ii C..' 6l 1 ,-. tLa1 2014 OCT 2 I AN ^: 3 5i7\ 6\ ' i d 0i1 IN THE COURT OF APPEALS OF THE STATE OF WASHING 

### CI ` \"'! DIVISION II
ARTHUR WEST, Appellant.

v. CHRISTINE GREGOIRE, GOVERNER OF THE STATE OF WASHINGTON, STATE OF WASHINGTON, Respondents. No. 45812 - 8 -I1

PUBLISHED OPINION

MAxA, J. — 

### Arthur West appeals the trial court's dismissal, following show cause proceedings under former RCW 42. 56. 550 (2005),' ofhis complaint alleging that then Governor Christine Gregoire violated the Public Records Act (PRA), chapter 42 RCW, 

### by refusing to produce numerous records under a claim ofexecutive privilege. West initially argued thatthe trial court erred in recognizing an executive privilege as a PRA exemption. However, our Supreme Court resolved this issue in Freedom Foundation v. Gregoire, 178 Wn.2d 686, 310 P. 3d 1252 (2013), 

### holding that a qualified executive communications privilege operates as a PRA exemption. West now asserts that the trial 

### court erred in dismissing his lawsuit based on the executive privilege because he also asserted additional PRA claims relating to Gregoire' s alleged unreasonable delay in
1 RCW 42.56.550 was amended in 2011, but the provisions at issue here were unchanged. LAWS OF 2011, ch. 273, § 1.45812 -8 -II



### producing records and othergrounds, and because the trial court should have deferred ruling on whether West could showaparticularized need forthe records requested under the second part ofthe Freedom Foundation test. We hold that (1) the trial court did not err in dismissing all West' s claims 

### following the former RCW 42.56.550 show cause proceedings because West abandoned all claims otherthan those based on his argument that the executive privilege was not a valid PRA exemption, and (2).the trial court properly ruled that the executive privilege 

### precluded disclosure because Westfailed to submit any evidence that he had a 

### particularized need forthe records requested. Accordingly, we affirm. FACTS 

### In January 2010, West made a PRA requestto Gregoire for all records forwhich she had asserted executive privilege since 2007. The governor' s office responded within five business 

### days, as required by RCW 42.56.520, explaining that itwould takethreeto fourweeksto process the request and provide the responsive records and an exemption log listing records covered by 

### any exemptions. However,the governor's office did not communicate furtherwith Westfor

over eight months. On September 3, the governor' s office prepared a letter notifying West that the records 

### and exemption log were available for inspection and copying. West claims he never received this letter. On September 24, West filed suit against Gregoire to compel production of all records forwhich Gregoire had "wrongfully asserted an executive privilege exemption where

none exists under the [ PRA]," Clerk' s Papers ( CP) at 5. West also sought penalties under the 

### PRA and adeclaratory ruling thatthe privilege itselfwas not avalid PRA exemption. On
245812 -8 -II

September 27, West appeared atthe governor' s office to inspect the records, and he received copies ofnumerous records and the exemption log. More than five months later, West moved for a show cause order. He requested that 

### Gregoire appear and show cause why she should not be found in violation ofthe PRA forfailing to ( 1) produce records in a reasonable time, (

### 2) produce an exemption log citing to a recognized 

### exemption, and (3) produce public records in response to his request. In a supporting declaration West alleged that the governor' s office "failed to produce the records in a reasonable time (over 8 months)." CP at 46. Gregoire did not file a separate motion to dismiss West' s PRA lawsuit. However, in her response brief Gregoire requested that the trial court dismiss the lawsuit because 

### the only claim Mr.West has made in this matter is that executive privilege is not recognized in this state as a basis for exemption from disclosure under the [ PRA]." CP at 1044. In support ofhis show cause motion, West filed an initial briefand a supplemental
memorandum —

both obviously copied from briefs in other cases —which focused only on whether the executive privilege was an exemption to the PRA and provided no reference to the facts ofWest' s claim against Gregoire. West did not argue in either ofhis briefs or in his 

### supporting declarations that he had additional PRA claims based on Gregoire' s delay in responding to the PRA request or any other grounds. In June 2011, after the parties had filed their briefs but before the court heard oral argument, the governor's office disclosed another batch ofrecords not previously identified that were responsive to West' s request. The governor' s office also produced an additional exemption 

### log asserting executive privilege for some ofthese newly disclosed documents. West moved to 

### supplementthe record with copies ofthe new log and the " silentlywithheld" documents the 345812 - 8 -I1

governor' s office had just produced, "[ f]or the court to rule in an informed manner on the propriety ofthe executive privilege exemption." CP at 697. But he did not move to amend his complaint to assert new PRA claims related to the disclosure or request a continuance ofthe 

### show cause hearing. 

### On June 17, the trial court held a hearing on West's show cause motion. West argued 

### onlythat Gregoire unlawfullywithheld certain records because the executive privilege was not a PRA exemption. He did not argue that he had PRA claims based on Gregoire' s delay in 

### responding to his request oranyother grounds. After oral argumentthetrial court ruled in Gregoire' s favor on the executive privilege issue and dismissed West' s lawsuit. West objected to the dismissal on the grounds that because Gregoire had produced some records after he filed 

### suit, he had prevailed and was entitled to reliefunder his complaint. West did not argue thatthe trial court could not dismiss his complaint because he had raised additional PRA claims resulting 

### from Gregoire's delay in responding to his request or any other grounds. 

### The parties submitted proposed orders memorializing thetrial court'soral ruling. West's proposed order included language expressly denying claims for failure to produce records and exemption logs in a reasonable time. But the trial court signed the State' s proposed order, which did not include this language. The trial court noted that it had ruled only on the executive 

### privilege issue and that West had not presented any other issues to the court. The trial court's 

### final order included a conclusion oflawthatthe only issue before the court was Gregoire' s 

### abilityto assertthe executive privilege. West moved for reconsideration, arguing thatthe court erred in dismissing his additional claims sua sponte. The trial court denied the motion.

445812 - 8 -II West filed a notice ofappeal in the Supreme Court, which included a reference to a PRA 

### claim related to Gregoire' s delay in responding to the PRA request and " silent withholding" of 

### the documents produced in June 2011.2 CP at 999. Atthe time West filed his appeal, Washington law still was unsettled as to whether executive privilege could be claimed as an exemption to the PRA. West sought to consolidate his case on appeal with Freedom Foundation, which was then before the Supreme Court and involved the same underlying challenge to the executive privilege exemption. The Supreme Court denied consolidation and stayed West' s case. 

### The Supreme Court ultimately held in Freedom Foundation that the executive privilege operated as a constitutional exemption to the PRA disclosure requirements and laid out the applicable test for 

### deciding whether the exemption applies. 178 Wn.2d at 699 - 705. The court then remanded West's case to this court for a decision in light ofits holding in Freedom Foundation. ANALYSIS 

### We review challenges to an agency action under the PRA de novo. Former RCW 42.56.550(3); ResidentAction Council v. Seattle Hous. Auth., 177 Wn.2d 417, 428, 300 P.3d 376 2013). The PRA requires disclosure of public records upon request, unless an exemption applies. RCW 42. 56.070( 1). The burden is on the agency to show that such an exemption 

### applies, former RCW 42.56.550, and we narrowly construe exemptions. RCW 42.56.030.



### 2 West actuallyfiled the notice ofappeal beforethe trial court entered written findings and conclusions on his show cause ruling 545812 - 8 -II
A. WEST' S ADDITIONAL CLAIMS FOR PRA VIOLATIONS West argues that even if executive privilege constitutes an exemption to the PRA, the 

### trial court erred in dismissing his lawsuit because he had asserted additional claims that Gregoire violated the PRA by failing to promptly respondto his requests, failing to produce or identify in exemption logs some documents responsive to his requests, improperly claiming other PRA exemptions for records not subject to an assertion ofexecutive privilege, and silently withholding a second set of records until June 2011. We hold that even assuming West raised 

### these claims in his initial pleadings, he abandoned the claims by failing to argue them in the
show cause proceedings. West consistently characterized his lawsuit as one challenging the assertion ofexecutive privilege. For instance, he began his complaint 

### by stating that "[ t]his is an action ... 

### resulting from (1) an improper assertion of an executive privilege exemption." CP at 3. But West did 

### assert at least an unlawful delay claim in his initial pleadings. West' s complaint alleges that 

### Gregoire failed to reasonably disclose records in atimely manner and failed to promptly respond or disclose relevant records. And in his motion for a show cause order, West requested an order 

### compelling Gregoire to appear and show cause why she should not be found in violation ofthe 

### PRAfor, among otherthings, failing to produce records in a reasonable time. In a supporting declaration, West stated that the governor' s office had "failed to produce the records in a
reasonable time (over 8 months)" 

### and had improperly asserted an executive privilege.3 CP at46.

3 Later,West referenced "secondary issues" related to the governor's assertion ofexemptions other than executive privilege. CP at 661. However, he did not plead this issue in his complaint or reference it in his motion for a show cause order. 645812 - 8 -II 

### However, during the show cause process West did not argue any claims otherthan those 

### involving the executive privilege. His two briefs focused solely on whether executive privilege was a valid PRA exemption. West did not address additional claims in oral argument. On this 

### basis, the trial court expressly concluded that West did not present any other issues to the court besides whether Gregoire could assert an executive privilege as an exemption to the PRA. West did not assign error to this conclusion. 

### Whether a requestor in a PRA action abandons claims by failing to argue them at the 

### showcause hearing is a matter offirst impression. But had Westfailedto presenthis claims in a formal trial or in response to a summaryjudgment motion,there is no question thatthose claims 

### would be deemed abandoned. When a party asserts a claim in pleadings but attrial does not press" the claim in anyway or present evidence to support it,the party abandons that claim. See Rainer Nat' l 

### Bank v. McCracken, 26 Wn.App. 498, 508, 615 P.2d 469 ( 1980) ( affirming dismissal of counterclaim). 

### Similarly,a plaintiffabandons a:claim asserted in a complaint by failing to address the claim in opposition pleadings, present evidence to supportthe claim,or argue the claim in response to a summaryjudgment motion seeking dismissal ofthe entire 

### complaint. Cano -

Garcia v. King County, 168 Wn.App. 223, 248, 277 P.3d 34, review denied, 175 Wn.2d 1010 (2012).4 The question here is whetherwe should treat a show cause proceeding underformer RCW 42.56.550(1) like atrial or summaryjudgment motion when determining whether a claimant has abandoned PRA claims.

And as a general rule, we will not address abandoned issues on appeal. Gronquistv. Dep' t of Corr., 177 Wn.App. 389, 401, 313 P. 3d 416 (2013), review denied, 180 Wn.2nd 1004 (2014). 745812 - 8 -II 

### Underthe PRA, a requester may seekjudicial review ofan agency' s refusal to produce the requested records via " any kind of civil action." Spokane Research & 

### Def.Fund v. City of Spokane, 155 Wn.2d 89, 104, 117 P. 3d 1117 (2005). Former RCW 42.56.550( 1) also provides 

### that arequestor deniedthe opportunity to inspect or copy apublic record may move for an order 

### requiring the agency to show cause why ithas refused to allowinspection or copying. Inthis show cause proceeding the agency bears the burden ofestablishingthat its refusal to produce the
records did not violate the PRA. Former RCW 42.56. 550( 1). 

### The show cause hearing may be held on affidavits, former RCW 42.56.550(3), 

### or as atrial - type hearing involving oral argument
and live testimony. Wood v. Thurston 

### County, 117 Wn. App. 22, 28, 68 P.3d 1084 (2003). The 

### courtmay completely resolve PRA claims inthe show cause proceeding. See O'Neill v. City of Shoreline, 170 Wn.2d 138, 154, 240 P. 3d 1149 ( 2010); 

### Zinkv. City ofMesa, 140 Wn.App. 328, 335, 166 P. 3d 738 (2007). 

### Given this procedure, aformer RCW 42.56.550(1) show cause proceeding is, in effect, 

### the PRA claimant's trial. Atthe very least, itoperates like a motion for summaryjudgment on the claimant' s PRA claims. Therefore, as in atrial or summaryjudgment motion, West was required to address all the claims that he wanted to pursue against Gregoire in the show cause 

### proceedings that he initiated. Because he did not even mention any claims not involving the executive privilege in his briefs or in oral argument, he is deemed to have abandoned those
claims.

### Requiring a PRA claimantto address all PRA claims during show cause proceedings in orderto avoid abandonment promotes the orderly administration ofPRA requests and is consistent with the purposes ofthe PRA. To hold otherwise would allow PRA claimants to 845812 - 8 -II 

### assert their claims in apiecemeal fashion,which would delaythe ultimate resolution ofdisputes 

### involving PRArequests and result injudicial inefficiency. See Brown v. Gen. Motors Corp., 67 Wn.2d 278, 282, 407 P.2d 461 ( 1965) ( "[ p] iecemeal litigation is not to be encouraged. "); State ex rel. Lemon v. Coffin, 52 Wn.2d 894, 898, 332 P.2d 1096 ( 1958). We hold that unless the parties agree or the trial court rules otherwise, a PRA claimant abandons all PRA claims ifthe claimant does not address those claims in briefing or argument in

a former RCW 42. 56.550( 1) show cause proceeding.

### 5 Because West argued only his executive privilege claim in the show cause proceedings, we hold that he abandoned any other PRA claims. B. APPLICATION OF EXECUTIVE PRIVILEGE TEST West argues thatthe trial court erred in dismissing his PRA claim based on executive 

### privilege withoutfirstgiving him the opportunity to showa "particularized need" forthe privileged records under the second part ofwhat became the Freedom Foundation test. We 

### disagree. West had the opportunityto showthathe had a particularized need forthe documents protected bythe executive privilege,but failed to submit any such evidence or argument. Although our Supreme Court had notyet decided Freedom Foundation when the trial court ruled, Gregoire argued in the show cause proceedings that the trial court should apply the 

### three - parttestfor analyzing the privilegethatthe Supreme Court ultimately adopted. Gregoire 

### specifically argued that ifthe privilege applied, West could obtain the protected records only if he could show a particularized need forthem. As a result, West knew that ifthe trial court



### 5 Ourholding should not be interpreted as preventing a PRA claimant oran agencyfrom requesting thatthe trial court address multiple claims in separate show cause proceedings, or preventing atrial courtfrom conducting separate proceedings for different claims. 945812 - 8 -II accepted the three -part test, he had to come forward with some evidence on his need forthe records. But he made no effort to show that he had a particularized need for the records he had
requested. As noted above, the trial court ruled that Gregoire could assert executive privilege as an exemption to the PRA and adopted the three - part test for analyzing the privilege. The trial court indicated that the withheld documents appeared to fall within the privilege. This required the trial court to address the second part of the test — whether West could overcome the presumption
of privilege. The trial court then concluded that " Mr. West offered no basis to find that ... the
presumption of privilege should be overcome." CP at 1008. Because he presented no evidence 

### or argument on the issue, the trial court necessarily ruled thatWest did not satisfy the second part ofthe test eventually adopted in Freedom Foundation. West argues that the trial court unfairly applied a newtestto his PRA claim without 

### providing adequate notice,whichviolated his right to due process. However,West had adequate notice ofthe requirements ofthe three - part test. The test has been used in federal courts since the U.S. Supreme Court decision in United States v. Nixon, 418,U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 ( 1974). And in her response to the show cause motion, Gregoire specifically argued 

### thatthe trial court should apply the three - parttest and that West had made no attempt to show a particularized need. West responded to this argument in his supplemental briefand argued 

### against adoption ofthe three - part test, but he did not advance any claim at that time that he had a particularized need for the records requested. 

### West cites no authorityforthe proposition that atrial court cannot adopt and apply a legal analysis as a matter offirst impression when the parties have fully briefed the issue. West had 1045812 - 8 -II 

### every opportunityto present an argumentthathe did have aparticularized need forthe records requested, and he should not be allowed to benefit from his failure to do so. We hold that under 

### these circumstances the trial court did not err in applying thethree - parttestto West's claims and 

### did not infringe on his rightto due process.6 C. ATTORNEY FEES

West requests attorney fees for his appeal. See RAP 18. 1. A prevailing plaintiffin a 

### PRA action is entitled to reasonable attorney fees and all costs associated with the litigation, in
addition to any penalties assessed against the agency. Former RCW 42.56. 550(4). Because 

### West does not prevail, we deny West's request for attorney fees. We affirm the trial court' s dismissal ofWest' s complaint.

We concur:



### 6 West also challenges the evidentiary sufficiency forfindings offact 2, 3, and 8 in the trial court' s final order. These findings indicate that West received the September 3, 2010 letter from 

### the governor' s office. Because ofour holding above,these findings are immaterial and we need not address West' s challenges. 11