IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

YAKIMA SCHOOL DISTRICT NO. 7,

Respondent,

v.

ANDREW L. MAGEE, an individual,

Appellant.

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No. 37505-6-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Andrew Magee appeals the trial court’s ruling that the 

records he sought from Yakima School District No. 7 (YSD) were exempt under the 

Washington Public Records Act (PRA), chapter 42.56 RCW. We affirm and impose 

sanctions.

FACTS

On November 27, 2018, Andrew Magee, an attorney, filed a public records request 

with YSD. The request, made pursuant to the PRA, read as follows:

FILED

MARCH 18, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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I am requesting an opportunity to inspect or obtain copies of absolutely 

any/all public records/recordings/video tapes, or records of any kind 

whatsoever associated with or related to the and/or any/all drug testing 

program(s) imposed upon and/or any other prospective and/or employee of 

YSD, and that/those made upon such persons—to include/but not limited 

to—in conjunction with Yakima Worker Care.

Clerk’s Papers (CP) at 49. YSD responded the next day, indicating it would provide 

Magee with responsive records on an installment basis. The letter stated, “The District’s 

initial estimate is that records, if existing and not exempt, may be available as soon as 

02/28/19.” CP at 54. The letter went on: “[W]e invite you to narrow the request or to 

prioritize particular items in the request, though you are not required to do so. We will 

make every reasonable effort to respond as promptly as possible to your request.” CP at 

54. The final paragraph noted that the Family Educational Rights and Privacy Act of 

1974 (FERPA), 20 U.S.C. § 1232g, prevents school districts from disclosing personal

identifying information without consent. 

On December 5, Magee sent YSD’s records coordinator an e-mail that read, in 

part:

It is our position that your response is wholly insufficient and not in 

compliance with the law, and, as I believe was mentioned, will be the basis 

for taking legal action seeking sanctions imposed for your/YSD’s lack of 

response in providing access to the documents described. On the other 

hand, and while narrowing our request in no-way-shape-or-form in any way 

whatsoever, I have attached a copy of a form that is used, that among 

others, is that which we request access to in the capacity described in our 
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request, that is to say, but not limited to, we need to be provided access to 

these documents (the “Acknowledgmenet [sic] and Understanding of Drug 

Screen and/or Physical Process forms) for the entirety of their use (and/or 

any other form) related, but not limited to, the drug testing program 

indicated therein. . . . I, or another person from my office will be available 

to come to the YSD office [any day but Wednesday the week of December 

10]. Will you please confirm . . . so that I may make the necessary 

arrangements to be there to inspect the documents and so that we may avoid 

any further unnecessary/unlawful delay and action taken accordingly. 

CP at 56-57. YSD responded on December 7: “Due to a high volume of public records 

requests and many that came in prior to yours, the Yakima School District is unable to 

meet your requested timeframe. We will do our best to process your request as quickly as 

possible.” CP at 56. 

On January 29, 2019, YSD e-mailed Magee with attached records it considered 

responsive to Magee’s request. The e-mail requested confirmation that the records were 

those Magee sought. 

On February 3, Magee e-mailed YSD to clarify which records he sought. The 

e-mail read, in part:

As I understand it, when a person is processed to become an employee, they 

are given a form with their named filled out on it—the same form I sent to 

you and the same form you sent back to me (in other words, what has 

happened already and accomplished nothing towards my request.) What I 

am requesting and have already requested is to review the copy of every 

single person’s form that was subjected to this drug testing program that 

documents (a) that they were subject to the test, and; (b) any disposition, 
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(or not) taken against any persons whatsoever who has been subject to this 

test.

CP at 67. 

YSD understood Magee’s request to encompass two specific records: a form, 

completed by all applicants for employment with YSD, entitled “Acknowledgment and 

Understanding of Drug Screen and/or Physical,” and records containing results of 

preemployment drug screening. CP at 61. YSD’s counsel described those records as 

“HIPAA [Health Insurance Portability and Accountability Act of 1996] files” that contain 

confidential information on YSD employees and applicants. 

On February 15, YSD informed Magee that the first installment of records was 

ready for his inspection. The e-mail explained the time it takes to review personnel files 

meant records had to be released in installments. On March 1, YSD followed up to tell 

Magee that the records would be divided into 33 installments. On March 5, Magee 

inspected the first installment and made copies of several hundred pages. 

On April 11, YSD sent Magee a letter informing him that the requested records 

were “exempt from production in their entirety pursuant to RCW 42.56.250(2).” 

CP at 90. That exemption applies to employment applications, including materials 

submitted with respect to an applicant. The records sought “were prepared by applicants 

for employment with the district as part of the employment application process. It is fair 
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to categorize drug screening results as containing sensitive personal information of 

applicants for employment.” CP at 90. The letter requested Magee to let YSD know if he 

disagreed with its position and, if so, the basis for his disagreement. Magee did not 

respond. 

On April 19, Magee inspected the second installment of records and made 

copies of several hundred pages. On May 7, YSD sent another letter to Magee 

reiterating its position that the records he sought were exempt. YSD again asked 

Magee if he disagreed and to respond with the basis for his disagreement. The 

letter also stated, “While it is YSD’s intention to continue to provide you with 

installments of responsive records, YSD may also pursue a declaratory ruling from 

the Yakima County Superior Court as to whether these records may be withheld in 

their entirety.” CP at 102. Magee did not respond.

On June 4, YSD sent another follow-up letter asking for Magee’s position 

on the exemption and informing him of a potential declaratory ruling. Magee still 

did not respond.

Trial court proceedings

On July 18, 2019, YSD filed a complaint for declaratory relief in the 

Yakima County Superior Court. YSD requested that the court rule the records 
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Magee sought from YSD were exempt from disclosure pursuant to 

RCW 42.56.250(2). Magee answered, admitting most of the factual allegations 

but asserting that YSD was not entitled to relief because its complaint was 

“improper, untimely, waived, and failing to state a claim for which relief may be 

granted.” CP at 11. 

On August 28, YSD filed a motion for declaratory ruling and summary judgment. 

Magee opposed the motion for several reasons.1 He challenged YSD’s standing and 

argued YSD had waived any right to seek relief by releasing some of the records. 

Magee also included a section entitled, “COUNTER-MOTION FOR SUMMARY 

JUDGMENT,” which reiterated the reasons he opposed YSD’s motion. CP at 140. 

Magee did not request a hearing for his countermotion. 

On October 23, the trial court conducted a hearing on YSD’s motion. The court 

found that the records sought were part of an application for public employment and 

were, therefore, exempt under the PRA. On November 22, the trial court entered its 

written order, which read in part:

 

1 Magee also challenged the trial court’s jurisdiction, both subject matter and 

personal, CP 126-44, and argued YSD committed security breaches of personal 

information by releasing records. Those issues are not on appeal. 
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An actual, present and existing dispute exists between plaintiff YSD and 

defendant Andrew Magee as to whether the following pre-employment drug 

screening records may be withheld in their entirety. . . . The interests of 

plaintiff YSD and defendant Magee with respect to this issue are genuine, 

direct, substantial and opposite. Defendant Magee has threatened litigation 

against YSD. A judicial determination whether the PRA authorizes the preemployment drug screening records at issue to be withheld in their entirety 

or produced with redactions will be final and conclusive with respect to the 

present dispute between the parties as to these records.

CP at 208-09. Finding no genuine issue of material fact precluding summary judgment in 

YSD’s favor, the court granted the motion and ruled YSD could withhold the records 

pursuant to RCW 42.56.250(2). The court did not rule on Magee’s motions. 

Magee filed a notice of direct appeal to the Washington Supreme Court. The 

Supreme Court transferred the appeal to this court. 

ANALYSIS

RAP 10.3 VIOLATIONS

YSD contends Magee’s opening brief violates RAP 10.3 in several ways and asks 

this court to strike it in its entirety. We agree Magee’s brief violates RAP 10.3, but we 

decline to strike it and instead impose sanctions. 

The Rules of Appellate Procedure “enable the court and opposing counsel 

efficiently and expeditiously to review the accuracy of the factual statements made in the 

briefs and efficiently and expeditiously to review the relevant legal authority.” Litho 
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Color, Inc. v. Pac. Emp’rs Ins. Co., 98 Wn. App. 286, 305-06, 991 P.2d 638 (1999). The 

court, on its own initiative or motion of a party, may order a brief that fails to comply 

with Title 10 returned and corrected, struck and replaced, or it may accept the brief. 

RAP 10.7. In addition, the court will ordinarily impose sanctions on a party or counsel 

who files an improper brief. RAP 10.7. 

We address each alleged violation below.

RAP 10.3(a)(3): Introduction

YSD first argues Magee improperly included a preamble to his brief and further 

failed to follow the rules outlined in RAP 10.3(a)(3) in his introduction. An appellant’s 

brief may include an optional concise introduction, which need not contain citations to the 

record or authority. RAP 10.3(a)(3). No provision in the RAP mentions a preamble, and 

we agree that it was improper to include. Not only is it impermissible for formatting 

reasons, Magee’s “preamble” is a confusing jumble of words referencing the procedural 

posture of the case, standards of review, and a request for attorney fees and oral 

argument. It does not help the court or opposing counsel “expeditiously review” the 

issues in the case. 
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The remainder of Magee’s introduction also violates RAP 10.3(a)(3). The 

introduction, far from concise, is nine pages long. It contains numerous forceful and 

frankly unprofessional arguments against YSD and is distractingly peppered with 

citations and parenthetical comments. Much of this language appears again in the 

statement of the case, which we turn to now. 

Rule 10.3(a)(5): Statement of the case

The statement of the case is defined as: “A fair statement of the facts and 

procedure relevant to the issues presented for review, without argument. Reference to the 

record must be included for each factual statement.” RAP 10.3(a)(5). 

Magee’s statement of the case is entitled “Frivolous Lawsuit/Action” and reads in 

part: “In a scurrilous attempt to escape that truth and legal responsibility to the victims of 

its wrongdoings, from whole cloth, YSD fabricated and brought a frivolous/vexing/

annoying, and without a basis in law or fact, lawsuit against Mr. Magee!” Br. of 

Appellant at 15. 

Magee continues with similar prose:

Instead of confessing their sins(s), and taking responsibility for 

their wrongdoing, YSD sought to attempt recruiting a court of law to 

provide YSD with a declaratory order that only could at best, pretend to 

shield/cover-up YSD/the State, from their legal responsibilities/liabilities 

(which remain in existence) by conjuring-up an otherwise 
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frivolous/vexing/annoying/scurrilous lawsuit with no basis in fact or 

law . . . .

[2]

Br. of Appellant at 17. 

In contrast, Magee says he has acted with “an overt abundance of 

caution/professional and ethical practice . . . .” Br. of Appellant at 15-16. This section is 

not “[a] fair statement of the facts . . . without argument” and does little to introduce the 

actual issues on appeal. Finally, many assertions of fact are not supported by citations to 

the record. This makes it difficult for us to verify the accuracy of Magee’s many 

assertions.

Addressing YSD’s request that we strike his brief, Magee replies, “RAP 10.3(a) 

does not outline the sections of an appellate brief that are required to include, but rather, 

those that ‘should.’” Reply Br. of Appellant at 22 (emphasis in original). He then cites 

RAP 1.2(b), apparently without reading it. The rule provides: “Unless the context of the 

rule indicates otherwise: ‘Should’ is used when referring to an act a party or counsel for a 

party is under an obligation to perform. The court will ordinarily impose sanctions if the 

act is not done within the time or in the manner specified.” RAP 1.2(b) (emphasis 

 

2 We note that Magee does not challenge the applicability of the exemption on 

appeal.
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added). In this context, “should” means “shall.” Magee’s argument that he was not 

required to follow RAP 10.3(a) fails. 

We agree with YSD that Magee’s statement of the case violates RAP 10.3(a)(5) 

and is wholly unhelpful to the court or opposing counsel. We nevertheless decline to 

strike his brief. Instead, we impose sanctions of $1,000 against Magee, with one-half 

payable to this court and the other half payable to YSD. Magee’s violations required this 

court, and we presume YSD also, to spend unnecessary time determining what arguments 

to address and how to best address them. Payment of these sanctions must be made 

within 20 days of the filing of this opinion, with verification of compliance filed with this 

court.

STANDING 

Magee contends YSD lacked standing to seek declaratory relief from the trial 

court. Because the court determined YSD had standing at the summary judgment stage, 

we view the evidence on this issue in the light most favorable to Magee and review the 

trial court’s conclusions of law de novo. Benton County v. Zink, 191 Wn. App. 269, 277-

78, 361 P.3d 801 (2015).
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The Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, provides, 

“[a] person . . . whose rights, status or other legal relations are affected by a statute . . . 

may have determined any question of construction or validity . . . and obtain a declaration 

of rights, status or other legal relations thereunder.” RCW 7.24.020. A justiciable 

controversy must exist before a trial court may grant declaratory relief under the UDJA. 

To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001). A justiciable 

controversy requires

“(1) . . . an actual, present and existing dispute, or the mature seeds of one, 

as distinguished from a possible, dormant, hypothetical, speculative, or 

moot disagreement, (2) between parties having genuine and opposing 

interests, (3) which involves interests that must be direct and substantial, 

rather than potential, theoretical, abstract or academic, and (4) a judicial 

determination of which will be final and conclusive.”

Zink, 191 Wn. App. at 278 (internal quotation marks omitted) (quoting To-Ro Trade 

Shows, 144 Wn.2d at 411). 

“Th[e] third justiciability requirement of a direct, substantial interest in the dispute

encompasses the doctrine of standing.” To-Ro Trade Shows, 144 Wn.2d at 414; see also 

Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183, 203, 11 P.3d 762, 27 P.3d 608

(2000) (“[U]nder the Uniform Declaratory Judgments Act, the requirement of standing

tends to overlap justiciability requirements.”). Our Supreme Court has established a twoprong standing test for purposes of the UDJA. Wash. State Hous. Fin. Comm’n v. Nat’l 
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Homebuyers Fund, Inc., 193 Wn.2d 704, 711, 445 P.3d 533 (2019). First, we ask 

whether the party is within the “zone of interests” protected or regulated by the statute, 

and if so, whether the challenged action has caused an “injury in fact.” Id. at 711-12. 

The UDJA is to be liberally construed, and the test for standing “is not intended to be a 

particularly high bar.” Id. at 712. “Instead, the doctrine serves to prevent a litigant from 

raising another’s legal right.” Id.

We first determine whether YSD falls into the “zone of interests” of the PRA. 

“The PRA requires state and local agencies to produce all public records upon request, 

unless the record falls within a PRA exemption or other statutory exemption.” 

Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 407, 259 P.3d 190 

(2011). The PRA aims “to provide full public access to public records, to protect public 

records from damage or disorganization, and to prevent excessive interference with other 

essential functions of the agency . . . .” RCW 42.56.100. The statute balances the need 

for public access while providing some protection to state agencies; thus, the school 

district falls within the zone of interests. See Zink, 191 Wn. App. at 279. 

We next determine whether Magee’s PRA request caused an injury in fact to YSD. 

An agency that withholds nonexempt records does so at great peril of paying penalties. 

Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 751, 174 P.3d 60 (2007) (plurality opinion). 
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On the other hand, an agency that releases exempt employee records exposes itself to 

potential liability. YSD, by seeking clarification of its duties under the PRA, was not 

asserting the rights of some third party. Rather, it was protecting its own financial 

interests. 

Magee argues, or rather asks and answers in a parenthetical query, that YSD 

cannot bring suit against him, the PRA requester. He reads chapter 42.56 RCW as 

authorizing only requesters—not agencies—to initiate actions and seek judicial review. 

His position is incorrect. Washington courts have long held public agencies have 

standing to seek judicial review of the applicability of the PRA to specific records. Soter 

v. Cowles Publ’g Co., 131 Wn. App. 882, 907, 130 P.3d 840 (2006), aff’d, 162 Wn.2d 

716 (2007). “[I]t is clear that either agencies or persons named in the record may seek a 

determination from the superior court as to whether an exemption applies . . . .” Soter, 

162 Wn.2d at 752. Accordingly, Magee’s argument is contrary to precedent. 

We conclude the trial court correctly determined that YSD had standing to pursue 

its declaratory judgment action.

WAIVER

Magee argues YSD waived its right to claim exemptions under the PRA by 

releasing the first three installments of the responsive records. We disagree.
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We review summary judgment orders de novo, viewing the evidence in the light 

most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 

1080 (2015). Here, that party is Magee. The trial court correctly rejected his waiver 

argument. 

“The PRA itself does not provide for waiver of a claimed exemption.” Bainbridge

Island Police Guild, 172 Wn.2d at 409. As such, we analyze Magee’s claim under the 

common law doctrine of waiver: 

A waiver is the intentional and voluntary relinquishment of a known right, 

or such conduct as warrants an inference of the relinquishment of such 

right. It may result from an express agreement or be inferred from 

circumstances indicating an intent to waive. . . . The one against whom 

waiver is claimed must have actual or constructive knowledge of the 

existence of the right. He must intend to relinquish such right . . . and his 

actions must be inconsistent with any other intention than to waive them.

Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954). 

YSD’s initial response to the records request mentioned that the documents might 

be exempt but did not properly identify the exemption on which it was relying. We agree 

that YSD should have more promptly identified the exemption. But its failure, in large 

part, was attributable to the scope of Magee’s PRA request that remained unclear until 

early February 2019. 
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Beginning on April 11, 2019, YSD asserted that the records were exempt under 

RCW 42.56.250(2). In response to Magee’s threats of litigation, YSD released the 

records until the parties could come to an agreement or seek a judicial determination on 

the issue. These circumstances do not support an inference that YSD intended to waive 

its right to assert the exemption. Although YSD released records to avoid potential 

penalties, it did so in a manner that expressly preserved its intent to assert the exemption, 

not waive it.

Magee relies on Bainbridge Island Police Guild to support his argument that YSD 

waived its right to claim exemptions. 172 Wn.2d 398. There, reporters sought two 

records of an officer’s alleged assault. Id. at 404-05. One of the records was released to 

the reporters, while the other would later be released “absent an injunction.” Id. at 405. 

The officer then sought an injunction to prevent release of the second record. Id. The 

court found all the records exempt under the PRA. Id. Two new requesters then sought 

the records previously released to the reporters. Id. at 406. The officer again moved to 

enjoin production, but a different county’s superior court denied the motion. Id. That 

court later ruled the record fell under a PRA exemption and ordered the requesters to 

return it. Id. On direct appeal, the requesters argued the officer’s failure to bring suit 
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against the first requesters constituted waiver of his right to claim an exemption under the

PRA. Id. at 409.

Our Supreme Court held the officer did not waive his right to claim a PRA 

exemption despite failing to object to the initial request. Id. at 409-10. It reasoned: 

“Neither [PRA exemption] expressly requires a person to object to every single public 

records request that might occur in order to preserve the exemption for future requests.” 

Id. at 409. And, the officer’s actions were inconsistent with an intentional and voluntary 

relinquishment of his right, so common law waiver did not apply. Id. at 410. The court 

concluded: “The failure to object to a single public records request is only a 

relinquishment of the right to prevent that specific production.” Id. 

Contrary to Magee’s interpretation, we read Bainbridge as supporting YSD’s 

position. That is, YSD’s production of three installments of records did not waive its 

right to later rely on an exemption. Moreover, YSD’s election to avoid per diem penalties 

by producing the first three batches of records and trying to work cooperatively with 

Magee are not acts wholly inconsistent with its later intent to assert the exemption.

3

 

 

3 Magee additionally relies on Gipson v. Snohomish County, 194 Wn.2d 365, 449 

P.3d 1055 (2019), to support his argument that YSD waived its right to assert an 

exemption. Gipson does not discuss the doctrine of waiver and is inapplicable.
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Yakima Sch. Dist. No. 7 Magee 

We conclude the trial court correctly determined that YSD did not waive its right 

to claim a PRA exemption. 

Affirmed with sanctions imposed. 

A majority of the ipanel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J. 

WE CONCUR: 

Siddoway, A.CJ. Staab, J. 

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