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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

Arthur S. West,                                                  No.  41085-1-II

                             Appellant,

       v.

Thurston County,                                            PUBLISHED OPINION

                             Respondent.

       Hunt, J.  --  Arthur S. West appeals the superior court's memorandum opinion ruling that 

certain attorney fee invoices of Thurston County's insurer-appointed defense counsel did not meet 

the Public Records Act's (PRA)1 definition of public records because the County never physically 

received the invoices, was not responsible for paying them, and did not consider the invoices as 

part of any decision-making process.  West also argues that the superior court erred in (1) failing 

to rule that the County improperly redacted parts of other invoices, (2) failing to impose a higher 

PRA penalty amount on the County, (3) unreasonably delaying the issuance of its memorandum 

opinion, (4) failing to rule on allegedly newly-discovered evidence that the County supposedly 

suppressed, (5) awarding attorney fees and costs to West's former counsel instead of to West 

1 Chapter 7.24 RCW. 

No.  41085-1-II

himself, and (6) granting West's former counsel's motion for an attorney fees lien.  We affirm.

                                            FACTS

                                        I.  Background

       Thurston County contracts with the Washington Counties Risk Pool for self-insurance 

coverage.  The Risk Pool "is a public agency created by interlocal agreement in 1988, to provide 

coverage for liability exposures of counties."2 The County has a $250,000 deductible under the 

Risk Pool agreement.  The Risk Pool has the contractual right to appoint defense counsel to 

represent the County in matters that the self-insurance agreement covers.  The Risk Pool-

appointed defense counsel sends attorney fee invoices to the Risk Pool for payment, which the 

Risk Pool satisfies; if the County has not yet reached its $250,000 deductible, then the Risk Pool 

forwards these invoices to the County with requests for reimbursement.  After the County meets 

its deductible, however, the Risk Pool no longer sends invoices to the County, which, at that 

point, is not responsible for paying them.

                                     A.  Broyles3 Litigation

       In 2001, several former prosecutors sued the County for discrimination (the Broyles 

litigation).  The County's contract with the Risk Pool covered the County's potential liability.  

2 Washington Counties Risk Pool, "Who We Are," available at http://www.wcrp.info/about.html
(last visited March 23, 2012).

3 Broyles v. Thurston County, 147 Wn. App. 409, 195 P.3d 985 (2008).

                                               2 

No.  41085-1-II

The Risk Pool appointed at least five law firms to represent the County.4  In 2006, the Broyles

plaintiffs received large jury verdicts and awards for attorney fees and costs, which our court later 

upheld on appeal.5

       Between October 2001 and November 2002, five Risk Pool-appointed firms billed the 

Risk Pool for approximately $280,000 in services.  Between November 2002 and December 

2006, four of the original five Risk Pool-appointed firms6, plus other (apparently Risk Pool-

appointed) law firms and service providers, billed almost $1.9 million.  Because the County was 

ultimately responsible for satisfying these invoices up to the deductible amount, the Risk Pool paid 

the first $250,000 and forwarded copies of the invoices to the County with requests for 

reimbursements.  After the cumulative amount of invoices exceeded $250,000, the Risk Pool 

ceased forwarding copies of the invoices to the County because it was no longer responsible for 

paying them.

4 The five firms were (1) Cable, Langenback, Kinerk & Bauer, LLP; (2) Garvey, Schubert & 
Barer; (3) Law Offices of John Francis Kennedy; (4) Lee Smart Cook Martin and Patterson; and 
(5) Bullard Smith Jernstedt Harnish.  After June 2007, a new firm, Patterson Buchanan Fobes 
Leitch & Kalzer, Inc., P.S., began representing the County.  According to the Washington 
Secretary of State's corporation registry, Lee Smart Cook Martin and Patterson is now known as 
Lee Smart, P.S., Inc.  See              Corporations Division -- Registration Data Search, 
http://www.sos.wa.gov/corps/search_detail.aspx - ubi=600108057 (last visited March 23, 2012).
       By June 2007, Michael Patterson, who played a central role in the facts underlying this 
appeal, was no longer an attorney at the firm of Lee, Smart, Cook, Martin and Patterson.  After 
June 2007, Patterson was with the firm of Patterson Buchanan Fobes Leitch & Kalzer.

5 See Broyles, 147 Wn. App. at 453.

6 Bullard Smith Jernstedt Harnish no longer represented the County after November 2002.

                                               3 

No.  41085-1-II

                                B.  Public Records Act Request

       On December 17, 2006, a local newspaper reported that Michael Patterson, one of the 

County's Broyles attorneys, "wo[uld]n't tell the public how much [the County's] legal defense [in 

the Broyles litigation] ha[d] cost." Clerk's Papers (CP) at 116.  About five weeks later, on 

January 22, 2007, Arthur S. West filed a Public Records Act (PRA)7 request with the Thurston 

County Public Records Officer, which stated:

              Please consider this a formal request under the Washington State Public 
       Records Act (PRA) for copies of the complete records and official public records 
       concerning the attorney billings related to the defense of the Thurston County 
       Prosecutor's [O]ffice in Mason County Superior Court, and any records 
       mentioned in any records request by the Olympian or any other entity presently 
       being withheld from disclosure.

              Specifically, this refers to the records of billings from the firm of Lee, 
       Smart, Cook, Martin and Patterson.  The law firm should "get Smart" and make 
       full disclosure of the public records at issue in order to forestall a loss of public 
       confidence in their integrity.

CP at 163.

       In a letter dated January 26, Patterson, still representing the County, denied West's PRA 

request.8 Patterson's letter cited specific exemptions, including RCW 42.56.290, which exempts 

       [r]ecords that are relevant to a controversy to which an agency is a party but which 
       records would not be available to another party under the rules of pretrial 
       discovery for causes pending in the superior courts.

RCW 42.56.290.  Patterson also cited RCW 42.56.070(1), which exempts documents that "fall[] 

7 Chapter 7.24 RCW.

8 Two days earlier, on January 24, the Broyles trial court had denied the Broyles plaintiffs' motion 
to compel production of the Risk Pool-appointed defense counsel's invoices.

                                               4 

No.  41085-1-II

within the specific exemptions of . . . other statute[s] which exempt[] or prohibit[] disclosure of 

specific information or records."      For the "other statute,"     Patterson relied on RCW 

5.60.060(2)(a), which reads,

       An attorney . . . shall not, without the consent of his or her client, be examined as 
       to any communication made by the client to him or her, or his or her advice given 
       thereon in the course of professional employment.

                                         II.  Procedure

       On February 12, 2007, West filed a PRA action against the County in Mason County 

Superior Court.  On February 24, Patterson wrote another letter to West, maintaining that RCW 

42.56.290 exempted defense counsel's invoices from disclosure.  Patterson also wrote that, 

nevertheless, the County would provide "redacted copies" of the invoices the County had in its 

"possession." CP at 165.

                     A.  First Disclosure (February 24, 2007); First Appeal

       On the same day that Patterson wrote his February 24 letter to West, the County turned 

over to West 243 pages of redacted documents, comprising 46 individual invoices from five Risk 

Pool-appointed firms, even though West's PRA request had asked only for "records of billings 

from the firm of Lee, Smart, Cook, Martin and Patterson."     CP at 163.  These invoices' dates 

ranged from October 1, 2001, through November 22, 2002.  The invoices

       were redacted to remove the name, address and other contact information of the 
       person or entity to whom the invoice was sent, the file number and description of 
       the matter, all descriptions of work performed and all descriptions of costs or 
       disbursements as well as personal or financial information such as tax identification 
       numbers.

CP at 182.  The cumulative total of these invoice amounts was $255,030.95.9     The County also 

                                               5 

No.  41085-1-II

provided to West a four-page document listing the Risk Pool's individual payments to law firms 

(including, but not limited to, four of the original five Risk Pool-appointed firms) and other 

service providers between November 2002 and December 2006, which amounted to nearly $1.9 

million.

       On March 26, the superior court dismissed West's PRA action, apparently because the 

County had disclosed the requested invoices; West appealed.10          On May 13, 2008, we 

unanimously concluded in a published opinion that the superior court had erred by dismissing 

West's PRA action.  West v. Thurston County, 144 Wn. App. 573, 584, 183 P.3d 346 (2008).  

We reasoned,

       RCW 42.56.904 was expressly intended to clarify the Public Records Act's 

9 As discussed below, the County sought to provide West with invoices from only the first 
$250,000.00 in cumulative billing (the County's deductible amount).  But the final invoice in the 
February 2007 disclosure was for $46,137.60, which raised the cumulative amount from 
$208,158.02 to $255,030.95, over the deductible amount.  Thus, in its February 2007 disclosure, 
the County technically provided West with the invoices from the first $255,030.95 in cumulative 
billing.

10 On May 8, while West's appeal was pending, the legislature enacted RCW 42.56.904, which 
provides:
       It is the intent of the legislature to clarify that no reasonable construction of 
       chapter 42.56 RCW [the PRA] has ever allowed attorney invoices to be withheld 
       in their entirety by any public entity in a request for documents under that chapter.  
       It is further the intent of the legislature that specific descriptions of work 
       performed be redacted only if they would reveal an attorney's mental impressions, 
       actual legal advice, theories, or opinions, or are otherwise exempt under chapter 
       391, Laws of 2007 or other laws, with the burden upon the public entity to justify 
       each redaction and narrowly construe any exception to full disclosure.  The 
       legislature intends to clarify that the public's interest in open, accountable 
       government includes an accounting of any expenditure of public resources, 
       including through liability insurance, upon private legal counsel or private 
       consultants.
Laws of 2007, ch. 391, § 1 (emphasis added).  RCW 42.56.904 became effective on July 22, 
2007.

                                               6 

No.  41085-1-II

       applicability to records of public funds expended on private legal counsel.  The 
       new statute clarified that attorney invoices held by a public agency may not be 
       withheld in their entirety and that any work product redactions must be justified.

West, 144 Wn. App. at 584.  We remanded with instructions for the superior court to determine 

(1) "whether the County has, in fact, disclosed all of the invoices in its possession"; (2) "whether 

[the County's] redactions are justified as work product or privileged information"; and (3) "the 

costs and penalties to be assessed against the County for resisting disclosure until West filed this 

lawsuit."  West, 144 Wn. App. at 584.

                B.  Second Disclosure (July 9, 2008); Remand from First Appeal

       On July 9, 2008, apparently in response to our court's decision, the County disclosed 303 

pages of documents to West.  This 303-page disclosure comprised numerous individual invoices, 

two of which the County had not included in its previous February 24, 2007 disclosure.11    The 

July 2008 invoices were in "significantly less redacted form"        than their February 2007 

counterparts.  CP at 166.  But, like the February 2007 disclosure, the July 2008 disclosure did not 

include  invoices substantially exceeding the $250,000 deductible.12    Nor did the July 2008 

disclosure include the Risk Pool's four-page payment history for the $1.9 million in costs incurred 

between November 2002 and December 2006.

       On August 11, 2008, approximately one month after the County provided West with this 

11 The February 2007 disclosure had comprised only  243 pages  because  the February 2007 
invoices did not include checks and memoranda included later in the July 2008 version of these 
invoices.  This July 2008 version of these invoices included copies of the Risk Pool's checks 
and/or memoranda from law firms requesting payment.  See CP at 208-90.

12 The July 2008 disclosure comprised invoices up to $276,998.12 in cumulative billing, compared 
with $255,030.95 in the February 2007 disclosure, because the July 2008 disclosure included two 
additional invoices in the amounts of $21,935.00 and $32.17, respectively.

                                               7 

No.  41085-1-II

second disclosure, we mandated West v. Thurston County back to the superior court.   On 

September 8, West moved the superior court to order the County to "show cause . . . why [the 

County] should not be compelled to comply in all respects with" our decision in West v. Thurston 

County.  CP at 740.  On October 17, the County sent the superior court two sets of documents:  

(1) "[u]nredacted copies of all Broyles v. Thurston County attorney fee invoices provided to 

[West] on February 24, 2007"; and (2) "[u]nredacted copies of all Broyles v. Thurston County 

attorney fee invoices provided to [West] on July 9, 2008." CP at 726.

       On January 6, 2009, counsel entered appearance for West.  The superior court held the 

show cause hearing on February 6.  West argued that the County had violated the PRA by failing 

to disclose Risk Pool-appointed defense counsel invoices in excess of the County's $250,000 

deductible.13 He contended that the PRA required the County to disclose invoices for amounts 

exceeding its $250,000 deductible because these invoices satisfied the PRA's statutory definition 

of a "public record," even though the Risk Pool had not forwarded copies of these invoices to the 

County and the County was not responsible for paying them.  Verbatim Report of Proceedings 

(VRP) (Feb. 6, 2009) at 9.

       West asked the superior court to "issue an order requiring Thurston County to produce 

immediately the invoices above $250,000.00, subject to appropriate redactions for attorney-client 

privilege and work product that should be isolated and only to information that this action would 

13 This opinion refers to Risk Pool-appointed attorney invoices exceeding the County's $250,000 
deductible as "post-deductible invoices." Technically, the post-deductible invoices at issue here 
include the invoices exceeding $276,998.12, not $250,000; the County disclosed the first 
$276,998.12 worth of invoices in its July 9, 2008 disclosure.

                                               8 

No.  41085-1-II

be privileged." VRP (Feb. 6, 2009) at 15.  After the County responded to West's arguments, the 

superior court advised the parties that it would review both sets of documents and "issue a 

memorandum decision." VRP (Feb. 6, 2009) at 52.

             C.  Third Disclosure (October 15, 2009); December 24, 2009 Findings

       After about 10 months, the County had not disclosed the invoices for amounts exceeding 

the deductible and the superior court still had not issued its memorandum opinion.14 On October 

6, 2009, West moved "for an order requiring Thurston County to immediately produce the 

invoices for attorneys' fee services in excess of $250,000." CP at 592.  The next day, the County 

wrote a letter to West advising him that it was "providing the requested documents over 

objection." CP at 577.  The letter continued:

       We do not agree with [West's] assertion that Thurston County had an obligation 
       to produce invoices in excess of $250,000.  First, as was already addressed at the 
       hearing on February 6, 2009, [West's] arguments based on his interpretation of the 
       words  "owned" and  "used" [within the PRA's statutory definition of a public 
       record, RCW 4.45.010(2)] are flawed and without merit.  Second, the invoices in 
       excess of $250,000 were not in the possession of Thurston County, but were in the 
       possession of the Risk Pool, a separate governmental entity.  Third, to a significant 
       extent, the requested invoices are not in the possession of this law firm either.  
       You are probably aware that this law firm, Patterson Buchanan Fobes Leitch & 
       Kalzer, is a relatively new firm.  We began doing business in June 2007.  Any 
       invoices related to the Broyles case that existed prior to June 2007 are not in the 
       possession of this firm.

       Rather than continue to argue about these matters, we are agreeing, first, to 
       provide you with all invoices that this law firm does possess, i.e., those generated 

14 The superior court's delay resulted in part from our Supreme Court's June 12, 2009 order 
recalling the mandate of its January 15, 2009 decision in Yousoufian v. Office of Ron Sims, a 
landmark PRA case.  See Supreme Court Order No. 80081-2 (June 12, 2009).  On August 21, 
2009, the superior court asked the parties to provide briefing on the effect of our Supreme 
Court's mandate recall.  CP at 602.  Our Supreme Court did not issue its new Yousoufian 
decision until March 25, 2010.  Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 
(2010).

                                               9 

No.  41085-1-II

       after June 2007.  We are reviewing them for privilege and will send them as soon 
       as that review is complete.  Second, to the extent that invoices were generated by 
       a different law firm prior to June 2007, those invoices should be in the possession 
       of the Risk Pool.  Earlier today we spoke with a representative of the Risk Pool 
       and asked that, as a courtesy, they provide us with copies of the invoices in their 
       possession.  The Risk Pool has agreed.  Once we receive those invoices we will 
       immediately forward them to you.

CP at 577-78.

       One week later, on October 14, the County sent West an email stating:

       This email is to let you know that our firm [Patterson Buchanan Fobes Leitch & 
       Kalzer] has obtained copies of all invoices in the possession of the Risk Pool 
       related to the Broyles case in excess of the $250,000 deductible.  I have also 
       located all invoices in the possession of this firm for work on the Broyles case in 
       excess of the $250,000 deductible.  I am having the documents sent out to a 
       vendor for copying and should have them back within 24 hours.  I expect that I 
       should have all of them to you sometime Friday.

CP at 580.

       In a letter dated October 16, filed with the superior court on November 12, West wrote to 

the superior court:

       [A]s of yesterday, October 15, 2009, Thurston County produced what was 
       represented as all invoices for the Broyles v. Thurston County matter for legal fees 
       exceeding $250,000.  Although the production included a complete banker's box 
       of documents, from a preliminary review of the materials, it       appears to be 
       complete without redactions.  Because this was the specific relief requested by 
       [West's October 6, 2009] motion [for an order requiring the County to produce 
       the invoices in excess of $250,000] . . . Mr. West is striking that motion.

CP at 571.  On November 30, West filed a "brief to outline the issues remaining for determination 

by [the superior court] in this matter and to recalculate the requested penalties based on Thurston 

County's October 15, 2009, production of invoices for legal fees over $250,000 and the time that 

has passed since the last hearing." CP at 554.

                                               10 

No.  41085-1-II

             D.  December 24, 2009 Findings; April 6, 2010 Memorandum Opinion

       On December 21, the superior court conducted a telephonic hearing and advised the 

parties that it (1) had compared the redacted version of the County's February 2007 disclosure 

with the unredacted version of the February 2007 disclosure; (2)  had  compared the redacted 

version of the February 2007 disclosure with the redacted version of the July 2008 disclosure; (3) 

had compared the redacted version of the July 2008 disclosure with the unredacted version of the 

July 2008 disclosure; and (4) had compared the redacted version of the July 2008 disclosure and 

the unredacted version of the July 2008 disclosure with "the privilege log[15] that had been 

supplied." VRP (Dec. 21, 2009) at 56.  The superior court also told the parties it had created a 

"chart" containing 86 pages of findings "with respect to the comparisons" and advised it had 

"wanted to be able to provide to [the parties] this chart for any comments that [the parties] may 

have before [the superior court] actually issue[s] [its] decision based upon essentially what will be 

[the superior court's] findings, which are from that chart." VRP (Dec. 21, 2009) at 56-57.

       Three days later, in an eight-page letter dated December 24, the superior court explained 

the results of its document comparisons, which process it described as "both tedious and 

exacting."  CP at 206.  The superior court attached a 90-page spreadsheet containing highly 

detailed descriptions of each document.  The superior court's most important findings were that 

the July 2008 disclosure contained two invoices that the February 2007 disclosure did not contain 

15 This  "the privilege log" appears to have been the County's exemption claim under RCW 
42.56.210(3), which provides:  "Agency responses refusing, in whole or in part, inspection of any 
public record shall include a statement of the specific exemption authorizing the withholding of 
the record (or part) and a brief explanation of how the exemption applies to the record withheld."

                                               11 

No.  41085-1-II

and that the July 2008 contained 60 more pages and fewer redactions than the February 2007 

disclosure.

       On January 6, 2010, the superior court conducted a telephonic status conference, the 

purpose of which, it advised the parties, was to "see what the next steps might be, and also to see 

whether there were any significant questions with regard to the information provided [in the 

superior court's December 24, 2009 letter and spreadsheet]." VRP (Jan. 6, 2010) at 60.  West's 

counsel told the superior court, "Well, no, Your Honor.  There aren't really any issues that [West] 

ha[s] to bring up." VRP (Jan. 6, 2010) at 60.  The County took the same position.  The superior 

court responded that it would "proceed to finalize [its] opinion." VRP (Jan. 6, 2010) at 62.

       Three months later, on April 6, the superior court issued a memorandum opinion:  

       Because Thurston County did not possess, prepare, own, use, or retain invoices 
       for defense services in Broyles over their $250,000 deductible, these invoices were 
       not within the [PRA's] definition of a "public record" under RCW 42.56.010.  
       Thurston County did not have an obligation to produce or arrange for the 
       production of defense invoices over their $250,000 deduct[i]ble.  No violation of 
       the [PRA] is found regarding Thurston County's failure to produce or arrange for 
       the production of defense invoices in Broyles over their $250,000 deduct[i]ble.

CP at 181.  The superior court concluded that, "by July 9, 2008, Thurston County had produced 

for Mr. West[ ] copies of all invoices in its possession regarding the defense of the Broyles case."  

CP at 178.  The superior court also ruled that (1) the County's redactions from its February 2007 

disclosure were not justified, (2) the County's redactions from its July 2008 disclosure "were 

justified,"16 and (3) the delay between the date when West made his PRA request, January 22, 

2007, and when the County disclosed all responsive records, July 9, 2008, was 534 days.  The 

16 CP at 184.

                                               12 

No.  41085-1-II

superior court imposed on the County a $30 per day penalty, for a total of $16,020.  The superior 

court also awarded West attorney fees and costs.

             E.  First Motion for Reconsideration; Second and Third Appeal Notices

       On April 16, 2010, West moved the superior court to reconsider (1) its ruling that the post-

deductible invoices were not public records; (2) its daily penalty amount, which West believed 

was too low; and (3) "grouping the wrongfully withheld records" (West did not elaborate on this 

request).  CP at 69.  On April 30, West asked the superior court to award him $2,281.86 in costs 

and $24,073.00 in attorney fees.  On May 10, the County filed a response, stating that it did not 

object to either amount.

       On July 28, the superior court denied West's motion for reconsideration.  The next day, in 

a letter dated July 29, but filed on July 30, the superior court advised the parties that they should 

forward an agreed order to the superior court for an award of $24,073.00 in attorney fees and 

$2,281.86 in costs.

       On August 4, West, now acting pro se, filed a notice of appeal of the superior court's 

"final order of . . . August 2, 2010."17 CP at 43.  On August 9, West filed a "notice of breach of 

contract, motion to terminate and appearance pro se" that described his counsel's withdrawal as 

"a unilateral breach of the duties of counsel." CP at 42.  On August 10, West's counsel filed a 

notice of withdrawal.  The notice of withdrawal was dated August 4 and was "effective 

immediately."  CP at 41.  This notice did not explain the reason for the withdrawal.  On August 

17 The record does not contain a copy of an order from the superior court dated August 2, 2010.  
We note, however, that when West filed an amended notice of appeal on August 26, he changed 
the date of the "final order of the Court" from August 2, 2010, to July 28, 2010.  CP at 31.

                                               13 

No.  41085-1-II

13, West's former counsel filed an amended notice of withdrawal explaining, "Based on prior 

communications with Mr. West, there was not an anticipated objection to withdrawal." CP at 40.  

The amended notice of withdrawal stated that the withdrawal would be effective as of August 31, 

2010.

       On August 26, West filed an amended notice of appeal from (1) "the final order of the 

Court of July 28, 2010," which denied West's motion for reconsideration of the superior court's 

April 6 memorandum opinion; (2) the superior court's April 6 memorandum opinion itself; and (3) 

"the final judgment set for presentation Sept. 6, 2010." CP at 31.

                    F.  Superior Court's September 20, 2010 Judgment and
                            West's Second Reconsideration Motion

       On September 20, the superior court issued an order stating,  "The Court holds that 

Thurston County violated the Public Records Act and is required to pay [West] a penalty amount 

of $16,020.00." CP at 944.  That same day, the superior court issued a judgment awarding West 

$16,020.00 in PRA penalties, $24,073.00 in attorney fees, and $2,281.86 in costs.  The superior 

court ordered the County to pay attorney fees and costs to West's former counsel, who had by 

then withdrawn from representing West.

       On September 28, West filed a second motion to reconsider.  CP at 974.  He argued that 

the superior court should "reconsider and amend" its September 20 order "in light of newly 

discovered evidence which indicates that counsel suppressed disclosure of Broyles['] related 

records in the possession of Thurston County." CP at 974.  In addition, West asked the superior 

court to "vacate the relief granted to [West's former counsel] pursuant to [the former counsel's] 

                                               14 

No.  41085-1-II

secret negotiations with opposing counsel . . . to disregard [West's] interests in return for an 

immediate and possibly excessive attorney fee award."   CP at 974-75.  Also on September 28, 

West's former counsel filed a notice of attorney's fees lien "on the judgment entered or to be 

entered in the . . . action for services rendered to Arthur West" for $24,073.00 in attorney fees 

and $1,752.84 in litigation expenses.  CP at 937.

       On October 25, the superior court conducted a telephonic conference.  The County's 

counsel18 appeared telephonically, but West did not appear; the superior court's attempts to reach 

West by telephone were unsuccessful.  The superior court denied West's second motion to 

reconsider.

                 G.  Third Notice of Appeal; Third Motion for Reconsideration

       On November 24, West filed a "final notice of appeal" from the superior court's 

September 20, 2010 judgment, from  "[a]ll interlocutory and supplementary orders," and from 

"[t]he order on reconsideration of November 22.[19]" CP at 860.  On November 29, West filed a 

third motion for the superior court to reconsider, requesting the same relief as he had sought in 

his second motion for reconsideration.20

       On December 13, because of a fee dispute between West and his former counsel, the 

superior court ordered the County to pay the PRA penalty amounts and the attorney fees and 

18 As of October 7, 2010, Patterson, of Patterson, Buchanan, Fobes, Leitch and Kalzer, withdrew 
from representing the County, and Duncan Fobes, from the same firm, substituted for Patterson.

19 The record does not contain any "order on reconsideration of November 22." CP at 860.

20 Apparently, the superior court did not rule on this third reconsideration motion.

                                               15 

No.  41085-1-II

costs award into the Mason County Superior Court registry.  On December 21, West signed a 

document acknowledging his receipt of a check from the Mason County Clerk for $16,020.00, the 

amount the superior had ordered the County to pay in PRA fines.  On January 24, 2011, the 

superior court ordered the Mason County Clerk to disburse $26,354.86 to West's former counsel.

       We now address the issue that West raises in his third notice of appeal.

                                          ANALYSIS

       West's primary argument involves 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).  We hold that it does not.

                 I.  Invoices Exceeding County's Deductible not Public Records

       Following West's previous appeal, in 2008, we instructed the superior court to decide on 

remand "whether the County has, in fact, disclosed all of the invoices in its possession."  West, 

144 Wn. App. at 584.  On remand, the superior court ruled that invoices exceeding the County's 

$250,000 deductible were not "public record[s]" under the PRA and the County had no obligation 

to disclose them.  CP at 181.  West argues that this ruling was erroneous because the invoices 

that exceeded the County's deductible were public records and the PRA required the County to 

disclose them.  This argument fails.

                                    A.  Standard of Review

       We review de novo a public agency's decision to withhold records.  Lindeman v. Kelso 

                                               16 

No.  41085-1-II

Sch. Dist. No. 458, 162 Wn.2d 196, 201, 172 P.3d 329 (2007).  In reviewing a PRA request, we 

stand in the same position as the superior court.  Lindeman, 162 Wn.2d at 200.  Where the record 

consists of only affidavits, memoranda of law, and other documentary evidence, the superior 

court's factual findings on disputed issues do not bind us.  DeLong v. Parmelee, 157 Wn. App. 

119, 143, 236 P.3d 936 (2010).21  "In construing the PRA, we [must] look at the Act in its 

entirety in order to enforce the law's overall purpose."  Rental Hous. Ass'n of Puget Sound v. 

City of Des Moines, 165 Wn.2d 525, 536, 199 P.3d 393 (2009).  "The PRA must be 'liberally 

construed and its exemptions narrowly construed'       to ensure that the public's interest is 

protected."  City of Federal Way v. Koenig, 167 Wn.2d 341, 344, 217 P.3d 1172 (2009) (quoting 

RCW 42.56.030).

          B.  Invoices Exceeding Deductible Do Not Meet "Public Records" Definition

       "The PRA is a 'strongly worded mandate for broad disclosure of public records.'"  

Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768 (2011) (quoting Soter v. 

Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007) (internal quotations omitted)).  

"The purpose of the PRA is to 'ensure the sovereignty of the people and the accountability of the 

governmental agencies that serve them' by providing full access to information concerning the 

conduct of government."  Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 

Wn. App. 110, 118, 231 P.3d 219 (2010) (quoting Amren v. City of Kalama, 131 Wn.2d 25, 31, 

929 P.2d 389 (1997)).  An agency must respond within five business days of receiving a public 

records request.  RCW 42.56.520.  Under the PRA, all state and local agencies must disclose 

21 Remanded on other grounds by 171 Wn.2d 1004 (2011).

                                               17 

No.  41085-1-II

public records upon request unless the records fall under a statutory exemption.  RCW 42.56.520, 

.550(1); Wood v. Lowe, 102 Wn. App. 872, 876, 10 P.3d 494 (2000).  If the agency fails to do so, 

then the requestor may move for an order to show cause why the public agency refused 

disclosure.  RCW 42.56.550(1).

       The PRA requires the agency to respond to a PRA request within five business days, 

however, only if the request seeks "public records." The PRA defines "public records" as

       any writing containing information relating to the conduct of government or the 
       performance of any governmental or proprietary function [1] prepared, [2] owned, 
       [3] used, or [4] retained by any state or local agency regardless of physical form or 
       characteristics.

RCW 42.56.010(2).  Again, whether a public agency's insurer-appointed defense counsel's 

invoices (which the public agency never physically received and which the public agency was not 

responsible to pay) are "public records" under the PRA is an issue of first impression.  We 

consider this issue by analyzing the four ways that an agency's "writing[s]" may satisfy the PRA's 

definition of "public records."

                                         1.  "Prepared"

       An agency's "writing" is a public record if the agency "prepare[s]" it.  RCW 42.56.010(3).  

West's theory is that the County's Risk Pool-appointed counsel were agents of the County and, 

therefore, the County (acting through its agents) "prepared" the post-deductible invoices.  Br. of 

Appellant at 26.  We disagree.

       We recognize that the attorney-client relationship is generally a type of principal-agent 

relationship.  See Fite v. Lee, 11 Wn. App. 21, 28, 521 P.2d 964 (1974); see also Haller v. 

                                               18 

No.  41085-1-II

Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978).  But West cites no Washington authority22

extending this principal-agency relationship to the PRA context or establishing that records 

prepared by agents of a public agency automatically become "public records" subject to disclosure 

under the PRA.  On the contrary, we assume that the legislature "'means exactly what it says'"23; 

and, in this instance, our state's legislature has not yet  chosen to extend the PRA this far, 

expressly designating "agencies" as the only entities that can prepare "public records" subject to 

disclosure under the PRA.  Applying the maxim expressio unius est exclusion alterius,  "'to 

express one thing in a statute implies the exclusion of the other,'"24 we assume that the legislature 

intended to exclude from this designation an agency's insurer-appointed lawyers who prepare 

documents that the agency never physically possesses.  Accordingly, we hold that a "writing"

prepared by an agency's insurer-appointed lawyers is not automatically a public record under 

RCW 42.56.010(2) if the agency never physically possessed the documents.25

                                          2.  "Owned"

22 West relies on foreign case law holding otherwise, including Ohio ex rel. Findlay Publishing 
Company v. Hancock County Board of Commissioners, 80 Ohio St. 3d 134, 684 N.E.2d 1222 
(1997).  But other states' decisions are not binding on us.  State v. Lord, 161 Wn.2d 276, 289, 
165 P.3d 1251 (2007).  Nor do we find these cases persuasive.
23 Morgan v. Johnson, 137 Wn.2d 887, 892, 976 P.2d 619 (1999) (quoting State v. McCraw, 127 
Wn.2d 281, 288, 898 P.2d 838 (1995) (internal quotations omitted)).

24 Adams v. King County, 164 Wn.2d 640, 650, 192 P.3d 891 (2008) (quoting In re Detention of 
Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002)).

25 We note that only the legislature can amend or expand its definition of a "public record." It is 
not for the courts to do so because "[w]e cannot make laws.  We can only apply the laws which 
the legislature makes to the facts in a particular case."  Fix v. Fix, 33 Wn.2d 229, 231, 204 P.2d 
1066 (1949).

                                               19 

No.  41085-1-II

       The County urges us to adopt the superior court's reasoning, which relied on Division 

One's decision in O'Neill v. City of Shoreline, 145 Wn. App. 913, 925, 187 P.3d 822 (2008)26, 

defining "to own" as "'[t]o have or possess as property.'"  Br. of Resp't at 22 (quoting CP at 179 

(quoting O'Neill, 145 Wn. App. at 925 (quoting The American Heritage Dictionary 1294 (3d ed. 

1992))). Applying this O'Neill definition of "owned," the superior court ruled:

       [I]t is clear that Thurston County did not own the invoices for defense services 
       over their $250,000 deductible.  It has not been disputed that Thurston County did 
       not receive these billings, did not pay these billings, nor did Thurston County have 
       responsibility to reimburse the Washington Counties Risk Pool for any payments 
       made toward these billings.

CP at 179.  Agreeing with the superior court's adoption of the O'Neill court's definition of "to 

own" as "[t]o have or posses as property," we hold that the County did not "own" the invoices

that exceeded its deductible. CP at 179.

                                           3.  "Used"

       Next, the County argues that "the [superior] court . . . properly determined that the 

County had not 'used' the invoices over the deductible." Br. of Resp't at 25.  The superior court 

discussed Concerned Ratepayers Ass'n. v. Public Utility Dist. No. 1 of Clark County, 138 Wn.2d 

950, 983 P.2d 635 (1999), which held that an agency "use[s]" a public record if the record 

contains information that the agency either "(1) employ[s] for; (2) applie[s] to; or (3) ma[k]e[s]

instrumental to a governmental end or purpose."  Concerned Ratepayers, 138 Wn.2d at 960.  Our 

Supreme Court clarified that "governmental end or purpose" does not necessarily mean "an 

26 Reversed in part on other grounds, O'Neill v. City of Shoreline, 170 Wn.2d 138, 140 P.3d 
1149 (2010).

                                               20 

No.  41085-1-II

agency's final work product."  Concerned Ratepayers, 138 Wn.2d at 960.  Instead, according to 

our Supreme Court:

       [T]he critical inquiry is whether the requested information bears a nexus with the 
       agency's decision-making process.   A nexus between the information at issue and 
       an agency's decision-making process exists where the information relates not only 
       to the conduct or performance of the agency or its proprietary function, but is also 
       a relevant factor in the agency's action.  That is, certain data may still be relevant 
       and an important consideration in an agency's decision-making process even if it is 
       not a part of the agency's final work product.  Thus, mere reference to a document 
       that has no relevance to an agency's conduct or performance may not constitute 
       "use," but information that is reviewed, evaluated, or referred to and has an impact 
       on an agency's decision-making process would be within the parameters of the 
       [PRA].

Concerned Ratepayers, 138 Wn.2d at 960-61 (internal citations omitted) (emphasis added).

       Applying Concerned Ratepayers here, the superior ruled:

              Thurston County did not receive invoices for defense services over their 
       $250,000 deduct[i]ble.  Additionally, there is no evidence that Thurston County 
       reviewed, evaluated, referred to or otherwise considered defense invoices over 
       their $250,000 deduct[i]ble   in their decision-making process regarding their 
       defense in Broyles or for any other purpose.  There is no showing that the defense 
       invoices for services over Thurston County's $250,000 deduct[i]ble had a nexus 
       with Thurston County's decision-making process.

CP at 180-81.  In our view, the superior court properly applied Concerned Ratepayers in its "use"

analysis.  Accordingly, we hold that the County did not "use" the invoices that exceeded its 

deductible.  RCW 42.56.010(2).

                                         4.  "Retained"

       West does not argue that the County "retained" the requested records.  Based on the 

dictionary definition of "retain" -- "to hold or continue to hold in possession or use,"27 we 

27 Webster's Third New International Dictionary (2002) at 1938.

                                               21 

No.  41085-1-II

conclude that the County did not "retain" invoices that exceeded its $250,000 deductible.  

Because we have already held that the County neither possessed nor used such invoices, we 

further hold that the County did not retain, namely, "continue to hold in possession or use," such 

excess invoices.  Webster's at 1938.

                                               22 

No.  41085-1-II

                            II.  July 9, 2008 Disclosure Exemptions

       West also asserts that the superior court erred in "allowing and approving Thurston 

County's assertion of over 300 new (post appeal) exemptions" to the County's July 9, 2008 

disclosure.28 Br. of Appellant at 7.  But West does not identify the exemptions in the record to 

which he refers; nor does he provide any legal argument to support the alleged impropriety of 

these exemptions.  Similarly, in his reply brief, West baldly claims that he "obviously could not, 

within the limitations of an opening brief, deal separately with each one of over 300 exemptions."  

Reply Br. of Appellant at 5-6.  Nevertheless, West does not even attempt to "deal" with or to 

discuss any of the 300 exemptions, not even as discrete examples.  Reply Br. of Appellant at 5.

       Such "[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit 

judicial consideration."  Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).  

We do not consider conclusory arguments that do not cite authority.  See RAP 10.3(6), 10.4;

State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).  In making bald assertions 

lacking cited factual and legal support, West has failed to present developed argument for our 

consideration on appeal; accordingly, we do not address his exemptions challenge.

                                       III.  PRA Penalty 

       West next contends that the superior court set the PRA penalty too low in light of what he

characterizes as the County's "manifest bad faith." Br. of Appellant at 38.  This argument fails.

       We review the superior court's determination of daily penalties for abuse of discretion.  

28 This was the second of three issues that we instructed the superior court to resolve on remand.  
West, 144 Wn. App. at 584.

                                               23 

No.  41085-1-II

Yousoufian, 168 Wn.2d at 458.  The superior court abused its discretion if its decision was 

manifestly unreasonable or based on untenable grounds or reasons.  Yousoufian, 168 Wn.2d at 

458.  The superior court's decision was manifestly unreasonable if the court, "'despite applying 

the correct legal standard to the supported facts, adopts a view 'that no reasonable person would 

take.'"  Yousoufian, 168 Wn.2d at 458 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.2d 

638 (1990) (internal citations omitted)).  Such is not the case here.

       RCW 42.56.550(4) provides:

       Any person who prevails against an agency in any action in the courts seeking the 
       right to inspect or copy any public record or the right to receive a response to a 
       public record request within a reasonable amount of time shall be awarded all 
       costs, including reasonable attorney fees, incurred in connection with such legal 
       action.  In addition, it shall be within the discretion of the court to award such 
       person an amount not to exceed one hundred dollars for each day that he or she 
       was denied the right to inspect or copy said public record.[29]

       A PRA penalty determination involves a two-step inquiry:  (1) determining the appropriate 

daily penalty amount; and (2) calculating the number of days the public agency denied the party 

access to the records.  See Yousoufian, 168 Wn.2d at 459.  We address each in turn.

                       A.  Daily Penalty Amount ("Yousoufian Factors")

       The superior court imposed a daily penalty amount of $30.  West argues that the superior 

court "erred and committed an abuse of discretion in failing to properly weigh the Yousoufian

factors [in] its penalty determination," asserting that the daily amount should be higher.  Br. of 

Appellant at 37.  This argument fails.

29 Before July 22, 2011, courts had to impose a minimum penalty of $5.  Laws of 2011, ch. 273, § 
1.  Courts are now free to impose a daily penalty amount from $0 to $100.

                                               24 

No.  41085-1-II

       The Yousoufian court announced three categories of factors:  (1) "principal" factors, (2) 

"mitigating" factors, and (3) "aggravating" factors.  Yousoufian, 168 Wn.2d at 460-63, 467.  

These factors

       may overlap, are offered only as guidance, may not apply equally or at all in every 
       case, and are not an exclusive list of appropriate considerations.  Additionally, no 
       one factor should control.  These factors should not infringe upon the considerable 
       discretion of trial courts to determine PRA penalties.

Yousoufian, 168 Wn.2d at 468.

                                     1.  "Principal" factors

       In Yousoufian our Supreme Court established four "principal" factors for determining an 

appropriate daily penalty:  (1) the existence or absence of a public agency's bad faith; (2) the 

economic loss to the party requesting the documents; (3) the public importance of the underlying 

issues to which the request relates, and whether "the significance of the issue to which the request 

is related was foreseeable to the agency"; and (4) the degree to which the penalty is an "adequate 

incentive to induce further compliance."  Yousoufian, 168 Wn.2d at 460-63.  Here, the superior 

court applied these "principal factors" and found that (1) the "issue of disclosure of private 

attorney fees billings had significant public importance" but  that "the foreseeability of the 

importance of this issue by Thurston County has not been demonstrated"; (2) West "did not allege 

any actual personal economic loss with respect to the alleged PRA violation"; and (3) "there is no 

misconduct to deter" because the County "relied in good faith upon and existing exemption," "the 

law subsequently was clarified by the legislature," and "the action taken by the legislature to 

clarify this area of the law should be sufficient to instruct this agency and other agencies on the 

                                               25 

No.  41085-1-II

subject of disclosure of attorney fee billings." CP at 194-95.  West does not challenge any of 

these specific "principal" factors; instead, he limits his arguments to disputing the "mitigating" and 

"aggravating" factors, which we next address.

                                    2.  "Mitigating" factors

       Mitigating factors that may serve to decrease the penalty include:  (1) a lack of clarity in 

the PRA request; (2) the public agency's prompt response or legitimate follow-up inquiry for 

clarification; (3) the agency's good faith, honest, timely, and strict compliance with all PRA 

procedural requirements and exceptions; (4) proper training and supervision of the agency's 

personnel; (5) the reasonableness of any explanation for noncompliance by the agency; (6) the 

helpfulness of the agency to the requestor; and (7) the existence of agency systems to track and 

receive public records.  Yousoufian, 168 Wn.2d at 467.

       Applying these mitigating factors here, the superior court found that  (1) West's PRA 

request lacked clarity and the County responded in a "broad manner";30 (2) the County timely 

responded to West's PRA request within four days, even though this initial response wrongly 

denied West's request; (3) the County "consistently demonstrated good faith in its approach to 

Mr. West's PRA 

30 The County responded broadly because West's January 22, 2007 PRA request sought invoices 
from the Risk Pool-appointed firm, Lee, Smart, Cook, Martin and Patterson.  But on February 24, 
2007, the County disclosed redacted invoices for amounts below the deductible from all five Risk 
Pool-appointed firms.

                                               26 

No.  41085-1-II

request"; (4) the County was "honest in their response to Mr. West's PRA request"; (5) the 

County demonstrated adequate "training and supervision of the [County's] personnel with respect 

to PRA requests" because the County "assigned the responsibility to respond to Mr. West's PRA 

request to a licensed, practicing attorney who had specific knowledge of the issues presented in 

the Broyles case"; (6) the County's January 26, 2007 initial denial of West's request was "very 

reasonable" because (a) the County issued the denial "only after a ruling by the trial judge in the 

Broyles case denying the request by the Broyles plaintiffs for the same records," and (b) the 

County's denial turned out to be erroneous only after "the legislature clarified its intent with 

respect to this area of the law"; and (7) the County was reasonably helpful in answering West's 

PRA request.  CP at 189-93.

       West contends that the superior court "f[ound] mitigating factors to be present when such 

findings were not supported in the record." Br. of Appellant at 37.  But again, West provides no 

citations to the record in support of his argument; nor does he even specify with which mitigating 

factors he disagrees.  Again, we do not consider West's bald assertions.  See Holland, 90 Wn. 

App. at 538; see also RAP 10.3(6), 10.4; Marintorres, 93 Wn. App. at 452.  Moreover, we hold 

that the record adequately supports the superior court's findings and that the superior court, in 

applying the mitigating factors, did not "adopt[] a view that no reasonable person would take."  

Yousoufian, 168 Wn.2d at 459 (internal quotations omitted).

                                   3.  "Aggravating" factors

       Aggravating factors that may support increasing the penalty include:       (1) a delayed 

response by the agency, especially in circumstances making time of the essence; (2) lack of strict 

                                               27 

No.  41085-1-II

compliance by the agency with all the PRA procedural requirements and exceptions; (3) lack of 

proper training and supervision of the agency's personnel; (4) unreasonableness of any 

explanation for noncompliance by the agency; (5) negligent, reckless, wanton, bad faith, or 

intentional noncompliance with the PRA by the agency; (6) agency dishonesty; (7) the public 

importance of the issue to which the request is related, where the importance was foreseeable to 

the agency; (8) any actual personal economic loss to the requestor resulting from the agency's 

misconduct, where the loss was foreseeable to the agency; and (9) a penalty amount necessary to 

deter future misconduct by the agency, considering the size of the agency and the facts of the 

case.  Yousoufian, 168 Wn.2d at 467-68.  Applying these aggravating factors here, the superior 

court found only one:  the 534-day delay between the time West made his PRA request and the 

time when the County properly disclosed unredacted copies of the law firms' invoices for amounts 

below its deductible amount.

       Contending that the superior court "fail[ed] to find that all of the aggravating factors were 

present,"31 West asserts that the superior court failed to find the following factors:  (1) "[T]he 

information withheld was of foreseeable public importance"; (2) "the agency misrepresented the 

content of the record and demonstrated manifest bad faith and concealment of records"; (3) West 

was  "greatly inconvenienced"; (4) "the potential for public harm in [t]he form of a loss of 

government accountability"; (5) the "unreasonableness of asserting an exemption that did not 

exist in law"; (6) "the County's multiple instances of silent concealment and withholding"; (7) 

"the County's duplicity and evasion of the law"; and (8) the "scorched earth tactics employed by 

31 Br. of Appellant at 37.

                                               28 

No.  41085-1-II

the County to unduly complicate and delay the case and place unreasonable burdens upon the 

plaintiff and the Court." Br. of Appellant at 37-39.  Again, West makes these assertions without 

citation to the record or to legal authority, contrary to the requirements of RAP 10.3(a)(6).  Thus, 

we do not further consider this argument.

       We hold, however, that the superior court did not "adopt[] a view that no reasonable 

person would take" by finding only one aggravating circumstance.  Yousoufian, 168 Wn.2d at 458

(internal quotations omitted).  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.

                  B.  Number of Days the County Denied Requested Records

       Because the law firms' invoices exceeding the County's deductible were not public 

records under the PRA, the County had disclosed all required public records by July 9, 2008.  The 

superior court imposed a $30 per day penalty between January 22, 2007, and July 9, 2008, for a 

total of 534 days.  Thus, the superior court correctly calculated the number of days that the 

County had improperly denied West access to public records to which he was entitled and had 

thereby subjected itself to penalties.  Accordingly, we affirm both the amount of the daily penalty 

and the number of days to which the penalty applies. 

                               IV.  "Newly-Discovered" Records

       West further argues that the superior court erred in "failing to rule" on "newly discovered 

records" that the County allegedly "deliberately suppressed."  Br. of Appellant at 31, 34.  He 

                                               29 

No.  41085-1-II

contends that these "newly discovered records" are (1) "[a] January 23, 2007 communication 

discussing responses to plaintiff West and the [Building Industry Association of Washington]";

and (2) "[a]n email message of December 30, 2008."    Br. of Appellant at 31-32.  As the County 

correctly notes, (1) these documents are not responsive to West's PRA request because they are 

not invoices from the Broyles litigation; and (2) in the alternative, the documents did not exist as 

of the date of West's PRA request, January 22, 2007.  Smith v. Okanogan County, 100 Wn. App. 

7, 13-14, 994 P.2d 857 (2000) (holding that the PRA does not require agencies to disclose a 

record that does not exist at the time of the request).  Thus, West's "newly discovered records"

argument fails.

                                          V.  "Delay"

       West assigns error to the superior court's "fail[ure] to . . . promptly follow the Order of 

Remand," criticizing the superior court's taking  "over two years" after our remand.32    Br. of 

Appellant at 18 (emphasis added).  This argument does not warrant a remedy.

       RCW 2.08.240 and article IV, section 20, of our constitution require the superior courts 

to decide cases "within ninety days from the submission thereof."  But "[t]he mere fact that the 

judgment was not rendered within 90 days does not of itself constitute error upon which the 

judgment may be reversed."  Moylan v. Moylan, 49 Wash. 341, 344, 95 P. 271 (1908).  Here, the 

superior court's protracted processing of the case was not error.  The parties filed numerous 

briefs and motions throughout the 21-month period between our mandate's issuance and the 

32 West's assertion is inaccurate to the extent that the superior court issued its decision on April 6, 
2010, 21 months after our court's August 11, 2008 mandate, not "more than two years."      CP at 
741.

                                               30 

No.  41085-1-II

superior court's decision, requiring the superior court to rule on additional ancillary matters 

before it could reach the three ultimate issues on remand.33 In light of the amount of litigation 

involved in this case and the complexity of the underlying issues, we hold that the superior court 

did not improperly delay its resolution of this case on remand.34

                     VI.  West's Former Counsel's Attorney Fees and Costs

       West argues that "the Court erred in its Order awarding costs and fees when it made an 

award to [West's] former counsel."    Br. of Appellant at 43.  West contends that the superior 

court should have awarded RCW 42.56.550(4) attorney fees to him, rather than to his former 

counsel.  This argument fails.

       First, West provides no case law supporting his contention that superior courts should 

award PRA attorney fees and costs to a pro se litigant; nor is there any such case law available of 

which we are aware. Instead, West simply cites the PRA's attorney fee provision, which reads:

       Any person who prevails against an agency in any action in the courts seeking the 
       right to inspect or copy any public record or the right to receive a response to a 
       public record request within a reasonable amount of time shall be awarded all 
       costs, including reasonable attorney fees, incurred in connection with such legal 
       action.  In addition, it shall be within the discretion of the court to award such 
       person an amount not to exceed one hundred dollars for each day that he or she 
       was denied the right to inspect or copy said public record.

RCW 42.56.550(4) (emphasis added).  West contends that this statutory provision required the 

superior court to "award[ ] all costs, including reasonable attorney fees" to the "person who 

33 Moreover, on June 12, 2009, our Supreme Court recalled its January 15, 2009 decision in 
Yousoufian v. Office of Ron Sims, a case directly bearing on the issues here.  The Supreme Court 
did not issue its new Yousoufian decision until March 25, 2010, contributing to the delay here.
34 West also accuses his former counsel of conspiring with the County's counsel "to obstruct West 
from timely collection of his penalties and costs." Reply Br. of Appellant at 18.  This contention 
is outside both the record and the scope of this appeal.

                                               31 

No.  41085-1-II

prevails against an agency" in a PRA action, namely him. Reply Br. of Appellant at 17 (emphasis 

added).  Although West is correct that he, and not his former counsel, prevailed against the 

County, West ignores the plain  language of RCW 42.56.550(4), which awards "reasonable 

attorney fees," not fees in lieu of attorney fees to non-attorneys who represent themselves in PRA 

actions.

       Second, and more importantly, we have recently addressed and rejected the argument that 

West advances here.  In Mitchell v. Washington State Dept. of Corrections, No. 39874-5-II 2011 

WL 7167109 (Wash. Ct. App. Sept. 7, 2011), we held that a non-lawyer defendant litigating a 

PRA action pro se incurs no attorney fees and is not entitled to receive an attorney fee award 

himself  under RCW 42.56.550(4).35     Like  Mitchell, West is not an attorney and, thus, like 

Mitchell, he neither earned attorney fees nor is entitled to such an award under the PRA.  See 

Mitchell, No. 39874-5-II, 2011 WL 7167109, at *5 (Wash. Ct. App. Sept. 7, 2011).

       West further asserts that "[t]he  [superior]  [c]ourt also erred in [its] pos[t]judgment 

proceedings by allowing the filing and execution of a post judgment attorney's lien by counsel in 

violation of the precedent of [Ross v. Scannell], 97 Wn.2d 598[, 647 P.2d 1004 (1982)]." Br. of 

Appellant at 44.  But West provides no analysis of how Scannell might apply here.        On the 

contrary, our reading of Scannell leads us to conclude that it does not apply:  In Scannell our 

Supreme Court held that professional misconduct may be grounds for denying attorney fees to an 

35 See also In re Marriage of Brown, 159 Wn. App. 931, 938-39, 247 P.3d 466 (2011) (citing 
Leen v. Demopolis, 62 Wn. App. 473, 486-87, 815 P.2d 269 (1991)) (Washington courts have 
awarded attorney fees to pro se litigants only when those litigants were themselves attorneys 
because they must take time from their practices to prepare and to appear like any other lawyer 
would.). We are aware of no Washington case that has extended this reasoning to a nonlawyer 
pro se litigant.

                                               32 

No.  41085-1-II

attorney.  Scannell, 97 Wn.2d at 610.  West having citing no authority to support this argument, 

we do not further consider it.  See Holland, 90 Wn. App. at 538 ("Passing treatment of an issue 

                                               33 

No.  41085-1-II

or lack of reasoned argument is insufficient to merit judicial consideration.");  see also RAP 

10.3(6), 10.4; Marintorres, 93 Wn. App. at 452.

       We affirm.

                                                 Hunt, J.
I concur:

Armstrong, P.J.

I concur in result only:

Quinn-Brintnall, J.

                                               34