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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FREDERICK and ANNALESA THOMAS, Appellants,

PIERCE COUNTY PROSECUTING ATTORNEY'S OFFICE, Respondent. DIVISION ONE
No. 73360-5-1 UNPUBLISHED OPINION

FILED: October 19, 2015 

### Dwyer, J. — Frederick and Annalesa Thomas's son was killed in an 

### officer-involved shooting. Before a charging decision was made in connection with the shooting, the Thomases made a public records request to the Pierce 

### County Prosecuting Attorney's Office (PCPAO) for all documentsrelated to the shooting. The PCPAO denied this request, claiming that the requested records were exempt from disclosure pursuantto RCW42.56.240(1), the law enforcement exemption, and CR 26, the work product rule. The Thomases 

### brought suit, alleging that the denial was improper. On cross motions for 

### summaryjudgment, thetrial court granted summaryjudgment in the PCPAO's
favor. We now affirm.No. 73360-5-1/2

I 

### In the early morning hours of May 24, 2013, after a lengthy standoff, Officer Brian Markert shot and killed Leonard Thomas. Significant evidentiary 

### disputes exist between the parties with regard to the circumstances of the shooting but, as the trial court correctly observed in its order on summary 

### judgment, "very few of [thesedisputes] are material to the questions presented in this summaryjudgmentmotion." In sum, the Thomases believethat the police shot Thomas without good reason, while the PCPAO asserts that the police had lawful cause to shoot Thomas. The police believed that Thomas was mentally 

### unstable and was holding hischild as a shield or hostage during a tense standoff. 

### They claim thesituation was highly unstable anddangerous. TheThomases describe a much a different situation, and argue that the police overreacted to a situation about which they did not know enough. 

### On May 29, 2013, five days aftertheshooting, theThomases made their first clusterofpublic records requests pursuanttoWashington's Public Records Act (PRA), 42.56 RCW, seeking records from thevarious law enforcement 

### agencies thatwere investigating the shooting (but notthe PCPAO). With one exception, theagencies responded tothe Thomases' request by denying access to the records based on the fact that there was an "open and active 

### investigation." The agencies asserted thatthey were conducting investigations into whether any officer should becharged with a criminal offense arising out of the standoffor the shooting. 

### On August 5, theThomases sentthePCPAO a letter requesting, "all files,No. 73360-5-1/3 records, and documents containing any information regarding the shooting of Leonard Thomas." The subject line ofthe letter identified itas a "public records 

### request."1 

### On August 28, 2013, Fife Police Detective Thomas Gow, the lead detective investigating the shooting of Leonard Thomas, presented a summary of 

### his investigation to the PCPAO.2 Approximately one week priorto delivering the summary, Detective Gow provided the entirety of his investigatory materials to
the PCPAO. 

### On September 3, 29 days after the Thomases' public records request, the PCPAO denied the request, setting forth two reasons for the denial. First, it 

### denied the request pursuant to RCW 42.56.240(1), asserting that the records

were "essential to effective law enforcement." Second, the PCPAO denied the 

### request because, it asserted, the materials in the PCPAO's file weregathered in anticipation oflitigation and, thus, constituted work product. 

### On September 4, the Pierce County Prosecuting Attorney announced his 

### finding that the shooting ofLeonard Thomas was legallyjustifiable and that the PCPAO would not file criminal charges against any of the lawenforcement
officers involved. 

### The Thomases did not seek to clarify PCPAO's denial of their PRA 

### request between September 3 and October 3, nor did they explain to thePCPAO why the denial ofthese recordsconstituted a substantial hardship or 1Thisletterwas received by the PCPAO onAugust 6. Thus, the partiessometimes refer tothis requestas theAugust 6 request. Wewill refer toit by the date that theletterwas sent, August 5. 2Felony crimes investigated by theFife Police Department are almost universally referred to the PCPAO for charging decisions.No. 73360-5-1/4 

### communicate why they could not obtain the records elsewhere. In fact, they had

no communication whatsoever with the PCPAO during this period. On October 3, the Thomases sent a letter to the PCPAO in which they 

### acknowledged receipt of the PCPAO's denial of their August 3 records request. The letter went on to remind the PCPAO that, the day following the denial, the Prosecutor had ruled the Thomas shooting justifiable. The Thomases then made the following request: 

### Would you please clarify and/or confirm that yourstatement of September 3, 2013 remains in effect and that the Prosecuting Attorney's Officewill not release any documents pursuant to our 

### August 6, 2013 request, notwithstanding the decision that no 

### criminal charges will be filed against any of the officers involved in that matter? 

### The PCPAO responded to this letter on October 7, stating, 

### [0]ur September 3, 2013 letter remains in effect and
... the Prosecutor's Office will not release any documents pursuant to your August 6, 2013 request. . . . 

### Please see page two of our September 3, 2013 letter to youwhich states in part, "thework productprivilege continues even after the prospect oflitigation has terminated." 

### The records requested by the Thomases consisted entirely of police 

### reports and other documents generated by law enforcementofficials that were 

### collected by the PCPAO in preparation for making its decision regarding whether tofile criminal charges against any law enforcement officer in the Leonard 

### Thomas shooting.3 Keith Barnes, an investigatorwith the PCPAO, accomplished

3In its briefing, thePCPAO confuses the issueonthis point. The Thomases make clear that, at leastatthis stage ofthelitigation, they areonly challenging thedenial ofrecords thatthe prosecutor'sinvestigator, Keith Barnes, took no partin creating. There is no confusion about the scope of [the Thomases'] work product 

### challenge—itencompasses only those documents created by third-party policeNo. 73360-5-1/5 the collection ofthese documents by using a law enforcement records computer system that allowed him to access all ofthe documents related to the investigation. Without making a specific request therefor, Barnes also received a binder containing "a complete copy ofthe Fife Police Department's investigation 

### file regarding the . . . shooting" from Gow. By all accounts, Barnes engaged in no culling or analyzing when gathering this material. To the contrary, pursuant to the strict rules requiring the gathering of all investigative materials from every 

### agency working on an investigation,4 he simplygathered every document 

### produced by any lawenforcement agency that worked on the investigation and
converted it into the PCPAO's file. The documents that Barnes collected for the PCPAO's file are the documents the Thomases sought in their PRA request.
II The Thomases contend that the PCPAO violated the PRA by denying 

### them access to the records they requested. The PCPAO contends to the 

### contrary, asserting that the requested records were exemptfrom disclosure under both the lawenforcement exemption (RCW42.56.240(1)) and the work 

### product rule (CR 26). Ifthe PCPAO was correctregarding the applicability of agencies where the [PCPAO's] Investigator (Keith Barnes) played norole, except torotely move thereports orwitness interviews from oneplace toanother. See 

### [Clerk's Papers (CP)j CP 131, 134-35, 199. Asthe trial courtaccuratelyfound, "In this case, the prosecutors literallyjust requested all documents from all law enforcement agencies involved in the shooting, and then placed those documents into their files." CP 220. As before the trial court, [the Thomases] do[] not seek production of documents thatMr. Barnes created or witness interviews hemay haveconducted. Forpurposes ofthis appeal, theonly records at stake are those created independent of Mr. Barnes. Appellants' Reply Br. at 6 (footnote omitted). 4See CrR4.7; Bradv v. Maryland. 373 U.S. 83, 87, 83 S. Ct 1194, 10 L Ed. 2d 215 (1963); In re Brennan. 117Wn. App. 797, 802-03, 72 P.3d 182(2003).No. 73360-5-1/6 either exemption, then the records were properly withheld, and there was no PRA violation.5 Before we can determine the applicability of the claimed exemptions, we must resolve the parties' dispute regarding which PRA request is herein at issue.
A We review de novo a trial court's order granting summaryjudgment. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 497, 210 

### P.3d 308 (2009) (citing Biqqers v. City ofBainbridae Island, 162Wn.2d 683, 693, 169 P.3d 14 (2007)). Summaryjudgment is appropriate "ifthe pleadings, 

### depositions, answers to interrogatories, and admissions onfile, together with the 

### affidavits, ifany, showthat there is nogenuine issue as to anymaterial fact and that the moving party isentitled to a judgment as a matter oflaw." CR56(c); Owen v. Burlington N. &Santa Fe R.R. Co.. 153 Wn.2d 780, 787, 108 P.3d 1220 

### (2005). In determining whether a genuine issue ofmaterial fact exists, weview all facts and draw all reasonable inferences in favor of the nonmoving party. 

### Owen, 153 Wn.2d at 787 (citing Ruffv. King County, 125Wn.2d 697, 703, 887 P.2d 886 (1995)). 

### The function of a summaryjudgment proceeding is to determine 

### whethera genuine issue ofmaterial factexists. It is not... to resolve issues offact or to arrive at conclusions based thereon. State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 424-25, 367 P.2d 

### 985 (1962). Consequently,
. . . findings offact and conclusions of lawentered [on summaryjudgment] are superfluous and may not be considered to the prejudice of the [non-prevailing party]. Duckworth v. Citv of Bonnev Lake, 91 Wn.2d 19, 21-22, 586 P.2d 860 (1978). 5ThePRA isviolated when an agencyimproperly withholds records from a requestor. It is the fact that a record was withheld when it should have been made available that constitutes a violation. RCW 42.56.550.No. 73360-5-1/7

B The parties herein dispute the effect of the Thomases' October 3 letter. The Thomases contend that this letter constituted a new records request. The PCPAO claims that the wording of the letter plainly sets forth a request for the PCPAO to clarify its response to the Thomases' August 5 request. Thus, the 

### PCPAO asserts, the August 5 request is the only request at issue. The PCPAO has the better ofthis dispute. 

### The PRA is a strongly worded mandate for broad disclosure of public 

### records. We liberally construe the act, and narrowlyconstrue its exemptions in favor of disclosure. Soterv. Cowles Publ'q. Co.. 162 Wn.2d 716, 731, 174 P.3d 

### 60 (2007); accord RCW42.56.030. However, "the P[R]A 'only applies when public records have been requested. In other words, public disclosure is not 

### necessary until and unless there has been a specific request for records.'" Wood
v. Lowe, 102Wn. App. 872, 876-77, 10 P.3d 494 (2000) (quoting Bonamv v. City of Seattle, 92Wn. App. 403, 409, 960 P.2d 447 (1998)). A"'specific request for records'" occurs when "the person requesting documents from an agency state[s] 

### the request with sufficientclarity to givethe agencyfairnotice that it had received a requestfor a public record."6 Wood, 102Wn. App. at 878 (emphasis added).

6The fair notice requirement is one of the few burdens placed on requestors. Atoral argument, counselfor the Thomases suggested, in effect, that weeliminate thisthreshold requirement and, instead, treat a lackoffair notice as a mitigating factorin assessing statutory penalties. In supportof thisargument, counselcited Yousoufian v. Office ofRon Sims, 168 Wn.2d444, 229 P.3d 735 (2010), which included the lack ofclarity regarding the subject of a requestin a list ofmitigating factors when assessing penalties. ButYousoufian addressed a lack ofclarity with regard toprecisely which records were being requested, notregarding whether a records request was being made at all. 168Wn.2d at 454. This is a crucialdifference. Ifit is clear that a request has been made, even ifthe subject of the request is unclear, the agency has been notified that itmust engage in an interactive processwith the requestorto clarify andrespond to therequest. Hobbs v. Wash. StateAuditor's Office. 183 Wn. App. 925, 941No. 73360-5-1/8 In other words, at a minimum, the PRA "require[s] that requests be recognizable


### as PRArequests." Beal v. City ofSeattle, 150 Wn. App. 865, 876, 209 P.3d 872 

### (2009). However, "fair notice" does not require the requestor to cite the PRAin 

### his request. Wood, 102Wn. App. at 878. Moreover, "there is no official format for a valid P[R]A request." Hangartnerv. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d 26 (2004). In determining whether a purported request provided the target 

### agencysufficient notice thatit was a records request, we lookto the information included on the face of the "request." See Koeniq v. Citv ofPes Moines, 158 Wn.2d 173, 183-84, 142 P.3d 162 (2006) (holding that, inorder to promote 

### uniform disclosure, courts must focus on the information availablewithin the four
corners of the document in determining whether an exemption applies to a given record). 

### The relevant part of the October 3 letter is as follows: 

### Would you pleaseclarify and/orconfirm thatyour statement of September 3, 2013remains in effect and that the Prosecuting Attorney's Office will not release anydocuments pursuantto our August 6, 2013request, notwithstanding the decision that no 

### criminal chargeswill befiled againstany oftheofficers involved in that matter? (Emphasis added.) 

### The trial court made two observations regarding this request: "(1) The 

### October 3, 2013 letterwasunclear, [ujnartful, and lent itselftoconfusion; but, (2) 

## Any such request related to records underthe PRA should have been broadly n.12, 335 P.3d 1004 (2014). Where anagency has beenalerted to thefact thatitsstatutory 

### responsibilities have been triggered, itis reasonable to hold the agency accountablefor its responsiveness. By contrast, where an agency has notbeen soalerted and, moreover, itis within the requestor's powertoputthe agency on notice, it is unreasonable tohold the agency 

### responsiblefor its lackofresponse. The fair notice requirementis an importantaspectofPRA jurisprudence.

-8-No. 73360-5-1/9 interpreted per the intent ofthe legislature." Itthen concluded "that the October 3, 2013 letter constituted a subsequent PRA request." The trial court's conclusion that the October 3 letter stated a records request with sufficient clarity to give the PCPAO fair notice that its PRA responsibilities had been triggered is contrary to the record. On its face, the October 3 letter did not state a new records request. The letter did not declare itself to be a PRA request, nor did itotherwise communicate that its purpose was 

### to request records. Instead, the letter clearly requested a clarification or confirmation from the PCPAO regarding its response to an earlier records 

### request.7 In order to reach the conclusion suggested by the Thomases, the law would have to require that the PCPAO read ambiguity into the unambiguous letter. The law does not so require. 

### Moreover, the Thomases' assertion that the October 3 letter really was 

### intended as a new records request is undermined both bythe sharp contrast between the Thomases' October 3 and August 5 letters and by their own 

### treatment of the letter at the time it was sent and forsome time thereafter.8 Unlike their October 3 letter, the Thomases' August 5 letter clearly communicated 

### that itwas a records request. In fact, the August 5 letter stated that itwas a 

### "public records request" both in the letter's subjectline and in thefirst sentence of
7"[Pursuantto our August 6, 2013 request " 8In turning to otherinteractions between the parties, weapply an interpretive approach from contract law. Courts facedwith questions of contractinterpretation must discern the intent of thecontracting parties, andmay consider evidence extrinsic to thecontract itself for that purpose
.... [S]uch evidence mayinclude
... thecircumstances under which the [contract] was made [and] the parties' conduct thereafter. Hearst Commc'ns. Inc.v. Seattle Times Co.. 120 Wn. App. 784, 791, 86 P.3d 1194 (2004) (citing Bera v. Hudesman, 115 Wn.2d 657, 667-68, 801 P.2d 222 (1990)), affd, 154 Wn.2d 493, 115 P.3d 262 (2005).No. 73360-5-1/10 

### the body text. The Thomases' demonstrated ability to state a clear records 

### request suggests that, contrary to their present assertion, they did not intend for the October 3 letter to be a new PRA request. 

### Furthermore, until the underlying litigation had progressed significantly,
not even the Thomases treated the October 3 letter as if it were a separate 

### request. The Thomases did not, for example, reply to the PCPAO's response to their October 3 letter by either clarifying that they were making a new request or 

### accepting the response as a denial and communicating a substantial need for the records. In terms of the underlying litigation, the Thomases did not refer to the October 3 letteras a separate request in their complaint. Notably, the Thomases also did not listthe October 3 letter as a request in response to an interrogatory 

### from the PCPAO asking them to "[l]ist all public records requests to everylaw 

### enforcement orgovernmental agency from which plaintiffs . . . havesought documents in connection with the incident involving Leonard Thomas of May 24, 

### 2013."9 In fact, the first time that the Thomases averred that the October 3 letter 

### was a separate PRA requestwasin their response tothePCPAO's motion for summaryjudgment.10 

### In short, we are persuaded—by the content ofthe October 3 letter itself, the contrast between this letter and the Thomases' August 5 request, and the 

### Thomases' owntreatment of the October 3 letter—that the October 3 letterwould

9The Thomases listed their responses chronologically. Proximate toOctober 3, they listed only the following requests: 8/5/2013 PRA Request to Pierce County Prosecutor 12/2/2013 PRA Request to Pierce County Prosecutor 

### 10Therein, they referfor thefirst time to"both the[ir] August 5and October 3 PRA requests."

-10-No. 73360-5-1/11


### not have put the PCPAO on notice that it had received a records request and, thus, did not constitute a new request under the PRA. 

### In their appellate reply brief, the Thomases assert that "only" their "October 3, 2013 request is at issue." Appellants' Reply Br. at 3. Thus, our determination that, in fact, there was no October 3 request is dispositive of the 

### Thomases claim regarding whether records were improperly held in response to 

### that "request." For the sake ofclarity and completeness, we nevertheless 

### address the propriety ofwithholding the records pursuant to the exemptions 

### claimed by the PCPAO, which is the primary focus ofthe parties' appellate briefing.
C 

### In itsmotion for summaryjudgment, the PCPAO contended that the 

## requested records were exempt underthe effective law enforcementexemption. This is so, it asserted, because—at the time ofthe request—the records were 

### part ofan open, ongoing investigation. ThePCPAO iscorrect. Once documents are determined to be within the scope ofthe PRA, 

### disclosure isrequired unless a specific statutory exemption applies. Dawson v. Daly, 120Wn.2d 782, 789, 845 P.2d 995 (1993); accord RCW 42.56.070(1). The 

### burden ofproofis on theparty seeking toprevent disclosure toshow that an 

## exemption applies. Limstrom v. Ladenburg, 136Wn.2d 595, 612, 963 P.2d 869 (1998); accord RCW 42.56.540, .550(1). The effective lawenforcement exemption to the PRA provides that the following information is exempt from disclosure:

11No. 73360-5-1/12 

### Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology 

### agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy. RCW 42.56.240(1). 

### The statute first requires that the information be compiled by law 

### enforcement. "[A]ny documents placed in [a law enforcement] investigation file 

### satisfy the requirementthat the information iscompiled by law enforcement." Newman v. King County, 133 Wn.2d 565, 573, 947 P.2d 712 (1997). This is so
even ifthe documents "remain available in their original and unprotected 

### capacity." Newman, 133Wn.2d at 573. The statute alsorequires that the documents be essential to effective law enforcement. 

### Typically, the agency claiming exemption mustprove that nondisclosure of the particular requested documents is essential to effective law enforcement. However, [our Supreme Court] has held that the effective law enforcement exemption applies categorically in a narrow set of circumstances. 

### Sargent v. Seattle Police Dep't, 179 Wn.2d 376, 387, 314 P.3d 1093 (2013). 

### To qualify for a categorical exemption, documents must bepart ofan 

### open, ongoing investigation related tolaw enforcementproceedings. Koeniq v. Thurston County, 175 Wn.2d 837, 843, 287 P.3d 523 (2012) (The investigation 

### must be "'onedesigned toferret outcriminal activity or to shed light on some 

### other allegation ofmalfeasance.'" (quoting Columbian Publ'o Co. v. City of Vancouver, 36Wn. App. 25, 31, 671 P.2d 280 (1983))); Newman, 133Wn.2d at 

### 573 (an investigation must be"leading toward anenforcement proceeding"). The exemption ceases toapply once aninvestigation is ended. See Cowles Publ'q

12-No. 73360-5-1/13 Co. v. Spokane Police Dep't. 139 Wn.2d 472, 479, 987 P.2d 620 (1999) ("[W]e hold in cases where the suspect has been arrested and the matter referred to the prosecutor, any potential danger to effective law enforcement is not such as to warrant categorical nondisclosure of all records in the police investigative file."); accord Sargent, 179 Wn.2d at 389 (exemption did not apply where department had concluded its investigation and had referred requestor's case to the prosecutor for a charging decision). 

### This exemption applies to prosecutors' investigative files as well. Cowles Publ'g. Co. v. Pierce County Prosecutor's Office, 111 Wn. App. 502, 508, 45 

### P.3d 620 (2002). However, "a document in a prosecutor's file can qualify as an investigative record [only if it is] part of an investigation that the prosecutor conducts." Koenig, 175 Wn.2d at 847. This includes documents that are part of 

### the investigative process leading to a charging decision but not, for example, documents that are relevant to only sentencing proceedings. Compare Cowles, 

### 111 Wn. App. at 504 (mitigation package is exempt because its purpose is to assist the prosecutor in deciding whether to seek the death penalty—by filing a 

### notice of special proceedings—which is a chargingdecision), with Koenig, 175 Wn.2d at 846, 848 (victim impactstatement is not exempt because "[i]t is considered after the charging phase of a case is closed and the investigation is 

### complete"; SSOSA evaluation also is not exempt because the prosecutor "is not conducting an investigation but is merelytaking the SSOSA evaluation into consideration whileproviding input to the court on a decision the court must make").

13No. 73360-5-1/14 The Thomases' argument regarding the law enforcement exemption has evolved over the course of the litigation. On appeal, because they choose to focus instead on their October 3 letter, the Thomases do not at all address the applicability of this exemption to their August 5 request. In their complaint, however, the Thomases did challenge the PCPAO's response to their August 5 request. Their argument at that time was as follows: Because the Prosecutor announced his decision on September 4, 2013
... the Prosecutor had, at the time of the request denial the day before, already finished any investigation. Thus, when Defendant's Public Records Officer denied Plaintiffs' records request on September 3, 2013, there was no longer an open and 

### active investigation, making the statutory exemption under RCW 42.56.240(1) inapplicable. 

### This argument fails because it relies on (1) the unsupported factual assertion that the PCPAO's charging decision was finalized at some 

### (unidentified) point before the decision was announced, and (2) an unsupported 

### legal distinction between the time when the prosecutorknows, for him- orherself, what charging decision he or she intends to make and the time when that 

### decision is actually made (presumably byfiling charges or announcing that no charges will be filed). 

### At the time of the August 5 request, the records were part of an open and 

### ongoing investigation being conducted by the PCPAO. Therefore, they were 

### properly withheld pursuantto the law enforcement exemption.11

11 There is no dispute that, ifthere were an October 3 request, this exemptionwould not 

### apply thereto, because the PCPAO was notengaged in an open and ongoing investigation atthat time. This resultpresumably explainswhy the Thomases shifted the focus of theirargumentfrom the August 5 request to the October 3 letter.

-14-No. 73360-5-1/15

D The PCPAO also contends that the requested records were exempt as work product. This is so, it asserts, because they are factual records, gathered by the PCPAO in preparation for or in anticipation of litigation. For their part, the Thomases contend that this court need not—and should not—follow the 

### precedent upon which the PCPAO relies, namely Limstrom. The PCPAO is

correct. This court faced a challenge very similar to that made by the Thomases in Koenig v. Pierce County, 151 Wn. App. 221, 211 P.3d 423 (2009), review denied, 168 Wn.2d 1023 (2010). Therein, the requestor alleged that the agency 

### wrongfully withheld records related to a completed criminal investigation under the guise of the work product exemption. The records that allegedly were 

### wrongfully withheld included a written transcript of a witness's oral statement 

### taken by a lawenforcement officer. The Koenig court's analysis of the work 

### product exemption as applied in Limstrom applies equally tothis case.12 The Koenig court began by outlining the applicable law, including
Limstrom: "Records that are relevant to a controversy to which an 

### agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes 

### pending in the superior courts are exempt" from public disclosure. RCW 42.56.290 (formerly RCW 42.17.310(1)0)). This "work 

### product" exemption relies on the rules of pretrial discovery to define the parameters of the work product rule for purposes of applying the exemption. Dawson v. Daly, 120 Wn.2d 782, 789-90, 845 P.2d 995(1993).

12 Indeed, at oral argument, the Thomases' counsel conceded that this case presents the same question as was presented inKoenig. Oral argument at 6:40.

-15-No. 73360-5-1/16 Washington has two discovery rules: CR 26 and CrR 4.7. Each rule differently defines the scope of "work product." Limstrom was a case of first impression that addressed which discovery rule applies to the exemption under RCW 42.56.290. In Limstrom, the lead opinion offourjustices held that "the pretrial discovery rules referred to in RCW 42.17.310(1)0) are those set forth in the civil rules for superior court, CR 26." Limstrom, 136 Wn.2d at 609. The lead opinion interpreted the civil rule, CR 26(b)(4), as including within the definition of "workproduct" "formal or written statements offact, or other tangible facts, gathered by an 

### attorney in preparation for or in anticipation oflitigation." Limstrom, 136 Wn.2d at 611. Such work product as defined under the civil rule is protected from disclosure unless the requester is able to demonstrate a substantial need and an inability to obtain the documents from other sources. CR 26(b)(4); Limstrom, 136 Wn.2d at 611. Justice Madsen joined the lead opinion "inthe result." Limstrom, 136 Wn.2d at 617. 

### The dissenting opinion signed by the remaining fourjustices stated that the criminal discovery rule, not CR 26, should apply to determine whether the requested materials were discoverable under the Public Records Act. Limstrom, 136 Wn.2d at 617. The 

### criminal discovery rule is narrower than the civil rule in defining 

### "work product." Documents are generally protected from disclosure under this rule only "tothe extent that they contain the opinions, theories or conclusions ofinvestigating or prosecuting agencies." CrR 4.7(f)(1). 151 Wn. App. at 229-30. 

### The Koenig court then applied the law set forth above to the facts of that
case, explaining: 

### The [witness] statement is a written transcript of [the witness's] oral statement taken by a detective in the Pierce County Sheriff's Department. Itdoes not contain opinions, theories, or 

### conclusions of any attorneys, so under the criminal discovery rule it would be subject to disclosure. But it would not be subject to disclosure under the civil rule because it is a factual document 

### gathered by the prosecutor in anticipation oflitigation. Therefore, under the lead plurality opinion in Limstrom. the [witness] statement is exempt from disclosure under the Public Records Act. 151 Wn. App. at 230 (emphasis added).

16No. 73360-5-1/17 The records at issue herein are also "factual documents] gathered by the 

### prosecutor inanticipation oflitigation." Therefore, there can be no doubt that, as in Koenig, ifLimstrom applies, the records were exempt from disclosure under
the PRA. The Koenig court then moved to the requestor's contention that itneed not 

### (and, presumably, should not) follow Limstrom. In addressing thiscontention, the courthelpfully reframed the question to whether the agency violated the PRA by following Limstrom: 

### Koenigargues that plurality opinions likeLimstrom are not 

### binding, citing Robinson v. City of Seattle, 102Wn. App. 795, 805 n.12, 10 P.3d 452 (2000). In Robinson, this court refused to follow 

### a recent plurality opinion that concluded the taxpayers lacked 

### standing to sue the defendantcity. The court insteadfollowed a previousopinion that recognized taxpayer standing. The question here is whether the prosecutor's office committed a Public Records Act violation by deciding to follow the 

### civil discovery rulein reliance on the plurality opinion in Limstrom. 

### Aplurality opinion isoften regarded as highly persuasive, evenif notfully binding. See Texasv. Brown. 460U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality opinion) (holding that 

### while one particular plurality opinion was "not a binding precedent, as the considered opinion offour Members ofthis Courtit should 

### obviously be the point of referencefor further discussion ofthe issue"). 

### Our Supreme Courtitselfhas cited the lead opinion in Limstrom as an interpretation by "this court," and saying "we have held," even while recognizing it as a plurality opinion. See Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 740, 733, 174 P.3d 60 (2007). 

### The dissentingopinion in Limstrom does not enjoy the same status. 

### The leadopinion has extra weight considering that JusticeMadsen concurred in the result(holding most records exempt), whereas the result of the dissenting opinion would have been to compel disclosure of all records. Koenig has not identified any authority he 

### believescompelled the prosecutor to disclose documents such as 

### the [witness] statement that were gatheredin anticipation of litigation. Unlike in Robinson, there was noopinion otherthan the Limstrom lead opinion that the prosecutor might have chosen to follow.

17No. 73360-5-1/18

151 Wn. App. at 230-31. The Koenig court then concluded that "it was not a violation ofthe Public Records Act for the prosecutor's office to withhold records based on the lead opinion in Limstrom." 151 Wn. App. at 231. We decline to break from the analysis established in Limstrom and applied in Koenig.14 Thus, the same result obtains in this case, and we hold that the 

### work product rule protected the records herein at issue.15 

### The remaining question then becomes whether the Thomases qualified for the exception to the general work product exemption by making "a special 

### showing of substantial need and a showing that he or she cannot elsewhere 

### obtain the substantial equivalent of the materials without unduehardship."16 Soter, 162Wn.2dat735.

14 The Thomases cite case law that would lead to a different work product rule. These citations are unhelpful. As the trial court herein explained: [The Limstrom] approach distinguished Washington's work product jurisprudence from several other jurisdictions, including the 2nd andD.C. Federal Circuitcourts. These federal courts, and several otherjurisdictions, require that the party seeking work productprotection for materials "gathered inanticipation oflitigation" make a showing that thegathering ofsuch materials would actually reveal the research and opinions, mental impressions, theories, or conclusions of the other party'slawyer. See, e.g., In reGrand Jury Subpoenas. March 19, 2002 and August 2. 2002. 318 F.3d 379, 386 (2d Cir. 2003). This 2nd Circuitand D.C. Circuit line ofcases are the cases relied upon by [the Thomases] in their summary judgmentmotion. Unfortunately, the plurality opinion in Limstrom clearly rejected that reasoning. 15 The result would be the same even ifthere were an October 3 request. The work 

### productexemption applies even aftertherelated litigation hasterminated. Limstrom, 136Wn.2d at 613. 16 The substantial need/undue hardship inquiry appears to be an exception to the general principle stated inRCW 42.56.080 that "[a]genciesshall notdistinguish among persons requesting records." Yet, when thelegislature intended for anagency to treata public records request from thesource orsubjectoftheinformation differently, it generally provided anexplicit basisfor the agency to do so in the statutory exemption itself. See, e.g., RCW42.56.330(6) ("Any information obtained by governmental agencies that iscollected by the use ofa motor carrier intelligenttransportation system or anycomparable information equipment attached to a truck, tractor, ortrailer; however, the information may be given to othergovernmental agencies or the owners of the truck, tractor, or trailerfrom which the information is obtained."); RCW

-18-No. 73360-5-1/19 This issue was addressed succinctly by the trial court: Inthe present case, Plaintiffs never told the PCPAO at the time they requested the documents that they had a substantial need for the documents and could not procure them elsewhere. [CP 104, 111.1 See Koenig, at 223. Even in its current motion, Plaintiffs fail to state a reason why they had a substantial need for the documents, simply claiming that "time was ofthe essence," and, "nondisclosure denied Plaintiffs the opportunity to inform themselves
. . . before the conclusion of the Prosecutor's inquest like procedure." Plaintiffs Motion at 15. These concerns fail to state any real prejudice from non-disclosure ofthe records, and the Plaintiffs also fail to explain why they could not have retrieved the documents directly from the law enforcement agencies. Sargent. The trial court's determination is consistent with the record.17 Moreover, the Thomases fail to establish undue hardship associated with 

### obtaining the records elsewhere. By the Thomases' own contention, the records at issue were factual records created by various other law enforcement agencies and then transferred, wholesale, to the PCPAO. Furthermore, it is undisputed 

### that the criminal investigation had been transferred from those agencies to the PCPAO before the PCPAO denied the Thomases' request. Accordingly, per 

### Sargent, the requested records would have been available from the other law 

### enforcement agencies at the time of the denial. Thus, by the time that the Thomases attempted to make a "substantial need" showing (after the PCPAO's denial, in the course of the underlying litigation), they could not possibly have
42.56.440(1) ("These recordswill be available only to the veteran, the veteran's next ofkin, a deceased veteran's properly appointed personal representative orexecutor, a person holding that veteran's general powerofattorney, or to anyone else designated in writing bythat veteran to receivethe records."). Notwithstanding this apparent tension, it isfirmly established that the work product rule is part of the exemption under RCW42.56.290. While interesting, because itis of nomoment to thisappeal, we need notfurther evaluate the issue. 17 Indeed, on appeal, the Thomases make the same general argumentregarding their substantial need, relying primarily upon the prosecutor's "chosen policy" todetermine "behind closed doors" whether an officer-involved shooting was lawful. Appellants' Opening Br. at 38.

19No. 73360-5-1/20 demonstrated the required "undue hardship." For the same reason, the Thomases cannot make a substantial need showing at this time. 

### The records requested by the Thomases were properly withheld pursuant to both the law enforcement exemption and the work product rule.
Affirmed.

We concur:



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