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March 23, 2026 Get Citation Alerts Download PDF Add Note

Undivided Media Llc V. City Of Seattle

Court of Appeals of Washington

• Citations: None known
• Docket Number: 87628-7

• Precedential Status: Non-Precedential

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.2K)

• PDF

Lead Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

UNDIVIDED MEDIA LLC, a Washington
limited liability company, No. 87628-7-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

CITY OF SEATTLE,

Respondent.

COBURN, J. — After providing a partial installment of responsive records, the City

of Seattle took nearly three additional months to complete unDivided Media LLC’s finite

request for a city councilmember’s communication records over a 10-hour period.

unDivided Media sued the City for violations of the Public Records Act (PRA), chapter

42.56 RCW. The parties filed cross motions for summary judgment. The trial court

granted the City’s motion and denied unDivided Media’s motion. unDivided Media

appeals, arguing that the City (1) failed to provide a reasonable time estimate for the

first installment of records, (2) failed to provide a reasonable time estimate for the

second records installment, and (3) was not reasonably diligent in its response to the

records request. We disagree with unDivided Media’s first contention but agree that

undisputed facts establish that City’s second installment estimate was unreasonable

and that the City failed to handle the request with reasonable diligence as a matter of

law. Accordingly, we affirm in part, reverse in part, and remand for the trial court to enter
87628-7-I/2

partial summary judgment in favor of unDivided Media, to award reasonable attorney

fees, and to consider unDivided Media’s request for an award of daily penalties.

FACTS

On June 21, 2023, unDivided Media owner Brandi Kruse submitted a public

records request to the City’s legislative department for 10 hours of communication

records involving city councilmember Andrew Lewis. Specifically, unDivided Media

requested records created, sent, or received on June 6, 2023 between 12 p.m. and 10

p.m. Pacific Time that included “[a]ll text messages sent to and from,” “[a]ll voicemails

left on,” and a list of ingoing and outgoing calls from Lewis’ city-issued cell phone as

well as “[a]ll emails” with any email attachments sent to and from Lewis’ city-issued

email. The request was received by the legislative department’s public disclosure officer

(PDO) Matthew Jaeger.

Also on June 21 Jaeger sent a records preservation notice to the public

disclosure liaison at Lewis’ office, Maliq Phakdymanivong. At this time, Jaeger had 29

additional open or active records requests in process. He was the only PDO in the

legislative department and the only person responding to records requests on behalf of

the legislative department. The position for the legislative department’s designated

alternate PDO was vacant and had been since March or April 2023. The City had

approximately 90 PDOs assigned to different departments.

On June 27 Scheereen Dedman was hired as city clerk and direct supervisor of

Jaeger. Dedman managed the public disclosure office for the legislative department,

and her supervision responsibilities were limited to overseeing the PDO within the

legislative department.

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On June 28 Jaeger sent a letter to Kruse informing her that an initial installment

of requested records would be provided around August 18, 2023. By this time, Jaeger

had received 973 records responsive to unDivided Media’s request. Jaeger primarily

based the August 18 estimate on his current workload and placed unDivided Media’s

request “at the end of the line” of previously received requests that he was actively

working on. Based on his experience and knowledge, Jaeger estimated he could

respond to about three records requests per week and at this time, “it would have been

six, seven weeks out.” Jaeger considered current PDO staffing of the legislative and

other departments as well as the number of city personnel involved. Jaeger also

accounted for the possible amount of time it would take for him to review the records

responsive to unDivided Media’s request. Though Jaeger was used to “a three- to four-

week turnaround” when there are two PDOs working on records requests, it was not

unusual for him to have a six- to eight-week turnaround on requests when he was the

only PDO working in the department.

From July 13 to July 24, Jaeger was out on temporary leave for a family

member’s hospitalization. His workload was not covered while he was out. When

Jaeger returned from leave, “there were 10 additional records requests that required

attention.” Despite this, on August 18, 2023, Jaeger notified Kruse that the first

installment of 578 responsive records was ready and would be provided within two

business days upon payment of a $1.25 invoice. Due to the volume of records requests

he was processing, Jaeger required an additional day to make the records available.

Kruse downloaded the first installment on August 24, 2023. This same day,

Jaeger informed her that a second installment would be provided on November 10,

3
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1. At this point, Jaeger was processing more than 50 open requests for responsive

records and for any potential exemptions that would require redaction and the creation

of an exemption log.

Jaeger was out of the office for two weeks starting the last week of September.

He returned to the office on October 6. Jaeger’s supervisor Dedman provided some

back-up coverage for about a week during this period.

After Jaeger provided the second installment estimate of November 10, Kruse

asked Jaeger why the City required nearly six months to complete her request and

offered to attempt to narrow the request to speed up production. Based on her

experience in making hundreds of public records requests to the City and other

governmental entities, Kruse characterized the City’s November estimate as “highly

unusual … given the very narrow nature of the request.” Jaeger explained that the City

needed until November 10 due to staffing shortages. He did not respond to Kruse’s offer

to attempt to narrow her request.

Kruse also reached out to city councilmember Sara Nelson in September for her

perspective as to the City’s response. Nelson apparently sent an email to Kruse

expressing surprise at the amount of time it was taking to get a response to unDivided

Media’s request and that Nelson’s office typically requires that records are produced in

three weeks. 1

1
The actual email is not in the record before us. The record refers to unDivided Media’s
exhibits related to Nelson’s deposition that were included with unDivided Media’s motion for
summary judgment but were not designated in the clerk’s papers. The City does not dispute
unDivided Media’s assertion as to the substance of Nelson’s email and also cites to Nelson’s
deposition answers about the email.
4
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On October 20 unDivided Media sued the City under the PRA. About two weeks

later, in the week leading up to November 10, Jaeger reviewed the second installment

of 395 responsive records. On November 9 Jaeger notified Kruse that the remaining

395 records were ready for disclosure upon invoice payment. The City released the

records to unDivided Media the following day upon its payment of the $1.25 invoice.

In March 2024 the City moved for summary judgment dismissal of unDivided

Media’s lawsuit. unDivided Media filed a response in opposition and a cross-motion for

summary judgment.

As to whether there was a normal time period for responding to a certain request,

Jaeger testified that “it changes on the type of request” rather than “[t]he straight

number of records.” He continued, “I don’t know what the records are until I review the

records. And I think that the estimates were perfectly reasonable.” Public disclosure

liaison Phakdymanivong, like Jaeger, did not consider unDivided Media’s request

particularly complex or extensive. When Phakdymanivong received the records request,

it came with a form sheet that included a deadline to respond to the legislative

department within about two weeks to a month from the date he received the request.

After Dedman was hired, she took time to determine whether or how to combine

the alternate PDO position with one that would also serve as manager to the legislative

department’s boards and commission unit. Dedman testified on May 22, 2024:

I’m not sure as to why [the position was] not [advertised] prior to
me. When I started [on June 27, 2023], I just had a list of positions. Well, I
had a lot to learn and so in the list of duties, it wasn’t the highest of priority
to fill because I was still learning exactly what the needs for that unit are.
And unfortunately, due to staffing needs, once I’ve determined that
it was – yeah, it was a position that I would like to combine with another
unit that I failed to mention. Oh my gosh, I’m so sorry. We have a boards
and commission manager. And so I want to combine.

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I wanted that position to be able to serve both of those units and
that took some time to come up with the job description to, you know, work
out what the duties would be. So unfortunately, it’s just more so with
everything moving at the pace of government, I put up air quotes, the pace
of government.
Then that’s why today I just had a conversation, you know, with HR
about how we can proceed to fill that position.

Dedman said that the legislative department “just ha[s] the one [PDO] and the

vacant position who would do any responding.” According to Jaeger, having someone in

the alternate PDO position would have lessened his workload. Dedman testified that

while there was a time she provided back-up coverage for Jaeger, “if I did any sort of

thing during that timeframe, I’m not really aware because I’m not very familiar with the

job. I couldn’t even tell you the dates I did it, but it was for about a week.”

The City also submitted testimony from Julie Kipp, city manager for the Citywide

Public Records Act Program, 2 who testified that Jaeger was the employee dedicated to

responding to public records requests for the legislative department. Kipp continued,

“[Dedman] will sometimes act as, like, a backup if, like, to send out a 5-day. I don’t know

– I believe I’ve worked with her once to – while [Jaeger] was out to try to move some

process along, but I can’t remember the details of exactly what she needed.”

The trial court granted summary judgment in favor of the City, dismissing

unDivided Media’s claims. unDivided Media appeals.

2
The portion of Kipp’s testimony in the record on appeal does not include evidence of
her title, but both parties in their briefing refer to Kipp as the city manager of the “Citywide Public
Records Act Program.”
6
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DISCUSSION

Legal Principles

The PRA mandates all state and local agencies to disclose any requested public

record unless a specific exemption under the Act or another statute applies. Cantu v.

Yakima Sch. Dist. No. 7, 23 Wn. App. 2d 57, 78, 514 P.3d 661 (2022) (citing

Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 250, 884 P.2d 592

(1994) (plurality opinion)); RCW 42.56.070(1). The purpose of the Act is to increase

governmental transparency and accountability by providing access to public records for

Washington citizens. John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d

63 (2016). We liberally construe the PRA to promote the public’s interest in full access

to public records. SEIU Healthcare 775NW v. Dep’t of Soc. & Health Services, 193 Wn.

App. 377, 400, 377 P.3d 214 (2016) (citing RCW 42.56.030).

“The PRA provides a cause of action for two types of violations: (1) when an

agency wrongfully denies an opportunity to inspect or copy a public record, or (2) when

an agency has not made a reasonable estimate of the time required to respond to the

request.” Andrews v. Wash. State Patrol, 183 Wn. App. 644, 651, 334 P.3d 94 (2014)

(citing RCW 42.56.550(1), (2)). 3 An agency’s failure to respond to a records request

with reasonable diligence amounts to a constructive wrongful denial of a request in

violation of the PRA. Cantu, 23 Wn. App. 2d at 88, 93-94. Courts owe no deference to

an agency’s interpretations of the PRA. O’Neill v. City of Shoreline, 170 Wn.2d 138,

149, 240 P.3d 1149 (2010). Instead, in an action to enforce the PRA, the agency bears

the burden of proof to show that it acted reasonably or that the estimated response time

3
RCW 42.56.550 has been amended since this court’s decision in Andrews, but the
relevant language has not changed.
7
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it provided was reasonable in compliance with the PRA. Cantu, 23 Wn. App. 2d at 79-

80; Andrews, 183 Wn. App. at 651; RCW 42.56.550(1), (2).

A determination of “whether an agency complie[d] with the PRA is a fact specific

inquiry and must be decided on a case-by-case basis.” Andrews, 183 Wn. App. at 653.

In a PRA case, the trial court “may conduct a hearing based solely on affidavits.” RCW

42.56.550(3). Where, as is applicable here, a PRA case presents a question of law that

was decided by the trial court solely based on documentary evidence and legal

arguments, an appellate court’s review is de novo. Gronquist v. Dep’t of Licensing, 175

Wn. App. 729, 742, 309 P.3d 538 (2013); see RCW 42.56.550(3).

In a PRA case, either party may move for summary judgment under CR 56 4 if the

underlying facts are not in dispute. Cantu, 23 Wn. App. 2d at 80 (citing CR 56(c)); see

also West v. Dep’t of Licensing, 182 Wn. App. 500, 505, 331 P.3d 72 (2014) (“Public

Records Act cases may be decided on summary judgment.”) (citing Spokane Rsch. &

Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117 (2005)).

“[S]ummary judgment is generally appropriate only if there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law.” Cantu,

23 Wn. App. 2d at 80 (citing Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080

(2015)). That is, where reasonable persons could reach only one conclusion from the

evidence. Andrews, 183 Wn. App. at 651. Notably, in the instant case, the parties agree

that the material facts as to the legal issues on appeal have been fully developed and

are not in dispute.

4
Standard civil procedural rules apply to PRA lawsuits. Rufin v. City of Seattle, 199 Wn.
App. 348, 361, 398 P.3d 1237 (2017) (citing Spokane Rsch. & Def. Fund v. City of Spokane,
155 Wn.2d 89, 104, 105, 117 P.3d 1117 (2005)).
8
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We review a trial court’s summary judgment order de novo, engaging in the same

inquiry as the trial court. Id. at 650 (citing Folsom v. Burger King, 135 Wn.2d 658, 663,

958 P.2d 301 (1998)). At the summary judgment stage, a party moving for summary

judgment has the burden of showing there is no genuine issue of material fact. City of

Fife v. Hicks, 186 Wn. App. 122, 131, 345 P.3d 1 (2015). “A material fact is one on

which the outcome of the litigation depends in whole or in part.” Id. If the moving party

meets this burden, the nonmoving party must present evidence to show that material

facts remain in dispute. Id. at 132. The nonmoving party cannot rely on speculation,

conclusory statements, or argumentative assertions but must provide “specific facts

which sufficiently rebut the moving party’s contentions” to demonstrate a genuine issue

as to a material fact. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997); Block v. City

of Gold Bar, 189 Wn. App. 262, 269, 355 P.3d 266 (2015) (citing CR 56(e)). “If the

nonmoving party fails in this, summary judgment is proper.” Hicks, 186 Wn. App. at 132.

In reviewing a record on summary judgment, we view any reasonable inferences in the

light most favorable to the nonmoving party and consider only the evidence that was

before the trial court. O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 79, 493 P.3d 1245

(2021); Andrews, 183 Wn. App. at 650-51; RAP 9.12. We may affirm the trial court’s

order on any basis supported by the record. O’Dea, 19 Wn. App. 2d at 79.

Reasonable Time Estimate

unDivided Media challenges the City’s estimated installment dates of August 18

and November 10, 2023. unDivided Media argues that it was unreasonable for the City

to take more than a month to provide the first installment of records and to delay more

than four months before producing the second (and final) installment. We affirm the trial

9
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court’s ruling that the August 18 estimate was reasonable but conclude that the record

establishes that the November 10 estimate was unreasonable as a matter of law.

A. First Installment Estimate of August 18, 2023

unDivided Media avers that the City’s initial estimate of August 18, 2023 was

unreasonable because it was not based on a consideration of all the factors

enumerated in the City’s internal policy that may affect response time 5 and it exceeded

the City’s standard maximum production time of two to four weeks.

5
unDivided Media cites section 5.3.2 of the Multi-Departmental Administrative Rules
(MDAR) 17-0002, the City’s internal policy effective July 23, 2017 regarding public record
responses under the PRA. Section 5.3.2 states:
when the City receives a public records request, the PDO will determine a
reasonable estimate of time within which the City will respond to the request,
factoring in the nature, volume, and availability of the requested records; the
amount of time necessary to respond to a particular request and its effect on the
amount of PDO and non-PDO staff time that can be devoted to responding to the
requests of other requestors; and the impact on essential City functions. Specific
factors that may affect the response time estimate include, but are not limited to:

(a) Number of pending requests from the same requestor;
(b) Volume of records requested;
(c) Complexity or ambiguity of the request;
(d) Requests for underlying metadata;
(e) Access to database or electronic system records;
(f) Information Technology (IT) staff involvement;
(g) Records not easily identified, located, and/or accessible;
(h) Current PDO staffing;
(i) Current staffing of any involved City departments;
(j) Research by City staff;
(k) Amount of time needed by City staff who are not primarily responsible for
public disclosure processing;
(l) Number of department personnel or other City departments involved;
(m) Third-party notice;
(n) Complex review to determine if content is exempt;
(o) Extensive and complicated electronic redaction;
(p) Legal review;
(q) Resolving issues related to retention of responsive records; and/or
(r) Grouped requests.

10
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Under the PRA, agencies must provide a “‘reasonable’ estimate, not a precise or

exact estimate, recognizing that agencies may need more time than initially anticipated

to locate requested records.” Andrews, 183 Wn. App. at 652; see RCW 42.56.520;

WAC 44-14-04003(6). “To provide a ‘reasonable’ estimate, an agency should not use

the same estimate for every request” but “roughly calculate the time it will take to

respond to the request.” WAC 44-14-04003(7). There is no standard amount of time that

is allowed to fulfill a request. Id. Thus, reasonable estimates should vary. Id. Time to

“respond” can include, for example, time to process the request, such as locating and

assembling records, redacting records, determining if disclosure exemptions apply, or

making an installment available. Id.

As stated above, the agency has the burden of showing that the time estimate it

provided was reasonable. RCW 42.56.550(2). We review the reasonableness of a time

estimate in the context in which it was provided. See, e.g., Wade’s Eastside Gun Shop,

Inc. v. Dep’t of Lab. & Indus., 185 Wn.2d 270, 289, 372 P.3d 97 (2016) (holding an

agency’s 232-day response time unreasonable when it was previously determined that

no exemptions applied). “[W]hether an estimate is reasonable necessarily must be

based on a forward-looking evaluation at the time of the estimate, not on a backward-

looking evaluation after the fact.” Freedom Found. v. Dep’t of Soc. & Health Services, 9

Wn. App. 2d 654, 667, 445 P.3d 971 (2019).

Here, unDivided Media presented testimony from PDO Jaeger that in

determining the August 18 estimate he did not consider certain factors outlined in the

City’s policy that may affect response time, including the location of the records or

whether they were easily identified or accessible, research by City staff, amount of time

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needed by City staff who were not primarily responsible for public records requests,

third-party notice, legal review, issues related to the retention of responsive records, or

grouped requests. However, PDO Jaeger’s purported deviation from internal

expectations regarding the determination of response time to a public records request

does not by itself create a cause of action under the PRA.

Under RCW 42.56.100, agencies must “adopt and enforce reasonable rules and

regulations” consistent with the intent of the PRA to “provide for the fullest assistance to

inquirers and the most timely possible action on requests for information.” The purpose

of RCW 42.56.100 is to safeguard and facilitate timely access to public records and

does not permit an agency to promulgate rules that undermine the express intent of the

PRA and delay timely action on public records requests. Kilduff v. San Juan County,

194 Wn.2d 859, 871, 453 P.3d 719 (2019). We have previously observed that the

purpose of the PRA is to keep agencies accountable in responding to public records

requests with reasonable thoroughness and diligence, not to impose “a mechanically

strict finding of a PRA violation whenever [internally imposed] timelines are missed.”

Andrews, 183 Wn. App. at 653. In this vein, though conduct in relation to internal

policies and procedures may be considered as evidence relevant to the question of the

reasonableness of an agency’s response estimate, an agency’s deviation from internal

guidance or expectations in determining such an estimate does not alone establish

liability under the PRA. See id. at 651-53; C.S.A. v. Bellevue Sch. Dist. No. 405, 32 Wn.

App. 2d 544, 569 n.26, 557 P.3d 268 (2024), review denied, 4 Wn.3d 1019 (2025), cert.

denied, 146 S. Ct. 181 (2025).

12
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According to Jaeger’s undisputed testimony, he individually worked on requests

for the legislative department in the order that they were received. Jaeger explained he

placed unDivided Media’s request “at the end of the line” of currently pending requests

and estimated the time it would potentially take to complete the preceding requests and

unDivided Media’s specific request. We have previously held that an agency’s

determination of a time estimate is reasonable where it was based on a consideration of

how long it will take for the agency to review records for a request while also processing

other PRA requests. Freedom Found., 9 Wn. App. 2d at 666-67; 6 see also Rufin v. City

of Seattle, 199 Wn. App. 348, 358, 398 P.3d 1237 (2017) (holding that the city

responded diligently in its response to PRA request that took 65 days to complete

where it placed the request in the queue along with other requests and was working on

other requests). The record thus establishes that Jaeger reasonably determined the

August 18 estimate based on a consideration of the time he needed to complete the

request along with other requests as the sole PDO in the legislative department.

unDivided Media asserts that it should not have taken Jaeger longer than two to

four weeks to respond to its request. But Jaeger testified it was not unusual for him to

need six to eight weeks to respond to a records request when he was the only PDO

working in the department.

unDivided Media relies on councilmember Nelson’s opinion that it was surprising

how long the City was taking to respond to unDivided Media’s request and that Nelson’s

office typically requires responses be made to records requests in three weeks. This,

6
The court in Freedom Foundation, 9 Wn. App. 2d at 662, 665-67, considered the
reasonableness of a time estimate under former RCW 42.56.520 (2010), which is not materially
different from the current statute for the purposes of this opinion’s analysis. Compare LAWS OF
2010, ch. 69, § 2 with LAWS OF 2017, ch. 303, § 3.
13
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unDivided Media argues, is evidence that the City’s estimated time for response was

not reasonable. However, Nelson conceded that she has never served as a PDO or

reviewed records collected in response to a public records request for exemptions,

third-party notices, or any other relevant considerations under the PRA. Nelson also

acknowledged she was not aware how PDO Jaeger or the legislative department

prioritized records requests. Additionally, Nelson did not know how many requests were

ahead of unDivided Media’s request or the volume of such requests. unDivided Media

also refers to public disclosure liaison Phakdymanivong’s testimony, arguing that his

testimony indicated “the normal turnaround time for the records requests of this nature

would have been between two (2) to four (4) weeks.” But Phakdymanivong testified to

the timeline he understood he had to provide responsive records to Jaeger, and not to a

reasonable estimate for the legislative department to produce records to unDivided

Media.

unDivided Media avers that at minimum the City should have provided an

explanation to support its time estimate for its narrow request. However, the PRA does

not require an agency to provide a records requestor an explanation for its time

estimate for disclosure. 7 Andrews, 183 Wn. App. at 652 (citing Ockerman v. King

County Dep’t of Developmental & Env’t Services, 102 Wn. App. 212, 217-18, 6 P.3d

1214 (2000)).

7
An agency may still opt to provide an explanation for an estimate as a best practice.
See WAC 44-14-04003(7) (“While not required, … to avoid unnecessary litigation over the
reasonableness of an estimate, an agency could briefly explain to the requestor the basis for the
estimate in the initial response. The explanation need not be elaborate but should allow the
requestor to make a threshold determination of whether he or she should question that estimate
further or has a basis to seek judicial review of the reasonableness of the estimate.”) (citing
Ockerman, 102 Wn. App. at 214).
14
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Whether an agency has provided a reasonable estimate of time generally

depends on the facts and circumstances. In this case, however, the City bore its burden

to show that its first installment estimate of August 18 was reasonably based on the

time needed to respond to pending requests as well as unDivided Media’s request.

Under CR 56, the burden then shifted to unDivided Media to show otherwise, which it

failed to do. Thus, we hold that a reasonable factfinder could only conclude on this

record that the City’s first installment estimate was reasonable. Accordingly, the trial

court properly granted summary judgment to the City on this basis, as it was entitled to

judgment as a matter of law. See Block, 189 Wn. App. at 274-78; Andrews, 183 Wn.

App. at 651, 653-54.

B. Second Installment Estimate of November 10, 2023

unDivided Media contends that the record presents no genuine dispute that the

City’s second installment estimate of November 10, 2023 was unreasonable as a matter

of law. Because the City provides no evidence to establish the reasonableness of its

November 10 estimate for the completion of unDivided Media’s records request, we

agree.

An agency is entitled to a reasonable amount of time to produce responsive

records under the PRA and is therefore not required to strictly comply with its internal

production dates. O’Dea, 19 Wn. App. 2d at 90; Andrews, 183 Wn. App. at 653. The

City’s extension of its estimated response to unDivided Media’s request thus does not

amount to a per se PRA violation. See Andrews, 183 Wn. App. at 650, 653; C.S.A., 32

Wn. App. 2d at 569 n.26. Nonetheless, the City has the burden to prove that its second

estimate was reasonable. RCW 42.56.550(2); Gronquist v. Dep’t of Corr., 32 Wn. App.

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2d 617, 629-31, 557 P.3d 706 (2024), review denied, 4 Wn.3d 1011 (2025). Extended

estimates are appropriate when circumstances have changed. Gronquist, 32 Wn. App.

2d at 629 (citing Andrews, 183 Wn. App. at 652); WAC 44-14-04003(7).

The City presented no evidence of the changed circumstances that resulted in

the extended estimate of nearly three months. The City’s own evidence showed that

when Kruse inquired about the extended estimate of November 10, PDO Jaeger

attributed it to staffing shortages. Yet, when Jaeger provided the August 18 estimate, he

had already accounted for how long it would take him to complete unDivided Media’s

request given his workload as the sole PDO for the legislative department. In addition to

testifying that an eight-week response time was not unusual when he was the only one

responding to records requests for the legislative department, Jaeger generally

estimated he could respond to about three requests per week and explained he would

address requests in chronological order. At most, considering Jaeger was individually

handling 29 open requests when he received unDivided Media’s request on June 21,

2023, this timeline would have placed the completion of the request sometime around

the end of August or early September.

The record suggests that Jaeger received additional records requests after

receiving unDivided Media’s request. Jaeger received 10 of these requests in July upon

his return from temporary leave. He testified that by around August 24, “at some point,”

he had “cleared 50 open requests.” But the City provides no insight as to how these

additional requests impacted Jaeger’s otherwise standard chronological processing of

requests such that it required him to estimate the next production date for unDivided

Media’s June 21 request as November 10. Because the City has the burden to establish

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that its estimate was reasonable, any lack of evidence regarding circumstances

warranting the extended estimate must be construed against it. See Gronquist, 32 Wn.

App. 2d at 631.

Accordingly, we conclude that the City did not meet its obligation to show that the

November 10 estimate was reasonable under the PRA. In a case where the parties

have filed cross-motions for summary judgment, “[t]hough the reversal of a trial court’s

order granting summary judgment to one party does not mean that the other party’s

motion for summary judgment must be granted, this can be an appropriate remedy

where the two motions take diametrically opposite positions on the dispositive legal

issue and raise no issues of fact.” Aaland v. CRST Home Solutions, LLC, 35 Wn. App.

2d 501, 519, 575 P.3d 1279 (2025), review denied, No. 104668-5 (Wash. Feb. 2, 2026).

Accordingly, because no reasonable factfinder could find on this undisputed record that

the City’s decision to delay its response of remaining records to November 10 was

reasonable, unDivided Media is entitled to summary judgment as a matter of law on this

issue. See Block, 189 Wn. App. at 274; Andrews, 183 Wn. App. at 651. We reverse in

part the trial court’s summary judgment order and remand for entry of partial summary

judgment in unDivided Media’s favor.

Reasonable Diligence

unDivided Media next contends that uncontested facts show that the City did not

respond to its request with reasonable diligence to provide the fullest assistance to its

records request as required by the PRA.

Under the PRA, agencies must fulfill record requests in a manner that does not

create “excessive interference” with the agency’s “other essential functions of the

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agency.” RCW 42.56.100; WAC 44-14-04003(3). At the same time, agencies must

provide the “‘fullest assistance’” and the “‘most timely possible action on requests for

information.’” Freedom Found., 9 Wn. App. 2d at 673 (internal quotation marks omitted)

(quoting Andrews, 183 Wn. App. at 651); see Mitchell v. Dep’t of Corr, 164 Wn. App.

597, 607, 277 P.3d 670 (2011). An agency has the burden of establishing that it

provided the fullest assistance to requestors and the timeliest possible action on records

requests. Gronquist, 32 Wn. App. 2d at 629 (citing RCW 42.56.100). “In determining

whether an agency acted promptly in producing responsive records we examine

whether the agency’s response was thorough and diligent.” Freedom Found., 9 Wn.

App. 2d at 673 (citations omitted). As referenced above, an agency’s failure to diligently

respond to a records request is unreasonable and amounts to a constructive wrongful

denial of a request in violation of the PRA. Cantu, 23 Wn. App. 2d at 88, 93-94; see

RCW 42.56.550(1).

unDivided Media argues that the City’s failure to adequately staff the legislative

department to respond to public records requests violated the City’s internal policy 8 and

rendered the City’s conduct unreasonable under the PRA.

As stated above, an agency’s deviation from its internal policies and procedures

regarding the handling of public records requests does not create a cause of action

under the PRA. See Andrews, 183 Wn. App. at 651-53; C.S.A., 32 Wn. App. 2d at 569

n.26. Where an agency does not strictly comply with internal expectations or timelines

but otherwise acts reasonably diligently in responding to a public records request,

8
unDivided Media cites section 4.2.1 of the City’s public records disclosure policy,
MDAR 17-0002 (effective July 23, 2017), which states that “[e]ach department shall have at
least one designated PDO and at least one designated alternate PDO, the latter to carry out the
PDO’s functions when the PDO is not available due to vacation, sick leave, or otherwise.”
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courts should take a flexible approach that focuses on the thoroughness and diligence

of the response in determining whether the agency’s conduct is consistent with the

PRA. See Andrews, 183 Wn. App. at 646, 653. To this end, “[a]n agency may produce

records in installments but must make them with reasonable diligence.” C.S.A., 32 Wn.

App. 2d at 558 (citing RCW 42.56.080(2); Cantu, 23 Wn. App. 2d at 90).

A court conducts a fact-specific inquiry to determine whether an agency

responded to a records request with reasonable thoroughness and diligence. Freedom

Found., 9 Wn. App. 2d at 673 (citing Rufin, 199 Wn. App. at 358). “In determining

whether an agency worked diligently on a request, ‘we apply an objective standard from

the viewpoint of the requester.’” C.S.A., 32 Wn. App. 2d at 564 (quoting Cantu, 23 Wn.

App. 2d at 94). This standard contemplates the plaintiff’s prior requests, communication

that occurred between the requester and the agency, and the totality of the

circumstances. Id. (citing RCW 42.56.100). As such, an agency’s conduct in relation to

its internal policies and procedures may be considered as evidence relevant to

reasonableness under the PRA. See Andrews, 183 Wn. App. at 653; C.S.A., 32 Wn.

App. 2d at 564 n.23. An agency cannot excuse an objective lack of diligence with

evidence of administrative inconvenience, insufficient allocation of resources, or

difficulty in producing records. Cantu, 23 Wn. App. 2d at 94-95; see C.S.A., 32 Wn. App.

2d at 568 (holding that school district’s claims that it received an unprecedented number

of public records requests and was short-staffed did not excuse its failure to produce

requested records for a six-month period).

In the instant case, the City’s internal requirement for departments to have an

alternate PDO to provide coverage when the designated PDO is unavailable is evidence

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of the staffing that the City deemed necessary to diligently respond to records requests

under the PRA. See Multi-Departmental Administrative Rules (MDAR) 17-0002, § 4.2.1

(eff. July 23, 2017). The City does not dispute this and instead claims that it did provide

the necessary back-up coverage for PDO Jaeger to maintain a diligent response to

records requests during the period that unDivided Media’s request was pending.

Turning to the record, it does not appear that PDO Jaeger’s temporary

unavailability in July negatively impacted his ability to respond to unDivided Media’s

request by the first installment estimate of August 18, 2023. However, Jaeger cited

staffing shortages as the reason for the delayed completion of unDivided Media’s

request to November 10 and testified that additional PDO staffing would have lessened

his workload. During Jaeger’s two-week absence in September, which was after Jaeger

provided the second installment estimate of November 10, Jaeger’s supervisor Dedman

provided back-up coverage for only about a week to the limited extent that she sent out

initial five-day letters to new requests. Aside from her limited assistance with new

requests, Dedman did not even know what Jaeger’s duties entailed. Though Dedman

testified she did not advertise the vacant alternate PDO position because she was

assessing the needs of the unit and the possibility of combining the position with

another position, the City’s evidence provided no explanation for its failure to ensure in

the meantime that the person providing back-up to the legislative department’s PDO

was properly trained to do more than send out five-day letters to new requests.

The City further proffered testimony from Dedman that she did not consider back-

up coverage for public records requests as “the highest of priority” for the legislative

department and attributed the time it took to address the gaps in the department’s ability

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to respond to records requests to “the pace of government.” The City’s inadequate

allocation of resources, lack of priorities, and organizational obstacles is not a defense

for its failure to diligently assist with records requests. See Cantu, 23 Wn. App. 2d at 94-

95; see also RCW 42.56.152 (setting forth training requirements for public records

officers and managers under the PRA).

Thus, the City has failed to meet its burden to show that it acted with reasonable

diligence in producing the second installment of records responsive to unDivided

Media’s request. We therefore hold that no reasonable person could find on this record

that the City provided the fullest assistance to unDivided Media during the time period

that it waited for the second records installment as required by the PRA. Accordingly,

unDivided Media is entitled to partial summary judgment as a matter of law. See

Andrews, 183 Wn. App. at 650-51, 653-54. We thereby reverse in part the trial court’s

order granting the City’s motion for summary judgment and remand for the court to

enter partial summary judgment in unDivided Media’s favor on this basis.

Daily Penalty and Attorney Fees

To the extent it is a prevailing party on appeal, unDivided Media requests

attorney fees and costs and a daily penalty award under RCW 42.56.550(4). RCW

42.56.550(4) provides an award of “all costs, including reasonable attorney fees” to a

requestor who prevails in establishing that an agency violated the PRA. The statute also

provides courts the discretion “to award such person an amount not to exceed [$100] for

each day that he or she was denied the right to inspect or copy said public record.”

RCW 42.56.550(4).

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Where this court determines that an agency has violated the PRA, the proper

remedy is to remand to the trial court for a determination of a reasonable attorney fee

award and appropriate daily penalties. See C.S.A., 32 Wn. App. 2d at 570 (citing

Neighborhood All. of Spokane County v. Spokane County, 172 Wn.2d 702, 728, 261

P.3d 119 (2011)). “[A]lthough an award of attorney fees to a prevailing party in a PRA

action is mandatory, whether to award a penalty under RCW 42.56.550(4) is within the

trial court’s discretion.” West v. Port of Olympia, 183 Wn. App. 306, 318, 333 P.3d 488

(2014) (citing Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 428, 327

P.3d 600 (2013)). Accordingly, as required under RCW 42.56.550(4), we award

unDivided Media attorney fees as the prevailing party on appeal consistent with this

opinion. Because unDivided Media may be entitled under the PRA to attorney fees for

legal services on remand to the trial court as well as fees on appeal, we remand this

issue to the trial court with instructions to determine an appropriate award consistent

with controlling case law and to exercise its discretion as to whether to award a penalty

under RCW 42.56.550(4).

CONCLUSION

We affirm in part, reverse in part, and remand with instructions for the trial court

to enter partial summary judgment in favor of unDivided Media on the grounds that the

City did not provide a reasonable time estimate for the disclosure of the second records

installment and did not provide the fullest assistance in completing the production of

requested records in violation of the PRA. We also remand for the trial court to hold

further proceedings to award reasonable attorney fees below and on appeal and for

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consideration of unDivided Media’s request for daily penalties.

WE CONCUR:

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