribe did not
fully trust the County and wanted to test the accuracy of its records.

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No. 34340-5-III
Eggleston v. Asotin County


drafts and the design for the Project was still in flux as discussions with the tribe

continued. Until an agreement on the redesign was reached, the April Plans were exempt

from disclosure.

       Mr. Eggleston filed suit against the County on June 18, 2012, alleging violations of

the PRA. Subsequent to filing suit, Mr. Eggleston submitted a request on July 17, 2012

for "current project plans." CP at 69. The County responded on July 19, 2012, and

provided Mr. Eggleston with a set of documents, referred to in the record as "the Nez

Perce submittal." 1 Verbatim Report of Proceedings (VRP) (Mar. 5, 2013) at 18; 1 VRP

(Apr. 1, 2015) at 42; CP at 70. The County also indicated that it had fully responded to

Mr. Eggleston's request and now considered it closed.

       Mr. Eggleston's attorney sent a letter to the County's attorney on August 2, 2012,

claiming the County's responses to Mr. Eggleston's request for plans were incomplete.

Counsel explained Mr. Eggleston was looking for current project plans, not the Nez Perce

submittal. Counsel asserted that if the County intended to withhold pages, a withholding

log must be provided. The County responded on August 9, 2012, and offered further

explanation as to why Mr. Eggleston's request was denied pursuant to RCW 42.56.280.

The County explained Mr. Eggleston had been provided everything that had been

submitted to the tribe. However, the materials provided to the tribe did not contain a

complete copy of the preliminary project plan. Thus, nothing currently available had been

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Eggleston v. Asotin County


withheld. The County offered to provide the finalized plans to Mr. Eggleston when the

documents were available.

       Mr. Eggleston's attorney sent additional letters on August 24 and September 7,

2012, following up on the prior requests. The August 24 letter requested a withholding

log and the September 7 letter clarified that the County had not complied with the

requests for the April and July plans. Counsel reiterated that Mr. Eggleston had not

requested the plans that were submitted to the Nez Perce Tribe. Instead, Mr. Eggleston

had requested a complete set of plans as they existed on the date of his request. Although

the County responded to the August 24 letter, it did not provide a withholding log. The

County never responded to the September 7 letter.

      Although the County did not provide Mr. Eggleston with copies of the April and

July plans as requested, Mr. Eggleston did obtain copies of the documents. Mr. Eggleston

had received a copy of the April Plans from the Nez Perce Tribe prior to ever requesting

the documents from the County. The County ultimately provided Mr. Eggleston a copy of

the April Plans on December 10, 2012. In addition, during January 2013, Mr. Eggleston

received copies of the April and July plans at a pretrial deposition of a TD&H employee.

Summary judgment

      The trial court initially addressed the merits of Mr. Eggleston's PRA complaint



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Eggleston v. Asotin County


through cross motions for summary judgment. With respect to Mr. Eggleston's requests

regarding the 2002 e-mail from archaeologist Kevin Cannell, the court held the requested

information was not a public record and that, in any event, those portions of Mr.

Eggleston's complaint were untimely under the statute of limitation. The court ordered a

trial on whether the County was entitled to withhold disclosure of the April and July

plans.

Trial, penalties, and attorney fees and costs

         After hearing from multiple witnesses over the course of a two-day bench trial, the

trial court largely ruled in favor of Mr. Eggleston as to the April and July plans. The trial

court determined that both sets of plans constituted public records and the County

violated the PRA by failing to disclose the documents to Mr. Eggleston. The trial court

specifically rejected the County's claim that the records were exempt from disclosure

under RCW 42.56.280, which pertains to preliminary drafts, notes, recommendations, and

intra-agency memoranda.

         With respect to the statutory penalty, the trial court determined Mr. Eggleston had

established two violations of the PRA pertaining to the April and July plans. Although

Mr. Eggleston had made multiple requests for each of these plans, the trial court ruled

that the multiple requests were followups, not new independent requests. Relying on the



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Eggleston v. Asotin County


framework from Yousoufian v. Office ofRon Simms, King County Executive, 168 Wn.2d

444, 467-68, 229 P.3d 735 (2010) (Yousoufian 11), the trial court analyzed a number of

aggravating and mitigating factors before setting the penalty amount. The trial court then

arrived at a penalty of $35.00 per day. Applied to a total of 1,411 days,2 the total penalty

award came to $49,385.00.

       The trial court then addressed an award of attorney fees and costs to Mr. Eggleston

based on the lodestar method. In determining the number of hours worked by counsel,

the trial court indicated it had disregarded the time spent by counsel on Mr. Eggleston's

claims that were dismissed through summary judgment, ignored entries related to other

litigation and from contracted law firms, and adjusted seemingly duplicative or excessive

time entries noting that some of the briefing in this case was excessive. Also, the trial

court lowered the hourly rate for counsel's office staff from $95.00 per hour to $25.00 per

hour, for 122.8 hours, due to a lack of evidence on the staff's training and qualifications.

Lastly, the trial court set a reasonable hourly rate of $190.00 per hour for 233.3 hours of

attorney time. The trial court awarded $44,327.00 for counsel's time, $3,070.00 for

office staff time, and $2,736.67 for miscellaneous court costs for a total attorney fee and


       2  From April 26, 2012 (date of request for the April Plans) until December 10,
2012 (when Mr. Eggleston received the April Plans) is 228 days. From July 17, 2012
(date of request for the July Plans) until October 13, 2015 (Day 1 of the penalty phase of
trial since the July Plans were never produced by the County) is 1,183 days.

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No. 34340-5-111
Eggleston v. Asotin County


cost award of $50,133.67. A judgment against the County was entered shortly thereafter.

       Mr. Eggleston appeals. The County cross appeals.

                                        ANALYSIS

Summary judgment dismissal of the 2002 e-mail claim

       The PRA is a broad public mandate, requiring that citizens be afforded access to

public records. Belenski v. Jefferson County, 186 Wn.2d 452, 456-57, 378 P.3d 176

(2016). A public record "includes any [ 1] writing [2] containing information relating to

the conduct of government or the performance of any governmental or proprietary

function [3] prepared, owned, used, or retained by any state or local agency regardless of

physical form or characteristics." RCW 42.56.010(3). Although the PRA exempts

certain records from production, the statute is to "be liberally construed and its

exemptions narrowly construed" to promote public access to information.

RCW 42.56.030.

       In PRA litigation, a threshold question is whether requested information

constitutes a public record. Our case law fails to provide clear guidance on who bears the

initial burden of showing that a request made of a public agency was directed at a public

record. Division One of this court has suggested the burden falls on the plaintiff.

Dragons/ayer, Inc. v. Washington State Gambling Comm 'n, 139 Wn. App. 433,441, 161



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No. 34340-5-III
Eggleston v. Asotin County


P .3d 428 (2007). However, our Supreme Court has stated, without equivocation, that the

burden of justifying nondisclosure always falls on the government agency. Fisher

Broad.-Seattle TV LLC v. City ofSeattle, 180 Wn.2d 515,522,326 P.3d 688 (2014) ("The

agency refusing to release records bears the burden of showing secrecy is lawful.");

Concerned Ratepayers Ass 'n v. Pub. Util. Dist. No. 1, 138 Wn.2d 950, 958, 983 P.2d 635

(1999). Our review of whether a document constitutes a public record is de novo. See

Gronquist v. Dep't ofLicensing, 175 Wn. App. 729, 741-42, 309 P.3d 538 (2013).

       The parties' dispute over the 2002 e-mail revolves around the threshold issue of

whether the information sought by Mr. Eggleston meets the definition of a public record.

No claim of exemption has been made. With respect to the conflict over the public record

definition, the parties specifically debate whether the 2002 e-mail constituted something

prepared, owned, used, or retained by the County, as a public agency.

       It is uncontroverted that the 2002 e-mail was not prepared by the County and does

not qualify as a public record under that basis. The 2002 e-mail was prepared by Mr.

Cannell prior to TD&H hiring him as a subcontractor. Thus, the 2002 e-mail can only

constitute a public record if it was owned, used, or retained by the County.

       Mr. Eggleston claims the County owned and retained the 2002 e-mail based on

language contained in the County's contract with TD&H. Specifically, the contract states

that "[ a]11 designs, drawings, specifications, documents, and other work products

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Eggleston v. Asotin County


prepared by [TD&H] ... are property of [the County]." CP at 1029. 3 Again, the 2002 e-

mail was prepared by Mr. Cannell, not TD&H. The contract language is inapplicable.

       Because the 2002 e-mail was prepared by a private party, Mr. Eggleston's claims

regarding the e-mail can only succeed if there are facts indicating the County "used" the

2002 e-mail as contemplated by the PRA. In order to have used the 2002 e-mail, the e-

mail must have been "(1) employed for; (2) applied to; or (3) made instrumental to" the

county's project or some other governmental function. Concerned Ratepayers,

138 Wn.2d at 960 (emphasis in original).

       Mr. Eggleston claims the County used the 2002 e-mail when TD&H referred to the

e-mail in a June 2002 letter. We disagree. TD&H's letter was written to Mr. Cannell in

order to retain his services as an archaeological consultant. The letter references a scope

of work sent to TD&H by Mr. Cannell "via email on January 11, 2002." CP at 276

(emphasis added). TD&H' s passing reference to the 2002 e-mail, even if attributed to the

County, is insufficient to constitute "use." Concerned Ratepayers, 138 Wn.2d at 960-61.

       This case is much different from Concerned Ratepayers, wherein the plaintiffs

requested technical plans for a type of generator that had been considered for use at a



       3
        Mr. Eggleston also briefly refers to a portion of the contract that requires the
consultant (TD&H) to keep documents for three years. However, that portion of the
contract only pertains to "cost records and accounts." CP at 1046. It is not applicable

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Eggleston v. Asotin County


public power plant. Although the technical plans were owned and possessed by a

subcontractor, there was evidence the public utility district employees had reviewed and

evaluated the plans during meetings with the contractors. This substantive consideration,

along with various references to the generator in other public documents, was sufficient

to show the generator's technical plans had a nexus to the public utility district's activities

in constructing its power plant and that the document constituted a public record, used by

the public agency. 138 Wn.2d at 961-62. The lone fact proffered by Mr. Eggleston as to

"use" of the 2002 e-mail pales in comparison to the facts set forth in Concerned

Ratepayers.

        Mr. Eggleston voices frustration with the fact that the 2002 e-mail has never been

produced and thus we can never know for certain that it did not contain substantive

information. We understand this concern. But the County had no duty to procure a

document from a third party that did not meet the definition of a public record. Mr.

Eggleston suggests the County is hiding something and speculates the 2002 e-mail

contained substantive information, important to the Project. 4 Such speculation is


here.
        4
        Mr. Eggleston claims that a conversation he had with Kevin Cannell suggests the
2002 e-mail contained substantive information. During that conversation, Mr. Cannell
told Mr. Eggleston he had written a proposal in about 2001, documenting cultural
resource concerns with the project location. However, Mr. Cannell did not indicate his
"proposal" took the form of a 2002 e-mail. Given that Mr. Cannell's scope of work,

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Eggleston v. Asotin County


insufficient to raise an issue of fact necessary to overcome summary judgment. See

Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 626-27, 818 P.2d 1056

(1991); Wash. Fed. Nat'! Ass'n v. Azure Chelan LLC, 195 Wn. App. 644,662,382 P.3d

20 (2016).

       Because the 2002 e-mail was not a public record, we need not address whether Mr.

Eggleston's requests for the e-mail fell outside the statute of limitation.

The April and July plans

       As it did with the 2002 e-mail, the County claims the April and July plans are not

public documents. However, the plain terms of the contract provide otherwise. The April

and July plans were created and used by TD&H during its substantive work on the

County's Project. As such, both documents were captured by the contract's clause on

ownership and both fall squarely in the definition of public records.

       The County asserts that even if the April and July plans are public records, they are

exempt from production. As the agency claiming an exemption, the County bears the

burden of proving an exemption applies. See Am. Civil Liberties Union of Wash. v. City

ofSeattle, 121 Wn. App. 544, 89 P.3d 295 (2004). The only exemption that has been



which was attached to the 2002 e-mail and which was disclosed as a public record,
identified cultural resource concerns for the site, Mr. Cannell's conversation with Mr.
Eggleston does not suggest the existence of any undisclosed documents.

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Eggleston v. Asotin County


preserved for our review is the preliminary draft exemption, RCW 42.56.280. 5 We

review the applicability of this exemption de novo. Id. at 549.

       The purpose of the preliminary draft exemption, is to protect "the give-and-take of

deliberations that are necessary to formulate agency policy." Id. This purpose "severely

limits [the exemption's] scope." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 133, 520 P.2d

246 (1978). "[O]nly those portions of documents actually reflecting policy

recommendations and opinions may be withheld." Id. Factual data is not included.

"Unless disclosure reveals and exposes the deliberative process, as opposed to the facts

upon which a decision is based, the exemption cannot apply." Id.

      In Progressive Animal Welfare Society v. University of Wash., 125 Wn.2d 243, 844

P .2d 592 ( 1994) (PAWS), the Supreme Court analyzed the scope of the preliminary draft

exemption in circumstances similar to here. At issue in PAWS was whether the

University of Washington's unfunded grant proposals, submitted to the National Institute

of Health (NIH), fell under the scope of the PRA. The Court held that the unfunded grant

proposals did not reveal the kind of "deliberative or policy-making process contemplated

by the exemption." Id. at 257. Thus the unfunded proposals themselves did not qualify



      5
        Two additional exemptions have been raised for the first time on appeal and are
not preserved. Sargent v. Seattle Police Dep 't, 179 Wn.2d 376, 394-97, 314 P.3d 1093
(2013).

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Eggleston v. Asotin County


for exemption. However, the NIH's written comments on the unfunded proposals,

referred to as "pink sheets," were quintessentially deliberative and, thus, qualified for

exemption. Id.

       The preliminary project plans, created by TD&H in April and July 2012, are akin

to the unfunded grant proposals discussed in PAWS. They set forth the project ideas,

some of which did not ultimately come to fruition. Nowhere on the preliminary plans is

there any commentary. The testimony at trial was that, during negotiations over the

Project, such commentary would be provided subsequent to review of a particular

preliminary plan. While one might be able to guess at what the evaluations of the

preliminary plans were by comparing the preliminary plans with the final project plan,

this kind of indirect disclosure is not what is contemplated by the statute. Indeed, the

same could be said for the university's unfunded grant proposals. The preliminary plans

did not clearly express any opinions or recommendations regarding the Project's final

plan. Accordingly, the April and July plans were not exempt from disclosure under the

preliminary draft exception. 6

Calculation of penalties, attorney fees and costs

       Calculating a PRA penalty is a two-step process: "(1) determine the amount of


       6 Even if the April and July plans contained some commentary, they still qualified
as public records and should have been disclosed in redacted form.

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Eggleston v. Asotin County


days the party was denied access and (2) determine the appropriate per day penalty" up to

$100. Yousoufian v. Office of King County Executive, 152 Wn.2d 421,438, 98 P.3d 463

(2004) (Yousoufian I). Both steps are contested here.

       Penalty period

       Both parties complain the trial court improperly calculated the penalty period for

the County's PRA violations. Mr. Eggleston claims the trial court abused its discretion by

treating his multiple requests for the April and July plans as followups to two requests, as

opposed to multiple, separate requests. The County complains the trial court should have

shortened the penalty period assessed for the July Plans since Mr. Eggleston received a

copy of the plan at a pretrial deposition. Determining the number of days a public record

request was wrongfully denied or delayed involves a question of fact. Zink v. City of

Mesa, 162 Wn. App. 688,706,256 P.3d 384 (2011). "When, as here, the trial court heard

live testimony and judged the credibility of witnesses, we afford deference to its

determination of this fact." Id.

       We disagree with Mr. Eggleston's claim that the trial court was required to treat

his various requests for the April and July plans as separate requests for purposes of PRA

penalties. The trial court had discretion to group together related requests in assessing

penalties. Id. at 711-12, 722. The facts presented at trial justified its decision to group



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Eggleston v. Asotin County


together Mr. Eggleston's requests for the April and July plans as two requests, rather than

several independent requests. In his followup inquiries regarding the April and July plans

(dated August 2, August 24, and September 2, 2012), Mr. Eggleston did not seek new

information. Instead, he complained about the County's failure to respond to his prior

requests. Mr. Eggleston did seek a withholding log in one of his followup inquiries. But

this did not constitute a new request. A withholding log is not a separate document that is

subject to a PRA request. It is a document that forms a part of an agency's response to a

records request. RCW 42.56.210(3). Given the totality of the circumstances, the trial

court had ample grounds for finding only two PRA violations.

       The County argues the trial court should not have calculated the penalty period for

the July Plans to run until the first date of trial. Instead, the County claims the penalty

period should have ended on January 18, 2013, when Mr. Eggleston received the July

Plans from an employee of TD&H at a pretrial deposition. Assuming an agency can

comply with the PRA by delegating the task of records disclosure to a third party, 7 there

are no facts in the record suggesting that happened. The record on appeal merely

indicates an employee ofTD&H provided Mr. Eggleston a copy of the July Plans in

compliance with a subpoena duces tecum issued by Mr. Eggleston's attorney. Nothing


       7
           The parties on appeal agree that TD&H does not qualify as a de facto public
agency.

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Eggleston v. Asotin County


indicates the County facilitated access to the document. Cf RCW 42.56.070 (duty to

make records available falls on the agency). Based on this circumstance, the trial court

correctly calculated the penalty period for the July Plans as extending through the first

day of trial.

       Daily penalty amount

       Both parties also complain the trial court improperly calculated the daily penalty

amount for the County's PRA violations. Mr. Eggleston argues for an increase in the

daily fee. The County claims it is excessive. A trial court's determination of daily

penalties under the PRA is reviewed for abuse of discretion. Yousoufian II, 168 Wn.2d at

458. Discretion is abused if the trial court's decision is manifestly unreasonable or based

on untenable grounds or reasons. Id. Although the Supreme Court's Yousoufian II

decision set forth a nonexclusive list of aggravating and mitigating factors relevant to the

penalty analysis, trial courts retain "considerable discretion" to set PRA penalties.

Wade's Eastside Gun Shop, Inc. v. Dep 't ofLabor & Indus., 185 Wn.2d 270,279,372

PJd 97 (2016).

       The trial court did not commit any legal error in assessing penalties against the

County. The court correctly identified the applicable nonexclusive aggravating and

mitigating factors. It did not improperly focus on one factor to the exclusion of others.



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Eggleston v. Asotin County


Sergent v. Seattle Police Dep 't, 179 Wn.2d 376, 398, 314 PJd 1093 (2013). Nor did the

court erroneously adopt a presumptive starting point when considering the statutory

penalty range. Yousoufian II, 168 Wn.2d at 466.

       The trial court also supported its legal analysis with tenable facts. In essence, the

trial court found some of the factors favored the County (e.g., county officials relied in

good faith on legal counsel and were legitimately concerned about project delays), others
                                                                                                f
favored Mr .. Eggleston (e.g., legal counsel incorrectly advised the County of the law), and

some went both ways (some of the County's interactions with Mr. Eggleston were fully
                                                                                                Ii
appropriate, others bordered on bad faith). The record amply supports this position. The        i
trial court was not required to make detailed findings regarding the Yousoufian II factors.

See id. at 470. We therefore decline to quibble with aspects of the trial court's ruling that

could have been stated with greater clarity.

       In the end, the ultimate penalty selected by the trial court was not outside the broad

realm of reasonableness. See id. at 458-59 (manifestly unreasonable decision is one that

no reasonable person would take). The $35.00 daily penalty was not particularly low.

Cf id. (reversing a $15.00 per day penalty as manifestly inadequate). It therefore reflects

that at least some of the County's responses to Mr. Eggleston at least bordered on bad

faith. But at the same time, the penalty amount appropriately takes into account the

County's limited resources and the lack of any proven economic loss by Mr. Eggleston.

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Eggleston v. Asotin County


Neither party has established a basis for altering the daily penalty amount.

       Cost award

       Any person who prevails in a PRA action shall be awarded "all costs, including

reasonable attorney fees." RCW 42.56.550(4). Here, the trial court awarded $2,736.67

for various court costs. But Mr. Eggleston claimed $4,261.67 in costs. He argues the

trial court erred in not awarding all of his costs because the PRA does not permit any

discretion in an award of costs, like it does for reasonable attorney fees. While the PRA

does not define "all costs," this phrase has been interpreted to allow a party to "recover all

reasonable costs incurred in litigating the dispute." Am. Civil Liberties Union of Wash. v.

Blaine Sch. Dist. No. 503, 95 Wn. App. 106, 115-17, 975 P.2d 536 (1999) (emphasis

added); see also Mitchell v. Wash. State Inst. ofPub. Policy, 153 Wn. App. 803, 828-30,

225 P .3d 280 (2009). While these cases indicate a liberal award of costs is preferred, the

phrase reasonable costs implies some discretion on the part of the trial court to disallow

costs that are unreasonable. Mr. Eggleston does not argue the trial court abused its

discretion in not awarding any specific costs. He simply argues there was no room for

discretion. He is incorrect. The trial court did not abuse its discretion in adjusting the

cost award.




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Eggleston v. Asotin County


                       ATIORNEY FEES/APPELLATE COSTS

       The attorney fee provision of the PRA, RCW 42.56.550(4), also applies to

appellate costs. PAWS, 125 Wn.2d at 271. Because Mr. Eggleston has prevailed on his

right to inspect the April and July plans, he is entitled to an award of fees and costs,

limited to this aspect of his defense of the County's cross appeal. An award shall issue

upon Mr. Eggleston's compliance with RAP 18.l(d).

                                       CONCLUSION

       The judgment of the trial court is affirmed. Mr. Eggleston's request for appellate

fees and costs is granted in part, as set forth in this opinion.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.
                                                                                            ,
WE CONCUR:
                                            Pennell, J.
                                                                                            II
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   .~,s
Fearing,                                    Lawrence-Berrey, J.
                                                                                            II
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