Facts: In response to a public records request from the News Tribune of the City of Federal Way, the respondent City of Federal Way agreed to release a report on the investigation of a Federal Way municipal court employee’s claim of a hostile work environment. Petitioner and presiding judge Michael Morgan filed a protective order to prevent the release of the report, claiming it was exempt from Washington’s Public Records Act (PRA), RCW §42.56.290, because it was protected under the work product doctrine, attorney-client privilege, and personal information exemption. The Superior Court for King County initially granted judge Morgan a temporary restraining order (TRO), but ultimately entered a judgment denying full relief requested by judge Morgan and dissolved the TRO. Judge Morgan appealed to Division One of the Court of Appeals, which transferred the appeal for direct review to the Supreme Court of Washington.

Question(s): Is the report a city record subject to the PRA?

Is the report protected under the work product doctrine, attorney-client privilege, or personal information exemptions?

Does attorney-client privilege apply to judge Morgan’s email to the investigating city attorney after he sent it to a private third party?

Did the trial court abuse its discretion when it denied attorney fees after an injunction was wrongfully issued?

Conclusion: Justice Owens’ opinion for a unanimous Court affirmed the judgment of the Superior Court, finding that the report was not protected by the work product doctrine because it was not prepared in reasonable anticipation of litigation. The report was not protected by attorney-client privilege because no attorney-client relationship developed between judge Morgan and the city attorney because the city attorney was hired by the City as an independent investigator. Finally, the personal information exemption under RCW §42.56.050 did not apply because judge Morgan failed to demonstrate how his behavior in the workplace was not a legitimate concern to the public and voters.

Docket No. 81556-9 (from King Case No. 08-2-08081-1)

Petitioner: Michael Morgan

(Counsel: John Benjamin Kerr Schochet, Stephen J. Crane, and Douglas S. Dunham)

Respondent: City of Federal Way

(Counsel: P. Stephen DiJulio, Ramsey E. Ramerman)

Briefs:

Argument: Tuesday, June 9, 2009 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, August 20th, 2009

Vote: 9-0

Opinion: 166 Wn.2d 747 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Penoyar
(Pro Tem)

Korsmo
(Pro Tem)

Chambers

Owens
(Majority)

Fairhurst

Johnson

Stephens