IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HOWARD J. GALE, Appellant, NO. 70212-2-1 DIVISION ONE c=> —\c:

CITY OF SEATTLE, a local agency, and SEATTLE CENTER DEPARTMENT, Respondents. UNPUBLISHED FILED: February 10, 2014

Lau, J. — Howard Gale sued the City of Seattle and Seattle Center Department alleging violations ofthe Public Records Act (PRA), chapter42.56 RCW. The trial court found the City violated the PRA when itinadvertently failed to disclose responsive documents in its first records disclosure. Itlaterfound thatthe City complied with its second disclosure after Gale raised concerns about missing documents. The court imposed $10 per day penalties against the City for the noncompliant PRA days. Gale challenges numerous findings of fact and conclusions of law and contends the City remains in violation ofthe PRA. Because (1) the record supports the trial court's determinations regarding PRA compliance, penalties, and costs and (2) Gale's o70212-2-1/2 remaining arguments are raised for the first time on appeal and inadequately argued,

we affirm. However, because Gale was entitled to his costs incurred in litigating the PRA suit below, we remand with instructions to the trial court to determine Gale's costs conditioned on his submission of an itemized cost affidavit in the trial court. FACTS PRA Request and City's First Two Disclosures This case involves Howard Gale's public records request made to Seattle Center and the City of Seattle under the PRA. On October 18, 2012, Gale e-mailed a PRA request to Seattle Center's chiefoperating officer, Mary Wideman-Williams. Gale's request was titled, "WAState Open Records Requestfor information concerning AC outlet access inthe Armory." Gale specified four topics covered by his PRA request: (1) providing, restricting, or changing access to AC outlets at Seattle Center (including, but not limited to, turning off AC power at specified times, physically restricting access, etc.); (2) putting any changes into effect (policies, staffbehavior, signage, etc.) that might restrict orcontrol the access of any particular group of people to space or services (including access to AC outlets) at Seattle Center; (3) the purchase and installation of AC outlets for the new renovation on the west side ofthe Armory main level; (4) the purchase and installation of AC outlet covers and/or locking devices for the above. Gale specifically noted, "I would appreciate Seattle Center prioritizing the production or

access or records relating to (3) and (4), a far smaller set of records." The same day, Wideman-Williams forwarded Gale's requestto Seattle Center's Public Records Officer (PRO), Denise Wells. Seattle Center's standard practice for responding to PRA requests requires the 

### PRO to reviewthe request and determine where responsive records are likely located.

-2-70212-2-1/3

The PRO then contacts the division director, as well as staffwho the PRO determines

are most likely to possess responsive records. The PRO often contacts the entire senior staff—consisting ofdirectors from each division within the department, as well as 

### several strategic advisors—to ensure thateveryone who may have responsive records is notified ofthe request. The PRO may contact the PRA requestor (here Gale) if additional clarification is needed regarding the request. On October 22, Wells e-mailed Gale to acknowledge receipt of his PRA 

### request and estimated she would send him a final response on November 14. Also on October 22, Wells e-mailed the Seattle Centeremployees she determined were most 

### likely to have knowledge orpossession ofresponsive records, including senior staff, the chiefoperating officer, supervisors, electricians, and assistants to senior staff. Her 

### e-mail requested them to search and produce responsive records. She also instructed them to checkwith any of their staff who mightpossess responsive records. Her e-mail to staff included a copy ofGale's PRA request so that staff knew the scope and subject ofthe request. In addition to her duties as PRO, Wells also served as executive assistant to Seattle Center Director Robert Nellam. Wells personally searched Nellam's records. Wells determined Nellam had no electronic or hard files related to the request, so she searched Nellam's e-mail archives. She believes she used the search terms "outlet" 

### and "outlets"because they wouldreasonably produce results responsive to Gale's 

### request. She was not certain these were the exact search terms she used. Following routine Seattle Centerpractice, Wells requested and expected otheremployees to 

### performtheirown searches. She instructed andreminded her staffto searchtheir hard -3-70212-2-1/4


### and electronic files and archived e-mails and assisted those needing help conducting 

### thesearches.1 Wells then reviewed all gathered documents for responsiveness and exemptions. On November 14, Wells e-mailed Gale the records responsive to his request. All ofthe records she sent him were nonexempt. The responsive records included Seattle Centerwork plans, an Armory electric outlet handout, Armory rules, e-mail communications with subject "Homeless and Seattle Center," internal Seattle Center staffcommunications, meeting notes, and purchase orders. On November 19, Gale e-mailed back and alleged that he believed many records were missing from the City's response. He based this beliefon conversations with Armory staff, gaps in the records provided, and because he claimed to possess "copies of missing records that were originally sent to Seattle Center staff' regarding the issue at hand. Gale claimed that he would refrain from filing a lawsuit ifthese "missing records" were produced by 5 pmon November 29. He concluded his e-mail by stating, "Let me know ifthere is anything I

can do to facilitate the search for all relevant documents." On November 20, Wells informed Gale that she instructed staffto do a second search for responsive records. On November 29, Wells sent Gale an e-mail informing him that two staffmembers sent her additional responsive documents and that she also



### 1ChiefOperating OfficerMaryWideman-Williams told Wells that she used the search term "outlet" for her e-mail search. Some staffalso discussed use ofthe term 

### "outlet" to locate responsive documents. In instructing staffwho needed help with their searches, Wells used the search term "outlet" to conduct a sample search. However, Wells did not know which other search terms staffmay have used to review their emails and files for responsive documents. -4-70212-2-1/5


### found additional responsive documents using the search term "Wi-Fi." Wells asked Gale to provide additional clarification to help her locate any other responsive records: You state that you know ofdocuments that are missing. Iam not sure which 

### documents you are referring to, but ifyou have additionalclarification to provide, pleasefeel free to send it to me and Iwill work to locate ifthere are any documents that are responsive as a result ofadditional clarification. 

### In her November 29 e-mail, Wells informed Gale that she was reviewing the additional responsive documents and would produce them by December7. Wells also spoke with Gale on the telephone on November 29. During that conversation, Wells asked Gale for 

### clarification or additional information regarding his request and "specificallyasked him what documents he might have that he believed were responsive to his request that had not been produced." Gale responded thatWells "was insulting his intelligence" and that he would not "tip his hand." On December6, Wells e-mailed Gale a second installment ofresponsive documents. In her e-mail, she asked him again to clarify his request ifhe believed responsive documents remained outstanding. Gale provided no additional information. On December 19, Wells discovered that one ofthe e-mails from the customer service department referenced an attachment (a letter) that was not produced to Gale. The department manager reported she had searched for the letter during the initial search, butfailed to find it. Wells asked the managerto look again, and the manager found the letter after discovering ithad been misfiled. Wells gave the letterto Seattle Center's Law Department on December 20, and the department subsequently produced
it to Gale.70212-2-1/6

Lawsuit and Subsequent Disclosures On December 3, 2012—three days before receiving Wells's second disclosure e

### mail—Galefiled acomplaintforviolation ofthePRA.2 He alleged thatseveral "sets of documents, reasonably presumed to exist, have not been provided as of November 29, 

### 2012."3 Gale alsofiled a motion for order to showcause, requesting an order compelling immediate production ofthe records he requested on October 18 and 

### November 19. In his reply briefing on that motion, Gale suggested forthe first time search terms that he claimed the City should have used in its record searches, all of which related to electrical outlets and power: "AC," "power," "AC power," "house 

### current," "electricity," "electrical power," "electric outlet," and "120VAC." The City requested a continuance to "allowthe City Law Departmentto conduct a search to address the concerns raised in [Gale's] complaint" and to "complete the search using all 

### of[Gale's suggested search terms] and review the results ofthose searches." The court continued the show cause hearing to February 12. 

### The City's search turned up 2,362 records of which 196 were potentially 

### responsive to Gale's PRArequest. Ofthose 196 documents, 69 had already been 

### produced to Gale, 21 were duplicates ofpreviously disclosed documents, and 3 were redacted or exempt, leaving 104 previously unproduced responsive documents. Of those 104previously unproduced records, 38 were documents that had never been 

### produced to Gale; 39 were substantially similarto previously produced records; and 27 2Gale named both Seattle Center and the City ofSeattle as defendants. We 

### refer to Seattle Centerand the City ofSeattle collectivelyas "the City." 

### 3In hiscomplaint, Galelisted categories of documents hebelieved existed and claimed the Cityhad failed to produce them.70212-2-1/7

were eitherwholly incorporated inthe 38 new records or were substantially similarto the new records. The City gave Gale and the trial court the results ofthis third search

on February 8, 2013. 

### Thetrial courtconducted a showcause hearing.4 On February21, thecourt issued its "orderfor penalties, fees, and costs" in which itmade numerous findings of fact and conclusions of law, determined the City violated the PRA with its initial search but complied with its second search (December 6), and imposed maximum penalties of $100 perday against the City. The court denied Gale's motion to "alter and amend court order," requesting an additional amount in penalties and costs and demanding the production ofremaining responsive records he alleged existed. The City also moved for reconsideration, arguing that the court erred inimposing maximum penalties and in imposing penalties for days the courtfound the City to be in compliance with the PRA. On March 15, the court granted the City's motion. The court's order on reconsideration included the following findings of fact: 1. Plaintiff [Gale] submitted a requestfor records, which was received by the City on October 18, 2012. 

### 2. The Cityconducted a search and provided the records itlocated at that time to Gale on November 14, 2012. 

### 3. Gale informed the City on November 19, 2012 that he believed additional responsive records existed that may not have been provided in response to his request. 

### 4. Upon being put on notice ofGale's concerns, the City immediately 

### expanded the scope and search terms used, conducted a follow-up search, and provided the records itlocated at that time to Gale on December 6, 2012. 5. The Cityasked Gale inemails on November29, 2012 and December 6, 2012, and in a telephone conversation on November 29 to clarify what 

### 4The parties have notprovided a transcript of this hearing for the record. According to the City, "During oral argument, Gale suggested for the firsttime that the 

### City should have used the search terms 'homeless' and 'transient'in conducting its searches." Resp't's Br. at 10. -7-70212-2-1/8

documents he believed were responsive to his request that had not been produced by the City. 6. Gale did not provide the requested clarification or any additional information to assist in locating responsive documents. 7. Gale filed this lawsuit on December 3, 2012. This was three days before he received the additional records provided by the City after its expanded search. 

### 8. Upon request, on January 17, 2013 the Citywas granted a continuance to allow the Law Departmentto conduct an expanded search to include some of the search terms that Gale supplied for the first time in his reply filed withthe Court on December 26, 2012. 9. This expanded search resulted inthe production ofadditional 

### responsive documents, which were produced to Gale on February 8, 2013. 

### Thecourtfound thefollowing Yousoufian5 mitigating factors applied to decrease penalties againstthe City: 10. Lack ofclarity in the PRA request. Gale made a clear, yet broad 

### requestfor "information concerning AC outlet access in the Armory." On November 19, 2012 Gale claimed that documents were missing and offered to 

### facilitate the search. The City legitimately inquired for clarification or additional information to locate responsive documents following Gale's November 19, 2012 renewed request. 11. The agency's prompt response or legitimate follow-up inquiry for 

### clarification. The City promptlyresponded to Gale's October 18, 2012 records 

### requestwithin the statutory 5-dayperiod, RCW42.56.520. TheCity legitimately inquired forclarification oradditional information to locate responsive documents following Gale's November 19, 2012 renewed request. These inquiries did not 

### delay the City's production of responsive documents to Gale. Galedid not respond tothese inquiries beforefiling this lawsuit alleging violations of the PRA. 12. The agency's good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions. Inresponse to Gale's records 

### request, the City acted with goodfaith, due diligence, honesty, and withoutdelay. The City promptly renewed and expanded itssearch upon notice thatadditional responsive documents] might exist. 13. Propertraining and supervision ofthe agency's personnel. The Seattle Center Public Disclosure Officer has extensive PRA experience, training, 

### and access to resources for complicated requests or legal issues. 14. The reasonableness of any explanation for noncompliance by the agency. The Seattle Center Public Disclosure Officer properly determined the

5 Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010), set 

### forth mitigating andaggravating factors courts should considerin setting penalties for PRA violations. We discuss the Yousoufian factors in detail below. -8-70212-2-1/9



### scope ofthe request, the likely location ofrecords, and the likelycustodians of records. She conducted a search and instructed others to search for responsive records. The City admits thatthe first search may have been inadequate by 

### inadvertently failing to produce some responsive documents. The Citycame into compliance with its second search. 15. The helpfulness ofthe agency to the reguestor. The City immediately conducted a renewed and expanded search upon notice that responsive 

### documents might be missing, even though Gale failed to provide clarification. The City Law Department ran a thirdforensic search forarchived emails using search terms provided by Gale. The Cityhas assisted Gale throughoutthe time ithas processed his records request. 16. The existence ofagency systems to track and retrieve public records. 

### The Cityhas electronic and hard files, and a searchable email archiving system. 

### (Boldface replaced with underlining.) The court also found one Yousoufian aggravating factor applied to increase penalties againstthe City: "The City did not strictly comply 

### with PRAprocedures when it inadvertentlyfailed to produce responsive documents in its November 14, 2012 production to Gale." Based on these facts, the court made the following conclusions of law: 

### 1. The City violated the Public Records Act byfailing to conduct an 

### adequate search in itsinitial production to Gale's records request. 2. Upon being put on notice by Gale on November 19, 2012 that he believed additional responsive records existed, the City acted reasonably and conducted a legally adequate expanded search forresponsive records and 

### provided theresponsive recordsitreasonably located tohim onDecember6, 2012. 

### 3. The City became compliantwith the Public Records Actwhen it conducted an expanded search and produced a second installment of documents on December 6, 2012. 

### 4. The City Law Department'sthird search exceeded the reasonable standard of a legally adequate search. 

### 5. As ofDecember 6, 2012, the Cityhas not violated the Public Records Act inresponding to Gale's October 18, 2012 request. 

### 6. The City did not act in bad faith, orin a negligent, reckless, or wanton

manner. 

### 7. The City'sfailure to provide responsive documents to Gale on November 14, 2012 was inadvertent and not intentional misconduct. 

### 8. Gale has provided no evidence that he has suffered actual personal loss from any alleged misconduct by the City.70212-2-1/10

9. Gale has no cause ofaction againstthe City under RCW 42.56.070 or RCW 42.56.100. 10. As a pro se litigant, Gale is not entitled to attorneys' fees. 11. There are no remaining genuine issues offact in this matter. 

### The court awarded Gale penalties of$10 per day for 22 days "forthe documents produced on December6, 2012 thatwere not produced inthe original production on November 14, 2012, for a total amount of $220." Because the court determined the City did not violate the PRA after December 6, itawarded Gale no penalties for the documents produced on February 8, 2013 that were not produced inthe December 6, 2012 installment. The court awarded Gale $230 in costs for the filingfee. Gale appeals the court's order granting the City's motion for reconsideration and
its costs award. ANALYSIS 

### PRACompliance as of the City's Second Disclosure (December 6, 2012)6 Judicial review of an agency's compliance with the PRA is de novo. Soterv. CowlesPubl'gCo., 162 Wn.2d 716, 731, 174 P.3d 60 (2007). "The [PRA] is a strongly worded mandate for broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). We liberally construe the PRA infavor of 

### disclosure and narrowly construe its exemptions. RCW 42.56.030. The PRA requires every government agency to disclose any public record upon request unless an enumerated exemption applies. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120 

### (2010); RCW42.56.070(1). The burden of proof is on the agency to establish that a 

### specific exemption applies. Neighborhood Alliance ofSpokane County v. County of 

### 6TheCity concedes itsfirst searchfor recordswas inadequate and does not appeal the trial court's related ruling. -10-70212-2-1/11 Spokane, 172 Wn.2d 702, 715, 261 P.3d 119 (2011). However, an agency has no duty to create or produce a record that is nonexistent. Building Indus. Ass'n ofWash, v. McCarthy (BIAW), 152 Wn. App. 720, 734, 218 P.3d 196 (2009). And the PRA "'does not authorize indiscriminate sifting through an agency's files by citizens searching for records that have been demonstrated not to exist.'" BIAW, 152 Wn. App. at 734-35 (quoting Sperrv. City ofSpokane, 123 Wn. App. 132, 137, 96 P.3d 1012 (2004)) 

### (emphasis omitted). "Purely speculative claims about the existence and discoverability ofother documents will not overcome an agency affidavit which is accorded a 

### presumption of good faith." Forbes v. Cityof Gold Bar, 171 Wn. App. 857, 867, 288 P.3d 384 (2012), review denied, 177 Wn.2d 1002 (2013). In Forbes, we discussed the PRA's requirements in "reasonableness" terms: In Neighborhood Alliance of Spokane County v. Spokane County, the 

### Supreme Court adopted the Freedom of Information Act (FOIA) standards of reasonableness regarding an adequate search. "The adequacy of a search is 

### judged by a standard ofreasonableness, that is, the search must be reasonably calculated to uncover all relevant documents." [Neighborhood Alliance, 172 

### Wn.2d at 720]. Because the PRA closely parallels FOIA, interpretations of that act can be helpful in construing the PRA. As stated in the Tenth Circuit in Trentadue v. Federal Bureau of 

### Investigation, [572 F.3d 794 (2009)] the focus ofthejudicial inquiry into a 

### reasonable-search requirement is the agency's search process not the result of that process: 

### [T]he focal point of the judicialinquiry is the agency's search process, not the outcome of its search. "The issue is not whether any further 

### documents might conceivably exist but rather whetherthe government's search forresponsive documents was adequate[,] [which is determined under] a standard ofreasonableness, and is dependent upon the circumstances ofthe case." The reasonableness of an agency's search 

### turns on "the likelihoodthat itwill yieldthe sought-after information,the 

### existence of readily available alternatives, and the burden of employing those alternatives."

-11-70212-2-1/12 Forbes, 171 Wn. App. at 866 (alterations in original) (internal citations, footnotes, and quotation marks omitted) (quoting Trentadue, 572 F.3d at 797-98). 

### Agencies are required to make more than a perfunctory search and to follow 

### obvious leads as they are uncovered. Neighborhood Alliance, 172 Wn.2d at 719. The search should not be limited to one or more places ifthere are additional sources forthe information requested. Neighborhood Alliance, 172 Wn.2d at 719. "This is not to say, 

### ofcourse, that an agency must search every possible place a record may conceivably be stored, but onlythose places where it is reasonably likely to be found." Neighborhood Alliance, 172 Wn.2d at 720. 

### Our Supreme Court has recognized that subsequentdisclosure may bring an 

### agency into compliancewith the PRA. See Neighborhood Alliance, 172 Wn.2d at 727 (recognizing that an intervening disclosure stops the clock on daily penalties). As noted above, publicagency actions challenged underthe PRAare reviewed de novo. RCW42.56.550(3); Cornu-Labatv. Hosp. Dist. No. 2 Grant County, 177 

### Wn.2d 221, 229, 298 P.3d 741 (2013). Anappellate court stands in the same position

as the trial court when the record consists entirely ofdocumentary evidence and affidavits. Cornu-Labat, 177 Wn.2d at 229. The reviewing court is not bound bythe trial 

### court's factual findings. Cornu-Labat, 177 Wn.2d at 229. Scope of Reguest and City's Response 

### Gale contends that the City improperlylimited its search and failed to address 

### topic (2) ofhis PRA request, i.e., "putting any changes into effect. . . thatmightrestrict
orcontrol the access of any particulargroup of people to space or services (including


### access toAC outlets) at SeattleCenter" andsimilarly challenges thetrial court'sfinding -12-70212-2-1/13


### that his PRA requestwas for "'informationconcerning AC outlet access in the Armory.'" He specifically claims that the City failed to perform an adequate search for records addressing the homeless or transient population that uses Seattle Center's AC outlets. The subject line ofGale's e-mail containing his PRA request is "WAState Open Records Requestfor information concerning AC outlet access inthe Armory." Each topic ofGale's four-part request uses the term "outlet." The preface to Gale's request states that Gale was in contactwith Seattle Center staffregarding "restricting access to AC power atthe Armory" and that he was requesting "objective information with which to assess both the cause and the nature of policies implemented by Seattle Center in regards to restricting access to AC outlets at the Armory." Within this context, Gale requested records addressing the four topics quoted above and specifically asked the 

### City to prioritize issues (3) and (4), which related to purchase and installation of AC outlets and outlet covers/locking devices in the Armory. Reading liberally the plain language ofthe request, the City and the court reasonably determined the scope of Gale's request as relating to outlet access at the Armory. 

### Further, the Cityprovided records responsive to Gale's entire request, including 

### topic (2) quoted above. Gale cited to records responsive to topic (2) in his complaint. The complaint refers to records that were produced inthe City's firstdisclosure on November 14: e-mail stating that weekly meetings would occurto discuss "How to 

### manage our resident transient population? (includes making decisions about power outlets inthe atrium);" meeting notes regarding "managing the potential displacement of 

### transient population due to new [Center House] space use &amenities" and 

### developing/strengthening exclusion rules. The City provided other documents to Gale -13-70212-2-1/14



### on November 14related torestricting orcontrolling access to space orservices,7 and provided additional documents responsive to topic (2) ofGale's request inthe second 

### group of recordsproduced on December6.8 Gale admits he soughtto "understand the reasons" for restricting AC outlet

access at the Armory and claims, "Itbecame apparentthat the Seattle Center actions



### were part of a broader attempt to displace the homeless from the Armory Appellant's Br. at 1. Based on his unsupported suspicions regarding the City's motives, Gale presumes more records must existthat explain the City's decision and interprets the absence ofsuch records as proofthat the City is withholding them. However, the fact thatthe Cityproduced no records of how a decision was made does not necessarily indicate a missing record. As noted above, "[a]n agency has no duty to create or produce a record that is nonexistent." Sperr, 123 Wn. App. at 136-37. Further, the PRA "does not require agencies to research or explain public records, but only to make those 

### 7See Clerk's Papers (CP) at218(meeting minutes referto "access ofelectric outlets" and managing transient population); CP at 220 (e-mails referencing need for outlet covers "on 3th floor where a lot of kids hang out"); CP at 224 ("guidelines for providing Electricity will be developed soon"); CP at 225, 228 (e-mails referencing meeting with homeless representatives regarding covering the electrical outlets inthe Armory); CP at 226 (e-mail regarding guidelines for use of outlets); CP at 234 (e-mails addressing homeless access to computer charging stations); CP at 242 (meeting notes 

### addressing concerns about transient population and "LongerTerm Strategies" including table time limits and locking outlets); CP at 272 (messaging point regarding locking electric outlets); CP at 273 (Armory rules ofconduct). 

### 8See CP at 286 (e-mail addressing "growing population of homeless and/or transient men and women who have been utilizingthe Center House as a day center"); CP at 287 (Armory rules); CP at 289-303 (Seattle Center Campus Rules); CP at 305 

### (e-mail from Nick Licata expressing concern about "closing off all electrical outlets in the Center House, apparently as an attemptto restrict the usage ofWi-Fi by people, such as the homeless"); CP at 307-08 (Seattle Center's response letter to Licata email); CP at 346-47 (meeting minutes discussing decision to locksome outlets inArmory).

-14-70212-2-1/15
records accessible to the public." Smith v. Okanogan County, 100 Wn. App. 7, 12, 994 P.2d 857 (2000). Gale's speculation that more responsive records must exist is insufficient to raise substantial doubt as to the adequacy ofthe City's search. See Neighborhood Alliance, 172 Wn.2d at 741 ("[M]erespeculation will not suffice to rebut



### an agency's prima facie showing of an adequate search."); White v. United States Dep't ofJustice, 840 F. Supp. 2d 83, 92 (D.D.C. 2012) (speculation that responsive records must exist is insufficient to cast doubt ofaccuracy ofagency's search). And Gale's 

### complaint primarily requested information explaining the produced records and alleged that documents must existto explain the City's decisions and conclusions. See CP at 

### 4-6. As noted above, the City is not required to explain public records. Smith, 100Wn. 

### App. at 12; Bonamvv. City of Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998). 

### Gale may believe moredocuments should exist to reflectSeattle Center's decision making process, but this is not a claim we can address. 

### The City agrees that Gale's initial requestwas clear on its face. The City searched forrecords addressing that request, includingrecords responsive to topic 

### (2) discussed above. But Gale now contends the City should have known he was 

### making an expansive requestfor recordsregarding the homeless and transient population. Gale argues that hisNovember 19, 2012e-mail alleging missing documents "gave a clearindication as to the types of records missing

. . . ." Appellant's Br. at 17. Review ofthat e-mail indicates to the contrary. Nothing in his initial PRA 

### requestorhis November 19e-mail mentions theterms "homeless" or"transient." The PRA does not"require public agencies to be mind readers." Bonamv, 92Wn. App. at

-15-70212-2-1/16 

### 409. And as discussed above, the City did produce documents responsive to topic (2), including documents addressing the homeless/transient population at Seattle Center. To the extent Gale argues the City failed to comply as ofDecember6 because it 

### produced responsive records afterthat date (on December20, 2012, and inFebruary 

### 2013),9this argumentlacks merit. In determining theadequacyofasearch, the "focus ofthe inquiry is not whether responsive documents do infact exist, butwhetherthe 

### search itselfwas adequate." Neighborhood Alliance, 172 Wn.2d at 719-20. Interpreting the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the court in Iturralde v. Comptroller ofCurrency, 315 F.3d 311 (C.A.D.C. 2003) explained: It is long settled that the failure ofan agency to turn up one specific document in its search does not alone render a search inadequate. Rather, the adequacy of a FOIA search is generally determined not by the fruits ofthe search, but by the appropriateness ofthe methods used to carry outthe search. After all, particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them. 

### Iturralde, 315 F.3d at315 (citations omitted).10 "[T]hefocus ofthejudicial inquiry into a reasonable-search requirement is the agency's search process notthe result ofthat 

### process."11 Forbes, 288P.3dat 388(emphasis added). Asnoted above, Wells's unrebutted declaration established that Seattle Centerfollowed standard procedures in 

### 9In thetrial courtand on appeal, Galeclaims thatCity's February 2012 production "includes documents in seven ofthe eight categories described by Gale and included three additional categories that Gale didn't know of." Appellant's Br. at 35. 

### 10 Iturralde provides guidance because, as noted above, our SupremeCourthas held that "the adequacy of a search ofrecords underthe PRA is the same as exists under FOIA." Neighborhood Alliance, 172 Wn.2d at 719. 

### 11 Forbesdirectly refutes Gale's claimthat"[t]here is no basis in lawforfinding that an agency comes intocompliance prior to the release ofdocuments responsive to the PRArequest." Appellant's Br. at 35. Gale incorrectly focuses on the results, not the search process. -16-70212-2-1/17 responding to Gale's request and took prompt action to expand the search upon 

### notificationthat some records might be missing. Wells stated inherdeclaration: Inregard to Mr. Gale's request, Iconducted my search and instruction to others to search for responsive records in good faith and with due diligence. Isearched 

### for records inlocations likelyto have responsive records. Icontacted others who were likelyto have responsive records or have knowledge ofthe location of responsive records. Inresponse to Mr. Gale's follow-up inquiry regarding the dates of two produced documents, Icame across new information that provided me with a new lead to search for responsive records. Ifollowed this lead, which 

### resulted inadditional responsive documents thatwere produced to Mr. Gale. 

### Although Mr. Gale offered to provide assistance inthe search forrelevant documents in his November 19, 2012 email, he refused to provide any additional 

### information inresponse to my repeated requests for clarifying information to address his concern that he has not received all responsive records. Wells also stated that the December 20 disclosure was due to a misfiled document. 

### To the extent Gale argues the Cityshould have used search terms in its initial search similar or identical to the search terms he suggested in his reply briefing below, 

### he cites no authorityaddressing the adequacy ofsearch terms or the reasonableness standard forsuch terms. Even assuming the Cityused onlythe search terms "outlet" or 

### "outlets" and "Wi-Fi," in performing its second search,12 Galefails toexplainwhythese terms are unreasonable given the plainlanguage of his PRA request. Indeed, those terms appearcalculated to broadly encompass Gale's entire request. 

### As discussed morefully below, Gale failed to respond to the City'srequestfor 

### clarification. TheCity nevertheless performed an expanded search with the information it had. An agency that conducts a search "'reasonably calculated to uncoverall relevant documents'" is not liable under the PRA. Forbes, 288 P.3d at 388 (quoting 

### Neighborhood Alliance, 172 Wn.2d at 720). "When examining the circumstances of a 12 As noted above, Wells was not sure what other search terms employees may have used. -17-70212-2-1/18

case, then, the issue ofwhether the search was reasonably calculated and therefore adequate is separate from whether additional responsive documents exist but are not found." Neighborhood Alliance, 172 Wn.2d at 720 (emphasis added). Gale requested 

### information concerning AC outlet access inthe Armory. The City searched for this information. Wells's declarations describing these searches identify the probable 

### search terms used, the places searched (hard and electronic files and archived e

### mails), and establish that the City searched in locations likely to contain responsive records. Our review ofthe record indicates the trial court properly determined the City met its PRA requirements with the December 6, 2012 disclosure. City's Reouest for Clarification and Gale's Failure to Clarify 

### Gale contends his obligation to clarify his request ended withthe City's 

### November 14, 2012 production ofdocuments and the City had no rightto ask him to 

### clarify or provide more information. He thus challenges (1) the trial court's characterization of his November 19, 2012 e-mail as a "renewed request" and (2) the 

### court's determination that the City legitimately asked forclarification and he failed to 

### cooperate. TheCity agrees that Gale's initial request was clear. Butunder the unique facts of this case, Gale created the need for clarification when he e-mailed the City after 

### itsinitial production of documents, expressed concern that documents weremissing, and offered to "facilitate the search." Itwas Gale's own comment about possible 

### missing documents andoffertohelp out of"goodwill andcooperation" thatprompted 

### theCity's requesttoclarify and toprovide more information. Gale declined toclarify andprovided no additional information to theCity. TheCity nevertheless promptly conducted a second search that produced additional responsive documents. -18-70212-2-1/19

Bartz v. State Dep't ofCorr. Pub. Disclosure Unit, 173 Wn. App. 522, 297 P.3d 737, review denied, 177 Wn.2d 1024 (2013), controls. Bartz informed the Department of Corrections (DOC) that its response to his PRA request was incomplete because he possessed e-mails between two DOC employees that should have been included inthe responsive documents. Bartz, 173 Wn. App. at 527. DOC asked Bartz to supply the employees' names and the dates ofthe missing e-mails so itcould perform a search. Bartz, 173 Wn. App. at 527. Bartz failed to provide the requested information to DOC or provide the allegedly unproduced e-mails to the trial court. Bartz. 173 Wn. App. at 527- 28, 539 n.20. The court held that DOC "did not fail to produce requested records. On the contrary, the record shows that (1) DOC made multiple attempts to produce the requested records, even asking Bartz to provide specific names and dates for the emails he was seeking and performing anotherfutile search when he refused to supply this information; and (2) DOC responded promptly to every letter Bartz sent involving this PRA request." Bartz. 173 Wn. App. at 539 (footnotes omitted). Here, as in Bartz, Gale expressed concern over missing documents. He notified the Citythat he thought it failed to address his initial PRA request. Whether labeled a "renewed request" or notice to the City is irrelevant. The City promptly andjustifiably asked Gale for information to aid in locating documents he claims were missing. Gale failed to comply. The City again attempted to produce the requested records, locating

more records with its December 6 production. The record indicates the court properly determined that he "did not provide the requested clarification or any additional

-19-70212-2-1/20 

### informationto assistin locating responsive documents."13 The court'sfindings regarding the City's request forclarification and Gale's failure to cooperate support its conclusion that the December 6, 2012 production brought the City into PRA 

### compliance.14
Penalties for PRA Violation 

### The PRA gives the trial court discretion to award a person who prevails against

an agency in an action seeking a public record "an amount not to exceed one hundred 

### dollars foreach day that he or she was denied the rightto inspect or copy said public 

### record." RCW42.56.550(4).15 Determination ofaPRAperdiem penalty involves two steps: (1) determining the amount ofdays the party was denied access to the public 

### 13 In his reply briefing on themotion toshowcause below, Gale mentionedfor the first time search terms he believed the City should have used. This briefing was directed at the court, submitted after Gale filed his lawsuit, and cannot reasonably be construed as providing the City with clarification or information to assist in the search. 

### 14 In arelated argument, Gale contends thetrial courterred in determining that the City Law Department's February 2013 search and production ofrecords exceeded 

### PRArequirements. As discussed above, the trial court correctly concluded the City achieved PRA compliance with its December6, 2012 production ofrecords. Gale 

### mainlycontends that the Cityproduced records responsive to his request in its February 2013 production (thus showing the December 6 production was insufficient), the City stillhas not produced all records responsive to his request, and the City should have known to use the search terms "homeless" and "transient." We addressed those arguments above. Given the facts inthis case, the trial court did not err in concluding the City's February 2013 production exceeded PRA requirements. 

### 15 RCW42.56.550(4) provides in full: "Any personwho prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount oftime shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, itshall be within the discretion ofthe court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record." -20-70212-2-1/21
record and (2) determining the appropriate amount ofthe penalty. Yousoufian v. Office 

### of Ron Sims. 168 Wn.2d 444, 459, 229 P.3d 735 (2010). Although the existence or absence of an agency's bad faith is the principal factor for consideration, no showing of bad faith is necessary before a penalty may be imposed on an agency. Amren v. City of Kalama. 131 Wn.2d 25, 36-38, 929 P.2d 389 (1997). Also, "a good faith reliance on an exemption will not exonerate an agency from the imposition of a penalty where the agency has erroneously withheld a public record." Amren. 131 Wn.2d at 36. We review an award of per diem penalties under the PRA for abuse ofdiscretion. Yousoufian, 168 Wn.2d at458. An abuse ofdiscretion is a manifestly unreasonable decision or one based on untenable grounds or untenable reasons. Yousoufian, 168 Wn.2d at 458. A decision is manifestly unreasonable ifthe court, despite applying the correct legal standard, adopts a view no reasonable person would take. West v. Thurston County. 168 Wn. App. 162, 187, 275 P.3d 1200 (2012). InYousoufian. the court set forth guidelines for determining appropriate PRA violation penalties. Yousoufian. 168 Wn.2d at459-63. Mitigating factors that may decrease the penalty are (1) a lack of clarity inthe PRA request; (2) the agency's prompt response or 

### legitimate follow-up inquiry for clarification; (3) the agency's good faith, honest, timely, and strict compliance with all PRA procedural requirements and exemptions; (4) propertraining and supervision ofthe agency's personnel; (5) the reasonableness of any explanation for noncompliance by the agency; (6) the helpfulness ofthe agency to the requestor; and (7) the existence of agency systems to track and retrieve public records. Yousoufian. 168 Wn.2d at 467 (footnotes omitted). Aggravating factors that may increase the penalty are

-21-70212-2-1/22 (1) a delayed response by the agency, especially in circumstances making time ofthe essence; (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions; (3) lack of propertraining and supervision ofthe agency's personnel; (4) unreasonableness of any explanation for noncompliance by the agency; (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency; (6) agency dishonesty; (7) the public importance ofthe issue to which the request is related, where the importance was foreseeable to the agency; (8) any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency; and (9) a penalty amount necessary to deterfuture misconduct by the agency considering the size ofthe agency and the facts ofthe

case. Yousoufian, 168 Wn.2d at 467-68 (footnotes omitted). The Yousoufian factors may overlap, may not apply equally or at all in every case, are for guidance only, and are not an exclusive list of appropriate considerations indetermining a PRA penalty. Yousoufian, 168 Wn.2d at 468. No one factor should control, nor should the factors infringe on the trial court's considerable discretion to determine a PRA penalty. Yousoufian, 168 Wn.2d at 468. InYousoufian, our Supreme Court held that the trial court's assessment of a $15 per day penalty was manifestly 

### unreasonable in lightofthecounty's "grossly negligentnoncompliancewith thePRA."16 Yousoufian, 168 Wn.2d at463. After analyzing the factors setforth above, the court set the penalty at $45. Yousoufian, 168 Wn.2d at468-69. 

### Here, in deciding that a $10 per diem penalty was appropriate to the violation, the record shows the trial court carefully considered the Yousoufian mitigating and 

### aggravating factors. Applying the mitigating factors, the courtfound that (1) although 

### 16The facts showed that the county repeatedlyfailed to meet itsPRA responsibilities over a period of fouryears and made false assertions regarding the location ofrecords, the production ofrecords, and the extent of the search. Yousoufian. 168 Wn.2d at 455-56. Our Supreme Court held thatthe trial court failed to impose a 

### penalty proportionate to the county's misconduct. Yousoufian, 168Wn.2d at 463.

-22-70212-2-1/23


### Gale's initial PRA requestwas clear, the City legitimately inquired for clarification following Gale's "renewed request;" (2)the City promptly responded to Gale's PRA request and its legitimate requestfor clarification did not delay production ofresponsive 

### documents;17 (3) theCity actedin good faith, with duediligence, honesty, andwithout delay in renewing andexpanding its search;18 (4) Wells hadextensive PRAexperience, training, and access to resources; (5) Wells properly determined the scope ofthe request, and although the first search was inadequate due to inadvertentfailure to produce some responsive documents, the City complied with its second search; (6) the City assisted Gale throughout the time itprocessed his records request; and (7) the City has systems to track and retrieve public records. Gale does not challenge the court's 

### 17 Gale cites noauthorityfor his contention that"to serve as amitigating factor in determining penalties, any requests by the City for clarification ofGale's PRA request would have had to occur priorto the City being in violation ofthe PRA

. .. ." Appellant's Br. at 16. 

### 18 Galechallenges thecourt's conclusion that theCity actedwith good faith, honesty, due diligence, and without delay. Whether an agency acted in bad faith under the PRA presents a mixed question of law and fact, in that itrequires the application of legal precepts (the definition of "bad faith") to factual circumstances (the details ofthe PRA violation). See Pasco Police Officers' Ass'n v. City of Pasco, 132 Wn.2d 450, 469, 938 P.2d 827 (1997) (noting that "[w]hether a party has failed to negotiate ingood faith, although involving a substantial factual component, is a mixed question of law and fact."); Tapper v. Emp't Sec. Dep't. 122 Wn.2d 397, 402-03, 858 P.2d 494 (1993). Here, the trial courtfound a number offacts supporting its conclusion thatthe City acted 

### in good faith, includingthatthe Cityresponded promptly to Gale's initial PRA request, promptly renewed and expanded its search upon notice that additional documents might exist, and asked Gale for help and clarification after he offered to "facilitate the search for all relevant documents." No evidence in the record indicates the City deliberately withheld records or otherwise acted in bad faith. To the contrary, the evidence indicates 

### thatthe Cityacted "immediately" to address Gale's concerns and followed "normal [Seattle Center] protocols" inresponding to Gale's request. Gale's bad faith argument 

### depends on his argumentthat the Citynever complied with the PRA. We reject that 

### argument as discussed above. The court did not err in finding an absence of badfaith.
-23-70212-2-1/24 

### findings regarding factors (4) and(7).19 Ourreview ofthedocumentary evidence, including Wells's declarations, shows the court's remaining findings were proper. To 

### the extent Gale argues "a central component of [his] PRA requestwas, and remains, completely ignored" (referring to issue (2) in his PRA request), we address that issue above. Appellant's Br. at 26-27. 

### As to aggravating factors, the court determined that the City did not strictly comply with PRA requirements when itinadvertently failed to produce responsive documents in its first production to Gale. The Citydoes not challenge that determination. Gale asserts that the court erred in failing to find the following 

### aggravating factors: (1) "delayed response bythe agency;" (2) "lack ofpropertraining and supervision ofthe agency's personnel;" (3) "unreasonableness ofany explanation for noncompliance;" (4) "negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA;" (5) "agency dishonesty;" (6) "public importance ofthe issue," and (7) "a penalty amount necessary to deterfuture misconduct by the agency." Appellant's Br. at 28-32 (boldface omitted). Gale's assertions are unsupported by the record or legal authority. He merely repeats his arguments addressed above regarding the City's response to his request and claims the City's PRA violations are ongoing. We decline to further address this argument. The record amply supports the trial court's findings and its consideration ofthe mitigating and aggravating factors. The trial court did not "'adopt[] a view that no reasonable person would take.'" Yousoufian. 168 Wn.2d at 459 (quoting Mayer v. Sto 

### 19 Gale cites noauthorityfor his argumentthatin thecontextofthis case, mitigating factors (4) and (7) should be considered aggravating factors. See Appellant's Br. at 25-28. -24-70212-2-1/25
Indus. Inc.. 156Wn.2d 677, 684, 132 P.3d 115 (2006). Given the trial court's considerable discretion in setting penalty awards and the reasonableness ofthis award 

### underthecircumstances, weaffirm thetrial court's $10 perdaypenalty.20 Request for In Camera Review 

### Gale contends the trialcourt erred by failing to review incamera records that the 

### City claimed were exempt. While Gale argued summarily belowthatthe Citymade "[o]verlybroad claims for exemption," he did not request incamera review nor did he 

### provide the trial court with a basis upon which it could conclude sua sponte that such an examination was necessary. RCW 42.56.550(3) provides in relevant part, "Courts may examine any record in camera in any proceeding brought underthis section." 

### (Emphasis added.) Alternatively, "[t]he court may conduct a hearing based solely on affidavits." RCW 42.56.550(3) (emphasis added). We review a trial court's decision whether to conduct an in camera review of records for abuse ofdiscretion. Forbes, 171 

### Wn. App. at 867. On thisrecord, noabuse ofdiscretion occurred.21 Missing E-Mail Attachments Gale argues that the City should be required to release allegedly missing attachments from e-mails. Gale's opening brief fails to identify which e-mails are missing attachments and merely states that he "would like to specify the full list ofsuch 

### 20 Given ourconclusion that thetrial courtproperlydetermined theCity complied with the PRA as of December 6, 2012, we need not address Gale's argument that the court should have assessed penalties after that date. 

### 21 Further, Galefailed tochallengethe specific, limited exemptions applied below. See CP at 156 (Gale argued without explanation that the City's exemption claims were "overbroad"); CP at 586-87 (City's exemption and redaction log for documents disclosed to Gale on February 8, 2013). He thus waived this challenge. RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005). -25-70212-2-1/26 

### emails at a latter[sic] time." Appellant's Br. at 37. Nor did Gale identify the allegedly missing attachments below. See CP at 156 (alleging "[m]issing email attachments" but 

### indicating that Gale "has not had sufficient time to document all missing email attachments."). Gale specifies forthe first time in his reply brief that "Attachments are 

### missingfrom emails at CP 386, 397, 452, 454-55, 474, 539, and 540 (and possibly others)." Appellant's Reply Br. at 25. This court does notconsider issues argued for the first time in a reply brief. In re Marriage ofSacco, 114 Wn.2d 1, 5, 784 P.2d 1266 

### (1990). The reply brief is limited to a response to the issues inthe responding brief. To address issues argued forthe first time in a reply brief is unfair to the respondent and inconsistentwiththe rules on appeal. RAP 10.3(c); State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994). We decline to review this claim.
Fees and Costs 

### In addition to a perdiem penalty, thePRA provides for a mandatory22 award of "allcosts" to a person who prevails against an agency in an action seeking to inspect or copy a "public record." RCW 42.56.550(4). This court has interpreted "all costs" liberally to include "all ofthe reasonable expenses [the prevailing party] incurred in gaining access to the requested records," including "reasonable costs incurred in litigating the dispute." Am. CivilLiberties Union ofWash, v. Blaine Sch. Dist. No. 503, 95 Wn. App. 106, 117, 975 P.2d 536 (1999). We review an award of attorney fees and

costs under the PRA for abuse ofdiscretion. Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110, 120,231 P.3d 219 (2010). 

### 22 "Any personwho prevails against an agencyin anyaction in thecourts [under the PRA] shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action." RCW 42.46.550(4) (emphasis added). -26-70212-2-1/27 

### Gale prevailed below in his claim thatthe City violated the PRA, and the court penalized the City for its violation. Gale contends that RCW42.56.550(4) requires the superiorcourtto award him compensation for "the many dozens ofhours of labor this 

### ongoingtrial has consumed" as well as costs incurred for"printing, copying, electronic filing fees and othercourt fees for submitting and accessing documents, software, office supplies, etc." Appellant's Br. at 37. Regarding Gale's requestfor compensation for time spent on this litigation, Gale essentially argues he should receive the equivalent of attorney fees. But RCW 42.56.550(4)'s plain language awards "reasonable attorney fees," not fees in lieu ofattorney fees to nonattorneys who represent themselves in PRA 

### actions. RCW42.56.550(4) (emphasis added). Further, we held that nonlawyers litigating PRA actions pro se incur no attorney fees and are not entitled to receive attorney fee awards under RCW 42.56.550(4). Mitchell v. Wash. State Dep't of 

### Corrections, 164 Wn. App. 597, 608, 277 P.3d 670 (2011) ("[P]rose litigants are generally not entitled to attorney fees for theirwork representing themselves."). See also Inre Marriage of Brown, 159Wn. App. 931, 938-39, 247 P.3d 466 (2011) (citing Leen v. Demopolis, 62 Wn. App. 473, 486-87, 815 P.2d 269 (1991)) (Washington courts have awarded attorney fees to pro se litigants only when those litigants were themselves attorneys because they musttake time from their practices to prepare and to appear like any other lawyerwould.). We are aware of no Washington authority extending this rationale to a nonlawyer pro se litigant. Regarding Gale's argument that he is entitled to other costs (printing, copying, various fees, etc.), the City claims Gale is not entitled to such costs because he never submitted a detailed cost affidavit below. Nevertheless, Gale requested "all costs" and -27-70212-2-1/28


### claimed they totaled $2,600. And in Francis v. Wash. State Dep't ofCorrections, Wn. App. , 313 P.3d 457 (2013), Division Two ofthis court rejected the same argument the City makes here. In Francis, neither party disputed that the Department should have disclosed certain records to Francis, but the trial court still denied Francis's request for costs. Francis. 313 P.3d at 469. Francis appealed, and Division Two rejected the Department's argumentthat Francis failed to submit a cost affidavit to the
trial court: The Department also argues that Francis is not entitled to costs because he did not submit a cost bill to the trial court. According to CR 54(d), [i]fthe party to whom costs are awarded does not file a cost bill or an affidavit detailing disbursements within 10 days afterthe entry ofthe judgment, the clerk shall tax costs and disbursements pursuantto CR 78(e). 

### CR 78(e), in turn, only allows limitedtypes ofcosts if"the party to whom costs are awarded" fails to file a cost bill within the same 10-day period. As just noted, the trial court did not award costs to Francis. Therefore, neither ofthese 

### provisions applies to him at this point. Further, we have held that "[ajbsentclear language to the contrary, we will not mechanically apply CR 78(e) to deprive a litigant ofcosts to which he is justly entitled." Mitchell fv. Washington State Inst, of Pub. Policy. 153 Wn. App. 803. 823. 225 P.3d 280 (2009)1. Francis was entitled to an award ofcosts under RCW 42.56.550(4), and he was under no duty to file a cost bill when the court denied him costs. We therefore reverse the denial of costs and remand with instructions to award Francis his reasonable costs incurred in litigating this matter. Francis. 313 P.3d at 469-70 (emphasis added). 

### The court awarded Gale his filing fee. It is unclearfrom this record whether he 

### submitted a cost bill under CR 54(d). Because Gale is entitled to "allcosts" oflitigation under RCW42.45.550(4), we remand withinstructions to award Gale his reasonable

-28-70212-2-1/29



### costs incurred in litigating this matter conditioned on his filing of an itemized cost affidavit inthe trial court.23
CR 11 Sanctions 

### Gale contends the trialcourterred by not imposing CR 11 sanctions on the City 

### "forproffering arguments clearly notbased in fact or on existing law" and "forproffering 

### arguments 'to harass or tocause unnecessary delay or needless increase in the cost of litigation.'" Appellant's Br. at 39. 

### A party seeking CR 11 sanctions must notify the court and the offending party 

### promptly upon discovering a basis fordoing so. Bryantv. Joseph Tree. Inc.. 119Wn.2d 210, 224, 829 P.2d 1099 (1992). "Both practitioners andjudges who perceive a 

### possible violation of CR 11 mustbring itto the offending party'sattention as soon as 

### possible." Biggs v. Vail. 124Wn.2d 193, 198, 876 P.2d 448(1994). Atno pointin this 

## litigationdid Galeorthecourtinformthe CityofapossibleCR 11 violation.24 Galeis notentitled toCR 11 sanctions againsttheCity.25 23 Neitherparty reguests an award offees or costs on appeal. 24 Gale admits that he failed to raise the CR 11 issue below, but he claims, "The 

### extensive andcontinuing nature ofCR 11 violations werenotapparent to[me] until after 

### thetrial courtgaveits ruling." He alsoargues, withoutcitationtoauthority, that"the 

### City, and its attorneys, should beheldto ahigherstandard ofconduct" inthis case. 

## Appellant's Reply Br. at24. These arguments do notjustifyconsidering the issuefor thefirsttime onappeal. See RAP 2.5(a) (An appellate court "may refuse toreview any claim of error whichwas not raised in the trial court."); Beal v. City ofSeattle, 134Wn.2d 

### 769, 777n.2, 954P.2d 237(1998) ("The City cites noauthorityforthis proposition and, thus, itisnotproperly before us.") (citing RAP 10.3(a)(5); Schmidtv. Cornerstone Invs.. Inc.. 115Wn.2d 148, 166, 795 P.2d 1143(1990)). 

### 25 Further, "[t]he determination whetheraviolation ofCR 11 has occurred is vested in the sound discretion of the trial court." Doev. Spokane &Inland Empire Blood 

### Bank 55Wn. App. 106, 110, 780 P.2d 853 (1989). Gale provides no analysis showing -29-70212-2-1/30

CONCLUSION Because (1) the record supports the trial court's determinations regarding PRA 

### compliance, penalties, and costs and (2) Gale's remaining arguments were not raised below and are insufficiently argued on appeal, we affirm but remand to the trial court solely to determine Gale's reasonable costs incurred in litigating this matter inthe trial

court and conditioned on his submission of an itemized cost affidavit.

WE CONCUR: 

# &ftt3- Yxd<et, '

. ' 7"



### that even if he had properly notified the Citythat he intended to seek CR 11 sanctions, the court abused its discretion indeclining to impose such sanctions. See Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 385 (2011) 

### (declining to consider an inadequately briefed argument).

-30-