Division II: Executive Privilege Stands; West Winged
Arthur West is a frequent flier with public records act lawsuits. In fact, he has already been written about by this very blog, and threatened a lawsuit against it when he didn’t like what he read.
Anyhow, West was suing based on a public records request he made to Governor Gregoire. The governor replied citing executive privilege. West sued, and then also claimed that the other claims he had brought should be addressed as well. The only problem? He had long ago abandoned those claims.
We hold that unless the parties agree or the trial court rules otherwise, a PRA claimant abandons all PRA claims ifthe claimant does not address those claims in briefing or argument in a former RCW 42. 56. 550( 1) show cause proceeding.5 Because West argued only his executive privilege claim in the show cause proceedings, we hold that he abandoned any other PRA claims.
Regarding the claim that executive privilege was misapplied, West was essentially arguing that a Court can never decide a matter of first impression, because doing so would be unfair to the litigant. Now whether this was really a matter of first impression is a grey area, even:
West argues that the trial court unfairly applied a new test to his PRA claim without providing adequate notice, which violated his right to due process. However, West had adequate notice of the requirements of the three-part test. The test has been used in federal courts since the U.S. Supreme Court decision in United States v. Nixon, 418,U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). And in her response to the show cause motion, Gregoire specifically argued that the trial court should apply the three-part test and that West had made no attempt to show a particularized need. West responded to this argument in his supplemental brief and argued against adoption of the three -part test, but he did not advance any claim at that time that he had a particularized need for the records requested.
West cites no authority for the proposition that a trial court cannot adopt and apply a legal analysis as a matter offirst impression when the parties have fully briefed the issue. West had every opportunity to present an argument that he did have a particularized need for the records requested, and he should not be allowed to benefit from his failure to do so. We hold that under these circumstances the trial court did not err in applying the three -part test to West' s claims and did not infringe on his right to due process.
This brings to light another issue. Here there are professional litigants with no need for public records simply making public records requests in order to catch governments off kilter, and then request attorneys fees. While the fees granted are starting to be reigned in, there has to be a better way to curtail those who would simply request records to make money off of a governmental entity.