YACOBELLIS v. CITY OF BELLINGHAM No. 22434-4-I.
55 Wn. App. 706 (1989)
780 P.2d 272
JOHN YACOBELLIS, Appellant, v. THE CITY OF BELLINGHAM, Respondent.
The Court of Appeals of Washington, Division One.
October 16, 1989.
John H. Anderson, Sherwood, Bentley & Anderson, and Rolf Beckhusen, for appellant.
Bruce Disend, City Attorney, and Richard Little, Assistant, for respondent.
As an independent contractor, John Yacobellis was hired by the City of Bellingham to manage its Lake Padden Golf Course facility for the City Parks and Recreation Department. Yacobellis' contract ran from 1984 through 1986 with an option to renew for an additional 3 years. In February 1986, Yacobellis gave notice of intent to renew. Negotiations were ongoing on several issues, including Yacobellis' lease proposal.
During the summer and fall of 1986, the City conducted a "Municipal Golf Manager Survey". The survey was mailed to 20 Washington governmental agencies that manage 27 public golf courses. The stated purpose of the survey was to assist in negotiating a new contract with Yacobellis. Byron Elmendorf, the director of the City Parks and Recreation Department, promised to compile all the surveys
This method of fact gathering was not new to the Parks Department. It had been Elmendorf's practice to contact other departments to gain information on specific issues relating to the operation of various recreation facilities, such as recreation program fees, job descriptions, department policies, maintenance standards, and swim pool operations and revenue. The information was gathered through telephone calls, questionnaire mailings or meeting discussions. The raw data from the worksheets was then compiled into a summary comparison. The Parks Department also conducted community surveys on various recreation programs and needs.
Elmendorf mailed a copy of the municipal golf survey report to Yacobellis on about November 7, 1986. On November 26, 1986, Yacobellis requested a copy of the raw data, i.e., the answers to the questionnaire. The City mailed Yacobellis a copy of the cover letter and questionnaire which was sent to the agencies. The City refused to provide copies of the completed questionnaires on the ground that all complete data was in the survey. The City advised Yacobellis to contact each agency individually. Subsequently, on numerous occasions Yacobellis renewed his request for release of the questionnaires pursuant to the public disclosure law. On September 8, 1987, the City informed Yacobellis that the completed questionnaires had been discarded. It is unknown when this occurred.
Yacobellis filed a "complaint seeking access to public records". Yacobellis sought disclosure of all information concerning the golf survey, costs and attorney fees and $25 per day for each day that he was denied access to the documents. The matter was heard on Yacobellis' motion for an order to show cause and the City's motion for summary judgment. The trial court found that the report was the final document, that the questionnaires were merely the
Yacobellis appeals, raising the following issues:
1. Are the issues raised in the appeal moot?
2. Did the trial court err in determining that the completed questionnaires are not public records?
3. Are the completed questionnaires exempt from disclosure?
4. Is Yacobellis entitled to costs and attorney fees at trial and the $25 per day statutory award?
5. Is Yacobellis entitled to costs and attorney fees on appeal?
The threshold question is whether the issues are moot. Yacobellis contends that the issues are not moot because there may be a recurring problem of access to the same or similar records in the future and he is entitled to compensation. The City does not address this issue.
Because the documents were destroyed, the court cannot grant complete relief. However, the questions of costs, attorney fees and the $25 per day statutory award remain. The issues in this case are not moot. D.C.R. Entertainment, Inc. v. Pierce Cy., supra; Kuehn v. Renton Sch. Dist. 403, supra.
RCW 42.17.260(2)(e). Upon the motion of a person who has been denied access to records, the superior court may require the agency to show cause why access was denied and the burden of proof is on the agency to justify its failure to disclose. RCW 42.17.340(1). Judicial review of all agency actions is de novo. RCW 42.17.340(2).
In this case, it is clear that the questionnaires were a writing and that they were prepared, used or retained by a governmental agency, i.e., the City's Parks Department. It also appears that they contained information relating to the conduct of a governmental function, i.e., management of municipal golf courses. The City contends, however, that to be a public record, the document must have been intended to be a memorial or permanent evidence of the matters to which it relates. The City compares the completed questionnaires to personal notes.
In Cowles Pub'g Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981), a newspaper sought access to search warrants and affidavits of probable cause. The court did not determine whether the documents were public records within the meaning of the statute because they were accessible under a common law right. In dicta, however, the court stated that the issue of access to records should be determined by the
In cases interpreting the FOIA, courts have not focused on one factor, but instead have looked at all the circumstances, such as whether the documents were in the agency's control, were generated within the agency, were placed into the agency's files and were used by the agency. Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484 (D.C. Cir.1984).
As the City contends the cases consistently hold that personal notes, as well as telephone messages and daily appointment calendars, are not public records. This is because they are generally created solely for the individual's convenience or to refresh the writer's memory, are maintained in a way indicating a private purpose, are not circulated or intended for distribution within agency channels, are not under agency control, and may be discarded at the writer's sole discretion. See, e.g., American Fed'n of Gov't Employees, Local 2782 v. United States Dep't of Commerce, 632 F.Supp. 1272 (D.D.C. 1986); Kalmin v. Department of Navy, 605 F.Supp. 1492 (D.D.C. 1985); Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, supra; British Airports Auth. v. CAB, 531 F.Supp. 408 (D.D.C. 1982); Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633 (Fla. 1980).
In cases where the document in question is statistical data or a questionnaire or survey, results have varied. Where the source of the information was private, the courts have generally held that the data or survey is not a public record. See, e.g., A.R. Bldg. Co. v. Pennsylvania Housing Fin. Agency, 93 Pa.Commw. 140, 500 A.2d 943 (1985); Aamodt v. Department of Health, 94 Pa.Commw. 54, 502 A.2d 776 (1986). But see Winston v. Mangan, 72 Misc.2d 280, 338 N.Y.S. 654 (1972).
In most cases where the source of the information was public, the courts have held that the data or questionnaires
In Pennsylvania Ass'n for Children & Adults With Learning Disabs. v. Department of Educ., 91 Pa.Commw. 531, 498 A.2d 16 (1985), a group sought access to statistical data and education plans submitted to the Department by school districts. The court held that the education plans were not public records because they were mere proposals and did not involve any agency decision, but the court also held that the statistical information was a public record which had been collected by a governmental agency pursuant to its obligations under certain regulations.
In Mid-America Television Co. v. Peoria Housing Auth., 93 Ill.App.3d 314, 417 N.E.2d 210 (1981), a television station sought the addresses of subsidized property and the amount of federal funds that landlords received through the PHA. The court held that a simple summary of the total amounts was inadequate to further the purpose of the public disclosure statute and that the information requested was a public record.
In Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., supra, the City of Jacksonville hired an independent consulting firm to conduct a nationwide search for job applicants. Various types of documents were created in the
In light of the above cases, the questionnaires, which were prepared by a governmental agency and responded to by other governmental agencies, were the final evidence of the knowledge obtained even though they were not the formal product which the Parks Department intended to release to the public. Accordingly, we conclude that they are public records within the meaning of RCW 42.17.020.
Former RCW 42.17.310(1) lists 23 types of personal and other records which are exempt from disclosure. The exemptions are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted. "No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons." RCW 42.17.310(2). If the agency refuses, in whole or part, inspection of any public record, it "shall include a statement of the specific exemption authorizing the withholding of the record (or part) and
The purpose of this exemption is to allow frank and uninhibited discussion during the decision-making process. Hearst Corp. v. Hoppe, 90 Wn.2d at 132.
The completed questionnaires in this case do not contain opinions or policy recommendations. Rather, they contain only factual data. The completed questionnaires are not within the deliberative process exemption.
Yacobellis contends that he is entitled to costs, attorney fees and an amount not to exceed $25 per day for each day that he was denied the right to inspect the documents.
We reverse and remand to the trial court to (1) set the amount of costs and attorney fees at trial and upon appeal and (2) determine whether a statutory award is merited and, if so, the amount thereof.
COLEMAN, C.J., and WEBSTER, J., concur.
Review denied at 114 Wn.2d 1002 (1990).
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