Thurston County is a member of the Washington Counties Risk Pool, which provides self-insured coverage for various counties’ liability. Thurston has a $250,000 deductible. As part of the deal, the Risk Pool can appoint defense counsel for the County in covered cases. Until the deductible is reached, the attorneys’ invoices go to the County and the County pays them. After the deductible is exhausted, bills no longer go to the County and the County has no responsibility to pay them.
Back in 2001 “several former prosecutors sued the County for discrimination (the Broyles litigation).” The Risk Pool covered the claims. The plaintiffs won large awards against the County. The first $250,000 of invoices were received and paid by the County. But there were an additional $1.9 million of invoices above the deductible that the County never saw and that it was not responsible for paying. The Risk Pool took care of that.
Arthur West wanted to see those invoices, so he submitted a PRA request to the County for records related to attorney billings on the case. That request has been subject to numerous prior cases and opinions and remands and whatnot. But none of that is really relevant to the issue on this appeal, which is an issue of first impression:
whether the definition of a Thurston County “public record” under the PRA includes attorney fee invoices for amounts greater than the County’s $250,000 deductible, which invoices the County’s Risk Pool-appointed defense attorneys prepared and never provided to the County (because these invoices properly were submitted to and paid by the County’s Risk Pool).
In Arthur S. West v. Thurston County (Division 2, May 8, 2012), the Court of Appeals held that the invoices are not public records under the PRA.
The PRA defines “public record” to include: “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function  prepared,  owned,  used, or  retained by any state or local agency regardless of physical form or characteristics.” (helpful numbers provided by the Court!) The Court determined that the requested invoices were not “public records” under any of the definitions. Taking the Court’s holdings one at a time, using the Court’s helpful little numbers…
1. The invoices were not “prepared” by the County because they were prepared by outside third-party attorneys. Sure, the attorneys were agents of the County, and the Court recognized that, but it interpreted the PRA as excluding outside lawyers as being part of the County, at least in cases where “the agency never physically possessed the documents.” So while the County’s agents prepared the invoices, the County did not.
2. According to the Court, to “own” means “to have or possess as property.” Therefore, because the County never had or possessed the invoices, it did not “own” them under the PRA.
3. The County did not “use” the invoices because there was no evidence that the invoices — which, remember, the County never saw — “had a nexus with Thurston County’s decision-making process.”
4. West did not argue that the County ever “retained” the invoices, so this prong got no discussion from the Court.
A few thoughts: Defining “own” as “to have or possess” is a very limited definition of own. I own all sorts of things that I do not physically possess, but I have control over them and can access them or possess them if I want to. I have to believe that if the County wanted a copy of the invoices for amounts over the deductible, the County could have gotten those invoices. That might be sufficient for ownership. Moreover, even if that analysis alone is not convincing, the Court’s definition of “own” to mean “possess” seems to make “own” totally redundant with “retain,” which clearly means possess. If “own” means “to have or possess,” then what more does “retain” bring to the table?
Anyway, since the Court determined that the invoices did not fit within any of the definitions, West was not entitled to them under the PRA.
For other documents to which West was entitled, the Court also affirmed the trial court’s decision regarding the penalty for the County’s delayed disclosure. According to the Court:
The County’s delay in disclosing invoices for law firms’ billings both below and above its deductible amount was due in large part to difficult and unresolved legal issues concerning the PRA, not bad faith. Accordingly, we do not disturb the superior court’s aggravating factors findings.
Lastly, the Court held that West was not entitled to attorneys’ fees for his work on the case, since he prosecuted the action pro se. In other words, if you don’t have an attorney, you don’t get attorneys’ fees, and the statute does not provide for “pro se” fees or anything like that.