O'Dea v. City of Tacoma Has Taken Agencies and Requesters Down the Wrong Path

In 2021, Division Two of the Washington Court of Appeals issued a decision in O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 493 P.3d 1245 (2021), that penalized an agency for failing to respond to Public Records Act (PRA) requests attached to the complaint of a lawsuit.[1] In doing so, the Court did not address prior case law that expressly permitted agencies to require public records requesters to use publicized procedures for submitting public records requests. Since that time, courts have wrestled with various arguments from requesters about the scope of the O’Dea decision. See, e.g., Brittig v. Mason Cnty. Fire Dist. #6, No. 57408-0-II, at ¶¶ 47-49, 2023 Wn. App. Lexis 1511 (2023); Kilduff v. San Juan Cnty., No. 82711-1-I, at ¶¶ 64-66, 2022 Wn. App. Lexis 1130 (2022). Some of these arguments border on the absurd and illustrate the administrative difficulties created by the O’Dea decision. See, e.g., Kilduff, at ¶ 64 (requester made argument that county was liable because they received the lawsuit asking for additional documents and the county violated the PRA by failing to produce records in response to lawsuit).

O’Dea, however, should not be interpreted to prevent agencies from requiring requesters to submit requests through reasonable procedures that designate a specific location or individuals to receive public records requests.[2] When a requester fails to follow those procedures, courts should conclude such requests are invalid and decline to penalize agencies under the PRA. This approach gives predictability to agencies and requesters. It is consistent with the pre-O’Dea case law. In an appropriate case, Washington appellate courts should revisit that portion of O’Dea to either expressly reject its analysis or make it clear that O’Dea is limited to its unique facts.

The PRA Permits Agencies to Adopt Clear Procedures by Which PRA Requests Are Submitted

RCW 42.56.100 requires agencies to adopt and enforce reasonable rules and regulations to protect public records from damage and disorganization and to prevent excessive interference with the other essential functions of the agency. RCW 42.56.100. The Court of Appeals has interpreted that provision in a number of cases. In 2008, the Court of Appeals interpreted that provision with respect to requests submitted by incarcerated individual Alan Parmelee to correctional staff. Parmelee v. Clarke, 148 Wn. App. 748, 201 P.3d 1022 (2008). Parmelee submitted one request via a letter that he handed to a correctional officer in his unit. Parmelee, 148 Wn. App. at 751. Parmelee submitted the second request in a paragraph in a letter that he sent to a grievance coordinator at his facility. Id. In response to one of those requests, Parmelee was directed to the process for submitting public records requests. Id. Rather than doing that, Parmelee filed suit. Id.

The Court of Appeals rejected Parmelee’s argument that the failure to respond to these requests violated the PRA. Parmelee, 148 Wn. App. at 759. The Court noted that the Department of Corrections had a regulation and a written policy that, when read together, required public records requests to go to designated public records coordinators. Id. at 754-57. The Court noted that these policies serve the purposes articulated in RCW 42.56.100. Id. at 757. The Court of Appeals ultimately held that because the requests were not submitted to the individuals designated in the policy, the Department could not be penalized for failing to respond to them in a timely manner. Id. at 759. For the more than a decade since Parmelee was decided, courts and guidance available to agencies and requesters have characterized this rule as standing for the proposition that when an agency has properly designated a process for submitting requests, the agency cannot be penalized for failing to respond to requests that did not follow that process. See, e.g., Hicks v. Dep’t of Corr., No. 63489-5-I, 2010 Wn. App. Lexis 1235 (2010); WAC 44-14-03006; see also William D. Richard, Procedural Rules under Washington’s Public Records Act: The Case for Agency Discretion, 85 Wash. L. Rev. 493, 513-14 (2010).In other words, when an agency has established a reasonable process for submitting public records requests and that process is publicly available, a requester cannot fail to use such a process and successfully claim a violation of the PRA.

O’Dea Focused Primarily on Content Over Process

The Court of Appeals in O’Dea did not look at the prior case law and regulations governing the ability of agencies to develop reasonable processes for submitting public records requests and the failure of a requester to abide by such processes. Instead, the Court looked at the content of the request and whether the request gave the agency reasonable notice that it was a PRA request.

In O’Dea, an attorney for the requester, a former City of Tacoma employee, mailed the requests to Tacoma’s public records officer in March 2017. O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 72-73, 493 P.3d 1245 (2021). At the time of the appeal, it was undisputed that the City never received the requests that were mailed. Id. at 73. The requester than filed suit eight months later and attached the same requests that were previously mailed to the complaint. Id. at 74. Upon receiving the complaint with the requests, the City did not transmit the requests to its public records officer. Id. The City also did not begin any kind of response to the requests until nine months later. Id. at 74-75. It was only after the City, through its attorneys, asked the requester’s attorney if the requester wanted the requests to be treated as PRA requests that the requests were forwarded to the public records officer and began to be processed. Id. at 75. The City then acknowledged the requests within five days of them being forwarded to public records staff. Id. at 75.

The superior court concluded that the City violated the PRA by failing to respond to the requests attached to the complaint. Id. at 75. The court concluded that there was no dispute that the City had received the copies of the requests that were attached to the complaint; that the requests were “valid PRA requests”; and that the City violated the PRA by failing to respond to the requests. Id. The superior court ultimately imposed $2.6 million in penalties. Id. at 72.

The Court of Appeals affirmed the superior court’s conclusion that the City violated the PRA. In doing so, the Court rejected the City’s argument that the requests attached to the complaint did not give the City fair notice that they were new PRA requests. O’Dea, 19 Wn. App. 2d at 80. In answering this question, the Court looked to prior PRA cases that addressed whether a specific request was a request under the PRA. Id. Specifically, the Court evaluated whether the requests gave the City fair notice that it had received a request for a public record. Id. This inquiry considered two categories of factors: the characteristics of the request itself and the characteristics of the requested records. Id. With respect to the characteristics of the request, the Court considered: (1) the request’s language; (2) the request’s format; and (3) the recipient of the request. With respect to the characteristics of the requested records, the Court looked at (1) whether the request was for specific records as opposed to information contained in records; (2) whether the records were actual public records; and (3) whether it was reasonable for the agency to believe that the requester was requesting the documents under an independent non-PRA authority. Id. at 81.[3] The Court of Appeals concluded that these factors weighed in favor of concluding this request was a PRA request and affirmed the superior court’s conclusion that the City violated the PRA. Id. at 81-83. As part of this analysis, the Court rejected the idea that the manner in which the PRA requests were received rendered them ambiguous because “no authority limits the context under which a PRA request may be received, so long as the request provides fair notice, which these letters clearly did.” Id. at 82.

The Court’s analysis makes some sense in the narrow context of the issue that the Court was addressing, i.e. whether the requests attached to the complaint were requests under the PRA. However, as indicated above, the Court’s analysis did not mention in any meaningful manner the prior case law that concluded agencies are permitted to adopt reasonable rules requiring requests to be sent to particular places.[4] For example, the Court did not address at all the Parmelee case mentioned above. Nor did the Court discuss the AGO Model Rules[5] that expressly permit such rules. Specifically, WAC § 44-14-03006 states in the relevant part “An agency can adopt reasonable procedures requiring requests to be submitted only to designated persons (such as the public records officer), or a specific agency address (such as a dedicated agency email address for receiving requests, or a mailing/street address of the office where the public records officer is located, or a web portal).” WAC § 44-14-03006. The AGO Open Government Resource Manual contains similar guidance. Washington State Office of the Attorney General, An Open Government Resource Manual, at 12 (“An agency can adopt rules explaining that requests are to be directed to a specific person (such as the public records officer) or to a specific address, provided that the requester has notice of the requirement.”).

Similarly, the WSBA’s Public Records Act Deskbook has seemingly recognized that agencies can adopt reasonable rules for requests to be submitted. Washington State Bar Association, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws § 16.3 (indicating that a requester must be able “to make a prima facie showing of a properly submitted PRA request” and citing Parmelee). Although none of this authority necessarily dictated the outcome in O’Dea, the fact that the Court did not mention or distinguish the authority creates some ambiguity.[6]

O’Dea Should Not Be Interpreted to Cast Doubt on Parmelee But Appellate Courts Should Clarify This Issue in the Future

Given that the O’Dea opinion did not expressly address rules that require requesters to submit requests to designed persons or locations, the decision has the potential to leave ambiguity about the validity of such rules. However, because O’Dea did not address Parmelee or otherwise cast doubt on rules requiring requests to be submitted to specific designated persons, it would likely be an overreading of O’Dea to conclude that agencies can no longer rely upon such rules in determining that a request was not validly submitted. See Bershauer/Phillips Construction Company v. Seattle School District No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994) (“In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised.”).

Instead, the Court in O’Dea appeared concerned by what it perceived as unreasonable resistance by the City when it became clear that the plaintiff was attempting to make a request. In that sense, the impact of O’Dea may be limited to its unique facts. Moving forward, agencies can continue to require requesters to submit requests to individuals designated in publicly available policies. However, when a request is submitted in an invalid manner, the best approach for agencies remains notifying the requester of the correct process for submitting requests. When there is confusion about the nature of the request, prompt requests for clarification from the agency about the nature and status of a request is a best practice and is consistent with the PRA’s expectation that agencies will provide the fullest assistance. Given that O’Dea did not case doubt on the Parmelee decision, however, agencies should still not be liable for requests that were submitted to the wrong employee.

Additionally, future appellate decisions will provide an opportunity for clarification of this issue. O’Dea was a fairly unique set of circumstances and one that may largely be limited to its unique facts. In a future case though, the Court of Appeals can clarify that agencies can continue to require requesters to follow reasonable policies that require requests to be sent to designated locations or people and prevent an agency from being penalized for failing to respond to requests when those policies are not followed. That rule has been the accepted state of the law since Parmelee. Such a rule benefits both requesters and agencies by ensuring that requests are received in a manner that enables the agency to respond to them in a timely and appropriate manner.

[1] The O’Dea decision was published in part and unpublished in another part. This article discusses a portion of the published portion.

[2] To be clear, such rules generally establish the location where requests are received. Agencies cannot refuse to receive requests that are not submitted in a particular format or on a particular form. RCW 42.56.080(2).

[3] The Court derived this test from a prior Division II case, Germeau v. Mason County, 166 Wn. App. 789, 271 P.3d 932 (2012). In that case, the representative of the Sheriff’s Guild sent a letter to the various police officials indicating that he would be representing a guild member who was being investigated and seeking copies of records related to the investigation. The request was hand delivered to two chief deputies and did not reference the PRA.

[4] The Court folded this inquiry into a factor of its test. The closest that the Court came to addressing the issue though was a simple statement that “although the requests did not arrive through the City's online PRA submission form, agencies cannot mandate a particular mode of submission.” O’Dea, 19 Wn. App. 2d at 81.

[5] The PRA requires the Attorney General’s Office to adopt advisory model rules for state and local agencies. RCW 42.56.570(2). These model rules are contained in WAC Chapter 44-14. Although nonbinding and advisory, the Supreme Court has occasionally looked to the model rules for guidance in interpreting the PRA. See, e.g., Kilduff v. San Juan Cnty., 194 Wn.2d 859, 872-73, 453 P.3d 719 (2019).

[6] In all likelihood, the Court likely overlooked this past case law and other authority because the parties themselves did not bring such authority to the Court’s attention. Neither party cited the Parmelee case in their briefing. In response to the Court’s questions at oral argument, counsel for the City did not discuss Parmelee and could not point to any authority for the idea that the requests attached to the complaint were invalid. Wash. Court of Appeals oral argument, O’Dea v. City of Tacoma, No. 53613-7-II (May 20, 2021), at 6 min., 52 sec.-8 min., 20 sec.