                                                                                                         FILED
                                                                                                 COURT OF APPEALS
                                                                                                     DIVISION II
                                                                                               Z6R JUL 29 VII:
                                                                                                               37
                                                                                               STATE `        INGTO
                                                                                               I3)




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

WASHINGTON STATE DEPARTMENT OF                                                   No. 43859 -3 -II
TRANSPORTATION,


                                     Appellant,


        v.



MARGARITA MENDOZA DE SUGIYAMA,                                               PUBLISHED OPINION


                                     Respondent.


        JOHANSON, C.J. —            We are asked to decide whether information subject to a CR 26( c)


protective    order   is   exempt   from disclosure       under   the "   controversy   exemption"   of the Public


Records Act ( PRA),. ch. 42. 56 RCW.                 We hold that records subject to a CR 26( c) protective


order in an ongoing civil action, on grounds that they are unduly burdensome for the agency to

produce,     are nonetheless "   available" under the civil rules of pretrial discovery and, thus, are not

exempt under      the controversy exemption of the PRA.                 Accordingly, we affirm the trial court' s

order   requiring the Washington State Department                  of     Transportation ( DOT) to produce the


records and we remand         to the trial   court   to determine attorney fees   and costs.
No. 43859 -3 -II



                                                               FACTS


                                  I. EMPLOYMENT DISCRIMINATION ACTION


         In June 2011, Margarita Mendoza de Sugiyama brought an employment discrimination,


whistleblower retaliation, and         harassment lawsuit              against    DOT. Mendoza de Sugiyama made a


discovery    request,      seeking    e -mail    communications "              to, from    and /
                                                                                               or   copied   to   each   of'   12


individuals from 2007 to             February     2012.          Clerk'   s   Papers ( CP)   at   82.   DOT' s information


technology specialist identified over 174,000 e -mails that DOT would have to produce to

respond to Mendoza de Sugiyama' s request. DOT moved for a protective order under CR 26( c),


asserting that the request was overly broad, unduly burdensome, and sought confidential and

privileged personnel information. Meanwhile, Mendoza de Sugiyama moved to compel DOT to


provide the e- mails.


         In April 2012, the superior court denied Mendoza de Sugiyama' s motion to compel,


noting that her      request    was     overbroad and             unduly burdensome           and    that DOT     needed "     an




opportunity ...     to fil t er the very broad         request ...        to identify any e -mail that would be relevant

to the   case and   then   produce    it." CP     at    150. The superior court stated that it had made its April


ruling   pursuant    to " the   protective       order section," (            CR 26( c))   and expressed further that its


protective   order would need          to be     amended          or rescinded "     before any single e -mail must be
                                                        1
produced."     RP ( June 29, 2012)          at    16.         The superior court denied Mendoza de Sugiyama' s


motion for reconsideration.




1 Although we found no protective order in the record, the superior court referred to its
 protective order"      several      times in    subsequent         hearings.      Furthermore, Mendoza de Sugiyama
and   DOT frame their        arguments     here    as       if there is   a protective order.       Accordingly, we assume
the existence of the protective order.


                                                                   2
No. 43859 -3 -II



                                                 II. PRA REQUEST


          The day after the superior court' s ruling, Mendoza de Sugiyama made a PRA request for

the same 174,000 plus e- mails. Initially, DOT responded that it would produce the documents in

phases.     But DOT then filed a complaint and petition for declaratory judgment and injunctive

relief   against      Mendoza     de Sugiyama,       creating a lawsuit separate from the employment
              2
litigation.        DOT    sought (   1)   a declaration that the superior court' s protective order in the


employment litigation created a public records exemption for the same records when sought by

the same party through the PRA, and ( 2) temporary and permanent injunctions barring Mendoza

de Sugiyama from circumventing the discovery order in the employment action by seeking the

same records under the PRA.


          DOT argued that the plain, language of RCW 42. 56. 290 exempted the records from


disclosure because a superior court had ruled that the records were not discoverable under the


civil rules       applicable   to Mendoza de    Sugiyama'       s   preexisting   employment action.        In response,


Mendoza de Sugiyama argued that the PRA gave broad access to government records, that the


documents she requested were not exempt under the PRA, and that RCW 42.56. 290 and . 540 did

not   apply to      discretionary discovery     rulings.   The court granted DOT' s motion, ruling that the

174,000 e -mails are exempt from disclosure under RCW 42. 56. 290 because its earlier protective


order rendered the e- snails "` not available to a          party      under   the   rules of pretrial   discovery '   and



that,    therefore,    Mendoza de Sugiyama           was    enjoined       from discovering them.             Report of


Proceedings ( RP) ( June 29, 2012) at 16.




2 Both cases were assigned to the same Thurston County Superior Court judge.
                                                            3
No. 43859 -3 -II



          Mendoza de Sugiyama then brought a CR 59 motion for reconsideration, arguing that

O' Connor       v.   Department of Social &                 Health Services, 143 Wn.2d 895, 25. P.3d 426 ( 2001),


applied, and that the superior court' s reasoning was contrary to the PRA and leads to the

extraordinary result that Mendoza de Sugiyama becomes the only person in the state that could

not obtain    the requested records.               DOT responded, agreeing that O' Connor applied, but argued

that it applied in its favor because O' Connor only addressed whether discoverable records could

be sought through a PRA request and that the court properly applied RCW 42.56.290 in its order.

          The superior court agreed with Mendoza de Sugiyama and granted her motion for

reconsideration,            thereby reversing its           earlier    ruling, granting the release of the requested


information,         and    denying DOT' s        request     to   maintain   the injunction it previously ordered.       The


superior court explained that " the interest of the courts and the citizens of the state in maintaining

control of    litigation      discovery      in the   employment case ...
                                                                                    does not trump the [ broad] mandate of

the PRA."            RP (   Aug.   3, 2012)      at   15.    The superior court also noted that notwithstanding its

ruling,   DOT would still be protected in the employment litigation by the trial court' s

considerable          power     to   determine the admissibility               of   evidence    in that   case.    Finally,   in


anticipation that DOT would appeal, the superior court stayed application of its order and


maintained the previously issued injunction pending appeal. DOT appeals.

                                                              ANALYSIS


          DOT argues that ( 1) RCW 42. 56. 290' s plain language exempts Mendoza de Sugiyama' s


requested e -mails from public disclosure because they are protected from pretrial discovery in a

pending    superior court case; (            2) when there is a conflict between a court rule and a statute, the


court   rule,    here CR 26,              must   prevail;    and (   3)   the superior court erred by reasoning that a

legislative      amendment           to    RCW 42. 56.080            also   applied   to   RCW 42. 56. 290.       Mendoza de


                                                                      4
No. 43859 -3 -II



Sugiyama contends that the superior court did not err because ( 1) the PRA must be liberally

construed and its exemptions, including RCW 42.56.290, narrowly construed; and ( 2) DOT in

effect asked the superior court here to do what the Supreme Court in O' Connor later overturned


as inappropriate under the PRA. Mindful of the strong public policy in favor of disclosure under

the PRA, we conclude that RCW 42.56.290' s controversy exemption does not apply.

                                                 I. STANDARD OF REVIEW


          Courts     review        agency   actions   under   the PRA de      novo.        RCW 42. 56. 550( 3); Resident


Action Council           v.   Seattle Hous. Auth., 177 Wn.2d 417, 428, 300 P.3d 376 ( 2013). And we " shall


take into account the policy of [the PRA] that free and open examination of public records is in

the public interest, even though such examination may cause inconvenience or embarrassment to

public officials or others."           RCW 45. 56. 550(3).


                                                            II. PRA


A.        PRA GENERAL PRINCIPLES


          Our Supreme Court has consistently                  reinforced   the   notion    that the PRA "'   is a strongly

worded mandate                for broad disclosure    of public records. "'   Soter   v.   Cowles Pub. Co., 162 Wn.2d


716, 731, 174 P. 3d 60 ( 2007) (            quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246

 1978)).        We   liberally      construe   the PRA in favor of disclosure.              RCW 42.56. 030; Soter, 162


Wn.2d      at   731. "    In the event of conflict between the provisions of [the PRA] and any other act,

the provisions       of [the      PRA]   shall govern."    RCW 42. 56. 030.


          The PRA requires a government agency to disclose any public record upon request;

however, an agency lawfully withholds production of records if one of the PRA' s enumerated

exemptions applies.               RCW 42. 56. 070( 1);     Sanders v. State, 169 Wn.2d 827, 836, 240 P. 3d 120


 2010).     The PRA' s numerous exemptions protect certain records from disclosure and the PRA


                                                                5
No. 43859 -3 -II



also   incorporates any "      other   statute"   that   prohibits     disclosure   of records.       RCW 42.56. 070;


former RCW 42. 56. 230 ( 2011); former RCW 42. 56. 240 ( 2010); RCW 42.56. 250 -.
                                                                                260; former

RCW 42. 56. 270 ( 2011); RCW 42. 56. 280 -.350; former RCW 42. 56. 360 ( 2010); RCW 42.56. 370-


390; former RCW 42. 56. 400 ( 2010); RCW 42. 56.403 -.410; former RCW 42.56. 420 ( 2009);


RCW 42. 56. 430 -. 80, . 600 -.610; Resident Action Council, 177 Wn.2d
                 4                                                                             at    432. "   The PRA' s


exemptions are provided solely to protect relevant privacy rights or vital governmental interests

that sometimes outweigh the PRA' s broad policy in favor of disclosing public records."

Resident Action Council, 177 Wn.2d                 at    432.       However, we narrowly construe the PRA' s

exemptions    in favor   of   disclosure. RCW 42. 56. 030; Soter, 162 Wn. 2d             at   731.    And the burden is


on   the agency to establish that an exemption applies.                    RCW 45. 56. 550( 1);         Resident Action


Council, 177 Wn.2d at 428.


         We must determine whether RCW 42.56.290 applies to exempt records from disclosure

under the PRA when a protective order has been entered on the grounds that production of those


documents    would      be unduly burdensome.            In doing so, we are mindful that the primary goal of

statutory interpretation is to ascertain and give effect to the legislature' s intent and purpose.

Yakima    County   v.   Yakima Herald -
                                      Republic, 170 Wn. 2d 775, 797, 246 P. 3d 768 ( 2011).                       This is


done by considering the statute as a whole, giving effect to all that the legislature has said, and

by using related statutes to help identify the legislative intent embodied in the provision in

question.   Yakima Herald-Republic, 170 Wn.2d at 797.


B.       PRA CONTROVERSY EXEMPTION


         RCW 42. 56. 290       establishes   the " controversy         exemption,"   also known as the " litigation


exemption."    It provides,




                                                                6
No. 43859 -3 -II



         Records that are relevant to a controversy to which an agency is a party but which
         records would not be available to another party under the rules of pretrial
         discovery for causes pending in the superior courts are exempt from disclosure
         under this chapter.


RCW 42. 56. 290. This is              a categorical exemption.            Resident Action Council, 177 Wn.2d at 455-


56. The   exemption applies               to any     materials   that   would   not   be discoverable in the   context of "` a




controversy         under   the   civil rules of pretrial       discovery. "' Soter, 162 Wn.2d at 731 ( quoting RCW

42. 56. 290).        The term " controversy"               refers to completed, existing, or anticipated litigation.

Soter, 162 Wn.2d at 732 ( quoting Dawson v. Daly, 120 Wn.2d 782, 791, 845 P. 2d 995 ( 1993)).

         There is no question that RCW 42. 56. 290 exempts privileged documents from disclosure


under the PRA. Our Supreme Court has held that the controversy exemption applies to the work

product   doctrine      and       the attorney- client privilege.         Soter, 162 Wn.2d at 733 -34, 745; see also


Limstrom       v.   Ladenburg,       136 Wn.2d 595, 605, 963 P. 2d 869 ( 1998) ( the controversy exemption


exempts from disclosure " public records which are relevant to a controversy and which are the
                                                           3
work product of an           agency'      s   attorney ").


         But here, this            case       does   not   involve any    privilege.      Instead, the issue is whether a


protective order resulting from an unduly burdensome discovery request in a separate

employment action between the same parties makes the same requested records unavailable


within   the    purview of         RCW 42. 56. 290.            In our view, it would be contrary to the intent of the

legislature to so hold. This issue appears to be one of first impression in Washington.




3
    Our Supreme Court also has held that records covered by the attorney -client privilege are
exempt under          the PRA because RCW                 5. 60. 060( 2)( a), the statutory provision that codifies the
privilege, constitutes            an " other      statute" which prohibits disclosure of specific records.        RCW
42.56.070; Hangartner v. City of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 ( 2004).

                                                                    7
No. 43859 -3 -II



C.       INAPPLICABILITY OF " CONTROVERSY" EXEMPTION TO OVERBROAD DISCOVERY REQUEST


         Here, the superior court' s . protective order in Mendoza de Sugiyama' s employment


litigation action was not based on the work product doctrine nor did the DOT argue that the


requested    records    involve   communications         between    an     attorney   and   client.   Instead, the


protective order    was based on CR 26( c).          CR 26( c) gives superior courts the authority to enter

protective orders "     to protect a party or person from annoyance, embarrassment, oppression, or
                                  4
undue    burden    or   expense. "      The superior court' s discovery order specifically found that

Mendoza de Sugiyama' s request was overly broad and unduly burdensome. In making its ruling,

the superior court explained,


         The requests would require [ DOT] to produce 175, 000 emails, which is too many.
         Therefore, the request is denied. This ruling is not intended to preclude plaintiff
         from    seeking    discovery     of [   electronically   stored    information ( ESI)],      either

         through   a    collaborative   effort    with [ DOT]
                                                          to develop and employ key -   word
         search strategies that are tailored to the issues in this case, or through discovery
         requests that are tailored to the issues in this case and crafted in such a way that
          DOT] can reasonably fashion a search strategy designed to gather the ESI
         plaintiff is seeking in the absence of a collaborative effort.

CP at 157 -58.


         The superior court did not find that the e -mails " would not be available to another party

under the rules of pretrial discovery" as required by the controversy exemption under the PRA.

RCW 42. 56. 290.        Instead, the superior court simply denied Mendoza de Sugiyama' s discovery

request as too broad and unduly burdensome to produce. The superior court stated that "just as it


4
    CR 26( c) provides,
          Protective Orders.    Upon motion by a party or by the person from whom
          discovery is sought, and for good cause shown, the court in which the action is
          pending or alternatively, on matters relating to a deposition, the court in the
          county where the deposition is to be taken may make any order which justice
          requires to protect a part or person from annoyance, embarrassment, oppression,
          or undue burden or expense.


                                                          8
No. 43859 -3 -II



seems certain that at least one of the 174, 000 e -mails would be protected from discovery and

exempt under the PRA, it seems equally certain that at least one of the 174, 000 e -mails would,

after examination,       be discoverable      under    the civil   rules and produceable under      the PRA."   RP


 Aug.   3, 2012)   at    11 - 12.   The superior court then suggested ways that Mendoza de Sugiyama


could alter her request to make it less broad and less burdensome so that DOT could produce the

records     relevant   to the employment litigation.             In doing so, the superior court implied that a

narrowly- framed request might render the records available under the rules of pretrial discovery.

In this way, it was the scope of Mendoza de Sugiyama' s request that violated CR 26, not the

content of the material she sought. We consider this a dispositive distinction.


          A protective order based on undue burden as opposed to one based on the content of


agency records does not implicate the same concerns regarding privacy and vital government

interests traditionally      recognized     by   exemptions under the         PRA. We are cognizant of the fact


that control over pretrial discovery in civil litigation is a vital government interest for our courts;

and we are equally aware that allocation of limited agency resources is a vital government

interest.    But these considerations only sometimes outweigh the PRA' s broad policy in favor of

disclosing    records.    Resident Action Council, 177 Wn.2d             at   433.   In our view, this is not one of


those times.



          Moreover, although DOT understandably is concerned about the time and expense it will

incur in processing voluminous records requests, it would have been subject to the same burden

had Mendoza de Sugiyama requested these records before any controversy with DOT was

reasonably anticipated or had another member of the public made the same request under the

PRA.      The PRA specifically prohibits agencies from denying requests for public records solely

on   grounds that the      request   is   overbroad.    RCW 42. 56.080.        Accordingly, the vital government

                                                             9
No. 43859 -3 -II



interests at stake here, based essentially on the breadth of the request, do not trump the mandate

of the PRA and, therefore, RCW 42.56. 290' s exemption, which we must construe narrowly, does

not apply.


        Adopting      DOT'    s position would          lead to   absurd results.   And we endeavor to interpret the


PRA specifically to         avoid absurd results.          Resident Action Council, 177 Wn.2d                 at   431.      If we


were to accept DOT' s position, we would be forced to conclude that the requested agency

records are exempt from disclosure either to Mendoza de Sugiyama only (and therefore available

to everyone except Mendoza de Sugiyama) or to all of the public, as an automatic result of the


protective   ruling   entered      in, her   employment     discrimination    action.        The narrowest reading of the

exemption would           have it apply only to Mendoza de Sugiyama.                     But if this were the case, then


DOT arguably would have been required to provide the requested e -mail records to anyone else

except for Mendoza de Sugiyama, who is precluded from obtaining potentially relevant public

records solely because she initially requested too many e -mails during discovery in her

employment      litigation.        This absurd result would contravene the intent of the legislature in


enacting the PRA.

        A more reasonable interpretation of the statutory language is that the legislature intended

to exempt under the PRA only those records that would not be available to any party under

universally applicable rules of discovery, rather than those records rendered conditionally

unavailable    to     a   specific    litigant   under     the    unique   facts    of   a    separate    civil    action.     An


examination of analogous             federal law        provides additional support           for this   position.    Our state


PRA is    modeled         after    the federal Freedom of Information Act ( FOIA).                         5 U.S. C. §        552;


Limstrom, 136 Wn.2d           at   608. Because of this fact, we often look to judicial constructions of the


FOIA in construing           our     own     statute.     Limstrom, 136 Wn.2d            at   608.       One of the FOIA' s


                                                                  10
No. 43859 -3 -II



enumerated exemptions                 is   similar   to the PRA' s   controversy     exemption. "     Exemption 5" of the


FOIA provides that the FOIA does not require disclosure of


             inter -
                   agency or intra- agency memorandums or letters which would not be
                                                                                             E5'
             available by law to a party other than an agency in litigation with the agency.



5 U.S. C. § 552( b)( 5).             The United States Supreme Court has concluded that " Congress had the


attorney'        s        product privilege
                     work -                          specifically in    mind when     it   adopted   Exemption 5."     Nat' l


Labor Relations Bd.             v.   Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S. Ct. 1504, 44 L. Ed. 2d 29

             6
    1975).       There, the Supreme Court explained that because virtually any document not privileged

may be discovered by the appropriate litigant if it is relevant to his litigation, it is reasonable to

construe Exemption 5 to exempt only those documents normally privileged in the civil discovery

context ( including attorney- client and attorney work -
                                                       product privileges generally available to all

litigants). Sears, 421 U.S. at 149.


             Accordingly, we construe the controversy exemption of the PRA to exempt documents

and records like those under the nearly absolute protection of the work product doctrine and

those privileged          by    the   existence of an                client relationship.
                                                            attorney -                         Soter, 162 Wn.2d at 733,


745.      This reading         is   consistent with     the spirit and   purpose of    the PRA as a "` strongly worded


mandate          for broad disclosure          of public records. '       Soter, 162 Wn.2d       at   731 (   quoting Hearst



5
    The      court noted       that the parties      were   in   agreement   that the Exemption       5 " withholds from a
member of the public documents which a private party could not discover in litigation with the
agency." Nat' l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S. Ct. 1504,
44 L. Ed. 2d 29 ( 1975) ( citing Envtl. Prot. Agency v. Mink, 410 U.S. 73, 85 -86, 93 S. Ct. 827, 35
L. Ed. 2d 119 ( 1973)).

6
     The Sears         court   found that the Senate Report             stated   that Exemption 5 "` would include the

working papers of the agency attorney and documents which would come within the attorney -
client privilege if applied to private parties. ' 421 U.S. at 154 ( quoting S. REP. No. 813, 89m
CONG., 1st Sess., 2 ( 1965)).


                                                                   11
No. 43859 -3 -II



Corp.,    90 Wn.2d    at   127).   But DOT argues further that RCW 42. 56. 290' s exemption applies


because under its reading of O' Connor,.any time a superior court enters a protective order under

CR 26, those records are " not available to another party under the superior court rules of pretrial

discovery." Br. of Appellant at 13. DOT misreads O' Connor.

          In O' Connor, the Supreme Court held that a plain language reading of the controversy

exemption indicated that records relevant to a controversy to which an agency is a party are not

exempt under      former RCW 42. 17. 310( 1)(    j) (   2000)'    if they would be available to another party

under    the civil rules of   discovery. 143 Wn.2d at 906. The O' Connor court then determined that

the superior court erred in finding that O' Connor was precluded from seeking records under the

PRA simply because she was a litigant in a controversy against the Department of Social and

Health Services. 143 Wn.2d at 907. Instead, O' Connor was entitled to seek public records under


either the civil   discovery rules    or   the PRA as    long    as those records were "   available" under the


civil rules.   O' Connor, 143 Wn.2d at 907.


          Here, as explained above, the superior court did not determine that the e -mails Mendoza


de Sugiyama sought were undiscoverable and thus unavailable under the civil rules, only that her

particular request created undue       burden.   Therefore, as in O' Connor, Mendoza de Sugiyama is


not precluded from making a PRA request for the same records she sought under the civil rules

in her separate employment action.




  The court in O' Connor addressed former RCW 42. 17. 310( 1)( j) which has been recodified as
RCW 42. 56. 290      with     nearly identical language.         The only difference is that RCW 42.56.290
adds " are exempt from disclosure under this chapter."


                                                          12
No. 43859 -3 -II



               III. NO CONFLICT BETWEEN PRA AND SUPERIOR COURT DISCOVERY PROCESS


          DOT also argues that the PRA should not interfere with a superior court' s ability to

manage     the    discovery      process     to protect against harmful side effects.            DOT cites the rule from


City   of Fircrest      v.   Jensen, 158 Wn.2d 384, 394, 143 P. 3d 776 ( 2006), cert. denied, 549 U.S. 1254

2007),     that where there is a conflict between a court rule and a statute concerning a matter

related   to    a court' s    inherent   power,   the    court rule,   here CR 26( c), must prevail. What the Jensen


court   actually     said was     that "[   w] hen a court rule and a statute conflict, the court will attempt to


harmonize them, giving             effect    to both."    Jensen, 158 Wn.2d        at   394.   Only when it is impossible

to achieve this         harmony     does the      court rule prevail over         the conflicting      statute.   Jensen, 158


Wn.2d at 394.


          Our Supreme Court has explicitly stated that the PRA and the superior court' s civil rules

of   discovery     do   not conflict.       O' Connor, 143 Wn.2d at 912. But even if the two did conflict, we


can    harmonize them           and give     them both effect.         The language of RCW 42. 56.290 itself makes


this   clear.     When        records " would not        be , available"   under the civil rules of discovery, those

records    are exempt under the             PRA.    RCW 42. 56. 290.         When the records are " available" under


the    civil rules,     they    are not exempt          from inspection     and   copying      under   the PRA..     Here, as


explained above, the records sought were not declared unavailable under the civil rules of


discovery.        In this way, the       civil rules and     the PRA can operate in tandem.             The Supreme Court


has continuously protected the PRA' s purpose of open government in applying its disclosure

requirements broadly, Resident Action Council, 177 Wn.2d at 432, and it has determined that




                                                                 13
No. 43859 -3 -II



there is   no conflict   between the PRA            and   the   civil rules.    O' Connor, 143 Wn.2d         at   912.   We

                                8
conclude    the same    here.


           We   are mindful     that   we must read       the PRA       broadly   and   its   exemptions   narrowly.     We


acknowledge that reasonable minds might differ and reasonable minds might hold that the


government' s interest in conducting its trials and handling discovery is a vital government

interest that    outweighs      the   interests   of public     disclosure   under   the PRA.      The primary goal of

statutory interpretation, however, is to ascertain and give effect to the legislature' s intent and

purpose.     Yakima Herald-Republic, 170 Wn. 2d                  at   797.   Considering the PRA' s policy of broad

disclosure, we conclude that public records should not be exempt under the PRA merely because

producing the records is unduly burdensome. Therefore, the superior court was correct in ruling

that DOT must release the e -mails in response to Mendoza de Sugiyama' s PRA request even


though the same information was subject to a CR 26( c) protective order.9

                                                   IV. ATTORNEY FEES


           Mendoza de Sugiyama requests costs as the prevailing party and attorney fees pursuant to

RCW 42. 56. 550( 4). It provides,




8
  DOT also argues that the superior court erred in ordering that it must release the e -mails under
the PRA because the superior court erroneously relied on a 2005 amendment to another section
of   the PRA that     does   not    apply to RCW 42. 56. 290. But because our review is de novo, we do
not   review    the   superior      court' s   reasoning.     So whether the superior court employed flawed
reasoning in reaching its decision is immaterial
9
    We do not address whether other PRA exemptions would apply to specific records sought by
Mendoza de Sugiyama pursuant to a PRA request.
                                                                14
No. 43859 -3 -II



           Any person who . revails against an agency in any action in the courts seeking the
                          p
           right to inspect or copy any public record or the right to receive a response to a
           public record request within a reasonable amount of time shall be awarded all
           costs, including reasonable attorney fees, incurred in connection with such legal
           action.   In addition, it shall be within the discretion of the court to award such
           person an amount not to exceed one hundred dollars for each day that he or she
           was denied the right to inspect or copy said public record.

RCW 42. 56. 550( 4).            Under the PRA,       an award of costs and fees against an agency who

wrongfully       withholds records        is mandatory.   Yousoufian v. Office of Ron Sims, 152 Wn.2d 421,

433, 98 P. 3d 463 ( 2004) ( quoting          King County v. Sheehan, 114 Wn. App. 325, 355, 57 P.3d 307

 2002). Here, however, there has not yet been a disclosure of the records Mendoza de Sugiyama


was   seeking,    which    is   a prerequisite   to an award of attorney   fees.   O'Neill v. City of Shoreline,

170 Wn. 2d 138, 152, 240 P. 3d 1149 ( 2010).                 Anticipating appeal to this court, the trial court

stayed application of       its   order   requiring DOT to   produce   the subject e -mails   under   the PRA.     As


a result there has been no actual determination that the PRA was violated; the superior court


ruled only that RCW 42.56. 290 did not bar the production of the records.

           There is still the possibility that other PRA exemptions apply to the information

contained in the e- mails. Any award of fees and costs relates only to that which is disclosed and

not   to   any   portion   of the    request     found to be    exempt.   Limstrom, 136 Wn.2d          at   617.   In


determining the amount of the award, the principal factor to be considered is the existence or

absence of       bad faith on the     part of    the agency.    Limstrom, 136 Wn.2d      at   616.    Accordingly,

because that determination necessitates fact finding, we remand to the trial court to make an

award of costs and fees to Mendoza de Sugiyama under RCW 42.56. 550( 4).




                                                           15
No. 43859 -3 -II


       We affirm and-
                    remand.




I concur:




                              16
No. 43859 -3 -II


        BJORGEN, J. (   dissenting) — While engaged in litigation with the Washington State

Department of Transportation (WSDOT), respondent Mendoza de Sugiyama made a discovery

request for over 174, 000 e -mails in WSDOT' s e -mail system. The superior court ruled that her


request was overbroad and unduly burdensome, denied her motion to compel and granted

WSDOT       a protective order under   CR 26( c).    The respondent immediately requested the same

records from WSDOT under the Public Records Act (PRA), chapter 42. 56 RCW. Neither the


terms nor the purposes of the PRA allow its use as such a blunt and destructive circumvention of


the processes of superior court. Therefore, I dissent from the majority' s approval of respondent' s

stratagem.




        This appeal is controlled by RCW 42.56.290, which states that

         r]ecords that are relevant to a controversy to which an agency is a party but
        which records would not be available to another party under the rules of pretrial
        discovery for causes pending in the superior courts are exempt from disclosure
        under this chapter.


        A   discovery   protective order   is   authorized       by   and   implements CR 26( c), which itself is a


rule of pretrial discovery. The effect of a protective order is to prohibit or limit certain types of

discovery, thus making the matters requested unavailable (or conditionally available) under the

rules of pretrial   discovery. See CR   26( c)( 1) -( 8).    A protective order may be issued to protect a

party from    undue   burden. CR 26( c). Therefore, the records subject to the protective order issued


by superior court in this matter were not available to the respondent under the rules of pretrial

discovery. With that, they were exempted from disclosure by the plain language of RCW

42.56. 290.




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         The majority contends that this exemption only covers certain categories of records, such

as work product and privileged communications. This approach, however, quickly mires itself in

self-contradiction. Under it, a record outside of these categories which is subject to a protective


order under CR 26( c) would necessarily be unavailable under the rules of pretrial discovery for

purposes of the protective order, but available under the rules of pretrial discovery for purposes

     RCW 42. 56. 290. Unless Aristotle'                                         has been rescinded, that is
                                                                     middle10




of                                        s rule of   the excluded



not logically possible.

         More importantly, the cases cited do not support the majority' s position. The issue faced

by O' Connor v.     Washington State Department of Social & Health Services, 143 Wn.2d 895, 25


P.3d 426 ( 2001),   was whether a party in litigation with a public agency may use the PRA to

obtain records from the agency or whether it must proceed under the discovery provisions of the

Civil Rules. O' Connor, 143 Wn.2d at 898. In deciding that a party is not prohibited from using

the PRA, our Supreme Court was not confronted with and did not decide the issue presented


here: whether the PRA may be used by a litigant to frustrate a discovery order binding that

litigant. Similarly, the issue in Soter v. Cowles Publishing Company, 162 Wn.2d 716, 731 -32,

174 P. 3d 60 ( 2007), was whether requested documents were exempt as work product or


privileged information under RCW 42. 56.290. The court' s analysis, consequently, focused on

CR 26( b) and the meaning of those concepts. Its conclusion that the documents were work

product or privileged and therefore exempt under RCW 42.56. 290 in no way implies that the

exemption is restricted to those categories.




1° See Alain Badiou, The Three Negations, 29 CARDozo L. REV. 1877, 1878 -79 ( 2008).
                                                       18
No. 43859 -3 -II



       Allowing this bold and unmistakable circumvention of the rules of superior court also

runs counter to this court' s reasoning in Evergreen Freedom Foundation v. Locke, 127 Wn. App.

243, 110 P. 3d 858 ( 2005).       There, the trial court had ordered that


          a] ll current and future public disclosure requests and related communications
       regarding the 7E7 Project            and   Master Agreement from [ Evergreen F.F.] must be
       transmitted through [ Evergreen F.F.' s] counsel to Defendant' s counsel for review
       for consistency, to          provide       an   opportunity for        clarification,    to   reduce   the

       multiplicity      and    duplicative       requests,      and    to   alleviate   the   substantial    and
        irreparable damage to vital governmental functions and impact on limited staff
       resourcesfor the responding agency....   For new public records requests, the
       Defendants' time period to respond under RCW 42. 17 begins after this review
       process is completed and on the date that the Defendant agency receives the
        request.




Evergreen Freedom Found., 127 Wn.                 App.   at   251.   We upheld this order, as long as it was

limited to the litigation, holding that

        this order was clearly a case             management         tool.   And a court reviewing a PDA
        ruling   will   not "   interfere   with    trial courts'       litigation management decisions."
        Brouillet v. Cowles Publ' g Company, 114 Wn.2d 788, 801, 791 P.2d 526 ( 1990)
         emphasis added).         The record reveals that multiple people from [ Evergreen F.F.]
        were making requests to the Department for documents and that responding to
         Evergreen F.F.' s]       requests    consumed          a    significant portion   of staff time      and

        resources. Thus, the court acted within its discretion by imposing a mechanism to
        better manage [ Evergreen F.F.' s] disclosure requests during the litigation.

Evergreen Freedom Found., 127 Wn. App. at 252.

        The specific holding in Evergreen Freedom Foundation is not of great precedential

gravity here, since the court orders at issue were different. The opinion' s rationale, however, is

persuasive in resolving this appeal, since the order here at issue is also an exercise of the trial

court' s litigation management authority, the same authority to which the Evergreen court

deferred . Under Evergreen, the respondent should not be allowed to use the PRA to thwart the


court' s authority to manage litigation before it, especially when that authority is carried out in

close conformance with the Civil Rules.


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No. 43859 -3 -II



       The plain language of RCW 42.56. 290 exempts material that is unavailable under the


rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders. Simply

following this plain language would baffle the respondent' s attempt to frustrate valid discovery

orders of the superior court. For these reasons, I would reverse.




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