'y.i •:: OF 

## 2015JUL-6 Ari 9= I,

IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON CEDAR GROVE COMPOSTING, ) No. 71052-4-1 INCORPORATED, ) ) DIVISION ONE 

### Respondent, ) ) PUBLISHED OPINION v. ) ) CITY OF MARYSVILLE, ) ) 

### Appellant. ) FILED: July 6,2015 ) 

### Leach, J. —In this appeal, we apply the Public Records Act(PRA)1 to records prepared and held by a private third-party contractor who provided 

### professional services to the city of Marysville (Marysville or City). The City appeals trial court decisions finding the City violated the PRA, imposing 

### penalties, and awarding attorney fees and costs. The City claims that Cedar Grove Composting Inc. did not have standing to sue, that documents created by and in the possession of its private contractor were not public records subjectto the PRA, and that the trial court abused its discretion in awarding penalties, 

### attorney fees, and costs. Cedar Grove cross appeals the trial court's award of less than halfofthe fees itrequested.

1 Ch. 42.56 RCW.No. 71052-4-1/2 

### Because CedarGrove had a personal stake inthe outcome of this action, 

### it had standing to sue under the PRA. Under the exceptional facts of this case, the records prepared by a contractoracting as the functional equivalent of a city 

### employee were public records for purposes of the PRA. Because the record establishes that Marysville violated the PRA bywrongfully withholding these and 

### otherpublic records, we affirm the trial court's PRA decisions. And becausethe court did not abuse its discretion in assessing penalties, striking Marysville's 

### declarations or reducing CedarGrove's fee request, we affirm the court's award ofcosts and attorneyfees and denial ofreconsideration. FACTS 

### In MapleValley and Everett, Washington, Cedar Grove operates two of 

### the largest commercial composting operations in Washington and among the 

### largestin the United States. The Everettfacility is just overhalfa milefrom the city limits ofMarysville. The City received a number ofcomplaints about odors attributed to CedarGrove. The PugetSound Clean Air Agency (PSCAA)issued 

### notices ofviolation and imposed fines againstCedarGrove, though the Pollution 

### Control Hearings Board reduced some fines in 2011 after finding that Cedar Grove had madeefforts inodormitigation.2



### 2In its order, the board concluded that the PSCAA "erred by attributing 

### such a large part of the combined penalty to the non-responsiveness of Cedar Grove" and reduced the penaltiesfrom$169,000to$119,000. -2-No. 71052-4-1/3 Cedar Grove believed that a hostile public relations campaign was 

### "spreading disinformation" aboutthe company, particularlythatCedarGrovewas 

### the primary source of offensive odors in the Marysville area. A mailer, for example, encouraged residents to contact PSCAA ifthey "wantto lodge an odor 

### complaint—whether [they] believe itoriginates from Cedar Grove Composting in 

### Everett or another industrial activity."3 Cedar Grove learned that some of the mailers came from a mailing address and a printing company associated with a public relations firm, Strategies 360. On November 1, 2011, Kris Cappel, of the Seabold Group, e-mailed a 

### PRArequestto AmyHess, deputy clerk and public records officer for the City of Marysville.4 Cappel requested documents including "any and all available information" about communications and professional services agreements 

### "between or among" the City and Strategies, local citizen Mike Davis, the group "Citizens for a Smell Free Marysville," the Tulalip Tribes, media outlets, and a number of other parties. Cappel also requested records of communication 

### "between or among" the City and other parties "relating or referring to Cedar Grove Composting, odorcomplaints, composting, permits or licensing."

3 A PSCAA inspector told an attorney that the mailer, which residents 

### received as a postcard and in a Parks and Recreation Department flier, "is 

### designed to look like it comes from us but itdoes not" and that the PSCAA "[does] not solicit." 

### 4The Seabold Group is an investigative and consulting firm. Cappel is an attorney not currently practicing law. -3-No. 71052-4-1/4 Inhere-mail, Cappel did not identify Cedar Grove as a clientor otherwise indicate her representative capacity. A November 2, 2011, e-mail among Strategies employees, however, indicates that Marysville Chief Administrative OfficerGloria Hirashima knewthat Cappel made the requests on behalfofCedar 

### Grove. According to this e-mail, the day Cappel submitted the PRA request, Hirashima called Strategies SeniorVice PresidentAlAldrich to "give [Strategies]

a heads up that after a quiet period, Cedar Grove has picked up their activity 

### level. . . . [Hirashima] thoughtthey might try to bootstrap a Records Request into

our emails."5 The record before us does not indicate that Hirashima spoke to Hess about Cedar Grove's interest in the records request or the phone call to Aldrich. 

### Hess's initial queries identified over 10,000 documents potentially responsive to Cappel's request. The City provided a first installment of "easily available" records on November 30, 2011, and a second installment on 

### December29, 2011. A portion ofthedocuments producedwere reproductions of Cedar Grove's own documents or documents from other agencies. These 

### installments did not include responsive e-mail, whichthe City did not producefor
several months.

5 Aldrich noted in his e-mail that Strategies "did get bootstrapped into 

### doing a Records Requesta fewyears ago" in a lawsuitinvolving a different client. -4-No. 71052-4-1/5 

### On February 2, 2012, the City produced several e-mail messages between Kristin Dizon of Strategies and Grant Weed, Marysville city attorney. The City completely redacted the content of the e-mail, explaining in an exemption/redaction log that the redaction was for "Attorney Client Privilege/Work Product." The City produced additional installments ofrecords on March 8, 2012, and April 5, 2012. Redaction logs for these installments claimed additional exemptionsfor "AttorneyClientPrivilege/WorkProduct." InJune 2012, Cappel asked Hess whethere-mail communications "to and among Strategies 360 representatives" had been "inadvertently redacted" under attorney-clientprivilege. Hess replied thatthe redacted e-mailwere privileged: Strategies 360 was hired as a professional consultant to the City. The emails that are redacted are Work Product/Attorney Client communications between the City Attorney Grant K.Weed and the City Consultant and are legal advice, direction and input related to the project the City Consultant was working on for the City and within the scope of work product and attorney client privilege—the same as ifthe City Attorney were communicating with a City Staff memberworking on the project. Two weeks later, Hess received a letterfrom a different attorney, Michael Moore, challenging the City's attorney-client privilege/work product claim. The letter requested that the City produce "all of the communications" by July 13, 2012, "[t]o avoid the costs of litigation and penalties for the improperwithholding ofthe documents at issue."No. 71052-4-1/6 On August 2, 2012, the City produced unredacted versions ofthe e-mail it withheld from thefifthinstallment, stating in a coverletterthatit did notwaive the 

### attorney-client privilege or work product doctrine exemption beyond those specific records. In several of these e-mail, Dizon asked Weed to forward e

### mailed information to Hirashima and Marysville Mayor Jon Nehring. Dizon explained in one e-mail that she was asking Weed to forward her e-mail, rather than sending itdirectly to Hirashima, "so itcomes as privileged information from you," and said in a later e-mail, "I definitely do not want Cedar Grove to see the trail on this." Weedforwarded thee-mail as Dizon requested. On August 28, 2012, Cedar Grove filed suit under the PRA. In 

### September, Cedar Grove subpoenaed documents directly from Strategies 360. The subpoena sought "communications, emails, or other documents sent to, 

### received from or exchanged between Strategies 360 and any third party (including the City of Marysville, the City of Seattle, the Tulalip Tribes, Mike Davis, Citizens for a Smell Free Marysville," among others, that "mention, reference, or relate" to Cedar Grove or the odor dispute. Comparison between Strategies' production and Marysville's earlier productions revealed 17 responsive e-mail between Marysville and Strategies that the City had not produced. The City also located two responsive e-mail on Mayor Nehring'sNo. 71052-4-1/7 personal computer. The City later stipulated that it initially withheld these 19 records. In November 2012, Cedar Grove moved for partial summary judgment, 

### alleging that Marysville wrongfully withheld 22 responsive records6 under an improper claim of attorney-client privilege. The City filed a response and cross motion for summary judgment. The summary judgment hearing occurred on April 19,2013. Afternoticing references inthe City's productions to two particulartypes of document, Cedar Grove became concerned that Marysville and Strategies had not yet produced all responsive records. First, certain e-mail referred to Strategies' work with Mike Davis, leader of a local anti-Cedar Grove citizens' group, but records produced up to that time contained no information about the nature of that work. Also, Marysville had not produced any records related to mailers Strategies created, though several e-mail referred to this work. In June 2013, CedarGrove moved to compel Strategies to produce additional documents relatedto "the Mailers and Strategies 360'swork with Mike Davis." On July 2, 2013, the courtentered its orderon cross motions for summary judgment, inwhich itfound that the City had violated the PRA by withholding 15 e-mail under an improperclaim ofattorney-client privilege and work product. On 

### 6Inthe verbatim reportofproceedings (Oct. 3, 2013, hearing on fees), the attorney for Cedar Grove referred to 24 documents at issue at the April 2013 summaryjudgmenthearing, butthe courtrefersto only 22 in itsorder. -7-No. 71052-4-1/8 

### July 22, the parties stipulated that the City did not produce or disclose in an 

### exemption log 19 more records responsive to Cappel's requests. And two days later, the court granted Cedar Grove's motion to compel, after which Strategies 

### produced 173 responsive records, including 160 e-mail communications concerning Mike Davis and Strategies and 13 records relating tothe mailers. These e-mail indicate that Strategies worked closely with Davis and the 

### City inthe campaign againstCedarGrove. Strategies acted as a liaison between 

### Marysville and Davis and relayed instructions to himfor the City.7 In one e-mail, Aldrichadvised Davis to attend a city council meeting and "tellthe Mayor, Gloria and Council that as citizens you really appreciate what they are doing. That 

### should shore them up and keep them inthe game, which is the biggestdynamic 

### at work right now." Dizon also ghostwrote letters to the editor that Davis and 

### others signed, wrotepress releases, and prepared Daviswith "talking points" for

a radio interview. 

### Certain e-mail indicate that Marysville sometimes worked directly with 

### Davis.8 Other e-mail suggest that Strategies worked withthe City, Davis, and 7 In a 2010 e-mail, Aldrich told Hirashima about attending a meeting of 

### Davis's citizens' group: "I talked with Mike Davis afterwards, explained who I was and told him that Strategies 360 wanted to help them, with the City's 

### blessing and paying us. He appreciated that and said he would call me next weekto set up a meeting." The following day, Aldrich told Hirashima inanother e-mail, "I'm having breakfast withMike Davis on the 29th. Let me know if you wantto discuss this further." 

### 8City leaders took a letter on an environmental impactstatementto a city council meeting at which Davis presented petitions from his citizens' group, -8-No. 71052-4-1/9 

### otherthird parties to circumventthe requirements ofthe PRA. Aldrich told Dizon 

### and Davisthathe was going to "tell Gloria byphone so itdoesn'tgetcaughtup in 

### [Cedar Grove]'s public records request." In a later e-mail, Aldrich told Tulalip Tribes members, "I will separately convey the [Cedar Grove] letterto Gloria and Jon at Marysvilleand have a phone discussion withthem aboutthe points above 

### (their emails are all being reviewed by [Cedar Grove] under a Public Records request)." In another e-mail, Aldrich asked an attorney and Strategies staff, "[Mayor] Nehring's email below is his personal email, which should be separate 

### fromOpen Records disclosures, right?" And Aldrich wrote Steve Gobin, a Tulalip Tribes member, an e-mail with the subject line "Cedar Grove" that informed Gobin that Aldrich had a sample of an anti-Cedar Grove mailer that would be sentto homes inEverettand Marysville. Aldrich told Gobin, "We aretrying not to 

### share the draft with Gloria and Marysville folks, primarily to give them 'plausible deniability' aboutthe mailerand itscontents." 

### Shortly after Strategies produced the 173 responsive records, Cedar Grove filed a motion forsummaryjudgmentforpenalties. Thetrial court granted this motion on September9, 2013, and imposed penalties of$70 a dayforthe 15 

### records improperly withheld as privileged, $40 a day for the 19 stipulation

which Dizon called "a [n]ice two for one punch." Davis referred in e-mail to a 

### meeting with Hirashima and Nehring and to documents related to grants which were "started by [Davis] andfinished by Gloria at Marysville." -9-No. 71052-4-1/10 

### records, and $90 a day for the 173 Strategies records. The penalties againstthe Citytotaled $143,740. The City moved for reconsideration. On October 30, 2013, the trial court entered three orders: a revised order granting summary judgment to Cedar 

### Grove regarding penalties, an order granting costs and attorney fees to Cedar Grove, and an order denying the City's motion for reconsideration. The court also struck three declarations the City submitted in support of its motion for 

### reconsideration. The court awarded $127,644.83 for costs and attorney fees, lessthan half ofthe roughly $283,000.00 CedarGrove sought. The City appeals. Cedar Grove cross appeals the court's award offees and costs. ANALYSIS 

### In 1972, Washington voters overwhelmingly approved Initiative 276,9 a strongly worded mandatefor public disclosure.10 This initiativedeclared a broad public policy ofdisclosurethatincluded thefollowing elements:



### 9Voters passed this initiative by a margin of72.02 percent (959,143 in favor) to 27.98 percent (372,693 against), http://www.sos.wa.gov/elections /initiatives/statistics_initiatives.aspx In addition to provisions for disclosure of public records, the initiative included provisions on campaignfinance and created a public disclosure commission. In 2005, the legislature recodified the initiative provisions pertaining to public records as the Public Records Act, chapter42.56 RCW. Laws of2005, ch. 274. 

### 10 HearstCorp. v. Hoppe. 90 Wn.2d 123, 127, 580 P.2d 246 (1978). -10-No. 71052-4-1/11 (2) That the people have the right to expect from their elected representatives at all levels of government the utmost of integrity, honesty, and fairness intheirdealings.

(5) That public confidence in government at all levels is essential and mustbe promoted by all possible means. (6) That public confidence in government at all levels can best be sustained by assuring the people of the impartiality and 

### honestyofthe officials in all public transactions and decisions.'11] This policy also requires that courts liberally construe the PRA infavor of 

### disclosure.12 While these declarations of policy do not have any independent operative effect, they "serve as an important guide in determining the intended 

### effectofthe operative sections" ofthe PRA.13 Upon request, every government agency must produce for inspection and copying any public record unless it falls within a specific, enumerated 

### exemption.14 The act provides for judicial review to challenge an agency's withholding of a public record "[u]pon the motion of any person having been 

### denied an opportunity to inspect or copy a public record by an agency."15 This 

### court reviews agency actions underthe PRAde novo.16

11 RCW42.17A.001 (2), (5), (6). 12RCW42.56.030. 13Hearst Corp., 90 Wn.2d at 128. 

### 14 RCW 42.56.070(1); Sanders v. State. 169 Wn.2d 827, 836, 240 P.3d 120(2010). 

### 15 RCW42.56.550(1). 

### 16 RCW 42.56.550(3); Neigh. Alliance of Spokane County v. Spokane County. 172Wn.2d 702, 715, 261 P.3d 119 (2011). -11-No. 71052-4-1/12 Standing As a threshold matter, Marysville contends that Cedar Grove lacks standing to sue underthe PRA because it did not make the requests at issue. A nonparty, Cappel, made them. We rejected a similar argument in Kleven v. City 

### of Des Moines.17 In Kleven. a cityargued thatbecause Kleven's attorney made the contested records requests, Kleven lacked standing.18 This court concluded thatthe city of Des Moines read the statute "too narrowly, contrary to the stated 

### purpose ofthe [act]."19 We observed, "The doctrine ofstanding requires that a claimant must have a personal stake in the outcome of a case in order to bring suit," concluding that the record "amply supported] Kleven's personal stake" in 

### the requested records.20 Marysville unpersuasively attempts to distinguish Kleven. Itasserts that 

### "the attorney disclosed that the request was made on the client's behalf." But Marysville misstates the case's facts. In Kleven. the same attorney who submitted his client's public records requests later filed the lawsuit, and "[t]he petition commencing this case, which [the attorney] signed, clearly alleges that 

### [he] made the requests for records on behalfofKleven."21 But the challenged 17 111 Wn. App. 284, 44 P.3d 887 (2002). 18 Kleven. 111 Wn. App. at290. 19 Kleven. 111 Wn. App. at 290. At issue in Kleven was the Public Disclosure Act (PDA), chapter 42.17 RCW, which was renamed the PRA and recodified as chapter42.56 RCW. 

### 20 Kleven, 111 Wn. App. at290. 21 Kleven. 111 Wn. App. at290. -12-No. 71052-4-1/13
PDA requests, made by Kleven's attorney, did not disclose his representative capacity or his client: "[n]either [this] request nor any communication that 

### followed mentioned Kleven."22 Holding that Kleven nonetheless had standing, this courtemphasized that it"will not read into the acta requirementthatcounsel must identify the fact of representation or the name ofthe client when making a 

### requestforpublic records on behalfof a client."23 

### The City also cites McDonnell v. United States24 and otherfederal cases 

### decided under the Freedom of Information Act (FOIA)25 to argue that only a records requesterhas standing to sue. But in Kleven, this courtalso rejected this argument. Observing that "the FOIA provisions underlying McDonnell differfrom 

### the PDAprovisions at issue here,"26the courtconcluded, "For this reason alone, 

### FOIAdoes not provide any useful guidance in applying the PDA."27 The City points to WAC44-14-030(4)28 to argue that "Washington law is

now akin to FOIA in regard to the precision by which the request must be made," 

### 22 Kleven. 111 Wn. App. at 288. 23 Kleven. 111 Wn. App. at 291. 244F.3d 1227(3dCir. 1993). 25 5 U.S.C. §552(1970). 26 Kleven. 111 Wn. App. at 292. For example, in McDonnell, the Third Circuit noted that FOIA "'conditions the agency's duty upon receipt of a request that is made in accordance with published rules'" and reasoned that "'a person whose name does not appear on a request for records has not made a formal request for documents within the meaning ofthe statute'" and thus may not sue "'because he has not administratively asserted a right to receive them inthe first place.'" Kleven. 111 Wn. App. at291-92 (quoting McDonnell. 4 F.3d at 1236-37). 

### 27 Kleven. 111 Wn. App. at 293. 28WAC44-14-030 provides inpertinentpart: -13-No. 71052-4-1/14 noting that "the name of the requestor is required." But this model rule aims to 

### facilitate communication betweenthe agency and the person making the request, something not at issue in this case. Itdoes not prescribe rules for standing to bring a lawsuit. 

### Finally, citing Burt v. Departmentof Corrections.29the Cityclaims that CR 19 makes a person requesting records an indispensable party to a PRA lawsuit. We disagree. In Burt. Department of Corrections (DOC) employees filed suit against DOC to enjoin the release of records an inmate had requested, basing 

### their claim on privacy.30 The trial court denied the inmate's motion to intervene, and the inmate never participated in the lawsuit.31 After DOC filed a memorandum in support of the requested protective order, the trial court 

### permanently enjoined the release ofthe records.32 Our Supreme Court noted

(4) Making a requestforpublic records. (a) Any person wishing to inspect or copy public records ofthe (name of agency) should make the request in writing on the (name of agency's) request form, or by letter, fax, or e-mail addressed to the public records officer and including thefollowing information:
• Name ofrequestor;
•Address ofrequestor; • Other contact information, including telephone number and any e-mail address; • Identification ofthe public records adequate for the public records officer or designeeto locate the records; and
•The date and time ofday ofthe request. 

### 29 168 Wn.2d 828, 231 P.3d 191 (2010). 30Burt. 168Wn.2dat830. 31 Burt. 168Wn.2d at 830-31. 32 Burt, 168Wn.2dat830. -14-No. 71052-4-1/15 

### that "because ofthe parties' employee/employer relationship, no party was in a position to zealously advocate for the release of the records, which made for a 

### proceeding that was not truly adversarial."33 By excluding the requester—the person with a personal stake in the action—the trial court frustrated the PRA's 

### purpose ofprotecting the public's interest inaccess to public records.34 Forthat reason, the court vacated the injunction and remanded with instructions to join 

### the inmate as a necessaryparty.35 Here, by contrast, the party with a personal stake in the action, Cedar 

### Grove, filed the lawsuit. Cappel's absence does not create the danger of a proceeding that is not "truly adversarial." In Burt, the inmate was a necessary party not because he was the requester but because he had the only adverse personal stake in the litigation. He would have had no less of an interest in the action had an agent made the PRA requests for him—a scenario the court did not address. Burt does not support the City's position. We hold that Cedar Grove had standing to sue. 15 Records: Improper Claim ofExemption forAttorney-Client Privilege The City challenges the imposition of PRA penalties for 15 e-mail records withheld under an improper claim of attorney-client privilege. Marysville contends that its ultimate production ofthese records before litigation precludes 33 Burt. 168Wn.2dat835. 34Burt. 168Wn.2dat835. 35 Burt. 168Wn.2dat838. -15-No. 71052-4-1/16 the trial court's imposition of penalties. The City does not dispute that the records were not privileged, as it previously claimed. Rather, it argues that because it "corrected any error it might have made" in asserting the privilege before Cedar Grove filed suit, the trial court erred in assessing penalties, 

### "particularlyforthe excessive amountimposed at$70 perday." Wedisagree. OurSupreme Courthas held that "once a trial courtfinds an 

### agency violated the PRA, daily penalties are mandatory."36 In Neighborhood Alliance of Spokane County v. Spokane County,37 the court held that "'[subsequentevents do not affectthe wrongfulness ofthe agency's initial action 

### to withholdthe records ifthe records werewrongfully withheld at that time'"38 and that "the remedial provisions of the PRA are triggered when an agency fails to properly disclose and produce records, and any intervening disclosure serves only to stop the clock on daily penalties, rather than to eviscerate the remedial 

### provisions altogether."39 Thus, the City's eventual production of unredacted versions ofthe 15 e-mail reduced the number ofdays for which penalties could be assessed and may affectthe court's decision aboutthe daily penalty amount.

36Neigh. Alliance. 172 Wn.2d at 726. 

### 37172Wn.2d702, 261 P.3d 119(2011). 38 Neigh. Alliance. 172 Wn.2d at 726 (quoting Spokane Research & Defense Fund v. City ofSpokane. 155Wn.2d 89, 103-04, 117 P.3d 1117 (2005)). 39Neigh. Alliance. 172 Wn.2d at 727. -16-No. 71052-4-1/17 But it would not "relieve an agency of its statutory duties, nor diminish the 

### statutoryremedies allowed iftheagencyfails tofulfill thoseduties."40 At oral argument, Marysville cited a recent case from Division Two ofthis 

### court, Hobbs v.Washington StateAuditor's Office.41 forthe rulethat an agency's denial of records is a "necessary predicate" of a cause of action under RCW 42.56.550. Thus, CedarGrove had no cause ofaction as to the 15 records. But thefacts inHobbs differ. There, the agency advised Hobbs that itwould produce 

### the requested documents in installments.42 Hobbsfiled suit immediatelyafterthe agency produced its first installment, while the request was still open and the 

### agencywas still gathering records.43 Hecomplained mainlyaboutredactions, all of which the superior court later found to comply withthe PRA.44 Division Two
affirmed the dismissal ofHobbs's case: When an agencydiligently makes every reasonable effortto comply 

### with a requester's public records request, and the agency has fully remedied any alleged violation ofthe PRA atthetimethe requester has a cause ofaction (i.e., when the agency has taken final action and denied the requested records), there is no violation entitling the 

### requesterto penaltiesorfees.[45] Here, unlike in Hobbs. the requester's first response to the City's 

### production was not to file suit but to inquire of the City whether it had

40Neigh. Alliance. 172 Wn.2d at 727. 

### 41 183Wn. App. 925, 335 P.3d 1004 (2014). 42 Hobbs. 183Wn. App. at929. 43 Hobbs. 183Wn. App. at932. 44 Hobbs. 183Wn. App. at932. 45 Hobbs. 183Wn. App. at940-41. -17-No. 71052-4-1/18 

### "inadvertently" redacted the records under an inappropriate claim of attorneyclient privilege. The City then responded by reiterating its claim of exemption, 

### thus denying the request. This constituted "final agency action" under RCW 42.56.520. Marysville violated the PRA by improperlyclaiming the attorney-client privilege exemption, and penalties are appropriate even though the City later produced the unredacted e-mail. No PRA provision or case law supports the City's claim that its prelitigation production ofthe 15 records somehow insulates it from all PRA penalties. 19 Records: Stipulation The trial court also ruled that Marysville violated the PRA by withholding "19 records that Marysville's search should have located but did not and that Marysville has stipulated were public records not produced to Cedar Grove." Marysville argues that "questions of fact preclude a finding of liability under the PRAfor almostall ofthe 19 documents" and that inany case, the documents are "inconsequential" and "certainlyprovide no basisfor a penaltyof$40 a day." Inthe July 22, 2013, stipulation, Marysville agreed that the 19 responsive records listed "were not released by either being produced to Cedar Grove or disclosed in an exemption log" and that "the briefing and argument for the hearing regarding assessment ofpenalties will address, among otherthings, the 19 documents listed above." A stipulation signed by the parties' attorneys is a

-18-No. 71052-4-1/19 

### contract, and contract principles govern its construction.46 Marysville cites no authority in support of its claim that this court should now set aside this agreement. We affirm the trialcourt's rulingthat Marysville violated the PRA by withholding the 19 records. 173 Strategies Documents Created bv Strategies and "Used" by Marysville 

### Marysville challengesthe trialcourt's decisionthat 173 documents created by Strategies and never possessed by Marysville are public records. The trial courtfound the records to be public records for two reasons. First, because of the intertwined relationship of Marysvilleand Strategies in which Strategies acted

as thefunctional equivalentof a cityemployee, the records created by Strategies 

### while actingasthis functional equivalent were public records. Second, Marysville used the 173 records because Strategies created these documents for and 

### applied them to a governmental purpose identified by Marysville, resolving odor issues allegedly caused by Cedar Grove. Marysville contends that the court's first reason reflects a misapplication of the law and that the second is not 

### supported bythe factual record. Itdescribes the court's decision as "a massive expansion ofthe PRA far beyondthe specificcontours oftheAct." 

### Marysvillecontendsthatbecause Strategies is not a "publicagency,"47the PRA does not apply to its records. This argument misses the issue. The trial 46Allstot v. Edwards. 114Wn. App. 625, 636-37, 60 P.3d 601 (2002). 

### 47 RCW 42.56.010(1) defines "agency" as including "every state office, 

### department, division, bureau, board, commission, or other state agency" or -19-No. 71052-4-1/20



### courtdid not rule thatthe 173 documents were public records because Strategies

was a public agency. It ruled that because, as Marysville itself acknowledged when claiming the attorney-client privilege, Strategies acted as the functional equivalent of a Marysville employee, the documents that Strategies generated in thatcapacity pertaining to the conductofgovernmentwere public records subject

to the PRA. The PRA defines a "public record" as "any writing containing information relating to the conductofgovernmentor the performance ofany governmental or proprietary function prepared, owned, used, or retained by any state or local 

### agency regardless of physical form or characteristics."48 This definitiondoes not limit the term to documents prepared by government officials. Courts have construed itas referring to "'nearly any conceivable government record related to 

### the conductof government.'"49 Public records may include records of a for-profit 

### corporation acting as the functionalequivalentof a public agency.50 The City contends thatthe court's decision "conflates the two concepts" of attorney-client privilege and a public record and forces governments to make a "every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agencythereof, or otherlocal public agency." 

### 48 RCW42.56.010(3). 49 Nissen v. Pierce County. 183 Wn. App. 581, 590, 333 P.3d 577 (2014) (guoting O'Neill v. City ofShoreline. 170Wn.2d 138, 147, 240 P.3d 1149 (2010)), review granted. 182Wn.2d 1008 (2015). 50 Clarke v. Tri-Cities Animal Care &Control Ctr.. 144Wn. App. 185, 194- 95, 181 P.3d881 (2008). -20-No. 71052-4-1/21 "Hobbesian choice": assert attorney-client privilege and risk PRA penalties or waive privilege and lose its protection. Marysville characterizes the trial court's ruling as concluding that because the City asserted that Strategies was the 

### functional equivalent of an employee for purposes of attorney-client privilege, "this acted as the functional equivalent ofan admission that all other Strategies' documents were therefore public records, including the 173 documents not sent to the City." According to Marysville, the trial court decision has a "pernicious" 

### effect, resulting in a situation where "[vjirtually all records of government contractors potentially now become public records, even if the records were

neversentto, orused by, the government. This is a distortion ofthe PRA and an unprecedented expansion of its scope." Similarly, amicus curiae Washington State Association of Municipal Attorneys (WSAMA) contends the trial court's decision "would bring all documents generated by a government contractor working on a government contract within the scope of the PRA" and "open the floodgates ofpublic records liability forWashington's cities." But Marysville and WSAMA overstate the trial court's ruling. The trial court did not rule that all records of government contractors are public records. Instead, the court applied Washington precedent holding that a private entity acting as the functional equivalentof a public agency is subjectto the PRAto an analogous situation: a private company acting as the functional equivalent of a

-21-No. 71052-4-1/22 

### publicemployee.51 As noted byDivision Three of this court, a localgovernment may delegate performance of a public function to a private entity, but itcannot avoid its statutory responsibility to perform its PRA obligations through this 

### delegation.52 Otherwise, a localgovernment could "contravene the intent of the PDA and the public records act by contracting with private entities to perform


### core government functions."53 Similarly, a local government could thwart the intent ofthe PDA and the PRA by contracting with a private entity to perform its employees' work. For this reason, the PRA should apply to those records created by a private entity performing as the functional equivalent of a public employee in the same manner it applies to the records such an entity creates performing as the functional equivalent of a public agency. Otherwise, a local governmentcould by piecemeal contracts avoid its PRAobligations. In Telford v. Thurston County Board ofCommissioners.54 Division Two of this court adopted a four-factor functional equivalent balancing test to determine if an entity should be treated as a public agency for PRA purposes: (1) the extent the entity performed a governmental function, (2) the extent public funds paid for the activity, (3) the extent of government involvement or regulation, and (4) ifthe government created the entity. A balancing ofthese factors ratherthan 

### 51 Clarke. 144 Wn. App. at 194-95; Telford v. Thurston County Bd. of Comm'rs. 95 Wn. App. 149, 161-63, 974 P.2d 886 (1999). 

### 52 Clarke. 144 Wn. App. at 194. 53 Clarke. 144Wn. App. at 194. 

### 54 95 Wn. App. 149, 162, 974 P.2d 886 (1999). -22-No. 71052-4-1/23



### a satisfaction of all four determines ifthe entity is the functional equivalent of a 

### stateor local agency.55 We apply an analogoustesthere. Marysville necessarily conceded that Strategies was performing a governmental function when the City represented and the court accepted for purposes of asserting an attorney-client privilege its claim that Strategies acted

as thefunctional equivalentof a cityemployee. Marysville makes no claim thata cityemployeewould do work thatwas not performance of a governmentfunction. Marysville cites no authority to support its assertion that a government mayclaim thata contractoristhefunctional equivalentofan employee inorderto assert attorney-client privilege, while simultaneously claiming that documents generated by these de facto employees in the scope of their de facto public 

### employment are not public records for purposes of the PRA. Marysville's unsupported statement that attorney-client privilege is "necessarily broad," while 

### "[t]he definition of a public record is necessarily narrower," does not persuasively distinguish these two consequences—one a privilege and the other a responsibility—that flow from Strategies' status as the functional equivalent of a city employee. Marysville paid Strategies for at least the majority of the work at issue. The trial courtfound, and the record shows, that Marysville was heavily involved



### 55Telford, 95 Wn. App. at 162. -23-No. 71052-4-1/24 

### in the work performed by Strategies. Strategies took a number of significant actions after direct consultation with Marysville or at Marysville's direction. Strategies and Marysville appearto have taken conscious steps to have records created by Strategies ratherthan Marysville withthe express goal ofavoiding the
PRA. Although the fourth factor is not satisfied, a balancing of all four factors leads to the conclusion that Strategies acted as the functional equivalent of a public employee performing a governmental function. Its activities served a public function, were paid in large part with public funds, and were directed and approved by Marysville. The evidence before the trial court shows that city 

### officials and employees repeatedly took affirmative steps to avoid creating records they would normally create during the course oftheirwork. Members of city government, together with Strategies personnel, pursued a deliberate policy 

### to conceal the City's role in the campaign against Cedar Grove. They accomplished this by directing and delegating activities to Strategies and then disavowing knowledge ofthose activities, with the express objectofavoiding the reach ofthe PRA. Given the purposes of the PRA and Initiative 276, the trial court correctly determined that the records created by Strategies while performing these functions were public records. In response to Marysville's floodgate argument,

-24-No. 71052-4-1/25



### we emphasize that Strategies records not relating to its actions as the functional 

### equivalentof a cityemployeeare not subjectto PRA requests.56 Marysville also argues thatthe 173 Strategies documents were not public records becausethe City did not "use" them. Ourdecision does not require us to address this argument. We nonetheless conclude that Washington case law supports the trial court's rulingthat Marysville "used" the records inthe meaning ofthe PRA. In Concerned Ratepayers Ass'n v. Public Utility District No. 1 of Clark 

### County.57 our Supreme Court held that an agency "uses" information for purposes of the PRA when the information is "applied to a given purpose or instrumental to [a governmental] end or process" and where "a nexus exists between the information and an agency's decision-making process." In 

### Concerned Ratepayers, citizens requested a document describing technical specifications of a turbine generator that the public utility district (PUD) was 

### considering for a proposed power plant.58 The PUD argued that the document

was not a public record because the PUD never possessed or used it and 

### ultimately chose to install a different generator model.59 The court concluded, 

### 56 See Nissen. 183 Wn. App. at 592-93. 57 138 Wn.2d 950, 952, 983 P.2d 635 (1999). 58 Concerned Ratepayers. 138Wn.2d at 952-53. The citizens who formed the Concerned Ratepayers Ass'n sought to determine ifthe proposed power plant would be capable of generating more than 250 megawatts of power, thus necessitating a publicvote underRCW 80.52.040. 59Concerned Ratepayers. 138 Wn.2d at 958. -25-No. 71052-4-1/26 however, that the PUD reviewed and "carefully evaluated" the technical specifications inthe document as part ofnegotiations with the manufacturer and that this consideration was "clearly instrumental to the process of building the 

### powerplant."60 The court held that although "mere reference to a documentthat has no relevance to an agency's conduct or performance may not constitute 'use,'" information that "bears a nexus with the agency's decision-making 

### process" is within the parameters of the PRA.61 Under this analysis, the generatorspecifications were a public record for purposes ofthe PRA. Marysville emphasizes that "the City never received the documents or in any way possessed them; it obviously could not 'use' documents it never had." But the court in Concerned Ratepayers concluded that the agency did not have to possess a document to "use" it for purposes of the PRA, agreeing with the Court of Appeals that "possession of information is not determinative of the issue."62 Marysville also argues that unlike the court in Concerned Ratepayers, the trial court here did not specifically explain how the City applied the documents to any governmental decision, and "[t]hus, there is no essential nexus to governmental decisionmaking." Here, the trial court did not make a finding like the finding in Concerned Ratepayers that the agency "carefully evaluated" any 60 Concerned Ratepayers. 138Wn.2d at 961, 962. 61 Concerned Ratepayers. 138Wn.2d at961, 960. 62Concerned Ratepayers. 138Wn.2d at 959-60. -26-No. 71052-4-1/27 specific Strategies document. But the trial court identified specific actions Strategies employees took and memorialized ine-mail that "clearlyfurthered the interests ofMarysville." Forexample, the court noted that documents Strategies 

### generated on behalfof Marysville, such as communications Mike Davis issued to media outlets, "were made instrumental to Marysville's governmental ends or purposes" inthe campaign againstCedarGrove. 

### Marysville also cites West v. Thurston County63 to argue that records are not "used" where the agency never received them. InWest, the records at issue



### were attorney billing invoices for amounts exceeding the county's insurance 

### deductible.64 Noting that the county never "'reviewed, evaluated, referred to or otherwise considered'" the invoices because they were not the county's 

### responsibility to pay,65 DivisionTwo of this court held thattherewas no indication that the invoices "'had a nexus with Thurston County's decision-making 

### process.'"66 Therefore, the invoices were not publicrecords underthe PRA. In its briefand at oral argument, the Cityargued that likethe county inWest, while 

### Marysvillegenerally benefitedfromthework ofthethird-party contractor, the City did not "use" the specificdocuments at issue underthe PRAdefinition.



### 63 168Wn. App. 162, 275 P.3d 1200 (2012). 64West. 168Wn. App. at 166-67. 65West. 168Wn. App. at 185-86. 66West. 168Wn. App. at 186. -27-No. 71052-4-1/28 We distinguish West. Unlike the extraneous invoices in that case, the 

### Strategies records at issue, includingcommunications with third parties, directly related to activities Strategies performed "at the behest ofMarysville" to further 

### the City's interests. One of the challenged Strategies e-mail particularlysupports this conclusion. Although not addressed to the City, itcontains the subject line "Cedar Grove" and directly refers to "Gloria and [the] Marysvillefolks" and the need to give them "'plausible deniability'" about materials Strategies created for the campaign against Cedar Grove. These communications, considered 

### together with evidence that the City suspected from the day of Cappel's first requestthat CedarGrove might pursue access to Strategies' records, establish a


### nexus between the 173 Strategies documents and Marysville's decision-making process. They show that Marysville used the Strategies documents within the meaning ofthe PRA. 

### Thetrialcourtfound that "Marysville knewwhatStrategies was doing, paid them for those activities, was generally aware that there were documents in Strategies' possession created during those activities, and discussed the 

### contents of some of those documents with Strategies." Contrary to the City's assertion at oral argument that itwas "utterly oblivious" to the existence ofthese documents, the record before us shows that nine months before Cedar Grove

-28-No. 71052-4-1/29 

### filed suit, Marysville knew aboutthem and knew further that CedarGrove might attemptto obtain these records with a PRArequest. Marysville violated the PRAwhen itfailed to disclosethese records.
PRA Penalties 

### Marysville argues that even ifthe City violated the PRA, the penalties totaling $143,740 that the court imposed were "unreasonable and excessive." 

### Once the trial court finds that an agency violated the PRA, daily penalties are 

### mandatory, and the court mustconsiderthe entire statutorypenaltyrange.67 The amount, however, is in the trial court's discretion.68 A court abuses its discretion when it exercises that discretion on untenable grounds or for untenable 

### reasons.69 Thetrial courthasdiscretion to award a party who prevailsagainstan agency in a PRA action "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."70 Determining the appropriate PRA penalty involves two steps: (1) calculating the



### 67 Neigh. Alliance. 172 Wn.2d at 726 (citingYousoufian v. Office ofKing County Exec. 152 Wn.2d 421, 433, 98 P.3d 463 (2004) (Yousoufian II)); Yousoufian v. Office of Ron Sims. 168 Wn.2d 444, 466, 229 P.3d 735 (2010) (Yousoufian V). 

### 68 Neigh. Alliance, 172 Wn.2d at 726 (citing Yousoufian II, 152 Wn.2d at 433). 69 Chuong Van Pham v. City of Seattle. 159 Wn.2d 527, 538, 151 P.3d 976 (2007). 

### 70 RCW42.56.550(4). -29-No. 71052-4-1/30 number of days the agency improperly denied access to records and (2) 

### determining the appropriatedaily penalty, depending onthe agency's actions.71 In Yousoufian v. Office of Ron Sims.72 our Supreme Court adopted a multifactor test for determining the daily penalty amount. Mitigating factors that may decrease any penalty are (1) a lack of clarity in the 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 exceptions; (4) proper training 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 systemsto track and retrieve publicrecords.1731 Onthe otherhand, aggravating factors may supportan increased penalty: (1) a delayed response by the agency, especially in circumstances making time of the essence; (2) lack of strict compliance by the agency with all the PRA procedural requirements and exceptions; (3) lack of proper training and supervision of the 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, wherethe importancewas 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 deter future misconduct by the agency considering the size of the 

### agencyand the facts of the case.[74]

71 Brickerv. Dep't of Labor &Indus.. 164 Wn. App. 16, 21, 262 P.3d 121 (2011) (citing Yousoufian V. 168Wn.2d at459). 

### 72 168Wn.2d 444, 467-68, 229 P.3d 735 (2010) (YousoufianV). 73 YousoufianV, 168Wn.2d at467 (footnotes omitted). 74Yousoufian V, 168Wn.2d at467-68 (footnotes omitted). -30-No. 71052-4-1/31 OurSupreme Courtemphasized thatthesefactors "mayoverlap, are offered only

as guidance, may not apply equally or at all in every case, and are not an 

### exclusive list of appropriate considerations."75 No one factor controls, and the factors "should not infringe upon the considerable discretion of trial courts to 

### determine PRA penalties."76 Here, the trial court considered the aggravating factors. The courtfound that Marysville delayed its response with respect to the 19 documents and the Strategies records but also found that time was not of the essence. The court found a lack of strict compliance with the PRA as to the 15 records wrongly withheld as privileged. The courtalso found a lack ofreasonable explanation for the withholding ofmostofthe recordsfrom the group of 19. The courtalso noted that the City made the wrong determination about the 15 records it withheld under a claim of privilege. Consequently, the City did not provide a reasonable explanation. With respect to the 173 Strategies documents, the courtfound negligent, reckless, bad faith, or intentional noncompliance with the PRA. Specifically, the court found, "Marysville's explanation regarding these documents—that they

were notallegedlywithin the possession orcontrol ofMarysville—was a situation 

### only created to intentionally provide Marysville with 'plausible deniability' of

75 Yousoufian V, 168Wn.2d at468. 76Yousoufian V, 168Wn.2d at468. -31-No. 71052-4-1/32 

### Strategies' activities and to attempt to insulate the documents created during those activities from production." The court stated that it did not finddishonesty but did find "strategic planning on Marysville's part to avoid or delay the production ofthe documents in Strategies' possession." The courtfound thatthe 

### issue is "extremely important," both because ofthe odor issue inthe region and because of Marysville's attempts to avoid the reach of the PRA: "Simply put, 'plausible deniability' ofthe law should not be a part of our government." With respect to economic loss to the requester, the court found that "Marysville's 

### conduct has had a significant impact on Cedar Grove." Finally, the courtfound thata penaltywas necessaryto deterfuture misconduct. 

### The City contends thatthe trial court abused its discretion by considering only the Yousoufian aggravating factors without explicitly considering the mitigating factors. But our Supreme Court's discussion in Yousoufian V emphasizes the trial court's discretion in applying the factors. Moreover, as Cedar Grove points out in its brief, several ofthe aggravating factors are mirror images of the mitigating factors. Therefore, it is fair to say that when the trial court found, for example, a delayed response by the agency, it implicitly also found the lack ofa promptresponse. Marysville also argues that its search and compliance were reasonable and that despite producing thousands ofdocuments, the trial court "pilloried" the

-32-No. 71052-4-1/33 

### City forwithholding a small number of "inconsequential" documents as well as documents it never had or used. In a statement of additional authorities, 

### Marysville cites Andrews v. Washington State Patrol77 to argue for a "flexible approach that focuses upon the thoroughness and diligence of an agency's response." In Andrews, the "beleaguered" agency, due to the volume of the 

### requested records and the number of other pending requests, did not comply with its self-imposed time estimates.78 The plaintiff alleged that the agency 

### violated the PRA by notproviding "'thefullestassistance'" and '"themosttimely 

### possibleaction'" as the statute requires.79 DivisionThree disagreed, holdingthat a "mechanically strict finding of a PRAviolation" whenevera governmentagency missed a timeline would not further the purpose ofthe PRA, which is to ensure 

### that agencies respond with "reasonable thoroughness and diligence to public records requests."80 Finding that there was no dispute about the agency's 

### diligence orthoroughness, thecourtaffirmed thetrial court'ssummarydismissal ofthe PRA lawsuit.81 

### ButAndrews does not support Marysville's position. Here, although the 

### process the City's public recordsofficerusedcompliedwith the PRA, the record

77 183 Wn. App. 644, 646, 334 P.3d 94 (2014), review denied. 182 Wn.2d 1011 (2015). 78Andrews. 183Wn. App. at646. 79 RCW42.56.100; Andrews, 183Wn. App. at646. 80Andrews. 183Wn. App. at653. 81 Andrews. 183Wn. App. at653-54. -33-No. 71052-4-1/34



### as a whole does not show that the City responded with "reasonable thoroughness and diligence to public records requests." Rather, the record 

### demonstrates that certain members of city government and Strategies intentionally withheld responsive records and pursued a policy of evading the requirements ofthe PRA. The PRA makes clearthat it is not up to an agencyto 

### decide which records are consequential or inconsequential.82 And Marysville's position ignores the fact that a court assesses penalties on the basis of what documents the governmentwithheld, notwhatitproduced. In its discretion, the trial court considered the entire statutory penalty range and made findings on the aggravating Yousoufian factors. Especially given thatthetrial courtfound mostofthe aggravating factors to be present, it did 

### notabuse its "considerable" discretion inassessing penalties.83 Marysville's Motion for Reconsideration In denying Marysville's motion for reconsideration, the court excluded declarations the City submitted from Gloria Hirashima, Al Aldrich, and Tulalip 

### Tribes Manager MartinNapeahi. Citing Sligar v. Odell.84 the court ruled, "These declarations constitute new evidence that could have been presented atthe time

82See RCW42.56.030. 

### 83 See Bricker. 164 Wn. App. at 29 ($90 daily penalty not abuse of discretion where trial court found almost all the Yousoufian aggravating factors and "given Bricker's need to institute legal action before the agency adhered to its obligations underthe law"). 

### 84 156Wn. App. 720, 734, 233 P.3d 914 (2010). -34-No. 71052-4-1/35 the court was considering the original Motion, and the Court therefore refuses to 

### consider them." The City challenges the trial court's ruling as an abuse of discretion. 

### CR 59(a)(4) permits a trial court to grant reconsideration ifthe moving party introduces "[n]ewlydiscovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced atthe trial." This court reviews a trial court's orderon reconsideration, including its admission orexclusion of additional evidence, for manifest abuse of discretion.85 Marysville argues that the court should have admitted the declarations because they show "why the Court's findings are in error" and because "it is obvious the trial court's decision was predicated upon a visceral reaction to the 'plausible deniability' comment and a lack of understanding ofthe relationship of Strategies with the Tulalip Tribe[s]." But thethree declarations do littlemore than reargue disputed issues, and the City offers no reason why it could not have presented this evidence earlier. We affirm the trial court's exclusion of the declarations and denial ofMarysville's motion for reconsideration.



### 85 Sligar. 156 Wn. App. at 734; Morinaga v. Vue. 85 Wn. App. 822, 831, 935 P.2d 637 (1997). -35-No. 71052-4-1/36

Cedar Grove's Cross Appeal: Attorney Fees 

### CedarGrove cross appeals the trialcourt's attorney fee award. Although conceding that the court had discretion to reduce the hourly rates or time billed, Cedar Grove asserts that the court's additional 40 percent reduction of billable hours was a "manifestly unreasonable" abuse ofdiscretion. A prevailing party in a PRA action "shall be awarded all costs, including 

### reasonable attorney fees, incurred in connection with such legal action."86 The amount of attorney fees is within the discretion ofthe trial court.87 To calculate attorney fees, courts use the lodestar method, in which the court multiplies a 

### reasonable attorney rate by a reasonable number of hours worked.88 In determining a reasonable number of hours, the court "discounts hours spent on 

### unsuccessful claims, duplicated effort, or otherwise unproductive time."89 The court "may considerthe necessity of adjusting [the lodestar] to reflectfactors not



### 86 RCW 42.56.550(4); Kitsap County Prosecuting Attv's Guild v. Kitsap County. 156 Wn. App. 110, 122, 231 P.3d 219 (2010) (fees and fines mandatory underPRAwhen agencywrongfullydenies access to public records). 87 Sanders. 169 Wn.2d at 867; Haines-Marchel v. Dep't of Corr.. 183 Wn. App. 655, 674-75, 334 P.3d 99 (2014) (citing Neigh. Alliance. 172Wn.2d at728); Berrvman v. Metcalf. 177 Wn. App. 644, 656-57, 312 P.3d 745 (2013), review denied. 179Wn.2d 1026 (2014). 88 Sanders. 169Wn.2d at 869. 89 O'Neill v. City ofShoreline. 183Wn. App. 15, 25, 332 P.3d 1099 (2014). -36-No. 71052-4-1/37 

### considered up to this point."90 Courts have also recognized the utility of applying percentage reductionstofee requests.91 

### The fee applicant has the burden to show that a fee is reasonable.92 A trial courtmust support its fee award by entering findings offact and conclusions 

### of law.93 The court's findings "must do more than give lip service to the word 'reasonable.' The findings must show how the court resolved disputed issues of 

### fact and theconclusions mustexplain thecourt's analysis."94 Here, the court made three separate reductions in Cedar Grove's fee request. First, the court reduced the requested hourly rates. Cedar Grove's 

### counsel requested $375 per hour forthe principal attorney's time, $275 perhour for associates' time, and $130 per hourfor the paralegal's time. The courtfound 

### that attorneys of comparable skill and experience in Snohomish County, including PRA specialists, do not charge morethan $300 an hour. The courtalso

90 Bowers v. Transamerica Title Ins. Co.. 100 Wn.2d 581, 598, 675 P.2d 193 (1983); see also Sanders. 169 Wn.2d at 869. 91 See Clausen v. Icicle Seafoods. Inc.. 174 Wn.2d 70, 82, 272 P.3d 827 

### (2012) (appellate courts have used a percentage reduction when the specifics of a case make segregating actual hoursdifficult); Welch v. Metro. LifeIns. Co.. 480 F.3d 942, 948-49 (9th Cir. 2007) (20 percent reduction appropriate where trial 

### court "expressly correlated its reduction for quarter hour billing to [law firm's] actual over-billing"); Gates v. Deukmeiian. 987 F.2d 1392, 1400 (9th Cir. 1992) 

### (use of percentages acceptable as long as trial court independently reviews applicant's fee request and sets forth "concise but clear" explanation of its reasons for choosing given percentage). 

### 92 Berrvman. 177Wn. App. at657. 93 Berrvman. 177Wn. App. at657-58. 94 Berrvman. 177Wn. App. at658. -37-No. 71052-4-1/38 

### found thatthis case involved a "relatively straightforward application of PRA law and the attorney-client privilege." Finally, the court noted thatthe fee was fixed, not contingent. The court reduced reasonable hourly rates to $300 per hourfor 

### the principal attorney's work, $200 per hour for associates' work, and $100 per hourfor the paralegal'swork. 

### Next, the court reduced the reasonable number of hours in two ways. First, the court considered the April summaryjudgment motion and determined that because the City wrongfully withheld only 15 ofthe 22 documents at issue,

some of the 862.2 hours Cedar Grove billed were spent on unsuccessful theories. The courttherefore reduced the number ofhours proportionately for a reduction of 37.5 percent. Second, the court found that the total hours billed included "wasteful, duplicative hours" and warranted a reduction for that reason

as well. The court noted in particularthe "relatively straightforward nature ofthe case," the factthatthe hours billed by Cedar Grove's counsel were double those billed by Marysville's counsel, and the large number ofhours Cedar Grove billed after itprevailed on summaryjudgment and therefore knew itwould receive an attorneyfee award. The courtreduced thetotal numberofCedarGrove's billable hours by40.0 percent, resulting in a totalfee award of$121,110.

-38-No. 71052-4-1/39 

### Citing Sargent v. Seattle Police Department.95 Cedar Grove argues that the court abused its discretion by excluding fees billed after April 2013 for the

reason that these fees related to claims on which it prevailed at the second 

### summaryjudgmenthearing inAugust2013. The record supports CedarGrove's contentionthatmuch oftheworkits attorneys billed afterthe April2013 summary 

### judgment hearing was in conjunction with successful theories related to the second and third groups ofdocuments. Under Sargent, therefore, it would have been errorfor the trial courtto exclude those fees simply because they followed 

### the first successful summaryjudgment hearing. But unlike the court inSargent, the trial court here did not completely exclude fees incurred afterthe hearing—it reduced them by 40 percent. As Cedar Grove acknowledges, the court has 

### discretion to adjust rates and hours. Italso has discretion to make additional adjustments afterapplying the lodestaranalysis. 

### Cedar Grove also argues that the court's 40 percent reduction is 

### manifestly unreasonable because of the procedural posture of the case and the 

### City'sintransigence. First, Cedar Grove argues that as the moving party, it had to file more briefs, as well as a motion to compel, that the defendant Marysville did not have to file. Cedar Grove contends that although "this case should have 

### been relatively straightforward," Marysville's intransigence forced Cedar Grove's
95 167 Wn. App. 1, 25-26, 260 P.3d 1006 (2011), rev'd in part on other grounds. 179Wn.2d 376, 314 P.3d 1093 (2013). -39-No. 71052-4-1/40 counsel to spend "hundreds of hours" pursuing the Strategies documents in particular. Cedar Grove also points out that while Marysville could reduce the hours the City billed for outside counsel by using the assistance of salaried city employees, Cedar Grove's counsel billed on an hourly basis for all its work on the case. These arguments do not establish that the trial court abused its 

### discretion in reducing thefee request.96 Finally, Cedar Grove argues that the court's 40 percent reduction "undermined the liberal purpose ofthe PRA," noting thatthis court has observed that the purpose of the fee-shifting provisions in remedial statutes is different from the purpose ofsimilar provisions in other statutes. But our Supreme Court has recognized the trial court's discretion to adjust fee awards not only in cases involving private tortclaims butalso incases involving remedial statutes such as 

### the PRA and the Consumer Protection Act.97 Contrary to Cedar Grove's assertion that the trial court's 40 percent reduction was "arbitrary," the court 

### supported its order with findings and conclusions that explain its analysis and show how it resolved disputed issues of fact. Because Cedar Grove does not 

### establish any abuse ofdiscretion inthe court's methodology, we affirmthe court's award offees and costs. 96 See Sanders. 169 Wn.2d at 868 ("While we may quibble with some of 

### thetrialcourt's reasoning, on thewhole its award offees and costswas within its discretion."). 97 Ch. 19.86 RCW; see, e.g.. Sanders. 169 Wn.2d at 868; Bowers. 100 Wn.2d at 593-600. -40-No. 71052-4-1/41

Fees and Costs on Appeal Cedar Grove requests attorney fees on appeal under RAP 18.1 and RCW 42.56.550(4). A party may recover attorney fees only for work on successful 

### issues.98 We grant Cedar Grove's request for those costs and reasonable attorney fees related to the PRA issues on which itprevailed on appeal, subject to itstimely compliancewith RAP 14.4(a) and 18.1. CONCLUSION We wish to be clear about what we are not doing inthis opinion. We are notarticulating a new standard that makes every record a governmentcontractor creates during its engagement with an agency a public record subject to the PRA. Nor do we create a new duty on the part of a public agency to search the 

### records of all its third-party contractors each time it receives a PRA request. Instead, we have applied established precedent about a private entity acting as the functional equivalent of a public agency to the analogous situation of a 

### private entityacting as thefunctional equivalentof a publicemployee. Because this record supports the trial court's decision that Strategies 

### acted as the functional equivalent of a Marysville employee and that Marysville 

### used the records Strategies created while acting in that capacity, the PRA 

### applies to those records. We affirm the trial court's decision that Marysville

98 O'Neill. 183Wn. App. at25. -41-No. 71052-4-1/42 

### violated the PRA by wrongfully withholding public records. We affirm the court's 

### orders assessing penalties, awarding costs and attorney fees, and denying reconsideration. We grant Cedar Grove's request for costs and reasonable attorneyfees related to the issues on which it prevailed on appeal, subjectto its timelycompliancewith RAP 14.4(a) and 18.1.

WE CONCUR: 

# VQ/^e&C^

-42-