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Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 1 of 27

5
THE HONORABLE JAMES L. ROBART
6

9
UNITED STATES DISTRICT COURT
10 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
11
LONDI K. LINDELL,
12 No. C 08-1827 JLR
Plaintiff,
13
v.
14
CITY OF MERCER ISLAND, a Washington PLAINTIFF LINDELL'S MOTION
15 municipal corporation; MERCER ISLAND CITY FOR SUMMARY JUDGMENT ON
MANAGER RICHARD CONRAD, in his official PLAINTIFF'S PUBLIC RECORD
16 and individual capacities; MERCER ISLAND ACT CLAIMS
DEPUTY MAYOR JIM PEARMAN, in his
17 official and individual capacities; MERCER NOTE ON MOTION CALENDAR:
ISLAND COUNCILMEMBER ERNEST January 28, 2011
18 JAHNCKE, in his official and individual
capacities; MERCER ISLAND FINANCE
19 DIRECTOR CHARLES CORDER, in his official
and individual capacities,
20
Defendants.
21

22

23

24

25

26

THE BLANKENSHIP LAW FIRM, P.S.


PLAINTIFF LINDELL'S MOTION FOR SUMMARY 28th Floor, Washington Mutual Tower
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT CLAIMS 1201 Third Avenue
(Cause No. C 08-1827 JLR) Page i Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 2 of 27

1 I. INTRODUCTION

2 The City of Mercer Island’s conduct with regard to the Public Records Act (PRA) in this
3 case demonstrates the City’s utter contempt for the rights of Washington’s citizens to access
4 public information and involves the most egregious disregard of the Act’s strict mandates of any
5 published case enforcing the PRA. Not only did the City fail to adhere to the spirit of the Act’s
6 requirements, but it did so willfully in order hide its blatant misconduct from its citizen’s view
7 and to protect its elected officials from embarrassment. There has simply never been a better
8 example of why the PRA requires strict penalties in order to preserve the public’s right to an
9 open government.
10 Indeed, under the PRA, Defendant City was required to make available for public

11 inspection and copying “all public records” unless the records fell within certain specific

12 exemptions under the Act. RCW 42.56.070. “[The PRA’s] command is unequivocal:

13 Responses to requests for public records shall be made promptly by agencies . . .” Yousoufian v.

14 Office of Ron Sims, 168 Wash.2d 444, 465 (2010) (emphasis in original). Moreover, if the

15 requesting party prevails in a PRA case the court must award reasonable attorney fees and costs

16 and penalties up to $100 for each day the agency has failed to produce validly requested record.

17 RCW 42.56.550.

18 Here, the City Mercer Island refused to provide Plaintiff Londi Lindell with requested

19 documents for over two years, from May 2008 until October 2010, when this Court ultimately

20 ruled the withheld materials were not exempt despite the City’s “stonewall effort” to withhold

21 “several thousand pages’ worth of documents.” The Court also held that the City was not

22 “substantially justified” under Rule 37 in withholding the documents sought under Rule 26,

23 sanctioning Defendant and effectively finding that Defendant had violated the PRA. Soter v.

24 Cowles Pub. Co., 162 Wash.2d 716, 734 (2007) (“if the documents at issue [in a case] are

25 discoverable under CR 26, then they are subject to disclosure under the act [PRA]).”.
26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 1 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 3 of 27

1 As such, Plaintiff Londi Lindell moves under Federal Rule of Civil Procedure 56 and 28

2 U.S.C. § 1367 for this Court to find as a matter of law that the City violated the PRA and is

3 subject to the maximum penalty of $100 per day for each record wrongfully withheld. See

4 Spokane Research & Defense Fund v. City of Spokane, 155 Wash.2d 89, 106 (2005)(reversing

5 the Court of Appeals and holding that summary judgment is “a proper method to prosecute

6 PDA claims”). Given the egregiousness of Defendant’s conduct and its intentional

7 noncompliance, any lesser penalty would not be proportionate to the City’s misconduct. Should

8 this Court rule that Ms. Lindell is a prevailing party under the PRA, she also moves for

9 reasonable attorney fees and costs, which are mandatory under the Act.

10 II. STATEMENT OF FACTS

11 A. Background: Ms. Lindell Was Terminated in Retaliation For Reporting


Sexual Harassment and Participating in a Sexual Harassment Investigation.
12
Londi Lindell served the City of Mercer Island for approximately eight years, first as
13
City Attorney, and then, after being promoted to second-in-command, as Deputy City Manager.
14
LL Decl. Throughout her employment, she always received the highest rating for her
15
performance (“outstanding”) from City Manager Rich Conrad (“City Manager Conrad”), who
16
praised Ms. Lindell for her work and loyalty.1 NY Decl., Exhs. RR-VV.
17
Unfortunately, by fall 2007, Ms. Lindell had developed serious concerns regarding the
18
conduct of City Manager Conrad and Human Resource Director Kryss Segle (“HR Director
19
Segle”). LL Decl. City Manager Conrad had previously been disciplined for soliciting sex from
20
a subordinate, female employee,2 with HR Director Segle also being disciplined for failing to
21

22 1
For example, regarding Ms. Lindell, City Manager Conrad stated: “You have balanced well the virtues
of teamwork and leadership. The Council sees you as an integral member of their team; trusting your
23
advice and counsel,” “You are always the paradigm of professionalism and good nature . . . You treat
your peers, co-workers, subordinates and Council with respect and good humor,” “the City Council
24
uniformly trusts you and likes you. The Department Directors feel the same,” “You continue to be one of
25
the City’s greatest assets,” “You are the consummate team player. You have consistently supported me
and have shown profound loyalty to me, your fellow Directors and to the City,” “I continue to have
26 absolute confidence in your decision making and problem solving skills.” NY Decl., Exhs. RR-TT.
2
Conrad admitted under oath that he “did make a proposition, and she declined it.” Conrad Dep. at
147:15-149:12 (NY Decl., Exh. MM).

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 2 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 4 of 27

1 report the employee’s complaint of sexual harassment and retaliation for over two years. LL

2 Decl.; NY Decl., Exhs. WW-XX. After an independent investigation into City Manager Conrad’s

3 conduct by investigator Amy Stephson (“Stephson Investigation”), the matter was mediated and

4 resulted in the employee leaving the City and being paid approximately $90,000. Dkt. 268-1;

5 LL Decl.

6 As such, when City Manager Conrad inappropriately interfered in the disciplining of HR

7 Director Segle’s husband, Johnny Segle, a City maintenance employee, for his violations of the

8 City’s sexual harassment policy and opposed disciplining HR Director Segle for actually

9 writing her husband’s grievance in direct violation of City policy,3 Ms. Lindell worried that

10 history was repeating itself, with Conrad now covering for the Segle’s breaches of the City’s

11 anti-harassment policy.4 LL Decl.

12 City Attorney Sterbank shared Ms. Lindell’s concerns, writing a legal memorandum on

13 October 3, 2007, advising City Manager Conrad that such conduct could place the City at risk

14 by undermining the City’s ability to discipline employees and by tolerating sexual harassment.

15 NY Decl., Exh. ZZ . (“Sterbank Memo”). Sterbank also warned that other Directors, including

16 Ms. Lindell, “perceive the relationship to be similar in character to the City Manager’s former

17 City Clerk” and “express confusion . . . at the emotional nature of the City Manager’s reaction

18 to Ms. Segle’s resignation threat.” Id. Notably, the only two Directors cited by name – Ms.

19
3
Not only did HR Director Segle write her husband’s grievance – a complete violation given her position
20 as the highest human resource employee of the City – but she also lobbied City Manager Conrad heavily
to intervene. See e.g., NY Decl., Exh. BBB. In response, City Manager Conrad stated he was “tempted to
21 break all the rules” by “tearing up” Johnny Segle’s discipline and implementing an “alternative process.” Id.
4
Other conduct by City Manager Conrad and HR Director Segle heightened Ms. Lindell’s
22 concerns. For example, in or around March 2007, Segle performed an exit interview with a police
detective who was retiring. After the interview, she broadcasted to City employees that she was not
23
wearing any underwear and had accidentally flashed the detective. As relayed by City Attorney
Knight and other City employees, not only did HR Director Segle announce the flashing incident, but
24
it became a sexually offensive office-wide joke, which included an employee bringing “in granny
25
underwear and a clip on hairpiece as part of the joke.” Knight Interview at 13-14 (Exh. CCC);
Johnston Interview at 5 (Exh. DDD). Despite knowing about the incident, City Manager Conrad,
26 however, failed to take any disciplinary action. Exh. MM at 56:5-57:5; LL Decl.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 3 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 5 of 27

1 Lindell and Assistant City Manager Pete Mayer – were pushed out of the City, along with Mr.

2 Sterbank. LL Decl.; NY Decl., Exhs. QQ, AAA.

3 Ultimately, due to City Manager Conrad’s desire to “clear his name” and invalidate the

4 Sterbank Memo, the City hired outside investigator Marcella Reed to conduct an investigation

5 (“Reed Investigation”). Conrad Dep. at 288:1-289:22 (Exh. MM).On December 3, 2007, after

6 completing thirteen interviews of Mercer Island employees and reviewing voluminous

7 documents, Investigator Reed provided the City an “investigation status,” which among other

8 findings, stated that City Manager Conrad and HR Director Segle had “an emotionally intimate

9 relationship” which Segle used “to influence the disposition of discipline issued to her

10 husband.” NY Decl., Exh. E. Reed also concluded that “potentially successful gender

11 discrimination, sexual harassment, and hostile work environment claims could be made by both

12 female and male staff members.” Id.

13 Especially relevant to Ms. Lindell’s lawsuit, Investigator Reed warned of “retaliation,”

14 writing that City Manager Conrad “has shown no ability to control his behavior with

15 subordinates in the face of advice from his staff and attorneys,” “[t]here is evidence the City

16 Manager is preparing to retaliate against City Attorney Sterbank,” and that there were “at least

17 three other staff members at risk of being retaliated against by the City Manager.” Id. Reed

18 testified that the people at risk of being retaliated against were Lindell (terminated), Sterbank

19 (leaving the City after receiving a $137,000 severance), and Mayer (resigned after suffering

20 retaliation) (NY Decl., QQ)). Reed also testified that she advised the City during an executive

21 session that City Manager Conrad should be terminated. Reed Dep. at 55:14-57:24, 72:6-73:15.

22 (NY Decl., Exh. LL).

23 The same day Investigator Reed reported her investigative findings, her services were

24 terminated by the City, and instead, the City Council decided to conduct their own

25 “investigation,” with then Mayor Bryan Cairns, then Deputy City Mayor Jim Pearman, and
26 Defendant El Jahncke – all having no experience or training in conducting investigations into

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 4 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 6 of 27

1 sexual harassment or retaliation – re-focusing the inquiry to whether Ms. Lindell and Mr.

2 Sterbank had engaged in a “conspiracy” to overthrow City Manager Conrad (“City Council

3 Investigation”). LL Decl.

4 Investigator Reed’s conclusions proved all too prescient, and on or around December 17,

5 2007, just fourteen days after Reed delivered her findings, Defendants informed Ms. Lindell

6 (along with Bob Sterbank) that they should seek other employment. 5 Exh. RR; Cairns Dep. at

7 145:15-151:23 (NY Decl., Exh. OO). In April 2008, soon after Ms. Lindell hired legal counsel

8 believing that her impending termination violated her civil rights, Ms. Lindell was fired without

9 any due process or Loudermill hearing. LL Decl.

10 B. In May 2008, Ms. Lindell Requested Public Records Relating to Her


Unlawful Termination Pursuant to Washington State’s Public Records Act.
11
On May 6, 2008, Ms. Lindell made a Public Records Act (PRA) request to Defendant
12
City of Mercer Island pursuant to Chapter 42.56 RCW. NY Decl., Exh. C. The request sought
13
thirty-nine categories of records, not counting subparts, including seeking documents relating
14
to: (1) the Reed Investigation; (2) the Stephenson Investigation; (3) the investigation and
15
disciplining of Johnny Segle; (4) any disciplining of City Manager Conrad; (5) any disciplining
16
of HR Director Segle; (6) the Sterbank Memo; (7) Conrad’s “response” to the Sterbank Memo;
17
(8) Ms. Lindell’s chronology; (9) Mr. Sterbank’s chronology; (10) City Manager Conrad’s
18
chronology; (11) notes relating to the City Council’s investigation; (12) correspondence
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between key parties including Ms. Lindell, City Manager Conrad, HR Director Kryss Segle, and
20
City Attorney Katie Knight; (13) documents relating to the City’s nepotism policy, including
21
versions of the policy and correspondence relating to how the policy applied to the Segles; and
22
(14) Ms. Lindell’s contacts and calendar from Microsoft outlook. Id. The May 2008 PRA
23

24

25 5
Ultimately, City Attorney Sterbank entered into a “separation agreement” with the City in early
26 February 2008. Dkt. 117. Assistant City Manager Mayer resigned in April 2009, his decision being
“heavily influenced by the working environment, which after the Marcella Reed Investigation, had
become unbearable.” NY Decl., Exh. QQ.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 5 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 7 of 27

1 request also asked that the City provide a privilege log, listing the statutory exemption, to the

2 extent the City refused to disclose any of requested records. Id.

3 C. Defendant Refused to Disclose the Records or Provide a Sufficient Privilege


Log, Withholding the Public Records For Over Two Years.
4
The City acknowledged it received the PRA request in writing on May 14, 2008, stating
5
that “the City require[d] an additional thirty (30) business days from the date of this letter.” NY
6
Decl., Exh. D. On June 24, 2008, August 6, 2008, and September 18, 2008, further delaying
7
disclosing the records, the City demanded more time to respond to the request. ” NY Decl.,
8
Exhs. E, G, I. Throughout this time, Ms. Lindell’s counsel conferred with defense counsel,
9
sending Defendant correspondence, urging the City to comply with the PRA, including
10
requesting that the City “promptly identify any of the requested documents it believes are
11
except from disclosure, and also provide the applicable statutory exemption.” NY Decl., Exh. F.
12
It was not until on or around August 19, 2008 that the City produced a three page
13
“withholding log,” listing forty-two emails and two memoranda as exempt under the attorney-
14
client privilege. NY Decl., Exh. H. The log was greatly deficient, failing to list numerous
15
records requested by Ms. Lindell which the City was evidently unwilling to produce, including
16
records relating to the Reed Investigation. Id. The log also failed to provide a brief explanation
17
of how the specific exemption allegedly applied to each document, as required by the PRA. Id.
18
Ms. Lindell notified Defendant of its noncompliance, yet Defendant declined to supplement its
19
log. NY Decl., Exhs. J, K.
20
Ms. Lindell continued pursuing the records, sending yet another letter on November 26,
21
outlining its noncompliance with the PRA. NY Decl., Exh. L. In addition to again requesting
22
that the City provide a sufficient withholding log, Ms. Lindell’s letter also provided examples of
23
records the City was wrongfully withholding (yet were not listed in the City’s exemption log)
24
and reminded the City that it was “not permitted to use the attorney client privilege as a shield
25
for curtailing Ms. Lindell’s right to obtain public records.” Id. Lindell also “request[ed] the
26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 6 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 8 of 27

1 metadata for each of the emails,” explaining that “metadata is also a public record subject to

2 disclosure under the PRA.” Id. No substantive response was provided. NY Decl.

3 As such, when Ms. Lindell filed her lawsuit on December 23, 2008, alleging unlawful

4 discrimination and retaliation in violation of Title VII and the Washington Law Against

5 Discrimination (WLAD) and various breaches of 42 U.S.C. §§ 1983 and 1985, she also brought

6 a claim for violations of the PRA. Dkt. 1.

7 Defendant continued to disregard the PRA. Although it finally supplemented its initial

8 three page “withholding log” in or around December 2008, disclosing for the first time thirty

9 more pages of documents it claimed were exempt from production, the revised thirty-three page

10 withholding log again failed to set forth “a brief explanation of how the exemption applies to

11 the record withheld” and failed to identify the records with a subject line. NY Decl., Exh. N.

12 Ms. Lindell reviewed the log, and believed that a majority of the purportedly “exempt”

13 records were being wrongfully withheld, 6 and accordingly continued seeking the public

14 records, both through her May 2008 PRA request and requests for production. LL Decl.; NY

15 Decl. Defendant, however, continued its strategy of delay and obstructionism, failing to produce

16 any of the records at issue in response to her requests under Rule 34. NY Decl., Exhs. O, P.

17 After multiple conferences with opposing counsel, and substantial correspondence

18 spanning five months, the issue remained unresolved, with Defendant wrongly maintaining that

19 the records were exempt. NY Decl., Exhs. Q, R, S, T, V, W, X, Y, Z, AA, BB. As such, Ms.

20 Lindell filed a motion to compel on January 28, 2010, arguing amongst other things, that

21 Defendant was improperly claiming privilege and work-product for information that was not

22 covered by either, or had been waived.7 Dkts. 27, 43.

23 6
Ms. Lindell specifically identified these each and every one of these documents when answering
Defendant’s discovery. NY Decl., Exh. HHH.
24 7
While Plaintiff’s motion to compel was pending, new information was discovered through depositions which
25
directly refuted Defendant’s misrepresentations to the Court that the documents were either work product or
attorney-client privileged. As such, Ms. Lindell sought relief from the deadline to serve supplemental
26 declarations in support of her Motion to Compel. Dkts. 71, 72, 89, 90. The Court granted Ms. Lindell’s motions
on July 1, 2010. Dkt. 155-2. Plaintiff also argued that the documents were not privileged and/or work
product in response to Defendant’s largely duplicative motion for a protective order. Dkt. 33.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 7 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 9 of 27

1 Notably, despite arguing aggressively to this Court that the Reed Investigation was

2 exempt from discovery in both its motion for protective order and opposition to Plaintiff’s

3 motion to compel, Defendant had no good faith basis for its assertions and failed to provide any

4 factual support for its contentions. Dkts. 33, 43. For example, although Defendant stated that

5 Ms. Lindell’s assertions that litigation was not anticipated “strain credulity,” and are “frankly

6 laughable” (Dkt. 33, 9:5-11), not once in Defendant’s pleadings did it provide any factual

7 support for this position. Id. And in fact, Defendant’s witnesses clearly testified that no

8 litigation was anticipated. Dkt. 30; Pearman Dep. at 185:7-186:8 (Exh. LL); Conrad Dep. at

9 110:11-18 (Exh. MM); Knight Dep. at 131:13-132:8 (Exh. NN); Cairns Dep. at 32:2-14 (Exh.

10 OO). Likewise, although Defendant repeatedly and incorrectly stated that Ms. Reed was acting

11 as a lawyer, Defendant was unable to provide any factual support that Ms. Reed was hired to

12 provide legal advice, only providing conclusory statements. Dkts. 33, 43.

13 This is because Defendant knew that Reed was actually retained by the City to perform a

14 remedial fact-finding investigation at the request of City Manager Conrad, who “wanted to get

15 to the bottom of it to clear [his] name.” Conrad Dep. at 288:1-289:22 (Exh. MM). Defendant

16 also knew that back in November 2007, as evidenced in a City email from Mike Bolasina, the

17 City had expressly waived attorney-client privilege as to “all communications involving Bob

18 [Sterbank] on matters arising from the Segle disciplinary matter.” NY Decl., Exh. GGG.

19 Nonetheless, Defendant stonewalled Ms. Lindell, falsely maintaining that the records were

20 exempt from discovery and the PRA, and aggressively instructing witnesses not to answer

21 during their depositions (Dkts. 205, 214), forcing Lindell to fight for over two years, from May

22 2008 when she made her PRA request until October 2010, when the Court ordered production.

23 D. The Court Ordered Production in October 2010, Ruling that It “Was Clear
to the Parties at the Time” that No Privilege or Work Product Existed.
24
On July 1, 2010, the Court stated that it required additional information to rule on
25
whether Ms. Lindell was entitled to specific documents in light of Defendant’s assertions of
26
privilege. Dkt. 155-2. Pursuant to the Court’s ruling, Defendant submitted a “reproduced public

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 8 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 10 of 27

1 records act response privilege log,” along with two supplemental logs. NY Decl., Exhs. CC, DD.

2 In its cover letter, Defendant reiterated that its assertion of privilege applied equally to Ms.

3 Lindell’s PRA and discovery requests:

4 The City continues to maintain that the documents are privileged. Insofar as Ms.
Lindell’s discovery requests seek the same documents as her Public Records Act
5 request, the City’s position with respect to which of those documents are
privileged is also the same. Id.
6
The logs again failed to contain any description of the withheld documents which would
7
provide Plaintiff enough information to adequately object to Defendant’s claims of exemption,
8
and after Ms. Lindell brought this deficiency to the Court’s attention (Dkt. 157), Defendant
9
supplemented its log on August 10, 2010, generating a fifty-three page privilege log. Dkt. 161.
10
As ordered by the Court, Defendant then submitted thousands of pages of documents for in
11
camera review. Dkts. 162, 169.
12
During this same time period, Ms. Lindell made additional PRA requests on July 30 and
13
August 10, 2010, seeking primarily billings relating to the case, insurance records, and
14
documents provided by the City to the newspaper, Mercer Island Reporter. NY Decl., Exhs. FF,
15
GG. Defendant refused to produce the records, erroneously arguing that because the discovery
16
cutoff expired, Ms. Lindell relinquished her right to make PRA requests. Dkts. 166-167. The
17
Court considered the issue on September 2, 2010, and ruled that “the three Public Information
18
Act requests, to the extent they are valid, which is not the question before me, can be served on
19
the City.” Sept. 2 Transcript at 5:4-6; NY Decl., Exh. JJ.
20
As such, Ms. Lindell again urged Defendant to comply with the PRA, warning
21
Defendant that “[i]f the City continues to withhold records it knows or should know are not
22
exempted under the Act, it runs a significant risk of not only subjecting itself to mandatory,
23
daily monetary penalties and attorneys fees, but a finding by the court that such withholding has
24
been done in bad faith, thus increasing the daily fine imposed.” NY Decl., Exh. HH. Defendant
25
never responded. NY Decl. Moreover, despite the Court’s ruling, the City failed to disclose
26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 9 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 11 of 27

1 records responsive to Ms. Lindell’s July 30 PRA request until October 18 (80 days) and failed

2 to produce August 10, 2010 PRA requests until October 25 (76 days). EB Decl., Exh. A.

3 This delay also appeared purely strategic, as Ms. Lindell’s public records request for

4 documents provided to the Mercer Island Reporter revealed that the City actually produced

5 some of the withheld documents to the Mercer Island Reporter in May 2008; the very same

6 documents the City refused to provide to Ms. Lindell as requested in her May 2008 PRA

7 request – documents the City aggressively represented to the Court that it believed in “good

8 faith” were privileged. Dkts. 213, 214-1.

9 In late September 2010, after a thorough in camera review of “thousands of pages of

10 documents,” the Court concluded that a “the majority of the documents are not privileged,” but

11 requested additional briefing from both parties. Dkts. 171, 173, 178, 179.

12 Ultimately, the Court ruled that all materials relating to the Segle investigation were not

13 privileged and ordered Defendant to “produce all materials relating to the Segle investigation by

14 no later than 5:00 p.m. on Wednesday, September 29, 2010.” Dkt 182. Despite the Court’s

15 order, Defendant failed to produce the documents, instead, ignoring the Court order and filing a

16 motion for reconsideration, albeit after the deadline for production had passed. Defendant’s

17 motion conceded that the Court’s order was not “manifest error,” but argued it had obtained

18 “newly discovered evidence” which justified reconsideration. Dkt 183. Incredibly, the evidence

19 Defendant claimed was “newly discovered” had in fact been in their possession since at least

20 April 2008 when it was emailed to defense counsel. Dkt 190. It was also listed in Defendant’s

21 privilege log. Dkt 185. Defendant’s statement was a blatant misrepresentation.

22 The following day, the Court denied Defendant’s motion for reconsideration and again

23 ordered them to produce documents to Ms. Lindell “immediately.” Dkt 184. Again, rather than

24 comply with the Court’s order, Defendant refused to produce the documents. After receiving a

25 letter from Plaintiff that Defendant had violated the Court’s order, Defendant was ordered to
26 show cause why it should not be held in contempt of court. Dkt 186. Defendant then filed a

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 10 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 12 of 27

1 motion for certification for interlocutory appeal despite having no legal basis for the motion.

2 Dkts 188, 190. During the show cause hearing on October 4, 2010, the Court stated:

3 We were not assisted in this matter by the City's blanket designation of numerous
documents as covered by the attorney-client privilege, some of which had been
4 waived by the city council, in the court's view, and many of which were not
sufficient to trigger the attorney-client privilege in the first place; for example,
5 social discussions between city officials and outside counsel. October 4
Transcript at 10:18-25. (NY Decl, Exh. KK)
6
It then ruled that the Reed Investigation was not privileged or work product, stating that
7
the record supported no other view:
8 It has been represented to the court, on numerous occasions, that Ms.Reed
was hired as an attorney. And in briefing for the City of Mercer Island, it is
9 stated that no one ever considered her to be anything other than an attorney for
the City. This simply is factually inaccurate and is incorrect . . .
10
. . . Ms. Reed was not serving as an attorney, she was serving as an investigator,
11 and that was clear to the parties at the time, notwithstanding subsequent
representations to the contrary, that Ms. Reed was not an attorney hired to
12 provide legal advice in connection with an anticipated claim . . .
The Segle investigation conducted by Ms. Reed was not work product and was
13 not covered by the attorney-client privilege. There was no threat of intended
litigation at the time in order to determine or trigger the work product doctrine;
14 rather, it was requested by the city manager in order to clear his name. And
secondly, there was no attorney-client privilege . . . even if it had been covered
15 by the attorney-client privilege, the privilege was waived by the city council.
16 . . . having been forced to read the numerous documents which have been held as
privileged in this matter, it is abundantly clear that the investigation was
17 conducted because Mr. Conrad wanted to clear his name, not because his friend,
Ms. Segle, was considering a sexual harassment claim against Mr. Conrad or the
18 City. In regards to the attorney-client privilege, Ms. Reed was not hired to
provide advice to the City. Ms. Reed was hired to conduct an outside
19 investigation . . . there is no other evidence supporting another view, other
than affidavits and declarations that have been filed now with conclusory
20 statements to the opposite conclusion. Id. at 6:9-14; 8:4-9, 11-12:11.
In addition, the Court noted that it would no longer tolerate the City’s refusal to obey the
21
Court’s orders, “particularly based on what appears to have been a stonewall effort in regards to
22
the several thousand pages’ worth of documents which are claimed to be covered by the work
23
product doctrine and the attorney-client privilege, which has been reviewed and rejected by the
24
court.” Id. at 15:1-7.
25

26
In light of the Court’s ruling, Ms. Lindell finally received some of the records on

October 5, 2010, over two years (882 days) after they were requested. EB Decl., Exh. A.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 11 Seattle, Washington 98101
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1 Additional records were produced on November 8, 20108 (916 days) pursuant to this Court’s

2 November 3 ruling that the majority of Defendant’s assertions of privilege and/or work product

3 in its Objection Log (Dkt. 198) were overruled. Dkt. 222. The Court has already ruled that

4 Defendant was not “substantially justified” under Rule 37(a)(5)(A) in withholding the

5 documents sought under Rule 26. Dkt. 246, 2:1-8.

6 Notably, Ms. Lindell believes requested public records are still being wrongfully

7 withheld by the City. LL Decl. Ms. Lindell has also not received any metadata, despite the City

8 being aware from her correspondence that “metadata is also a public record subject to disclosure

9 under the PRA.” NY Decl., Exh. L.

10 III. LEGAL ARGUMENT AND AUTHORITY9

11 A. This Court Has Jurisdiction To Hear Ms. Lindell’s Public Records Act10
Claims on Summary Judgment.
12
Under § 1367(a) federal courts are specifically authorized to hear state causes of action
13
when there is federal question jurisdiction over another claim, and “all other claims [] are so
14
related to claims in the action within such original jurisdiction that they form part of the same
15
case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367.
16
Section 1367 was partly a codification of the doctrine of pendent jurisdiction which allowed
17
federal courts to exercise jurisdiction over both state and federal claims that “derive from a
18
8
Although the Court ordered production by noon on November 8, 2010, Defendant failed to meet the
19 deadline, producing the remaining documents later that afternoon. Dkt. 222.; NY Decl.
9
Summary judgment is appropriate when there are no genuine issues of material fact and the moving
20 party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c). Once a party has moved for
summary judgment, the opposing party must point to specific facts establishing that there is a genuine
21 issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party fails to make
such a showing for any of the elements essential to its case for which it bears the burden of proof, the
22 trial court should grant the motion. Id. Although when determining whether an issue of material fact
exists the court construes all facts and inferences in favor of the nonmoving party, this does not mean
23
that a court will accept as true assertions made by the non-moving party that are contradicted by the
record. Rather, the nonmoving party is entitled to reasonable inferences only. Scott v. Harris, 550 U.S.
24
372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted
25
by the record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.”).
10
26 The PRA was previously named the public disclosure act (PDA), and the portion of the PDA
concerning public records was formerly codified at RCW 42.17.330. For consistency, Plaintiff refers to
the PDA as the PRA except when quoting case law.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1
common nucleus of operative fact[s].” United Mine Workers of America v. Gibbs, 383 U.S.
2
715, 725 (1966). The justification for the doctrine “lies in considerations of judicial economy,
3
convenience and fairness to litigants.” Id. “The whole point of supplemental jurisdiction is to
4
allow the district courts to exercise pendent jurisdiction over claims as to which original
5
jurisdiction is lacking.” City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 167 (1997).
6
District courts shall have jurisdiction under these circumstances and may only decline to hear
7
related state claims if:
8
(1) the claim raises a novel or complex issue of State law,
9 (2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
10
(3) the district court has dismissed all claims over which it has original
11
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
12 jurisdiction. 28 U.S.C. § 1367(c).

13 Here, none of these exceptions apply. Rather, with respect to the first element, the

14 ruling on Ms. Lindell’s PRA claim will primarily raise questions of privilege and work

15 product, which will be examined by employing the “rules of pretrial discovery.” Limstrom v.

16 Ladenburg, 136 Wash.2d 595, 605 (1998)(holding that the PRA “relies on the rules of pretrial

17 discovery to define the parameters of the work product rule for purposes of applying the

18 exemption.”). Yet, under the “rules of pretrial discovery” this Court has already ruled that the

19 records at issue were not privileged and/or work product. Dkts. 182, 184, 186. The Court has

20 also already ruled that “[t]he question of attorney work product doctrine or attorney-client

21 privilege is not a new legal question concerning which the law is unsettled.” Oct. 4 Transcript

22 at 6:7-17. (NY Decl., Exh. KK) Second, Ms. Lindell’s PRA claim does not predominate over

23 her federal claims; as the issue underlying her PRA claim – namely, whether documents were

24 properly withheld by Defendant – has already been considered extensively by this Court, Ms.

25 Lindell’s PRA claim is purely supplemental. Third, no claims have been dismissed. Finally,

26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1
there are no compelling reasons for declining jurisdiction. In fact, as discussed below, judicial
2
efficiency is best served by this Court exercising jurisdiction.
3
While there appear to be no cases in the Ninth Circuit directly examining whether
4
district courts can hear PRA claims, it is clear that they do,11 and it is also well established that
5
supplemental federal jurisdiction extends to “claims that require on-the-record review of state or
6
local administrative determination[s].” Id. at 169. In City of Chicago, the Supreme Court
7
squarely addressed whether federal district courts could exercise supplemental jurisdiction over
8
state law claims in cases containing both federal claims and claims for review of state
9
administrative findings. Id. at 163. Specifically, the Court addressed whether the federal district
10
court had jurisdiction to review a Chicago Landmarks Commission decision to deny permits to
11
allow demolition of a designated landmark. Id. at 160. Under Illinois Administrative Review
12
Law, judicial review of a final decision of a municipal landmarks commission was to
13
specifically lie in state circuit court. Id. at 159. Nevertheless, the Court held that the federal
14
district court could exercise jurisdiction to review the commission’s decision because the
15
district court clearly had federal question jurisdiction over other related claims. Id. at 174. As
16
the Court noted, “[t]here is nothing in the text of § 1367(a) that indicates an exception to
17
supplemental jurisdiction for claims that require on-the-record review of a state or local
18
administrative determination.” Id. at 169.
19
Relying on City of Chicago, the Ninth Circuit has also recognized that federal district
20
courts may exercise jurisdiction over state agency decisions. BNSF Railway Co. v. O’Dea, 572
21
F.3d 785 (9th Cir. 2009). In reviewing a federal district court’s determination that it could not
22
11
For example, in Brown v. King County, Case No. C01-430C (W.D Wash. November 14, 2002), after
23
dismissing all of plaintiff’s other claims, Judge Coughenour heard the “PDA claim based solely on affidavits
as authorized by RCW 42.17.340(3)” and awarded Plaintiff statutory penalties. NY Decl., Exh. FFF.
24
Moreover, there are multiple Ninth Circuit cases reviewing a district court’s ruling on the PRA under 28
25
U.S.C. § 1291 (“final decisions of district courts”), further supporting that district courts regularly hear
PRA claims. See e.g., Hsue v. Carpenter, 118 Fed.Appx. 321 (9th Cir. 2005)(affirming district court’s
26 granting of summary judgment dismissing PRA claims); Doe v. Reed, 586 F.3d 671, 673 (9th Cir.
2009)(asserting jurisdiction under § 1292 and reversing the district court’s decision that the PRA
violated the First Amendment).

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1 exercise diversity jurisdiction over a decision of the Montana Human Right Commission, the

2 Ninth Circuit in O’Dea disagreed. The Court held that based on the Supreme Court’s analysis in

3 City of Chicago, the district court could exercise jurisdiction over the state agency decision,

4 even when that review was based on the record rather than de novo.12 Id. at 791. Thus, even in

5 cases of diversity where no federal claims accompany the state law claims, federal district

6 courts may exercise jurisdiction to review state agency decisions. Id.

7 As such, here, the Court has jurisdiction under § 1367 to review the City’s decision to

8 wrongfully withhold thousands of pages of records in contravention of Washington’s Public

9 Records Act, RCW 42.56 et seq. Indeed, the City has already admitted this Court has

10 jurisdiction over Ms. Lindell’s PRA claims; in both its answer (April 1, 2009) and amended

11 answer (September 16, 2010): “Defendants admit this Court currently has jurisdiction over

12 Plaintiff’s state claims pursuant to 28 U.S.C. § 1367.” Dkts. 14, 172. Moreover, Defendant has

13 already requested this Court to preside over Ms. Lindell’s July and August 2010 PRA requests,

14 with the Court ruling that “the three Public Information Act requests, to the extent they are

15 valid, which is not the question before me, can be served on the City.” See Dkts. 166, 167; Sept.

16 2 Transcript at 5:4-6. (NY Decl., Exh. JJ)

17 Moreover, Ms. Lindell’s PRA claims are intrinsically related to her federal claims, as the

18 records requested under the PRA are highly relevant to facts at issue in this discrimination,

19 harassment and retaliation case. The records memorialize Ms. Lindell’s protected activity, relay

20 Investigator Reed’s belief that retaliation would occur and that successful sexual harassment

21 claims could be made, and contemporaneously document key witnesses’ statements during the

22 Reed Investigation. NY Decl., Exh. EEE. As such, Ms. Lindell’s PRA claims derive from the

23 same nucleus of facts that constitute her federal claims. See 28 U.S.C. § 1367(a).

24

25
12
26 Unlike City of Chicago and O’Dea, where the Federal district courts were asked to perform an on the
record review of the agency decision rather than de novo, the PRA specifically states that judicial review
shall be de novo. RCW 42.56.550(3).

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1 Considerations of judicial economy and fairness also weigh heavily in favor of this

2 Court accepting jurisdiction over the PRA claims. Ms. Lindell’s PRA requests substantially

3 mirror her subsequent federal discovery requests, with the parties spending nearly a year, from

4 September 2009 until November 2010, litigating the discoverability of the records. Indeed, the

5 PRA requests were so related to federal discovery that in withholding documents under FRCP

6 26, Defendant used its PRA withholding log, noting that “[i]nsofar as Ms. Lindell’s discovery

7 requests seek the same documents as her Public Records Act request, the City’s position with

8 respect to which of those documents are privileged is also the same.” NY Decl., Exh. CC.

9 After considerable time and effort, including substantial briefing and argument by both

10 parties and a detailed in camera review by the Court, this Court determined that the City had no

11 legitimate basis for claiming the privilege or work-product for a majority of the documents.

12 Dkts. 182, 184, 186, October 4 Transcript (Exh. KK). Importantly, because the PRA “relies on

13 the rules of pretrial discovery to define the parameters of the work product rule for purposes of

14 applying the exemption,” this Court’s rulings on discoverability under Rule 26 apply equally

15 when reviewing the City’s decision to withhold documents under the PRA. Limstrom, 136

16 Wash.2d at 605. Thus, it is immeasurably more efficient and economical for this Court to hear

17 Ms. Lindell’s PRA claims, as it has essentially already ruled that the records were not exempt.

18 Finally, as established by the Supreme Court of Washington in Spokane Research &

19 Defense Fund v. City of Spokane, summary judgment is an appropriate procedure in PRA cases,

20 and trial court may conduct a hearing based solely on affidavits or in camera review of

21 documents. 155 Wash.2d 89, 106 (2005)(reversing the Court of Appeals and holding that

22 summary judgment is “a proper method to prosecute PDA claims”). Thus, this Court should rule

23 on Ms. Lindell’s summary judgment motion.

24 B. As this Court Has Already Held that Defendant City Failed to Disclose the
Records at Issue, it is Liable under the PRA and Subject to Mandatory
25 Penalties, Costs and Fees.

26
The PRA is a strongly worded mandate for broad disclosure of public records. Hearst

Corp. v. Hoppe, 90 Wn.2d 123, 127 (1978). “The purpose of the public records act is to

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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Page 16 Seattle, Washington 98101
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1 preserve the most central tenets of representative government, namely, the sovereignty of the

2 people and the accountability to the people of public officials and institutions.” O'Connor v.

3 DSHS., 143 Wn.2d 895, 905 (2001)(quoting Progressive Animal Welfare Soc'y v. Univ. of

4 Wash., 125 Wn.2d 243, 251 (1994)). See also RCW 42.17.010(“full access to information

5 concerning the conduct of government on every level must be assured as a fundamental and

6 necessary precondition to the sound governance of a free society”); RCW 42.56.030 (“The

7 people, in delegating authority, do not give their public servants the right to decide what is good

8 for the people to know and what is not good for them to know. The people insist on remaining

9 informed so that they may maintain control over the instruments that they have created.”).

10 In order to promote its purpose, the Act requires all state and local agencies13 to make

11 available for public inspection and copying “all public records” unless the record falls within

12 certain specific exemptions under the Act. RCW 42.56.070(1). The PRA's disclosure provisions

13 must be liberally construed and its exemptions narrowly construed “to promote this public

14 policy and to assure that the public interest will be fully protected.” RCW 42.56.030. Thus, the

15 burden of proof is on the agency to establish that any refusal to permit public inspection and

16 copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part.

17 RCW 42.56.550(1).

18 If the requesting party prevails in a PRA case the court must award reasonable attorney

19 fees14 and costs and penalties between $5 and $100 for each day the agency has failed to

20 produce validly requested records. RCW 42.56.550; Yousoufian v. Office of Ron Sims

21 (Yousoufian IV), 168 Wash.2d 444, 465-66 (2010). The penalties are mandatory under the Act;

22 indeed, courts must impose sanctions even where the agency’s failure to comply with the act

23 was not done in bad faith. Id. at 460. Substantial compliance with the Act is not sufficient to

24 avoid the imposition of the required penalty. Zink v. City of Mesa, 140 Wn.App. 328 (2007).

25 13
The City of Mercer Island is a “local agency” as defined under the PRA. RCW 42.56.010(1).
14
26 “A party who wins disclosure of some, but not all, information sought, is a ‘prevailing party’ for
purposes of awarding attorney fees and costs under the PRA.” Koenig v. Thurston County,155
Wash.App. 398 (Div. 2, 2010).

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1 Moreover, “the PRA requires the agency to pay a penalty for each day the requester is

2 unable to inspect or copy a nonexempt record, regardless of whether the agency created the

3 delay.” Sanders v. State, 240 P.3d 120, 138-139 (2010) (emphasis added)(rejecting the State’s

4 argument that Court “should omit from the penalty calculation the number of days the court

5 took to decide the case,” stating that the PRA “unambiguously provide[s] that the penalty must

6 be for each day the record was wrongfully withheld.”). See also Yousoufian II, 152 Wash.2d at

7 437-438 (reversing the Court of Appeals decision to reduce the amount of days subject to a

8 penalty to account for plaintiff’s delay in filing suit); Kitsap County Prosecuting Attorney's

9 Guild v. Kitsap County, 156 Wash.App. 110, 120 (Div. 2, 2010)(an agency’s good faith reliance

10 on a statutory exemption as a basis for withholding a record from disclosure does not insulate

11 the agency from an assessment of fees and penalties. In the absence of a court order enjoining

12 disclosure, the agency is required to respond to the request).

13 In this case, Defendant City of Mercer Island alleged that numerous records were

14 exempt from disclosure under the work product exemption and attorney client privilege. NY

15 Decl., Exh. N. See Morgan v. City of Federal Way, 166 Wash.2d 747, 754 (2009)(citing RCW

16 42.56.290)(PRA exemptions follow “pretrial discovery . . . “this includes attorney work

17 product, CR 26(b)(4), and records protected by attorney-client privilege, CR 26(b)(1).”).

18 However, as discussed above, after an in camera review, this Court already determined

19 that the City wrongly withheld numerous documents, ordering production in October 2010.

20 Dkts. 182, 184, 186, October 4 Transcript (NY Decl., Exh. N). Again, because the PRA “relies

21 on the rules of pretrial discovery to define the parameters . . . for purposes of applying the

22 exemption,” the Court’s rulings on the discoverability of the documents apply with equal force

23 to the PRA. Limstrom, 136 Wash.2d at 605; Morgan,166 Wash.2d at 754. In other words, as

24 stated by Supreme Court of Washington in Soter v. Cowles Pub. Co.: “If the documents at issue

25 here are discoverable under CR 26, then they are subject to disclosure under the act [PRA].”
26 162 Wash.2d 716, 734 (2007)(emphasis added). As such, given that it is clear the documents at

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1 issue in this case were already ruled discoverable by this Court under Rule 26, the documents

2 were likewise subject to disclosure under the PRA. The only issue left for this Court, therefore,

3 is determining the PRA penalty.

4 C. Defendant’s “Stonewall Effort” to Withhold “Several Thousand Pages’


Worth of Documents” For Over Two Years Justifies a Substantial Penalty.
5
Determining a PRA penalty involves two steps: “(1) determine the amount of days the
6
party was denied access and (2) determine the appropriate per day penalty between $5 and $100
7
depending on the agency's actions.” Yousoufian II, 152 Wash.2d at 438. Here, as illustrated in
8
Exhibit A and Exhibit B, listing the documents requested and the date such materials were
9
finally received, the majority of records at issue were withheld for 882 days, with other discrete
10
records being withheld between 937 and 76 days. EB Decl., Exhs. A, B. These numbers are
11
clearly established by when the records were received by The Blankenship Law Firm. EB Decl.
12
Moving to the second prong, courts consider the following nonexclusive list of
13
aggravating factors when determining the appropriate amount of the daily penalty:
14 (1) a delayed response by the agency, especially in circumstances making time of
the essence, (2) lack of strict compliance by the agency with all the PRA
15 procedural requirements and exceptions, (3) lack of proper training and
supervision of the agency's personnel, (4) unreasonableness of any explanation
16 for noncompliance by the agency, (5) negligent, reckless, wanton, bad faith, or
intentional noncompliance with the PRA by the agency, (6) agency dishonesty,
17 (7) the public importance of the issue to which the request is related, where the
importance was foreseeable to the agency, (8) any actual personal economic loss
18 to the requestor resulting from the agency's misconduct, where the loss was
foreseeable to the agency, and (9) a penalty amount necessary to deter future
19 misconduct by the agency considering the size of the agency and the facts of the
case. Yousoufian IV, 168 Wash.2d at 467-68.
20
Moreover, in Sanders, the Supreme Court held that an agency’s “failure to provide a
21
brief explanation violated the PRA and should be considered as an aggravating factor when
22
setting penalties for withholding nonexempt documents,” and upheld a $3 per diem aggravator
23
(in addition to the daily penalty) for failure to provide such explanation. 240 P.3d at 125. While
24
bad faith by the agency is not required to impose a penalty, it is the principle factor the court
25
must consider. Yousoufian IV, 168 Wash.2d at 460.
26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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Page 19 Seattle, Washington 98101
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1 In Yousoufian IV, the Washington Supreme Court found that the trial court had abused

2 its discretion by awarding a penalty of only $15 a day (“a penalty at the low end of the penalty

3 range”) for several violations of the Act and instead instituted a $45 per day penalty. Id. at 468-

4 69. The Court noted that trial court concluded that “the County was negligent in the way it

5 responded to Mr. Yousoufian’s [PRA] request at every step of the way, and this negligence

6 amounted to lack of good faith.” Id. at 456. As such, it held that “such a low penalty [was]

7 inappropriate and manifestly unreasonable in light of the county’s grossly negligent

8 noncompliance with the PRA.” Id. at 463. The total amount in penalties awarded to the Plaintiff

9 in Yousoufian IV was $371,340 plus attorneys fees and costs in connection with both the trial

10 and the appeal. Id. at 470.

11 Here, the City of Mercer Island’s expansive and bad faith withholding of records for

12 over two years, even going so far as disobeying two court orders requiring it to produce the

13 documents, implicates the majority, if not all, the aggravating factors. Dkts. 185-186. Indeed,

14 given the record, Defendant’s conduct substantiates a daily penalty far exceeding that awarded

15 in Yousoufian, where the agency’s conduct was found to be “negligent,” but not in “‘bad faith’

16 in the sense of intentional nondisclosure.” Id. at 456. As the above facts illustrate, unlike the

17 agency in Yousoufian, the City of Mercer Island intentionally and strategically decided to

18 withhold the requested records under the guise of work product and privilege despite knowing

19 that such exemptions did not apply.

20 Factor 1 (“delayed response by the agency”): Certainly, Court compelled disclosure

21 of public records two years after they were requested violates both the letter and the spirit of the

22 PRA, which clearly states that “responses to requests for public records shall be made promptly

23 by agencies” and imposes a “five business day” benchmark. RCW 42.56.520. In fact, Ms.

24 Lindell believes the City is still withholding requested public records. LL Decl. Moreover, it is

25 undisputed that other than with respect to one document, no metadata has been provided to Ms.
26 Lindell, despite her having explicitly requested metadata and it being ruled by the Supreme

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
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1 Court of Washington a public record. See O'Neill v. City of Shoreline, 240 P.3d 1149,

2 1154 (2010) (ruling that “an electronic version of a record, including its embedded metadata, is

3 a public record subject to disclosure.”).

4 Factor 2 (“lack of strict compliance”): As in Sanders, the City also failed to produce

5 an adequate withholding log in spite of Ms. Lindell’s numerous requests that the City provide a

6 brief explanation of how the exemption applies to the document. NY Decl., Exhs. J, L, EE,

7 HHH. Not only did Defendant’s first exemption log, provided in August 2008, only list forty-

8 two emails and two memoranda as exempt, failing to disclose thousands of other documents the

9 City was withholding as required under the PRA, but it also failed to provide any explanation of

10 how the alleged exemption applied to each record. NY Decl., Exh. H. Defendant did not

11 supplement its log until December 2008 – approximately seven months after Ms. Lindell’s PRA

12 request – yet still refused to provide the mandatory “brief explanation.” NY Decl., Exh. N. To

13 date, Defendant has not provided a sufficient PRA withholding log. As Sanders made clear,

14 however, “allowing the mere identification of a document and the claimed exemption to count

15 as a ‘brief explanation’ would render the brief explanation clause superfluous.” 240 P.3d at 130.

16 This lack of compliance with the PRA procedural requirements justifies an aggravator.15

17 Factor 4 (“unreasonableness of explanation for noncompliance”), 5 (“bad faith”)

18 and 6 (“agency dishonesty”): Notably, this Court already determined that Defendant made a

19 “stonewall effort” 16 to withhold thousands of documents from Ms. Lindell. Oct. 4 Transcript at

20 15:1-7. (NY Decl., Exh. KK). It also acknowledged that the City could not have reasonably

21 believed the withheld records were privileged, stating that such a representation to the Court

22 “simply is factually inaccurate and is incorrect,” that it “was clear to the parties at the time,

23
15
Justice Sanders “did not contact AGO to object to any of the withholding or to request further
24
explanation.” 240 P.3d at126. In contrast, here, Ms. Lindell asked for a revised withholding log,
25
specifically requesting further explanation on multiple occasions over the course of two years. NY Decl.,
Exhs. J, L, EE, HHH. Defendant still refused. Given these facts, an aggravator exceeding $3 is justified. See
26 240 P.3d at 136.
16
“Stonewall” is defined by Merriam Webster Dictionary as “to be uncooperative, obstructive, or
evasive,” “to refuse to comply or cooperate with.”

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 21 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 23 of 27

1 notwithstanding subsequent representations to the contrary, that Ms. Reed was not an attorney

2 hired to provide legal advice in connection with an anticipated claim” that “there is no other

3 evidence supporting another view, other than affidavits and declarations that have been filed

4 now with conclusory statements to the opposite conclusion,” and that it was “abundantly clear

5 that the investigation was conducted because Mr. Conrad wanted to clear his name.” Id. at 6:9-

6 14; 8:4-9, 11-12:11.17

7 Indeed, throughout litigating the discoverability of the documents, Defendant made

8 numerous misrepresentations to the Court, all in an attempt to conceal the records. See e.g.,

9 Dkts. 33, 43 (arguing that the Reed Investigation was privileged and work product, despite

10 knowing that in November 2007 the City expressly and officially waived privilege); Dkt.

11 33(stating that Ms. Lindell’s allegation that litigation was not anticipated “strain credulity,” and

12 are “frankly laughable,” despite the record being clear that no litigation was in fact anticipated);

13 Dkt. 183 (stating that “newly discovered evidence” justified reconsideration, despite the

14 evidence being in Defendant’s possession since at least April 21, 2008, when it was emailed to

15 defense counsel and being listed in Defendant’s privilege log). Perhaps best illustrating

16 Defendant’s bad faith, however, is the fact that when Defendant finally partially complied with

17 Ms. Lindell’s PRA request in October 2010, producing documents it had provided to the Mercer

18 Island Reporter, it revealed that in May 2008, the City of Mercer Island had actually provided

19 the Reporter with some of the very same documents the City refused to provide to Ms. Lindell

20 pursuant to her May 2008 PRA request – documents the City represented to the Court were

21 privileged. Dkts. 213, 214-1.18

22

23
17
Moreover, further illustrating Defendant’s noncompliance, the Court has already determined that Defendant
24
was not “substantially justified” under Rule 37(a)(5)(A) in withholding numerous investigative documents
25
sought under Rule 26. Dkt. 246, 2:1-8. This is an aggravating factor that should be considered.
18
As another example, the City produced Bob Sterbank’s severance agreement, but subject to the
26 protective order in this case. NY Decl. However, in May 2008, the City provided the same severance
agreement, un-redacted, to Mercer Island Reporter Mary Grady, pursuant to her public records act
request. Exh. AAA.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 22 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 24 of 27

1 Factor 7 (“public importance”): The public importance of the issue to which the

2 request is related is substantial. The documents relate to City-wide misconduct and

3 mismanagement by City employees, including City Manager Conrad, thus undoubtedly being of

4 consequence to the public. See e.g. Spokane Research, 155 Wash.2d 89 at 100(“we interpret the

5 [PRA] liberally to promote full disclosure of government activity that the people might know

6 how their representatives have executed the public trust placed in them and so hold them

7 accountable.”). Moreover, they also relate directly to allegations of discrimination, harassment

8 and retaliation. Notably, as “a plaintiff bringing a discrimination case in Washington assumes

9 the role of a private attorney general, vindicating a policy of the highest priority,” certainly such

10 information is of public importance. Allison v. Housing Auth., 118 Wn.2d 79, 86 (1991).

11 Factor 8 (“economic loss to the requester”): The two-plus year battle to obtain clearly

12 discoverable records that would help vindicate Ms. Lindell’s name and character has cost Ms.

13 Lindell hundreds of thousands of dollars in time, fees and costs, in addition to unreasonably

14 delaying litigation of her case. LL Decl. The City has attempted to silence Ms. Lindell, filing

15 counterclaims against her and threatening to file a bar complaint if she reveals the facts

16 underlying her lawsuit. Id. The City knew the withheld records would implicate the City is

17 serious misconduct and substantiate Ms. Lindell’s claims, and made the strategic decision to

18 wrongfully withhold them, making their ultimate disclosure as expensive and drawn out as

19 possible.

20 Factor 9 (“deterrence”): Finally, a high penalty is justified and necessary to deter

21 Mercer Island from future abuses. As discussed above, Defendant’s deliberate and bad faith

22 withholding of clearly discoverable records and disregard of the PRA, especially in light of Ms.

23 Lindell constantly notifying the City of the PRA’s requirements, indicates that the City does not

24 take the PRA seriously and must be discouraged from further noncompliance.

25 Given all of these aggravating factors, this Court should impose the maximum daily
26 penalty of $100 in order to deter future abuses by the City of Mercer Island. Thus, as the City

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 23 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 25 of 27

1 withheld at least seventeen categories of records19 for, depending on the record, between 937 to

2 76 days, the City should be liable for a total PRA penalty of $1,237,200, not including attorney

3 fees and costs. A summary of this calculation is included as Exhibit A. Any lesser penalty would

4 not be proportionate to the City’s misconduct.

5 Finally, because a claimant prevailing against an agency in a PRA action is entitled to

6 recover costs and reasonable attorney fees under RCW 42.56.550(4), to the extent this Court

7 grants Ms. Lindell’s motion, ruling that she is a prevailing party, Ms. Lindell will be submitting

8 a petition for reasonable fees and costs. Guild, 156 Wash.App. at 118 (noting that “attorney

9 fees, costs, and penalties for late disclosure are mandatory,” and stating that in light of

10 Yousoufian IV, any arguments to the contrary are “outdated”).

11 However, because the Court has not yet ruled that Ms. Lindell is a prevailing party, at

12 this point, her fee petition would be premature. RCW 42.56.550(4)(“any person who prevails

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

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

15 time shall be awarded all costs, including reasonable attorney fees, incurred in connection with

16 such legal action.”).

17 IV. CONCLUSION

18 For the foregoing reasons, Ms. Lindell requests that this Court grant Ms. Lindell’s

19 motion for summary judgment, and award Ms. Lindell a PRA penalty of $1,237,200. Ms.

20 Lindell also requests reasonable attorney fees and costs, which she will present to this Court

21 after her motion is granted, as allowed for under RCW 42.56.550(4).

22

23

24 19
The records have been grouped into seventeen categories based on the subject of the documents and the
25
date of production. Exh. A. However, because some documents within a category were produced on a
different day, specifically with respect to correspondence between key parties, Ms. Lindell has enclosed
26 another chart, delineating the production as to each document. Exh. B. However, for purposes of
calculating the penalty, Ms. Lindell still considered “correspondence” as one category, but used the
average number of days the documents were withheld (891 days) in calculating the award.

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 24 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 26 of 27

2
DATED this 6th day of January, 2011.
3

4
THE BLANKENSHIP LAW FIRM, P.S.
5

7 By: /s/ Scott C. G. Blankenship


Scott C. G. Blankenship, WSBA No. 21431
8 Nazik S. H. Youssef, WSBA No. 39762
Rick Goldsworthy, WSBA No. 40684
9
The Blankenship Law Firm, P.S.
10 1201 Third Avenue, Suite 2880
Seattle, WA 98101
11 Telephone: (206) 343-2700
Fax: (206) 343-2704
12 Email: sblankenship@blankenshiplawfirm.com
13
nyoussef@blankenshiplawfirm.com
rgoldsworthy@blankenshiplawfirm.com
14 Attorneys for Plaintiff

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
Page 25 Seattle, Washington 98101
(206) 343-2700
Case 2:08-cv-01827-JLR Document 273 Filed 01/06/11 Page 27 of 27

1
DECLARATION OF SERVICE
2

3 The undersigned hereby declares under penalty of perjury under the laws of the State of

4 Washington that, on the below date, I mailed or caused delivery and/or electronically filed a

5 true copy of this document, which will send notification of such filing, to the following

6 persons:

7
Stephanie R. Alexander, Esq.
8 Suzanne K. Michael, Esq.
Thomas P. Holt, Esq.
9 Michael & Alexander, PLLC
One Convention Place
10 701 Pike Street, Suite 1150
Seattle, WA 98101
11 Telephone: (206) 442-9696
Fax: (206) 442-9699
12 Email: stephanie@michaelandalexander.com
suzanne@michaelandalexander.com
13 thomas@michaelandalexander.com
14 Attorneys for Defendants
15

16
DATED this 6th day of January, 2011, at Seattle, Washington.
17

18

19
/s/ Scott C.G. Blankenship
Scott C. G. Blankenship, WSBA No. 21431
20 The Blankenship Law Firm, P.S.
1201 Third Avenue, Suite 2880
21 Seattle, WA 98101
Telephone: (206) 343-2700
22
Fax: (206) 343-2704
23
Email: sblankenship@blankenshiplawfirm.com

24

25

26

PLAINTIFF LINDELL'S MOTION FOR SUMMARY THE BLANKENSHIP LAW FIRM, P.S.
JUDGMENT ON PLAINTIFF'S PUBLIC RECORD ACT 28th Floor, Washington Mutual Tower
CLAIMS (Cause No. C 08-1827 JLR) 1201 Third Avenue
fa060402 Seattle, Washington 98101
Page 26
(206) 343-2700