by Sam Rutherford

On April 11, 2024, the Supreme Court of Washington held that the one-year statute of limitations (SOL) for bringing a lawsuit under the state Public Records Act (PRA), RCW 42.56.001, et seq., begins on the date that a state agency issues a final, determinative response to a public records request. That, in turn, is assessed under an objective standard, which the Court described as sufficient to put a non-attorney on notice that the agency does not intend to disclose additional records or further address the request.

After Renee Field died in custody of the state Department of Corrections (DOC) in March 2016, an investigation by the Office of Corrections Ombuds concluded that the medical care she received “did not meet community healthcare standards, and her death could have been prevented.” The Washington Medical Commission also imposed sanctions against a DOC physician assistant for ordering Field’s transfer to a different prison instead of a hospital, thereby contributing to her death.

Field’s sister, Terry Cousins, was named the personal representative of her estate and submitted a public records request to DOC on July 21, 2016, seeking “[a]ny and all records” regarding Field “from January 1, 2014 to present.” Over the next two and a half years, DOC released responsive records in seven installments. But Cousins repeatedly objected that records appeared to be missing. Without specifically addressing that objection, DOC issued a letter with its final installment on January 17, 2019, calling the request closed but adding that Cousins was free to contact DOC with any follow-up questions.

Cousins immediately informed a DOC records specialist that the response to her request was incomplete. For the next 11 months, she exchanged emails and phone calls with DOC staff concerning the missing records—something DOC never specifically addressed, stating instead that Cousins’ request had been closed either for nonpayment of fees or because all responsive records had been provided. After Cousins pointed out that she had paid for each installment of records and again reiterated that no one had addressed her contention that records were missing, DOC simply stopped responding in November 2019.

Months later, when Cousins still had no response, she emailed DOC records specialist Paula L. Terrell. Realizing that Cousins’ request had been mistakenly closed for nonpayment, Terrell reopened it on July 15, 2020, to search for the records Cousins claimed had gone missing for three years. These documents were then found, and Cousins got them in three additional installments between October and December 2020.

In January 2021, Cousins sued DOC for “denial of access to public records without justification or exemption, intolerable delay, a failure to conduct an investigation to identify responsive records, and a lack of any explanation” why the records were withheld. In answer, DOC asserted an SOL defense. It also continued to search for and produce hundreds of pages of previously undisclosed responsive records—some of which had been printed in August 2016, but never sent. DOC closed Cousins’ request a second time in June 2021 while her suit was pending.

The agency then moved for summary judgment, arguing that Cousins’ lawsuit was time-barred because more than one year had passed since its 2019 closing letter. The trial court granted the motion, and the Court of Appeals affirmed in a split decision. The Washington Supreme Court then granted discretionary review, reversing the ruling in a unanimous opinion.

The question Cousins presented was whether DOC’s 2019 closing letter triggered the one-year SOL, the Court noted. Pointing to Belenski v. Jefferson Cty., 378 P.3d 176 (Wash. 2016), it said that the one-year SOL is triggered by an agency’s “final, definitive response” to a public records request; but that case did not provide clear guidelines for assessing whether an response is sufficient to provide such a trigger. So review of Cousins’ case was granted to clarify that the “final, definitive response test is an objective inquiry”—meaning that “the agency’s subjective intent and the requester’s subjective understanding are not relevant.” Moreover, the Court said, the inquiry must “assum[e] that the requester is a lay person with no specialized knowledge or expertise.”

The Court formulated a test to determine when a closing letter is sufficient to trigger the SOL: Whether it provides “(1) how the PRA request was fulfilled and why the agency is now closing the request; (2) that the PRA’s one-year [SOL] to seek judicial review has started to run because the agency does not intend to further address the request, and (3) that the requester may ask follow-up questions within a reasonable time frame, which may be specified by the agency.” If there are follow-up questions, the agency is not required to search additional records, the Court said. “However, if the agency does not intend to further address the request, it must explicitly say so and reiterate that the SOL has started to run.”

The Washington Attorney General’s Advisory Model Rules should also be consulted, the Court added, to determine whether a closing letter is sufficient to trigger the SOL. Under these rules, “agencies must refrain from closing a request until the request has been fulfilled pursuant to applicable regulations,” the Court said, citing WAC 44-14-04006(1).

Once an agency has issued a closing letter consistent with these standards, the one-year SOL will begin to run. Later production of additional records typically will not restart that clock, but “may be relevant to liability or penalties,” the Court noted. However, there is a limited exception to this rule: “An insufficient or premature closing letter may not trigger the [SOL], or it may provide a basis for equitable tolling, depending on the particular circumstances presented.” Thus, if a requester discovers after the limitation period expires that an agency issued a closing letter without producing all responsive records, the SOL may be equitably tolled.

In Cousins’ case, because DOC’s 2019 closing letter “simply stated that Cousins’ request was ‘closed,’ without explaining what that meant or why the request had been closed,” the Court held that it was insufficient to trigger the SOL. Moreover, that same closing letter invited Cousins to ask follow-up questions, but DOC then ignored her assertions that the records produced were incomplete. “This ambiguous, partial response was not objectively sufficient to put a reasonable lay person on notice that DOC did not intend to further address Cousins’ request,” the Court declared. Rather, “a direct answer to Cousins’ timely follow-up questions—any answer—was necessary” to trigger the SOL. The Court therefore concluded that the SOL did not begin to run until DOC issued its second closing letter in June 2021—after Cousins had already filed her suit.

Accordingly, the Court of Appeals’ opinion was reversed, along with the trial court’s order dismissing Cousins’ case as time-barred, and the action was remanded for further proceedings. Cousins was ably represented by attorneys Joseph R. Shaeffer and Timothy K. Ford of MacDonald, Hoague & Bayless in Seattle. The Human Rights Defense Center (HRDC), nonprofit publisher of PLN and Criminal Legal News, submitted an amicus curie brief supporting Cousins, with representation from attorneys Eric M. Stahl and Jennifer K. Chung of Davis Wright Tremaine, LLP in Seattle. See: Cousins v. State, 546 P.3d 415 (Wash. 2024).  

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