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                                                                                2014 MAR – 4 APB 9: 18

      IN THE COURT OF APPEALS OF THE STATE Of WXkKN%T0NW


                                            DIVISION II __ +                                   P- T Y

ROBBINS, GELLER, RUDMAN & DOWD,                                             No. 44520 -4 -II
LLP,


                                Respondent,


         v



STATE OF WASHINGTON, and OFFICE OF
THE ATTORNEY GENERAL,                                                   PUBLISHED OPINION


                                Respondents,




VINCENT T. GRESHAM,


                                Abbellant.




         WORSWICK, J. —   Vincent Gresham appeals an order permanently enjoining the

Washington Attorney General' s Office (AGO) from releasing records Gresham requested under

the   Public Records Act (PRA),   chapter 42. 56 RCW. _
                                                      Law firm Robbins Geller Rudman &

Dowd, LLP (Robbins Geller) sought the injunction to protect information it submitted to the

AGO seeking eligibility to provide future securities litigation and related services to the

Washington State Investment Board ( WSIB). , Gresham               also appeals a summary judgment order

dismissing his PRA claim for penalties and costs against the AGO. Because Robbins Geller

failed to prove that any exemption protected the information from production, we vacate the

challenged portions of the permanent injunction and order the AGO to produce the withheld

records.     Because the AGO   withheld   the   records   in   accordance with a court order,       Gresham did
No. 44520 -4 -II




not prevail against the AGO, and thus summary judgment dismissal of his claims for penalties,

attorney fees, and costs was proper.

                                                 FACTS


       Wishing to build a roster of private law firms able to represent the WSIB in potential

future securities litigation and provide related services such as portfolio monitoring, the AGO

published a request   for   qualifications and quotations (   RFQQ). The RFQQ warned firms that

their responses were subject to disclosure under the PRA. The RFQQ informed firms-that they

could designate portions of their responses as " proprietary" information and that the AGO would

notify firms if an agency received a public records request for any of the designated proprietary

information and allow such firms an opportunity to obtain a court order enjoining disclosure.

Robbins Geller and about two dozen other law firms responded to the 2010 RFQQ. Robbins

Geller indicated that certain portions of its response ( hereafter " 2010 Washington Response ")


were proprietary. Robbins Geller was one of six firms selected to execute a " Master Securities

Litigation Services Agreement"       with   the AGO   and   the WSIB. 1   Clerk' s Papers ( CP) at 1763.

        On two prior occasions, government agencies had released information Robbins Geller' s

predecessor firm had provided in response to previous RFQQs. First, Robbins Geller' s

predecessor firm responded to a similar RFQQ in 2004 ( hereafter " 2004 Washington Response ")

that was subsequently disclosed in response to public records requests. Second, the firm' s

predecessor provided a response to an invitation to negotiate issued by the State Board of



1 If future securities litigation services were to be needed, the AGO could, but need not, select a
law firm from the roster. If the WSIB became actively involved in securities litigation, the AGO
would then negotiate a separate engagement agreement for that representation.




                                                       2
No. 44520 -4 -II



Administration of Florida in 2009 ( Florida Submittal) that was published in a national legal trade

publication available on the Internet.


           Under the PRA, Gresham requested the AGO produce any information related to requests

for proposals from securities law firms and for any responses from the firms. The AGO then

notified Robbins Geller that it had received Gresham' s request and would release Robbins


Geller' s 2010 Washington Response, including the designated proprietary information, unless

Robbins Geller obtained an injunction.

           Robbins Geller filed a lawsuit. against the AGO to enjoin production of its ( 1) past and

proposed     fee   agreements with    WSIB, ( 2)   amount of and carriers of professional liability
                                                        2
insurance, ( 3) " Portfolio       Monitoring   Program "    client list, and ( 4) names and contact information

of 16 institutional investor clients used as references for securities litigation work. Gresham was


joined as a necessary party. The AGO did not oppose Robbins Geller' s request for injunctive

relief as to the designated proprietary information.3 Gresham filed a cross claim against the

AGO alleging violation of the PRA.

           The trial court permanently enjoined the AGO from producing the information at issue

    hereafter " the   protected   information ") based on two PRA exemptions and the Uniform Trade


Secrets Act (UTSA), chapter 19. 108 RCW. The trial court' s order provided:




2
    The Portfolio Monitoring Program is a complimentary service that Robbins Geller developed to
alert institutional clients to misconduct related to their investments that may cause losses.
3
    However, the AGO denied that past executedfee agreements between Robbins Geller and the
State were exempt from disclosure. Robbins Geller agreed and sought to protect only its fee and
costs proposal. The past executed fee agreements are not relevant to this appeal.


                                                            3
No. 44520 -4 -II




                     The Protected Information qualifies as valuable formulae, designs and
           research data, the disclosure of which would result in private gain and public loss,
           and is exempt from disclosure under RCW 42. 56. 270( 1).
                     The   Protected      Information   qualifies   as   trade   secrets   under   RCW

           19. 108. 010( 4),   and are exempt    from disclosure    under   RCW 42. 56.270( 11)(   a) -( b)


           as proprietary data and trade secrets essential to Robbins Geller' s method of
           conducting business and the services the Firm offers its clients.

CP   at   1343.   The AGO then successfully moved for summary judgment of Gresham' s PRA claim

against it. Gresham appealed directly to our Supreme Court which transferred the case to this
      4
court.



                                                    ANALYSIS


                                              I. PUBLIC RECORDS ACT


           The PRA requires state and local agencies to produce all public records upon request


unless a specific PRA exemption or other statutory exemption. applies. RCW 42. 56. 070( 1);

Gendler     v.   Batiste, 174 Wn.2d 244, 251, 274 P. 3d 346 ( 2012).         Exemptions are narrowly

construed to promote the strong public policy favoring disclosure. RCW 42. 56. 030; Franklin

County     Sheriffs Office     v.   Parmelee, 175 -Wn.2d 476, 479, 285 P. 3d 67 ( 2012), text. denied, 133


S. Ct. 2037 ( 2013).       If an agency intends to produce records to a requester under the PRA, a

person who is named in the record or to whom the record specifically pertains, may seek a

judicial determination that the records are exempt from production. RCW 42. 56. 540; King

County Dep' t       ofAdult &       Juvenile Det. v. Parmelee, 162 Wn. App. 337, 350, 254 P. 3d 927

 2011),     review   denied, 175 Wn.2d 1006 ( 2012),      cent.   denied, 133 S. Ct. 1732 ( 2013).    Under




4 We accepted an amicus curiae brief on behalf of the McClatchy Company, Washington
Newspapers Publishers Association, and Pioneer News Group.



                                                          M
No. 44520 -4 -II




RCW 42. 56. 540, a court may enjoin production of requested records if an exemption applies and

examination would clearly not be in the public interest and would substantially and irreparably

damage any person, or would substantially and irreparably damage vital governmental functions.

Parmelee, 162 Wn.        App.   at   350 -51.    The party seeking to        prevent production —in   this case


Robbins Geller —has        the burden to prove that the requested documents fall within the scope of

an exemption. Dragonslayer, Inc. v. Wash. State Gambling Comm' n, 139 Wn. App. 433, 441,

161 P. 3d 428 ( 2007).


                                                Il. STANDARD OF REVIEW


           The PRA provides that " U] udicial review of all agency actions taken or challenged under

RCW 42. 56. 030 through 42. 56. 520             shall   be de   novo."    RCW 42. 56. 550( 3).   Where the record



consists only of affidavits, memoranda of law, and other documentary evidence, an appellate

court stands in the same position as the trial court in reviewing agency action challenged under
            S
the PRA.        Progressive Animal Welfare Soc' y               v.   Univ. of Wash., 125 Wn.2d 243, 252, 884 P. 2d


592 ( 1994) ( lead     opinion).     Here, the trial court' s decision granting a permanent injunction under

the PRA was based solely on documentary evidence. Thus, we are not bound' by the trial court' s

factual findings.• Dragonslayer, Inc.,               139 Wn. App. at 441 -42; see Ames v. City offircrest, 71

Wn.   App.      284, 292 -93, 857 P. 2d 1083 ( 1993) (          appellate review of PRA decisions based solely



5 " This principle was drawn from the general rule that `where the record both at trial and on
appeal consists    entirely of written and graphic material —documents, reports, maps, charts,
official   data and the like — and the trial court has not seen nor heard testimony requiring it to
assess the credibility or competency of witnesses, and to weigh the evidence, nor reconcile
conflicting evidence, then on appeal a court of review stands in the same position as the trial
court in looking at the facts of the case and should review the record de novo.
Progressive Animal Welfare Soc' y               v.   Univ. of Wash.,      125 Wn.2d 243, 253, 884 P. 2d 592 ( 1994)
 lead   opinion) (   quoting Smith v. Skagit County, 75 Wn.2d 715, 718, 453 P.2d 832 ( 1969)).

                                                                     5
No. 44520 -4 -II



on documentary evidence without testimony is de novo and the appellate court may decide both

issues    of   fact   and   law);   ef. Zink v. City ofMesa, 140 Wn. App. 328, 336 -37, 166 P. 3d 738 ( 2007)

 where live testimony is presented in actions under the PRA, appellate courts review trial courts'

factual findings to determine            whether substantial evidence supported        them). Also, we review



injunctions issued          under    the PRA de   novo.     RCW 42. 56. 550( 3);   Parmelee, 162 Wn. App. at 351.

                                      III. STATUTORY INTERPRETATION PRINCIPLES


           Our fundamental objective in interpreting a statute is to ascertain and carry out the

legislature' s intent or the collective intent of the voters acting in their legislative capacity (for

statutes enacted        through the      initiative   process).   Am. Legion Post No. 149 v. Dep 't ofHealth, 164

Wn.2d 570, 585, 192 P. 3d 306 ( 2008); Dept' t of Ecology v. Campbell & Gwinn, LLC, 146


Wn.2d 1, 9, 43 P. 3d 4 ( 2002).             If the statute' s meaning is plain on its face, then we give effect to

that   plain    meaning      as an expression of       legislative intent. Campbell & Gwinn, LLC, 146 Wn.2d at


9 - 11.   When determining a statute' s plain meaning, it is appropriate to look to the language of

the statute itself and the context of the statute, including related statutes or other provisions

within    the    same act.     Campbell & Gwinn, LLC, 146 Wn.2d at 10 -12. For example, in


interpreting the PRA, we look at the act in its entirety to enforce the law' s overall purpose.

Rental Hous. Ass' n ofPuget Sound v. City ofDes Moines, 165 Wn.2d 525, 536, 199 P. 3d 393

 2009).




                                                                  n
No. 44520 -4 -II



                                  IV. APPLICATION OF STATUTORY EXEMPTIONS


A. "         Other Statute " Exemption —Uniform Trade Secrets Act


         Gresham argues that the trial court erred by deciding that the protected information was a

trade   secret under       the Uniform Trade Secrets Act [UTSA],            and therefore concluding that it was

exempt       from disclosure     under   the "   other statute" provision of   RCW 42. 56. 070( 1).   We agree.


         The PRA provides that a public record is exempt from disclosure if the record falls within


any " other statute" which exempts or prohibits disclosure of specific information or records.

RCW 42. 56. 070( 1).         The UTSA, which protects trade secrets, qualifies as an " other statute"


under   RCW 42. 56. 070( 1).        Progressive Animal Welfare Soc' y, 125 Wn.2d at 262. The PRA may

not be used to acquire knowledge of a trade secret. Progressive Animal Welfare Soc' y, 125

Wn.2d at 262. A "trade secret" is


          information, including a formula, pattern, compilation, program, device, method,
          technique, or process that:


                       a) Derives independent economic value, actual or potential, from not
          being generally known to, and not being readily ascertainable by proper means
          by, other persons who can obtain economic value from its disclosure or use; and

                       b) Is the subject of efforts that are reasonable under the circumstances to
          maintain its secrecy.

RCW 19. 108. 010( 4). " To be a trade secret, information must be ` novel' in the sense that the


information         must not   be readily   ascertainable     from   another source."   Spokane Research &   Def.

Fund    v.   City   of Spokane, 96 Wn.       App.    5%   578, 983 P. 2d 676 ( 1999). "    A key factor in

determining whether information has ` independent economic value' under the statute is the effort

and expense         that   was expended     in   developing   the information."   McCallum v. Allstate Prop. &

Cas. Ins. Co., 149 Wn.          App.   412, 424, 204 P. 3d 944 ( 2009). The alleged unique, innovative, or




                                                                7
No. 44520 -4 -II



novel   information      must   be described          with   specificity   and,   therefore, "   conclusory" declarations

that fail to " provide concrete examples" are insufficient to support the existence of a trade secret.


McCallum, 149 Wn. App. at 425 -26. Compilations of customer information may be a trade

secret. See, e. g., Ed Nowogroski Ins., Inc. v. Rucker, 137 Wn.2d 427, 436, 442, 449, 971 P. 2d

936 ( 1999) ( trial     court finding that customer list was trade secret was not at issue on appeal —

only issue was whether memorized information could be a trade secret).

         In Woo    v.   Fireman' s Fund Ins. Co.,              137 Wn. App. 480, 484, 154 P. 3d 236, rev' d in part

on other grounds,        161 Wn.2d 43, 164 P. 3d 454 ( 2007), Division One of this court addressed


whether the Fireman' s Fund insurance claim manuals were trade secrets. To prove novelty and

independent economic value, the Fireman' s Fund submitted declarations claiming that the

manuals "`   took several thousand people hours to produce and have evolved over several years, "'

disclosure   would result       in "` a   serious     loss   of [their]   property interest "' and that the manuals


contained "`    claims handling philosophies and strategies believed to be unique to Fireman' s

Fund. "'   Woo, 137 Wn.         App.      at   488.    Fireman' s Fund also claimed that allowing competitors to

gain access     to the   materials "`     would result in economic value to the competitor and place it in a

competitive advantage "'         and that smaller insurance companies in particular would gain a


competitive advantage           by   copying Fireman'          s   Fund   materials.   Woo, 161 Wn.2d at 488. The


court held that the declarations were too conclusory to prove that the manuals compiled the

information in an innovative way because they failed to provide concrete examples to illustrate

how the Fireman' s Fund strategies or philosophies in claims handling were materially different

from    those   of other insurers.        Woo, 137 Wn. App. at 489. Also, it held that the Fireman' s Fund

declarations failed to prove that competitors would want the manuals or quantify in any



                                                                     EV
No. 44520 - -II
          4



meaningful      way the   competitive advantage    that the hypothetical     plagiarizer would   enjoy.   Woo, .


137 Wn. App. at 489. Accordingly, the court held that the claim manuals were not trade secrets.

Woo, 137 Wn. App. at 492.

       Similarly, in McCallum we considered whether an insurance company' s claim manuals,

training   manuals, and claim    bulletins   qualified as   trade secrets.   149 Wn. App. at 416, 424, 426.

As in Woo, we held that the documents did not qualify for protection as trade secrets because the

insurance company failed to provide concrete examples to illustrate how its strategies or

procedures in handling claims were materially different from those of its competitors.

McCallum, 149 Wn. App. at 426 -27. Instead, the evidence consisted of conclusory statements

that it devoted considerable time, manpower, and finances in developing the documents and that

its competitors would gain an unfair advantage if they could reproduce its materials. McCallum,

149 Wn. App. at 426 -27.

           1.   Fee Proposal & Insurance Information


           In support of exempting its fee proposal and insurance information from the PRA,

Robbins Geller asserts that its approach to evaluating and setting potential fees is unique, the

firm' s fee proposals are specific to each client and case, and the proposals require substantial


time and effort to formulate. Robbins Geller also argues that release of the protected information

could give its competitors an unfair competitive advantage by allowing them to mimick its fee .

proposal and insurance coverage to make themselves more attractive to clients and to use the


information to outbid Robbins Geller for future work. Gresham and the amici argue that a


pricing schedule is not a protectable idea under trade secrets law. The record before us includes

evidence that securities law firms often use a sliding scale of fees based on the recovery amount



                                                        0
No. 44520 -4 -II



and the stage of the litigation' s resolution and that many firms have significant malpractice .

insurance coverage. Moreover, although the fee grid in the 2010 Washington Response contains

more detail and is of a larger scale, Robbins Geller' s predecessor firm included sample fee grids

in its 2004 Washington Response, which were disclosed to Gresham. And Robbins Geller' s


2004 Washington Response stated, that the firm carried a high amount of professional liability

insurance   coverage—   between $ 50   and $   100 million. Robbins Geller has not shown that its


general insurance information and fee proposal in its 2010 Washington Response differs


significantly from other such proposals already in the public arena. As in McCallum and Woo,

we reject Robbins Geller' s conclusory assertions of uniqueness and competitor unfair advantage

as to its fee and insurance information and conclude that this information has not been shown to

constitute trade secrets.



        2. Portfolio Monitoring Program Client List

        A Portfolio Monitoring Program client list was included in the 2004 and 2010

Washington Responses and the Florida Submittal. The client list included in the Florida

Submittal was disclosed and later published on The American Lawyer website. And the client


list in the 2004 Washington Response was partially disclosed in response to a 2005 public

records request—   Robbins Geller' s predecessor sought injunctive relief from the disclosure

request. Robbins Geller' s predecessor argued and trial court concluded that 118 client names not


previously published were exempt from disclosure.

        Here, Gresham did not oppose Robbins Geller' s request to enjoin the disclosure of client

names not previously published. Stated another way, client names not previously published are

protected from disclosure by the permanent injunction and their status is not before us.


                                                      10
No. 44520 -4 -II



          But Robbins Geller has not shown that it took reasonable efforts to maintain secrecy of

the portion of the list previously published. The previously published names were disclosed in

the Florida Submittal and the 2004 Washington Response. Robbins Geller responds that it was

unaware of the publication of the Florida Submittal. But the record contains no evidence of

efforts to have the list removed from The American Lawyer website. Moreover, Robbins Geller

does   not point   to   evidence of   its   efforts   to   keep   the list   secret   in                  it responds only
                                                                                           other contexts —




to Gresham' s mention of the Florida and Washington Responses. See Calisi v. Unified Fin.

Servs., LLC, 302 P. 3d 628, 632 ( Ariz. Ct. App. 2013) ( "[ c] ourts have considered the extent to


which the claimant divulged its customer list externally and internally, i.e., to people outside of

its business   as well as   to its   own employees ").            Based on Robbins Geller' s failure to demonstrate


that it has made reasonable attempts to keep the names of its previously published Portfolio

Monitoring Program clients secret, we conclude that the previously published list of client names

does not qualify for protection as a trade secret.

         3.   Client Reference List


         Robbins Geller did not demonstrate that the firm' s list of client references from past

litigation is a trade secret. By its very nature, a list of references is created for dissemination

outside the firm. It is not clear how a reference list derives independent economic value from not

being generally known to others. Moreover, a portion of the reference list at issue here includes

references and contact information previously disclosed, which is evidence that Robbins Geller

uses the list for its traditional purpose ( disclosure to third parties) and does not treat its reference

list as secret. Accordingly, Robbins Geller has not demonstrated that its list of references

qualifies for protection as a trade secret.




                                                                   11
No. 44520 -4 -II



         4. Injunction Standard

                                                                                                         6
         No   court   has   addressed whether       the PRA injunction    standard,   RCW 42. 56. 540,       applies




when a court relies on an " other statute" exemption, such as the UTSA, rather than a PRA

exemption to bar disclosure. 7 Gresham and the amici contend that a party seeking to enjoin

disclosure of records requested under the PRA must meet the requirements of RCW 42. 56. 540

regardless of whether a claimed exemption is pursuant to the " other statute" provision, such as


the UTSA. Conversely, the AGO and Robbins Geller contend that " other statutes" incorporated

into the PRA provide independent bases for enjoining disclosure and, thus, courts should look

exclusively to the dictates      of   the "   other statutes."   Because Robbins Geller' s information does


not qualify for exemption under the UTSA, we need not decide whether the PRA injunction




6 Under RCW 42.56. 540, a trial court may issue an injunction only if it finds that disclosure
  would clearly not be in the public interest and would substantially and irreparably damage any
person, or would substantially and irreparably damage vital governmental functions."
7
    The parties did not direct this court to any cases where the court addresses whether a.party
asserting an " other statute" exemption is required to prove the RCW 42.56. 540 injunction
requirements. The AGO asserts that our Supreme Court already rejected application of RCW
42. 56. 540 to " other statute" exemptions in Ameriquest Mortg. Co. v. Office ofAttorney Gen., 170
Wn.2d 418, 440, 241 P. 3d 1245 ( 2010). If the Supreme Court decided the issue, it did so sub
silentio. See Ameriquest, 170 Wn.2d at 440 ( holding, without discussing RCW 42. 56. 540, that
the " other statute" provision supplements the PRA' s exemptions by allowing a separate statute to
prohibit redactions or       disclosures that the PRA        would otherwise not allow).     And on appeal from
remand of Ameriquest, our Supreme Court held, without discussing the RCW 42. 56. 540
injunction standard, that records containing information protected by the " other statute" were
exempt from disclosure. Ameriquest Mortg. Co. v. Office ofAttorney Gen., 177 Wn.2d 467, 499,

300 P. 3d 799 ( 2013) ( the court discussed the RCW 42. 56. 540 injunction standard only in regard
to the PRA exemptions); see also Wright v. Dep' t of Soc. & Health Servs., 176 Wn. App. 585,
596 -97, 309 P. 3d 662 ( 2013), review denied, No. 89396 -9 ( Wash. Feb. 6, 2014) ( holding that
juvenile   records at   issue   were exempt        from disclosure   under an " other statute,"   chaptef 13. 50
RCW, which provides the exclusive means of obtaining juvenile justice and care records,
without discussing the PRA injunction standard).


                                                             12
No. 44520 -4 -II



standard, RCW 42. 56. 540, must also be met. Although the parties and the amici urge us to


provide guidance on this issue, we decline to do so in dicta.

B.          PRA Exemptions


            To   enjoin production of records under          the PRA, "` [t] he court must find that a specific


exemption applies and that disclosure would not be in the public interest and would substantially

and   irreparably damage            a person "'   or vital government function. Bainbridge Island Police Guild


v.   City   of Puyallup, 172 Wn.2d 398, 420, 259 P. 3d 190 ( 2011) ( lead               opinion) ( emphasis added)



 alteration      in   original) (   quoting Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 808,

246 P. 3d 768.( 2011)); RCW 42. 56. 540. We first consider whether the specific PRA exemptions


asserted by Robbins Geller apply. If no exemption applies, we do not need to reach the other

part of the test ( referred to as the " injunction standard ")

                                          8
            1.   RCW 42. 56.270( 1)


            Gresham argues the trial court erred when it ruled that the protected information was

exempt       from     production under        RCW 42. 56. 270( 1).   RCW 42. 56. 270 provides in part:


            The following financial, commercial, and proprietary information is exempt from
            disclosure under this chapter:


                         1) Valuable formulae, designs, drawings, computer source code or object
            code, and research data obtained by any agency within five years of the request
            for disclosure when disclosure would produce private gain and public loss;

We agree.




 8
     Formerly     RCW 42. 17. 310( 1)( h). LAWS of 2005,             ch.   274, § 402, 407.



                                                                13
No. 44520 -4 -II




          a. Private Party May Assert RCW 42. 56.270( 1) Exemption

          As a threshold matter, Gresham argues that a private party, here Robbins Geller, may not

invoke the RCW 42. 56. 270( 1) exemption to block disclosure when the public agency holding the

records   is willing to disclose the     records.   9 We disagree.

          Whether a private party may invoke the RCW 42.56 270( 1) exemption is an issue of first

impression, and thus Gresham cites no authority for the proposition that it is only available

where a public agency opposes the disclosure. 10 We begin by determining whether the statute' s
text   and context reflect a plain      meaning. Campbell & Gwinn, LLC, 146 Wn.2d at 10 -12.


Gresham points to the exemption' s requirement that disclosure must cause a public, rather than

private   loss. See RCW 42. 56. 270( l).          Although the statute' s language expressly requires that

disclosure would cause public loss, it does not prohibit its assertion by private parties.

          We   also consider   the   purpose of    RCW 42. 56. 270( 1),    which is to prevent unfair private


gain derived from the exploitation of potentially valuable intellectual property placed in the

public domain for a public benefit. Evergreen Freedom Found. v. Locke, 127 Wn. App. 243,



9 Gresham acknowledges that private parties may assert other PRA exemptions regardless of
state agency position. See RCW 42. 56. 540 ( providing that any party to whom the requested
records specifically pertain may seek an injunction).

to Gresham correctly points out, however, that in all cases applying the RCW 42. 56.270( 1)
exemption, the agency opposed disclosure. See, e. g., Servais v. Port ofBellingham, 127 Wn.2d
820, 823 -24, 829 -33, 904 P. 2d 1124 ( 1995) (         Port of Bellingham opposed disclosure of cash flow
analysis   study); Progressive Animal Welfare Soc' y, 125 Wn.2d at 250, 254 -55 ( university
opposed    disclosure of an unfunded grant proposal); Evergreen Freedom Found. v. Locke, 127
Wn.    App.   243, 245, 249, 110 P. 3d 858 ( 2005) (      the agency and Boeing opposed disclosure of
                                                                           facility in Everett);   Spokane
portions of    their   agreement   to   develop   an airplane   assembly
Research &      Def. Fund, 96 Wn. App. at 571 -72, 574 (the city and developers opposed disclosure
 of several records including a lease and credit and financial studies).



                                                           14
No. 44520 -4 -II



245, 249, 110 P. 3d 858 ( 2005); Spokane Research &               Def.Fund, 96 Wn. App. at 576. Gresham

argues that because the purpose of the exemption is to protect the State' s ownership rights in

intellectual property, the exemption only applies if the agency opposes disclosure. But Gresham

does   not   explain why   a private   party' s   assertion of   the   exemption —  so as long as the private party

can   demonstrate that disclosure       would cause sufficient public        loss —would not further the


purpose of protecting the State' s ownership rights in intellectual property.

          Because there is nothing in the text of the exemption that could be interpreted to restrict

its application to public agencies and because the unrestricted application is not inconsistent with

the purpose of the statute, we hold that under RCW 42. 56. 270( 1)' s plain meaning, the exemption

may be invoked by a private party. See Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P. 3d
155 ( 2006) ( holding    that when a statute is not ambiguous, only a plain meaning analysis of a

statute is appropriate).


          b. Private Party May Assert Public Loss Regardless ofAgency Position

          Similarly, Gresham asserts that a private party, here Robbins Geller, should not be able to

assert the public loss component of RCW 42. 56. 270( 1) when the state agency chooses not to do

so.   11 Gresham points to two federal cases for support. In Orion Research Inc. v. Envtl. Prot.

Agency,      615 F. 2d 551, 554 ( 1st Cir. 1980), the court recognized that the agency was a credible



 11 The AGO did not take an official position on whether the protection information qualified for
an exemption. However, the AGO' s response to Gresham' s request to admit provides:
          The AGO believes, among other things, that disclosure could, as the law firms
          have    asserted,   inhibit firms' desire to   compete       for the State'   s   legal   work.   This is
          because the firms may be reluctant to provide proprietary information as part of
          the procurement process if they believe that information will be made available to
          their   competitors.      If that is indeed the case, there would be a public loss
          attributable to the inability to procure the best outside legal services.
 CP at 922 -23.



                                                           15
No. 44520 -4 -II



source on whether disclosure would cause public loss even in the absence of extrinsic evidence.


This case does not help Gresham, because here, the AGO acknowledged in its discovery

response that disclosure could cause public loss.

          Gresham     also cites   Hercules, Inc.       v.   Marsh, 839 F.2d 1027, 1028 ( 4th Cir. 1988),        where a




government contractor sought to prevent the Army from releasing a telephone directory that the

contractor prepared at the government' s expense. The contractor argued that disclosure would

impair the government' s ability to obtain necessary information in the future and cause

substantial harm to the contractor' s competitive position. Hercules, 839 F.2d at 1029. The court

rejected both arguments, stating that the contractor' s assertion of competitive injury was

conclusory or speculative and that if the Army was so concerned about disclosure harming its
access to information in the future, it could have employed that rationale to preclude disclosure.

Hercules, 839 F. 2d at 1029 -30. The court stated that because the Army failed to do so, the

contractor would not be permitted to raise the issue on the Army' s behalf. Hercules, 839 F. 2d at

 1030.


           Hercules could be interpreted either as barring private parties from asserting government

harm on the government' s behalf or merely as a failure of proof to assert government harm.

Either way, Gresham is correct that there is federal support for the proposition that a third party
                                                                                              12
has    no "   standing" to   assert   federal Freedom         of   Information Act ( FOIA)         exemptions that appear



to    protect government      interest. See,   e. g.,   United Techs.      Corp.,   Pratt &   Whitney Aircraft Grp. v.

Marshall, 464 F. Supp. 845, 852 -53 ( D. Conn. 1979).




 12
      5 U. S. C. § 552



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         The federal case law Gresham cites is not persuasive because our PRA differs from FOIA

in important respects. Congress did not create a private cause of action under FOIA. Hercules,

839 F. 2d at 1029. Because of this, judicial review of agency action alleged to be in violation of

FOIA is   governed     by   5 U. S. C. §     706, which allows courts to interfere with an agency' s decision

only if the agency' s decision is arbitrary or capricious. Hercules, 839 F.2d at 1029. On the other
hand, the voters of Washington State created a privately enforceable cause of action under the

PRA and expressly directed courts to review de novo agency action taken or challenged under

the PRA. RCW 42. 56. 540, .           550. These substantial differences evidence a conscious choice of


the voters of our state to constrain agency discretion and empower private parties to enforce the

provisions of the PRA, including the exemptions therein. Because the PRA includes an express

provision giving interested parties the right to seek judicial determination that records are exempt

and an injunction preventing their disclosure, Robbins Geller is not barred from asserting the
exemption or its public loss component. See RCW 42. 56. 540.

          c. Robbins Geller Does Not Prove Public Loss

          The parties dispute whether disclosure would cause public loss. Robbins Geller' s

assertion of public loss is based on an assistant attorney general' s deposition testimony in which

he testified that "`   some of these law firms have pointed out that they may be less likely to

participate or —    in the State'    s procurement process and           may be — if we are unable to protect -


 or—   if they   are unable   to   protect   the information that      they deem proprietary        and   important ...   it


 could             reduce   the State'   s   ability to   procure   the best legal   services "'   and the AGO' s similar
         clearly




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No. 44520 - -II
          4



                                                                                                                        13
admission      that   disclosure   could      inhibit firms' desire to   compete   for the State'   s   legal   work.        Br.


of   Resp' t   (Robbins Geller)     at   15 (   emphasis omitted) ( quoting    CP   at   1181).   Gresham argues that


Robbins Geller' s evidence does not demonstrate the requisite public loss because it is speculative

and contradicted by prior experience. Gresham points out that ( 1) the AGO successfully

conducted the 2010 RFQQ process despite disclosing Robbins Geller' s predecessor' s and other

firms' 2004 RFQQ          responses      to   numerous requesters; (     2) Robbins Geller and approximately two

dozen other firms responded to the 2010 RFQQ, despite the AGO' s warning that it would

disclose the responses to PRA requesters unless the firms obtained an injunction preventing

disclosure; and ( 3) although Gresham sought all of the 2010 RFQQ responses, only two firms

sought an injunction to prevent the AGO from disclosing their responses. Gresham also argues

that the disclosure of RFQQ responses is unlikely to deter firms from future participation

because of the possibility of being selected for a lucrative litigation contract from the State. See,

e. g.,         Milgo Gov' t Sys., Inc.
         Racal -                                v.   Small Bus. 4dmin.,   559 F. Supp. 4, 6 ( D. D. C. 198 1)

 recognizing that disclosure of prices charged the government is the cost of doing business with

the government and that disclosure is unlikely to deter competition for government contracts).

Here, the AGO' s willingness to disclose, notwithstanding their supposition that it could inhibit

participation in future RFQQs, along with other law firms' decisions not to seek an injunction to



 13 Gresham asserts that the trial court erred in giving weight to a state employee' s opinion and
urges that the employee' s opinion should have been disregarded because it was not shared by the
agency. But the employee at issue had experience with such matters, and his concern seems
reasonable. There is no apparent reason the court should have disregarded it. There is no
apparent reason why the statement of the assistant attorney general or similar statement of the
AGO cannot be used as evidence by Robbins Geller to assert a public loss notwithstanding that
the AGO itself does not take an official position on whether or not the exemption applies.




                                                                18
No. 44520 -4 -II



protect their submissions tends to show that disclosure of RFQQ responses is not a meaningful

deterrent to future participation in RFQQs. As the party asserting the exemption, Robbins Geller

had the burden to prove that disclosure would cause public loss. Because its assertion of public

loss is merely conjecture and it does not respond to Gresham' s specific contradictions, we hold

that Robbins Geller failed to prove the requisite public loss.

        2. RCW 42. 56.270( 11)


        Gresham next argues that the trial court erred in ruling that the records at issue were

exempt under       RCW 42. 56. 270( 11).        RCW 42. 56. 270 provides in part:


        The following financial, commercial, and proprietary information is exempt from
        disclosure under this chapter:


                     11)   Proprietary   data, trade      secrets, or other    information that   relates   to: (   a)


        A    vendor' s unique methods of          conducting business; ( b) data unique to the product

        or services of the vendor; or ( c) determining prices or rates to be charged for
        services, submitted by any vendor to the department of social and health services
        for ...     state purchased heath care.


The trial court concluded that the records here were exempt under subsections ( a) and ( b)

as " proprietary data and trade secrets essential to Robbins Geller' s method of conducting

business     and   the   services   the Firm   offers   its   clients."   CP at 1343.


        a.    Subsection ( a):      Unique Methods of Conducting Business

        Gresham argues that the protected information does not disclose Robbins Geller' s

business methods.


        Robbins Geller argues that the way that it determines its pricing and insurance is part of

 its method of doing business. But Robbins Geller has not demonstrated that the protected

 information contains its " methods" rather than the end result. Certainly a list of client names and


                                                                  19
No. 44520 -4 -II




references does not reveal Robbins Geller' s methods for doing business. And even if the fee and

insurance information could be considered methods of conducting business, Robbins Geller has

not shown that its methods are unique. For example, the record reflects that many of Robbins

Geller' s competitors use a sliding scale of fees depending on the recovery amount and the stage

of the litigation. Although the amount of insurance and amount of fees will vary by law firm, the

method of conducting business is not unique.

         b. Subsection ( b): Data Unique to the Product or Services


         The trial court also held that the protected information was exempted under RCW

42. 56. 270( 11)( b),   which protects "   data   unique   to the   product or services of   the   vendor."   CP at


1343.   Robbins Geller did not provide evidence proving that the fee proposal, insurance list,

client or reference list fit the description of data unique to a product or service. The protected

information could be considered data, but it is not data unique to Robbins Geller' s services. In

order to be unique to Robbins Geller' s services, the data must reveal some unique aspect about

the services. The names of Robbins Geller' s clients, references, and insurance carriers reveals

little about its legal and portfolio monitoring services, let alone something unique. Similarly, the

inexact amount of Robbins Geller' s professional liability insurance coverage and its pricing

approach of its legal services is not information unique to its services. As we discussed above,

other competing law firms carry liability insurance and use a similar approach to fee setting. We




                                                            20
No. 44520 - -II
          4



hold that Robbins Geller did not prove that the protected information was data unique to its

                                                                                               14
product or services      qualifying for   exemption under          RCW 42. 56. 270( 11)( b).


          3.   RCW 42. 56.270( 6)


          Robbins Geller also argues that disclosure may be enjoined under RCW 42. 56. 270( 6),

which exempts "[       f]inancial and commercial information supplied to the state investment board


by any person when the information relates to the investment of public trust or retirement funds

and when disclosure would result in loss to such funds or in private loss to the providers of this

information."       The trial court did not rely on RCW 42. 56. 270( 6) for issuance of the injunction.

          RCW 42. 56. 270( 6) is inapplicable because the protected information was not " supplied

to the   state   investment board."    It was provided to the AGO, which has exclusive authority to

retain attorneys for state agencies, including the WSIB. RCW 43. 10. 067. Robbins Geller has

not pointed to evidence that the documents were supplied to or used by the WSIB. Accordingly,

we agree with the trial court' s determination that RCW 42. 56.270( 6) does not apply here.




14 Gresham also argues that the phrase " submitted by any vendor to the department of social and
health    services   for ...   state purchased   health   care,"   which follows the comma in subsection ( c),
applies   to   subsections ( a) and   ( b). RCW 42. 56. 270( 11).        We disagree. Here, the subparts of
RCW 42. 56. 270( l 1) are set off by semicolons indicating that they are independent clauses. See
Elgin Nursing & Rehab. Dr. v. U.S. Dep' t of Health & Human Servs., 718 F. 3d 488, 494 -95 ( 5th
Cir. 2013). Therefore, the provision at the end of the subsection ( c) stating that the information
must be " submitted by any vendor to the department of social and health services" applies only
to that   subsection and not subsections ( a) and ( b).            Moreover, the subsections are disjunctive,
which also supports that the clauses are separate. If the legislature had intended to limit the
exemption to information submitted to the department of social and health services, it could have
included that language in each of the subsections or placed the language at the beginning of the
sentence preceding the three subsections.



                                                            21
No. 44520 -4 -II




     V. SUMMARY JUDGMENT DISMISSAL OF GRESHAM' S CROSS CLAIM AGAINST THE AGO


         Gresham argues that the trial court erred in granting summary judgment on his cross

claim against the AGO because the claim became moot when the trial court ruled that he was not

entitled to the public records. The AGO argues that the cross claim was not moot and that


summary judgment was proper. We agree with the AGO.

         We review a trial court' s order granting summary judgment de novo. Loeffelholz v. Univ.

of Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).               Summary judgment is appropriate where,

viewing the evidence in the light most favorable to the nonmoving party, there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.

Loeffelholz, 175 Wn.2d           at   271. " A genuine issue of material fact exists where reasonable minds


could   differ   on   the   facts controlling the   outcome of   the litigation."   Ranger Ins. Co. v. Pierce


County, 164 Wn.2d 545, 552, 192 P. 3d 886 ( 2008).

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

against an agency in any action in the courts seeking the right to inspect or copy any public

record or the right to receive a response to a public record request within a reasonable amount of


time." RCW 42. 56. 550( 4).            A PRA claimant " prevails" against an agency only if the agency

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

P. 3d 932,   review     denied, 174 Wn.2d 1010 ( 2012). RCW 42. 56. 550( 4) does not authorize an


award of costs, attorney fees, or penalties in an action brought by a private party to prevent

disclosure of public records held by an agency where the agency has agreed to release the

records but is prevented from doing so by court order. Bainbridge Island Police Guild, 172
Wn.2d at 421 n. 14. This interpretation is consistent with the purpose of the attorney fees



                                                           22
No. 44520 -4 -II




provision, which is to encourage broad disclosure and to deter agencies from improperly denying

access to public records. Lindberg v. Kitsap County, 133 Wn.2d 729, 746, 948 P. 2d 805 ( 1997).

          Gresham argues that his cross claim became moot after the trial court enjoined the AGO


from disclosing the records. Gresham cites Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d

811, 514 P. 2d 137 ( 1973), for support. In Diversified, our Supreme Court dismissed a lessor' s


action seeking a declaratory judgment that its lessee would be liable for projected claims of a

lessee'   s social guest who   had been injured   on   the   premises.   82 Wn.2d   at   812 -13. Because the


injured party' s claim was an unpredictable contingency, the declaratory action was not ripe.

Diversified, 82 Wn.2d at 815. There is no apparent similarity between Gresham' s cross claim

here and the unripe declaratory suit in Diversified, and Gresham does not explain why his cross

claim is moot or otherwise not justiciable. The trial court' s order granting the injunction did not

address whether the AGO could be held liable for the failure to produce the protected


information, nor did it dispose of Gresham' s cross claim against the AGO. The injunction did


not render the cross claim moot, the cross claim was merely unsuccessful. Because Gresham' s

cross claim was not moot, we affirm summary judgment dismissal in favor of the AGO.

                                           ATTORNEY FEES


          Finally, Gresham argues that he should be awarded costs, attorney fees, and penalties if

he becomes the prevailing party in this action. Specifically, Gresham argues that the AGO

should be liable for penalties based on a theory of respondeat superior for its employees

interference with Gresham' s attempt to obtain public records that the AGO was willing to

produce. Gresham supports his argument with two tort cases involving employers' responsibility




                                                        23
No. 44520 -4 -II



for their   employees'   actions,   but   neither relates   to   whether   the AGO' s ( or   its   employees')   action




gives rise to liability under the PRA.

        The PRA requires the trial court to award attorney fees and costs to a parry who prevails

against an agency, which occurs when an agency wrongfully withholds documents. Gronquist v.

Dep' t of Licensing,     175 Wn.    App.   729, 756, 309 P. 3d 538 ( 2013).        Here, the AGO was willing to

produce the protected information, but was prevented from doing so by a court order. As

previously discussed, even if Gresham succeeds in overturning the injunction, Gresham will not

have prevailed over the AGO for purposes of awarding costs, attorney fees, and penalties under

RCW 42. 56. 550( 4).     Bainbridge Island Police Guild, 172 Wn.2d at 421 n.14. Accordingly, we

deny his request for attorney fees, costs, and penalties against the AGO even though we vacate

most of the trial court' s permanent injunction order.


        We vacate the trial court' s permanent injunction, except for the unchallenged portion that


protects not previously published names of Portfolio Monitoring Program clients, and order the

AGO to produce the records at issue. We also affirm summary judgment dismissal of Gresham' s

cross claim against the AGO.




                                                                                  Worswick, C. J.




Verellen, J.




                                                            24
