I am the senior paralegal at Cedar Law PLLC, a Rule 9 Intern, and a law clerk studying to be an attorney through Washington state’s APR6 clerkship. Chris Williams, one of the founding partners of Cedar Law, has been my mentor through the last three years of the clerkship, which I’ll complete in November 2023, and sit for the bar in 2024.
One of the rules of the APR6 clerkship is that I must use books in my studies that are in use at law schools in the state of Washington. For the first year, I scrounged around the internet and asked recent law school graduates for their old syllabi, but the act of getting the syllabi and figuring out what books to use was a whole project in itself. As I prepared for my second year, it dawned on me that the University of Washington is a publicly funded university subject to the Public Records Act (RCW 42.56). So, I submitted a public records request for copies of law school syllabi that correlated with the courses I was studying that year. I received them, and it made setting up my second year a lot easier than the first.
As my second year in the clerkship drew to a close, I submitted a second public records request to UW requesting copies of syllabi that correlated with my third year of studies. However, this time I received an unexpected answer—of the 12 syllabi responsive to my request, the University of Washington completely withheld 11 of them citing, of all things, an intellectual property exemption:
I was baffled by this response. For one, I had requested and received syllabi from UW before. But also, I was just asking for syllabi, not “research data, hypotheses, and theories.” Further, I knew from other PRA cases I’ve worked on that the Public Records Act favors disclosure, so even if one of UW’s law professors had come up with a hot new take on Criminal Procedure, surely there was a way to redact the exempt portion of the syllabi, so that I could still receive the book lists. Again, I was just trying to figure out what books I needed to read in my third year of APR6. So, I asked the Public Records Officer to reconsider:
I received a very brief reply:
So, I talked with Lara Hruska (Cedar’s Managing and other Founding Partner) and Chris, and while they tried to find a workaround, I, driven by a sense of justice and a pinch of annoyance, drafted a PRA Complaint. Cedar Law’s associate, Alex Hagel, and partner, Mike Smith, stepped in as my counsel, and we ultimately filed a lawsuit on December 1, 2021.
I half expected that once a defense attorney reviewed the facts, they would push UW to disclose the syllabi, and we’d reach a quick resolution. That was not the case. Although my attorneys repeatedly communicated with UW’s defense counsel about how UW had simply violated (and continued to violate) the PRA, it didn’t make a difference and they continued to withhold the requested syllabi.
The Public Records Act has a built-in penalty structure for violations that can range up to $100/day for each document that has been improperly withheld, plus attorney’s fees and costs. The art of calculating a PRA penalty is ultimately left to a judge. There are aggravating and minimizing factors that can be considered – the Yousoufian factors – and while the penalty can be as high as $100/day per document, it can also be as low as $0. We believed a daily penalty would apply to the improperly withheld documents, and UW argued that it would not. We argued UW had improperly withheld 11 syllabi and that the University had not acted in good faith because the cited exemption did not apply to the withheld documents, and the University argued that they had in fact complied with the PRA and that the exemption was appropriate.
Ultimately, the judge in our case split the baby after reviewing the documents in camera and ordered that the syllabi be redacted and disclosed. My initial public records request for the syllabi had been made on August 30, 2021, and the redacted syllabi were finally made available on May 6, 2022—nearly nine (9) months later. After the redactions, I was finally able to review the book lists for each of the requested courses.
But having the book lists didn’t change the fact that I wholeheartedly believe that syllabi in use at a public university should be subject to complete public disclosure, without redactions. So, with advice and guidance from my attorneys, we filed a Motion for Discretionary Review with the Court of Appeals of the state of Washington.
While the Motion for Discretionary Review was pending I ultimately ended up resolving the case with UW. The question that went through my head as I approached negotiations was— Despite the fact that I believe these syllabi should be fully produced, how much is it worth for me to walk away?
As the settlement discussions continued, it was important to me that I wasn’t leaving other APR6 clerks in a worse place by pursuing this lawsuit, and as long as we left things in state court, we weren’t leaving a negative precedent. (We weren’t really creating a positive precedent either, but as long as UW continued to comply with the order that syllabi should be produced as long as they’re redacted, other clerks would have the opportunity to at least get the names of books through future public records requests.) Also at the forefront of my mind was the time it would take to complete the appeals process. At the time we filed the Motion for Discretionary Review with the Court of Appeals, I was already over halfway through my third year as an APR 6 clerk. The clerkship is a four-year program, and with just over a year left, and knowing that the cogs of the judicial system turn slowly, I was left wondering if we continued down the path of an appeal if we would have a resolution before it was time for me to start studying for the bar.
After a number of back-and-forths with UW’s attorneys, we eventually hit a number in the low six-figures that made it worth it for me to walk away. I was able to cover all of my attorneys’ fees and costs, and UW also agreed to compensate me a sum that I thought was fair. I wasn’t looking to “make money” when I first made my records request, but it seems fair that they should pay something to hopefully serve as a deterrent from taking such a baseless position under the PRA in the future. Or at least I can hope.
I will also lift the curtain and admit that I am a better law clerk/paralegal/student than I am a client. I went through the full range of emotions through the course of this lawsuit—doubt, frustration, impatience, resignation, anger, disbelief, and ultimately relief— and I made my attorneys deal with all of them. Through it all, Alex and Mike were absolute gems, and regardless of the outcome, I learned a ton about being on the client-side of a lawsuit. While it was never my goal to become a plaintiff when I made a public records request for UW Law syllabi, I learned lessons – both personally and professionally – through the process which I know I’ll carry with me as I continue down the path of becoming a lawyer, myself.
 Yousoufian v. Office of Ron Sims, 168 Wn. 2d 444, 466 (2010)