142
Opinion of the Court
of certiorari with respect to the tort action for want of jurisdiction.
We reach a different conclusion regarding the PDA action. In that suit, the Washington Supreme Court was asked to review only the appellate court's ruling that four of the five documents requested by respondents were not protected under § 409 and therefore should be disclosed under the PDA.6 Because the Washington Supreme Court held the 1995 amendment to § 409 to be invalid—thus, limiting the privilege offered by the statute only to documents originally created for § 152 purposes—the court effectively interpreted § 409 more narrowly than the Court of Appeals. Accordingly, the four documents at issue before the Washington Supreme Court remained unprotected under § 409 and continued to be subject to disclosure under the PDA. As we read the decision below, all that remains to be decided on remand in the PDA action is the amount of attorney's fees to which respondents are entitled. The PDA action, then, falls squarely under the first Cox exception because the Washington Supreme Court's ruling on the federal privilege issue is "conclusive" and "the outcome of further proceedings preordained." 7 Cox Broadcasting Corp., supra, at 479.
character of, or . . . the admissibility of evidence in, the state proceedings still to come." Id., at 483. Thus, petitioner finds no refuge in the fourth Cox exception.
6 Respondents did not seek review of the Court of Appeals' decision that one of the requested documents—a draft memorandum from the public works director to a county council member, see n. 3, supra—was in fact protected by § 409 because it contained information derived from § 152 activities. See 96 Wash. App. 862, 874, 982 P. 2d 123, 130 (1999). See also Reply to Brief in Opposition 2.
7 Our reading of the decision below is reinforced by the Washington Supreme Court's ruling that respondents are entitled to attorney's fees for the PDA action. See n. 4, supra. Under state law, attorney's fees may not be awarded in a PDA action unless the prevailing party has "an affirmative judgment rendered in its favor at the conclusion of the entire case." Overlake Fund v. Bellevue, 70 Wash. App. 789, 795, 855 P. 2d 706, 710 (1993); see also Tacoma News, Inc. v. Tacoma-Pierce County Health
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