. ., .STATE OF WASHINGTON YAKIMA COUNTY SUPERIOR COURT DOUBLE H, L.P., a Washington No. 10-2-00694-9 limited liability partnership, Plaintiff MEMORANDUM DECISION v. WASHINGTON DEPARTMENT OF ECOLOGY, Defendant I. Case Background Double H, L.P. (Double H) brought suit against Washington Department of Ecology (Ecology) seeking penalties, fees, and costs, for Ecology not adequately responding to two records requests. Double H's first request was made on August 7, 2009, and its second request was made on January 14, 2010. The first request asked for records concerning investigations by Ecology into activities of Double H, or related business entities. The second request was a "refresher request" for the same type of records, but which were created after August 0, 2009. The requests arise out of Ecology's investigation of alleged dumping by Double of hazardous waste reported to Ecology in March of 2009. Double l-I vs Dept of Ecology Court's Memorandum Decision Page 1 of 12 SF-00820 PRR-2011-00450 .Tiff My itz? if: t. it ,cfs 0 if if rifiifrr? Eau; Ecology responded to Double H's first records request by estimating a response date of September 10, 2009. Ecology produced some responsive records on September 24, 2009, September 30, 2009, and January 28, 2010. ln its exemption log, Ecology identified seventeen records that it withheld, in whole or in part, and identified the statutory basis for its claims that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld Throughout the summer of 2010, Double obtained in discovery nine records that were responsive to the first records request but the existence of which had not previously been disclosed to the plaintiff. During this time, Double also obtained in discovery six records that it has previously disclosed to Double H, but which it has withheld from production, in whole or in part, based upon statutory exemptions it no longer asserted. Ecology responded to Double H's refresher request of January 14, 2010 by estimating a response date of the week of February 18, 2010. Because Ecology did not timely respond, Double filed suit on lt/larch 11, 2010. Ecology produced some records responsive to Double H's second request on l\/larch 19, 2010 and March 23, 2010. Ecology identified 38 records that it withheld, in whole or in part, and identified the statutory basis for its claim that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld. Throughout the summer and fall of 2010, Double obtained in discovery tvventy~seven records that were responsive to the refresher request but the existence of which had not previously been disclosed. During this time, Double also obtained in discovery twelve records that it had previously disclosed to Double H, but which it had withheld from production, in whole or in part, based upon the statutory exemptions it no longer asserted. On January 7, 2011, Ecology acknowledged the existence of additional records responsive to the first and second requests, the existence of which had Double vs Dept of Ecology Courts Memorandum Decision Page 2 of 12 SF-00821 PRR-2011-00450 hui "an exhaustive" search was directed by defense counsel. This exhiausiive search was directed by defense counsel after one or more previously undiscovered documents were discovered in the process of responding to a second refresher request- a request which is not at issue in this lawsuit. On January 12, 2011, Ecology produced these records, except those that it maintained were exempt. A true and accurate itemization of these records and the dates these records were produced appear in the parties' briefing. There is no issue of fact with regard to the identity ofthese documents and the dates produced. There is however an issue of how many "groups" these documents should be divided into, for purposes of determining an appropriate penalty. ln total, over 3,000 documents were produced by Ecology. The vast majority of these documents were produced prior to the filing of this suit on March 11, 2010, or soon afterward. At the summaryjudgment hearing, defense counsel represented that most of the numerous records which were discovered during the late 2010 exhaustive search included email strings (portions of which were earlier disclosed), redundant notes, and calendar entries. There were important documents, however, which were not timely disclosed: Ecology failed to disclose four draft Recommendations for Enforcement (RFE), the final RFE, and the Notice of Penalty. These documents were withheld for approximately a year prior to their production in September of 2010. Ecology withheld the draft RFE's under the deliberative process exemption, RCW 42.56.280, but later determined that the exemption was improper, and thereafter produced them. (The parties have not requested that this Court determine whether the draft RFE's were exempt, and no opinion is expressed in this regard). The final RFE and the Notice of Penalty should have been disclosed and produced, and there was no good faith reason for the delay in disclosing these two documents. Double l-l claims prejudice by the wrongful non-disclosure of the six documents discussed above. Double vs Dept of Ecology Court's Memorandum Decision Page 3 of 12 SF-00822 PRR-2011-00450 Procedure of Case Ecology filed its motion for summaryjudgment, requesting that this Court review alleged exempt documents in camera to determine that they are exempt; and to determine, as a matter of law that there should be two groups of wrongfully withheld records, and that the penalty for wrongful withholding of these two groups should be the statutory minimum penalty of $5 per day. Double later filed its cross motion for summary judgment, requesting that this Court determine, as a matter of law that there should be twelve groups of documents, and that the penalty for wrongful withholding of these twelve groups should be the statutory maximum penalty of $100 per day. (Ecology's later disclosures caused Double l-l to expand the number of requested groups to 15). Double l-l also objected to the process suggested by Ecology for determining whether the alleged exempt records are truly exempt. At the January 14,2011 summaryjudgment hearing, the parties announced their agreement for the Court to review the alleged exempt documents in camera, and to advise the parties of its findings with regard to the claimed exemptions. Also at the hearing, the parties acknowledged that determination of the number of groups and the appropriate per diem penalty required weighing inferences, and that summary judgment was therefore inappropriate. The parties then agreed to submit this case to this Court on the existing record for purposes of making findings, rather than having a testimonial hearing. See Broui/let v. Cowles Publishing Co, 114 VVn.2d 788, 793, 791 P.2d 526 (1990). (Court deciding PDA dispute on sworn statements is not deciding case on summaryjudgment, and court reviews decision de novo). But see Sanders v. State, 189 \/Vn.2d 827, 882-85 (2010) (A Court deciding PDA dispute on sworn statements is given discretion to determine the number of categories and the per diem penalties). Also at the January 14, 2011 summaryjudgment hearing, counsel for Double raised a concern about why Ecology had not required two other witnesses to undertake an exhaustive search of their records. This court ordered Double vs Dept of Ecology Court's Memorandum Decision Page 4 of 12 SF-00823 PRR-2011-00450 Ecology to require thesetwo additional witnesses to undertake an exhaustive search of their records and for Ecology to then file and serve affidavits concerning the results of these searches. Ecology complied, and in addition, had various other witnesses undertake an exhaustive search of their files. These affidavits were filed and served, together, on January 27, 2011. ln Camera Review of Records At the end of the hearing, Ecology submitted the withheld and redacted records to this Court for in camera review. This Court reviewed the records withheld, and concluded that the subject records were properly withheld, generally under a legal claim of attorney-client privilege or work product under RCW and 42.56.290 respectively. This Court also reviewed the records which were redacted, and concludes that the subject records were properly redacted, generally under a legal claim of attorney-client privilege, work product, or protecting the identity of a complainant under RCW This court advised the parties of these conclusions in a telephonic status conference on February 4, 2011. This court requested Ecology to prepare findings, conclusions, and an order consistent with GR 15 so that the exempt records could be filed under seal. Also at this status conference, the court inquired of counsel for Double whether Ecology's affidavits filed on January 27, 2011 presented issues which required argument and briefing. Counsel for Double stated that the affidavits did not present issues which required an additional hearing, but did request that the number of penalty days be increased. Double vs Dept of Ecology Courts Memorandum Decision Page 5 of 12 SF-00824 PRR-2011-00450 V. Findings of Fact Based upon a review of the entire record, this Court finds that Ecology did not act in bad faith. Rather, despite the mistakes made by Ecology, it exhibited a true desire to fully comply with the mandates of the PRA. This finding is based upon the comparative number of documents disclosed prior to the lawsuit, the relatively few documents withheld or not disclosed, and the professional tone of Ecology's email and correspondence. lt is clear to this Court that Ecology made mistakes, but in general it took its responsibilities under the PRA very seriously. The mistakes made by Ecology will cause an increase in the per diem penalty, as explained below. With respect to the four draft RFE's, the final RFE, and the Notice of Penalty - all of which were not even disclosed by Ecology - this Court finds that the non-disclosure was wrongful, warrants an increase in the per diem, but that Double l-l was not harmed or misled by the wrongful non-disclosure of these documents. This is so because Double l-l knew that it would likely be penalized for the alleged dumping of hazardous waste, and also knew that the penalty likely would be large, due to the extent of chemicals found by Ecology. The various other findings are contained in the analysis below. Vl. Legal Analysis "Under the PDA, all state and local agencies must disclose any requested public record, unlessthe record falls within a specific exemption." Yousoufian if. King County Executive, 152 \/Vn.2d, 421, 429, 98 P.3d 4633 (2004) (Yousoufian ll). "The PDA enables citizens to retain their sovereignty over their government and to demand full access to information relating to their governments activities." ld. "The provisions of the PDA are to be 'liberally construed' and its exemptions narrowly construed to promote this policy." ld. Toward this goal, RCW provides: Double vs Dept of Ecology Court's Memorandum Decision Page 6 of SF-00825 PRR-2011-00450 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 time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. ln addition, it shall be within the discretion of the Court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect of copy said public record. l\/loreover, if the Court finds that the agency violated the PDA, the Court is required to assess a penalty; the determination of the $5 to $100 penalty range discretionary, not whether to award a penalty. Yousoufian ll, at 432-33. Assessment of a penalty is a two-step process: the Court must first determine the number of days, and second, the Court must determine the appropriate per-diem. Yousoufian v. Ofdce of Ron Sims, 168 \/Vn.2d 444, 459 (2010) (Yousourfan The existence or absence of agency bad faith is the principal factor which the trial court must consider. ld., at 460. A. Number of Days: Ecology suggests that the starting date for penalty purposes is not when the records were requested, but the date when the records should have been produced. Ecology argues that a person does not have a right to inspect a record immediately upon the request, but only as defined by RCW 42.56.520. This Court has not been directed to a case in which an appellate court has squarely addressed this issue, and does not find a case. Ecclogy's argument is persuasive. The number of days for the first requesttherefore commenced on September 10, 2009, which this Court finds was a reasonable estimated response date given by Ecology. See RCW The number of days for the first request ended on January 27, 2011, which was the 4 Double 5-l vs Dept of Ecology Court's Memorandum Decision Page 7of12 SF-00826 PRR-2011-00450 last date when responsive documents were produced. Thus, the number of days is 495. B. Appropriate Per-Diem: This Court must first determine how many "groups" there are for purposes of a penalty. A determination ofthe number of groups is required, because the PDA does not require a penalty per document, but rather, a per diem per group of documents not timely produced. Yousourtan ll, 152 at 434-35. Care should be taken that a court not create artificial groups, which might encourage an abuse in the number of record requests, or an abuse ofthe number of subdivision of subjects contained within a records request. Potential abuse can be controlled by the trial court by its determining that "multiple requests are actually one single request based upon the subject matter and timing ofthe requests." Id., at p. 436, fn 10. Here, the original and the refresher requests related to the same subject matter. For this reason, this Court finds that the requests relate to only one subject. Both parties cite previous appellate cases wherein trial courts divided the number of groups into subject matter and responsive dates. During the summary judgment hearing, Ecology admitted that such a division would create twelve groups. Ecology clarified in its argument that this Court has discretion to determine the number of groups, and although some earlier trial courts divided groups into responsive dates, both parties admitted that no appellate court had actually required such a division. This Court is reluctant to divide the groups into responsive dates. Such a division is artificial, and would actually encourage a governmental agency to withhold records for days, weeks, or months, until the agency is positive that all documents have been gathered. l-lere, Ecology continuously reviewed its records and produced them once it learned of their responsiveness to the earlier requests. Ecology should not be punished for its continuous review of its records and its piecemeal production once those records were determined to be Double E-l vs Dept of Ecology Courts Memorandum Decision Page 8of'i2 SF-00827 PRR-2011-00450 responsive. For this reason, this Court finds that there should be one group, regardless of the number of responsive dates, for purposes of calculating a penalty. Next, this Court must determine a starting point to assess the per diem penalty. The Court is given broad discretion to choose a starting point between $5 and $100. Sanders v. State, 169 VVn.2d 827, at 862. This Court -- having noted above that Ecology's omissions were not committed in bad faith and that Ecology took its obligations under the PRA seriously will begin its analysis of the proper per diern penalty at $15. ln analyzing the factors, discussed below, this Court will determine the extent, if any, that such factors militate for a reduction or an increase of this beginning point. Yousounan l/announces 16 factors which courts must weigh in determining the appropriate per diem. ld., 166 Vl/n.2d, at 467-68. Nine factors increase the per diem, and seven factors decrease the per diem. l\/lany of these factors are opposites of each other, and to avoid redundancy, this Court will analyze such factors together. Mitigating factors: 1. Lack of clarity: This factor will not mitigate the penalty because Double H's request was clear, although broad. 2. Agency helpfulness: The agency was generally helpful, but not to a degree that warrants mitigation below the beginning point of $15 per day. 3. The existence of agency systems to track the retrieve public I-lere, Ecology enacted rules and regulations to assist in answering a request for public records. indeed, Ecology has its own department created for this purpose. This causes the penalty to be reduced by $2 per day. Double vs Dept of Ecology Courl's Memorandum Decision Page9of12 SF-00828 PRR-2011-00450 Aggravating factors: 2. 3. 4. 5. Lack of strict compliance: The agency did not strictly comply with the PRA. An example of this is Ecology not disclosing the draft RFE's, the final RFE, and the Notice of Penalty. Another example is that Ecology failed to adequately explain the reasons for its asserted exemptions in the exemption logs. These mistakes cause the penalty to be increased by $5 per day. Agency dishonest: This factor does not exist in this case. This Court finds that the failure by Ecology to disclose the above- mentioned documents vvas sloppy but not dishonest. Public importance of issues: This is a private dispute. Economic loss: This Court finds that Double did not sustain economic loss attributable to Ecology's wrongful withhold ing and even non-disclosure ofthe limited number of documents in this matter. Deterring future misconduct: This Court finds that this factor does not warrant an increase in the penalty. This is largely due to the finding that Ecology's mistakes were not due to gross negligence or bad faith. Duel factors: 'l . Prompt versus delayed response: Ecology admitted that it once lost tract of Double H's second records request. Ecology also failed to Double vs Dept of Ecology Court's Memorandum Decision Page 10of12 SF-00829 PRR-2011-00450 conduct its "exhaustive search" until December 2010. This factor warrants an increase in the per day penalty by The agency's good faith versus bad faith: This factor does not warrant an adjustment in the per day penalty, as this factor was the central reason this Court chose the beginning point of $15 per day. Proger versus imgroper training: The evidence in this case was that Ecology provided some training to those conducting the underlying investigation of the alleged dumping by Double l-i. The evidence was also that the training was not sufficient. This factor warrants an increase in the per day penalty by $12. Reasonableness versus unreasonableness of the reasons given by the agency for the delay: The agency provided various reasonable explanations for the mistakes it made throughout this matter. The mistakes have increased the per day penalty. This Court does not find any reason to increase or decrease the per day penalty due to this factor. Multiplying the number of days (495) by the per day penalty results in a penalty Attorney fees and costs RCW authorizes "all costs, including reasonable attorney fees" to any person who prevails in a PRA case. Because Double is receiving an award in its favor, it is the prevailing party. Ecology is directed to prepare and circulate proposed findings, conclusions and the judgment at least fourteen days prior to presentation. Double l-l is requested to submit its sworn statement and briefing relative to its Double vs Dept of Ecology Court Memorandum Decision SF-00830 PRR-2011-00450 request for co the prese and reasonable attorney fees at least tive working days prior to ntation oftindings, conclusions, and judgment. At that same time, Double l-l is directed to respond to Ecology's proposed findings, conclusions, and judgment. Ecology should, two days prior to presentation, respon request for costs and reasonable attorney fees. Dated this fZ_ day of February, 2811. Judge Robert Lawr nce-Berrey Double vs Dept of Ecology Courts Memorandum Decision Page 12 of12 SF-00831 PRR-2011-00450 to Double l-l's -elm run _Pan 39 . . . LW Qtii. . 1 ?153 1* is' it, if it ajft w; - Qrfii Llirbii i.tEoaSTATE OF WASHINGTON YAKIMA COUNTY SUPERIOR COURT DOUBLE H, L.P., a Washington . . No. l0-2-00694-9 limited partnership, Plaintiff, FINDINGS OF FACT AND CONCLUSIONS OF LAW i V. WASHINGTON DEPARTMENT OF ECOLOGY, I Defendant. This matter came before, this court on January l4, 2011, on the State of Washington, Department of Ecologyfs (Ecology) motion for summary judgment and Double H, L.P.'s (Double H) cross motion for summary judgment. Double appeared through its attorney Michael B. Gil-lert. Ecology appeared through its attorneys Robert M. McKenna, Attorney General, and Nels Johnson and J. Barney, Assistant Attorneys' General. At the hearing, the parties acknowledged that determination ofthe number of groups ofrecords and the appropriate per diem penalty required Weighing inferences, and that therefore summary judgment was inappropriate. The parties agreed to submit this case to this court on the existing record for purposes of mal>fB~e6% ALLISON STANHOPE, BA #30486 DATE Assistant Attorney General Approved as to form Notice of Presentrnent Waived: Nr . gilifa? NICHOLAS S. ROY, #943053 DATE Plaintiff Pro Se STIPULATED MOTION FOR 2 OFWASHINGTON D1s1\/us SAL AND ORDER NO. 05-2-02326-8 Olympia, WA 98504-0116 PRR-2011-00450 (360) 586-1445 lj EXPEDITE El No Hearing Set Cl Hearing is Set: Date: Time: ,Judge STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT NICHOLAS ROY, NO. 05-2-02326-8 Plaintifli RELEASE AND SETTLMENT AGREEMENT V. VICTORIA BARSHAW, et al., I Defendants. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Petitioners, NICHOLAS S. ROY, Plaintiff pro- se, and the Defendants, by and through their attorneys, ROB MCKENNA, Attorney General, and ALLISON STANHOPE, Assistant Attorney General, agree to the following: 1. In consideration of the following provisions of this Release and Settlement Agreement ("hereinafter referred to as Agreement"), NICHOLAS S. ROY, his heirs, assigns or other successors in interest, does hereby release and forever discharges the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages and causes of action of any nature arising out of Plaintiffs public disclosure request dated November 3, 2004, as described in Plaintiffs Complaint for Order to Show Cause and to Compel Public Disclosure in this action, made pursuant to RCW 42.17.250 et seq., and which is the source of his claims against the Defendants. RELEASE AND SETTLMENT 1 OFYYASHINGTON A NO. 05-2-02326-8 SF-00870 93504-0116 PRR-2011-00450 (360) 536-1445 2. This Agreement is the final, conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiff's Complaint for Order to Show Cause and to Compel Public Disclosure in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to Plaintiff NICHOLAS S. ROY, the sum of Two Hundred Seventy-Seven Dollars and Ninety~four cents ($277.94) as full and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Two Hundred Seventy-Seven Dollars and Ninety-four cents ($277.94) will be payable by check or warrant to NICHOLAS S. ROY. 5. Any settlement proceeds sent to Plaintiff at the Airway Heights Corrections Center (or any other Department of Corrections facility) by Defendants shall be deposited into Plaintiffs spendable accounts without any deductions by the Department of Corrections, including deductions authorized by RCW 72.09.111 and 72.09.480 6. No Department of Corrections employee or contractor will voluntarily notify the Asotin County Superior Court or any other Court about the settlement in any way( 7. No Department of Corrections employee or contractor will voluntarily notify any of Plaintiff' creditors of the settlement in any way. 8. The parties agree that this Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 9. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 10. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. ll. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Two Hundred Seventy- RELEASE AND SETTLMENT 2 ATTORNEYQENERAL OBWASHINGTON ?ustrlig 321151011 NO. 05-2-02326->>8 SF-00871 orympia, 98504-Ol 16 PRR-2011-00450 (350) 535-1445 Seven Dollars and Ninety~four cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. . 12. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the claims concluded by this Agreement. 13. A The undersigned parties declare that the terms of this Agreement are completely read, Wholly understood, and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendants. GI NICHOLAS s. Roy 943053 DATE Plaintiff, Pro Se QC 1 Er ,fo-22506 KATHY GASTREICH DATE Risk Manager Department of Corrections . Ef- i 0 ALLISON STANHOPE, WSBA #30486 DA Assistant Attorney General Attorney for Defendants QM 5; 4%/7392, RELEASE AND SETTLMENT 3 No. 05-2-02326-8 SF-00872 oiympa, 98504-0116 PRR-2011-00450 (360) 586-1445 |11 DJ ONLJIJA Eve EXPEDITE El No Hearing Set El Hearing is Set Date: Time: RICHARD STROPHY STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT ALLAN PARMELEE, NO. O5-2-01317-3 Plaintiff, STIPULATED ORDER OF v. DISMISSAL HAROLD CLARKE, Defendant. THIS MATTER having come before this Court on the stipulated motion of the parties, and it appearing to the Court that all matters in controversy herein between the Plaintiff, Allan Parmelee, and the Defendant, Harold Clarke, have been fully settled and eompromised, and the court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff Allan Parme|ee's claims against the Defendant Harold Clarke, in the above-referenced cause of action, are hereby dismissed with prejudice and without costs or attorney fees to either party. STIPULATED ORDER Op i 1 I oisiviiss/xi. No. 052-U13 1 7~3 OO ll-Ili CDND The clerk is directed to send copies of this order to counsel for plaintiff and counsel for defendant. DATED Judge ofthe Superior Court Presented by: ROB MCKENNA Attorney General we ALLISON STANHOPE, WSBA #3 486 DATE Assistant Attorney General Attorney for Defendant 5 lb; A KAHRS, 27085 DATE Attorney for Plaintiff 2 I I I I $900874 NU. - I Cl EXPEDITE El No Hearing Set Cl Hearing is Set: Date: Time RICHARD STROPHY OF WASHINGTON COUNTY SUPERIOR COURT ALLAN PARMELEE, NO. 05-2-01317-3 Plaintifli RELEASE AND SETTLEMENT v- AGREEMENT HAROLD CLARKE, Defendant. This is a Release and Settlement Agreement for the above~referenced action. Based upon consideration and mutual promises, the Plaintiff; ALLAN PARMELEE, by and through his attorney, MICHAEL KAHRS, and the Defendant, Harold Clarke, by and through his attorneys, ROB MCKENNA, Attorney General, and ALLISON STANHOPE, Assistant Attorney General, agree to the following: l. In consideration of the following provisions of the Release and Settlement Agreement, ALLAN PARMELEE, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, RELEASE ANQ SETTLEMENT 1 ATTORNEY GENERAL or WASHINGTON IJ AGREEMENT (No. 05-2-013 1:1-3; SP00875 Olympia, 16 PRR-2011-00450 (360) damages and causes of action of any nature arising out of Plaintiffs public disclosure request dated June 2, 2002, as described in Plaintiffs Complaint in this action, made pursuant to RCW 42.17.250 et seq., and which is the source of his claims against the Defendant. 2. This Agreement is the finaly conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiffs Complaint in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to MICHAEL KAHRS, as the designated payee of Plaintiff ALLAN PARMELEE, the sum of Fifteen Thousand Dollars and zero cents as full and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Fifteen Thousand Dollars and zero cents l5,000.00) will be payable by check or warrant to MICHAEL KAHRS, as the designated payee for Plaintiff ALLAN PARMELEE. Plaintiff represents to Defendant that MICHAEL KAHRS has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. 5. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 6. This Agreement constitutes the final written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 7. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. RELEASE AND SETTLEMENT 2 ATTORNEY GENERAL OF WASHINGTON ., c' it o' AGKEEMENT (No. os-2-0 1 1 7-J) Big-tlfigl riimon Olympia, WA 98504~0| I6 PRR-2011-00450 (360) 3354445 8. The parties jointly agree that dismissal with prejudice of this action is an appropriate 'resolution in consideration for payment of the sum of Fifteen Thousand Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice, with a copy of this Release and Settlement Agreement attached to it. 9. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and ofticials over the claims concluded by this settlement agreement. lt). The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, wholly understood and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendant. if ALLAN @3782 DATE Plaintiff Lf- 5305 MICHAEL KAHRS, 27085 DATE for Plaintiff KA YG CH DATE Risk Mana Department of Corrections 1/f/we ALLISON STANHOPE, SBA #30486 DATE Assistant Attorney General Attorney for Defendant 3 AGREEMENT (No. O5-2-013 I7-3) SF-00877 Olympia, WA 9850401 I6 PRR-2011-00450 (360) 586-|445 MaEXPEDITE Atari ii i Time: ifae?.. THOMAS a. rAr,tat,siar The Honorable Neal Q. Rielly 69% QLEW STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT NICHOLAS S. ROY, NO. 2005-02-05800-O Plaintiff, V. KAY WILSON-KIRBY, in her official capacity STIPULATED MOTION as Public Disclosure Officer for the WA State OR DISMISSAL AND Dept. of Corrections; GAYLENE SCHAVE, in ORDER her official capacity as Public Disclosure Coordinator for the WA State Dept. of Corrections; RISA KLEMME, in her official capacity as Public Disclosure Coordinator for the WA State Dept. of Corrections; And the DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, A Defendants. STIPULATION COME NOW the Defendants, by and through their attorneys, ROB MCKENNA, Attorney General, and ALLISON STANHOPE, Assistant Attorney General, and the Plaintiff, NICHOLAS S. ROY, pro se, jointly move this Court for an order dismissing the above-referenced matter with prej udice. This motion is based upon the record and tile to date, and a copy of the attached Release and Settlement Agreement of the parties. i are ALLISON STANHOPE, WSBA #30486 DATE Assistant Attorney General Attorney for Defendants 1 ATTORNEYAGENERAL DISMISSAL AND ORDER (No. 2005-oz-05800-0) Olympia, "ii 9856461 I6 SF-00878 (360) 5864445 PRR-2011-00450 NICH LAS RO I DATE Plaintiff pro se ORDER THIS MATTER having come before this Court on the stipulation ofthe parties, and it appearing to the Court that all matters in controversy herein between the Plaintiff, NICHOLAS S. ROY, and all Defendants have been fully settled and compromised, and the Court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff NICHOLAS S. ROY's claims against all Defendants, in the above-referenced cause of action, are hereby dismissed with prejudice as agreed by the parties in the Release and Settlement Agreement. DONE this day of 2006. Spokane County Superior Court Judge Presented By: .9 17' on ALLISON STANHOPE, SBA #30486 DATE Assistant Attorney General Approved as to form Notice of Presentrnent Waived: 1 UL/reg NICHOLAS S. ROY DATE Plaintiff Pro Se STIPULATED MQTIQN FQR 2 DISMISSAL AND (NO. 2005-02-05800-0) oi 3500879 ymilizo) 586-1445 PRR-2011-00450 [1 EXPEDITE No Hearing is Set Hearing is Set Date Time The Honorable Neal Q. Rielly STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT NICHOLAS S. ROY, NO. 2005-O2-05800-0 Plaintifi v. RELEASE AND SETTLEMENT KAY WILSON-KIRBY, in her official capacity AGREEMENT as Public Disclosure Officer for the WA State Dept. of Corrections; GAYLENE SCHAVE, in her official capacity as Public Disclosure Coordinator for the WA State Dept. of Corrections; RISA KLEMME, in her official capacity as Public Disclosure Coordinator for the WA State Dept. of Corrections; And the DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, Defendants. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Petitioners, NICHOLAS S. ROY, Plaintiff pro- se, and the Defendants, by and through their attorneys, ROB MCKENNA, Attorney General, and ALLISON STANHOPE, Assistant Attorney General, agree to the following: l. In consideration of the following provisions of this Release and Settlement Agreement ("Agreement"), NICHOLAS S. ROY, his heirs, assigns or other successors in interest, does hereby release and forever discharges the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, RELEASE AND SETTLEMENT AITORNEY GENERAL or WASHINGTON AGREEMENT Crimgi?l ?ustigg ?2/ision (No. 2005-O2-05800-0) Olympia, till 98504-01 I6 SF-00880 (360) 586-1445 PRR-2011-00450 damages and causes of action of any nature arising out of public disclosure request #99, as described in Plaintiffs Complaint for Order to Show Cause and to Compel Public Disclosure in this action, made pursuant to RCW 42.17.250 et seq., and which is the source of his claims against the Defendants. 2. This Agreement-is the final, conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiffs Complaint for Order to Show Cause and to Compel Public Disclosure in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to Plaintiff NICHOLAS S. ROY, the sum of Four Hundred Fifty Dollars and zero cents ($450.00) as full and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, ifany. The settlement amount of Four Hundred Fifty dollars and zero cents ($450.00) will be payable by check or warrant to NICHOLAS S. ROY. 5. Any settlement proceeds sent to Plaintiff at the Airway Heights Corrections Center (or any other DOC facility) by Defendants shall be deposited into Plaintiffs spendable accounts without any deductions by the Department _of Corrections, including deductions authorized by RCW 72.09.l ll and 72.09.480 6. The parties agree that this Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 7. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 8. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. 9. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Four Hundred Fifty Dollars RELEASE AND SETTLEMENT 2 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division AGREEMENT PO Box 401 16 (NO. 2005-02-05800-0) Olympia, WA 985041) 1 15 SF-00881 (360) 536-1445 PRR-2011-00450 and zero cents ($450.00) and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. 10. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the claims concluded by this Agreement. 12. The undersigned parties declare that the terms of this Agreement are completely read, wholly understood, and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendants. 21 1 NICHOLAS S. nor 943053 DATE Plaintiff Pro Risk Mana 5 Department of Corrections ALLISON STANHOPE, WSBA #30486 DATE Assistant Attomey General Attorney for Defendants RELEASE AND SETTLEMENT 3 AGREEMENT (NO. 2005-02-05800-0) olympia, vii.; 93504411 16 SF-00882 (360) 586-1445 . PRR-2011-00450 g, I MAY 1 3 2.911 Tic hearillgseg 4, earmgis se . - Date: May 13, 2011 Time: 9:00 am. Judge/Calendar: The Honorable Christine Pomeroy SUPERIOR COURT OF ON COUNTY OF THURSTON DIANE KENNEDY Plaintiff, NO. 10-2412409->>| Vs. ORDER OF PARTIAL STATE OF WASHINGTON, SUMMARY JUDGMENT DEPARTMENT OF CORRECTIONS Defendant After reviewing the pleading herein and having heard the arguments counsel, the court finds as follows: 1. The present case is almost identical to the Dames case in that th requestor "had the disputed records in his own file and knew this before he file the PRA lawsuit. lt was precisely this discovery that alerted him that the county' response to the request was false." Daines Spokane County, App. 342 3-48 (2062). 2. Kennedy asserts that responsive documents have not been disclose as evidenced by the few responsive documents she later obtained, but has failed demonstrate any violation in the production of documents otherthan records sh already has in her possession, therefore, Kennedy cannot be a prevailing part under the Act, even if she establishes liability. ., 3. Kennedy is not entitled to penalties and therefore the Court finds tha a grant Summary Judgment to the Department is appropriate except, insofar as order- BISHOP, cUNi~rINcHA1vt at ANDREWS, mc., (Ps) Attorneys at Law Box 5060, West Hills semen Bremerton, WA 98312 TELEPHONE (360) 377-7691 FACSIMILE (360) PRR-2011-00450 there remains an issue of fact on Claims I and II as to Whether an electroni records request was sent or received by Kennedy to the Department of Correction. lt is, therefore, ORDERED, that summary judgment is granted to the stat except as to the issue of Whether the electronic request was received, which issue may proceed to trial. in Dated: I Judge Presented by: Approved fo /enj I 4' i . JOHN NDREWS, A VINGO BA #26 83 order- Keunedyo BISHOP, INGHAM ANDREWS, INC., (Ps) UNN Attorneys at Law Box 5060, West Hills Station Bremerton, WA 98312 TELEPHONE (360) 377-7691 FACSIMILE (360) 377-5484 SF-00884 PRR-2011-00450 ER FILED limi 23 PAT SWARTOS, Stark ct th Superior Court ct Mason Co. \/fastt. Vee, ll lf] STATE OF WASHINGTON twig I MASON COUNTY COURT MATTHEW SILVA, NO. 07-2-00922-5 Prnaaff, ORDER FINDING PUBLIC . A RECORDS ACT VIOLATIQN AND v. . A GRANTING JUDGMENT FOR PLAHQTIFF A WASHINGTON STATE DEPARTMENT OF - DEBRA DOESDN, et al., (PROPOSED) Defendants. This matter, having corne on regularly for trial before the Court on' Plaintitt'S Motion for Show Cause Order, and the Court having considered the 'motion and the along with the remaining record and oral argument of the parties, does hereby End and order that A Plai11tiff's motion is GRANTED. In reaching its conclusion, the Court makes the following findings: l. Defendant Washington State Department of Corrections (DOC) received a Public A Records Act (PRA) request from Plaintiff, Matthew Silva, on April 20, 2007; 2. The PRA request sought "any and all records related to or associated with (Inmate Poy Putlfs) loss of a tticle while in custody at the Washington Corrections Center at Shelton"; 3. 'The Defendant timely responded on April 23, 2007, and issued a reasonable estimate that responsive records would be available "within 20 working days"; ORDER FINDING PUBLIC RECORDS A 1 ACT VIOLATION AND GRANTING pg, Box 0 JUDGMENT FOR PLARTTIFE Olympia. wa 9350447115 NO. 07s-2-00922-5 fm) F-0 08 8 5 PRR-2011-00450 15, 2007, the Defendant violated the PRA by sending the responsive records to plaintiff via campus mail; . -- 5. The records that were sent on May 15, 2007, amounted to ten pages; 6. Plaintiff did not receive the records; 7. DOC has adopted a policy, under the PRA, regarding the means of sending responsive documents that -may be utilized by its staff in providing records to PRA requestors. This policy Policy . 8. DOC Policy requires DOC staff to send responsive reeords via United States Mail; A h' - 9. The holding of Livingston v. Cedelio, 135 Wn.App. 976 (2006), 186 Wn.2d 1055 (2008), to the effect that an agency discharges its PRA duty to produce recordsuwhen it mails responsive records, does not apply in this case where the agency violated its own PRA policyby sending the responsive records via campus mail; 10. DOC provided the responsive records at issue in this case by making them available to Plaintiff on November 4, ll. -DOC's violation of the PRA does to bad faith and constitutes negligence. - 4 The Court does hereby ORDER - 1. Defendant shall pay a penalty of $15.00 per day item May 15, 2007, through November 4, 2008, which amounts 539 days for a total penalty of $8;085.00; Defendant, as judgment creditor, shall pay to the Plaintiff, as judgment creditor, 2. plus costs and fees, if any, pursuant to RCW 3. Defendant has the right to set off Plaintiffs recovery for the debt Plaintiff owes to the Defendant; however, pursuant to the ruling in Silva v. Francis, et al., Mason County Superior Court No. 07-2-00929-2, Defendant may not set off any portion of Plaintiffs debt that was accrued for legal photocopies; and, - ORDER. FINDING PUBLIC RECORDS 2 ACT VIOLATION AND GRANTIPIG pg, Box 46115 JUDGMENT FOR PLAINITFF - WA 93504-0115 NO, 07-2-009226 uso) sas-was F-0 08 86 PRR-2011-00450 1 4; The Clerk of the'Cou\'t is inst1'ucte'd to send uncerhed copies of this Order to the Plaintiff and counsel for the Defendant. ,2009. Honorable Juage Toni-_ A. SHe1Hon Prese;1tedBy: A Attomey Ge A - GO, 83 Assistant Attorneys neral - - 9; TT G. ILVA Plain f, ORDER FINDING PUBLIC RECORDS 3 .ACT VIOLATION AND GRANTING g_Q_ Box 40116 IUDGMENT FOR PLANIIFF ws NO. 07-2-00922-5 <3su)sas~144s - F-0 08 87 PRR-2011-00450 .wel px xr STATE OF WASHINGTON 0 A MASON COUNTY SUPERIOR COURT MATTHEW SILYA, No. 07~2-00922-5 Plaintiff, ORDER ON MOTTONS FOR V. A RECONSIDERATION or STATUTORY ATTORNEYS FEES WASHTNOTON STATE AND SANCTIONS DEPARTMENT OF DEBRA DOBSON, et Ai., Defendants. The Court, having reviewed the record and the Plaintiff' Motion for Reconsideration of Statutory Attorney's Fees, Motion for CRM Sanctions, and responses thereto, and having heard oral argument from the Plaintiff and Assistant Attorney General Douglas W. Carr on August 3, 2010, does hereby End and ORDER: l. Plan1tift" Motion for Reoonsideration of Statutory'Attorney's Fee is A 2. Plaintiitit' Motion for Sanctions is 3l Plaintii is allowed to submit a Supplemental cost bill for his reasonable costs in opposing Defendants' response to his cost bill; - 4. Pursuant to the agreement and stipulation of the parties, supplemental costs in the amount of $250.00 are granted to Plaintiff; and A ORDER ON AUGUST 3, 2010 A 1 ATTORNEY ROR REOONSLDERATTON A AND CRN SANCTIONS SF-00888 - oiympia, WA 93504-0116 PRR-2011-00450 (360)536~1445 5. The Clerk of the Court is instructed to send unoertjjied copies of this Order to and counsel for Defendants. . ,7 25 dayof ,2o1o_ Ii?ld?l Qil?fixiflilflbai HONORABLE SHELDON MASON COUNTY SUPERIOR COURT Submitted by: is Attorney GO 6l83 1 la Approyed as to a.1ver ofPrese11tat1on, and stlpulatlon only as to the amount of supplemental costs: 6* fb/ 0 Ma, Va Plaintiff Pro Se I QRDER QN AUGUST 3, 2010 2 ATTORNEY GENERAL I-EARINGS FOR 1rsooNsmERAT1oN AND SANCTTONS Olympia, WA 98504-0116 O7-2-00922-5 PRR-2011-00450 (360)586-1445 5 1, 53? seep a mae- 1 i if x~i-neon cofafwi itat 1-lv"-1 193 mf xi sir, i ggief' 951 ?192 C53 '1h~ 1? 2 Being familiar with the case and having heard argument of counsel on March 7, 2011 the court now finds: - 1.1 Mr. Silva is the Judgment Creditor and defendant Washington State Department of Corrections (WDOC) is a judgment debtor in the above captioned cases. . A 1.2 Mr. Silva noted depositions to occur on January 10, 2011, requiring the appearance of Assistant Attorney General (AAG) Vingo and defendant WDOC. 1.3 On January 1, 2011 neither the AAG Vingo nor defendant appeared for depositions. 1.4 on January 17, 2011 Mr. Silva sent AAG Vingo a letter demanding participation in a telephonic discovery conference. A 1.5 AAG Vingo nor defendant responded to Mr. Silva's request for the discovery 1 SF-00890 PRR-2011-00450 conference. 1 On February 25, 2011 Mr. Silva tiled Plaintiffs Motion for Contempt Findings and Sanctions. - Conclusions of Law 2.1 CR 69(b) provides; In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions or in the manner provided by RCW 6.32. Consequently, depositions are an appropriate avenue for a judgment creditor to obtain information concerning the judgment and as an aid for 'proper executionof a judgment. 2.2 CR 26(i) provides in part: If the court finds that counsel for any party, upon whom a motion or objection in respect to matters coyered by such rules has been served, has willfully refusedubr failed to confer in good faith, the court may apply the sanctions provided, under rule 37(b)_ TL, /ef 7f>> 2.3 CR 43(f)(3) provides for a finding _of contempt in the case Where a party refuses to attend and testify ata deposition. i 1 Order 1 A Based upon the law of the case and after hearing argument of counsel the court hereby 1 1 3.1 Defendant and the AAG are required to participate in a deposition as scheduled byMr.Silva. '52/1. 20% 3.2 The court reserves its ruling on the contempt finding sanctions, and costs. 2 jj dayef ff/ ,2oi1. ENDERV count i SF-00891 PRR-2011-00450 . I. rr*- . . - OFFICE |\/rio a Ria: . I I UCI 21311 ocr -3 2011 PAT SWARTOS, Clerk of the Superior Court of Mason Co, Wash. STATE OF WASHINGTON MASON COUNTY SUPERIOR COURT NLATTREW o. SILVA, x/ No. 07-2-oo922-5 Plaintiff, 08-2-00140-1 V. (PROPOSED) ORDER GRANTIN G, IN PART, MOTION FOR WASHINGTON STATE REVISION OE DEPARTMENT OF CORRECTIONS, ORDER . Defendants. These matters came before the Court on September 19, 2011, on Defendant'S Motion for Revision of Court Commissionefs Order Under LCR 59. The Court consolidated the two cases for purposes of the Defendant's Motion, and heard argument from Matthew Silva, Plaintiff, and Tim Lang, Senior Assistant Attorney General, counsel for the Department of . Corrections. The Court also reviewed and considered the Defendant's Motion, Mr. Silva's Motion to Strike Motion for Revision, and Defendant's Response to Motion to Strike. NOW THEREFORE, being fully advised, the Court ORDERS as follows: l. Plaintiffs Motion to Strike Motion for Revision is denied. The Defendant tiled its Motion for Revision within 10 days of the Commissionefs August l, 20-11, Order. Additionally, the Court has authority under LCR 59(7) to revise any order or judgment related to the issues raised by the D?fendanfs Motion. 2. . ,The Commissioner did not err in ruling that CR 69(b) applies md authorizes the use of depositions to obtain testimony regarding whether DOC has paid the judgments entered in these two matters. Although DOC maintains the judgments have been fully satisfied, no ORDER GRANTING IN PART 1 WASHINGTON GENERAL DEFENDANTS MOTION ROR REVISION 3900892 f5Y?Sg?" I ORDER- Olympia, WA 98504~0116 A 1 satisfaction of judgment has been tiled and the Court would not permit a judgment debtor to 2 unilaterally decide whether it has satisfied a judgment for purposes of CR 69, However, 3 although the Court has determined CR 69(b) applies, the scope of any depositions that occur (tu of ws. 1-S. Q35 4 under CR _69(b) shall be limited to may 5 seek a protective order if it believes Plaintiff intends to seek information beyond that relevant Qi! 77?< ,pil '6 1 PM 7 3. The Corn1nissioner's August 1, 2011, Order awarding costs for "paralegal 8 services" is vacated in light of Absher Consir. Co. v. Kent School Dist. No. 415, 79 Wn. App. 9 841, 845, 917 P.2d 1086 (1995), and in light of Plaintiff' statement that the paralegal services '10 for which he sought reimbursement were in fact not for legal research, but for printing, 11 copying, and mailing reported cases he requested. The issue of costs is remanded to the 12 Commissioner for consideration of whether any of the costs claimed by Plaintiff should be 13 awarded considering Absher. i 14 4. The Commissioner's August' 1, 2011, Order sanctioning Defendantfs counsel is 15 vacated. The Court Ends insufficient basis to support the $200 sanction. There is no finding 16 of contempt in these matters, and the discovery rules to not authorize sanctions other than the 17 award of reimbursable costs, which the $200 sanction was not. I 18 DATED this QM day of October, 2011. 19 . 1 cy The Honorable Toni A. Sheldon 20 Mason County Superior Court Judge Submitted by: 21 ROBERT M. MCKENNA I U0 ll SHSI - 2 gv b/rA"E. ll 23 rn/1 LANG, WSBA #2 314 Sr. Assistant Attorney eneral TE 24 Counsel the Department of Corrections 7 2-3 ff 26 P1 tiff, Pro Se DA ORDER GRANTING TN PART I 2 A WASHINGTON GENERAL . DEFENDANTS MOTION ron REVISION. 8900893 OF SIONEIY ORDER -- 1430450 Olympia-, WA 93504-0116 I ji A vi, if TN THE COURT OE APPEALS OE THE STATE OF WASHINQTON 1 1 DIVISION T1 3; 513521 MATTHEW SILVA, Appellant, af f- NO. -40188-6-n U39 co 'Ti U3 RULING DISMISSING APPEAL A-, DEPARTMENT OF me CORRECTIONS, ET AL., az, 1 Respondent. I 2? rl is the above-entitled appeal as it THIS MATTER comes before the undersigned to dismiss appears to have been abandoned. A review ofthe file indicates that the $280 Tiling fee has not ed in the Conditional Ruling of Dismissal and that dismissal is been paid as previously order warranted. Accordingly, it is ORDERED that the above-entitled appeal is dismissed. DATED nri?QfD day Ori- ,zoio A COURT COMMISSIONER Andrea Vingo Matthew Silva Attorney General-Corrections Div. DOC #957176 PO Box 40116 Washington State Penitentiary Olympia, WA, 98504-0116 1313 North 13th Avenue Walla Walla, WA, 99362 gli Will? lu' . T, int :si-ref-_ifni rr. A ef 'Erin SF-00894 PRR-2011-00450 Elf; i it LW. 'isa if 21 ZUFU 1 IN THE COURT Or APPEALS OF THE STATE OF WASHINGTON DIVISIONII MATTHEW o. SILVA, NO. 40188-6-II Appellant, MANDATE v. . Mason County Cause No. DEPARTMENT CORRECTIONS, et al., 07~2-00922-5 Respondent. The State of Washington to: The Superior Court ofthe State of Washington in and for Mason County This is to certify that the Court of Appeals ofthe State of Washington, Division II, entered a Ruling Disniissing Appeal in the above entitled case on February 25, 2010, This ruling became the final decision terminating review of this court on November 30, 2010. Accordingly, this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the determination of that court. Ani- ff - IN TESTIMONY WHEREOF, I have .Q i_,q :Ae hereunto set my hand and affixed the g. seal said Court at Tacoma, this A 9 day of Decemb r, 2010. . Clerk of the Court Of?p ea S, -- State of Washington, Div. II gs I - Andrea Vingo Matthew Silva Attorney General-Corrections Div. DOC #957176 PO Box 401 16 A Olympia, WA, 98504-0116 Stafford Creek Corrections Center 191 Constantine Way Aberdeen, WA, 98520 if --I `,5Si5;3;{ MUFMRQ HM. Gb (ill. QC SF-00895 PRR-2011 _tt -00450 A - gim 5.3 f-P; THE SUPREME COURT OP WASHINGTONM MATTHEW G. SILVA, Petitioner, v. DEPARTMENT OF CORRECTIONS, et al., Respondents. .. igw No. 84667-7 W, 0 iffl I I I NO. 40188-6-df: Q,-is _'li ii; "r E55 br di 'ffl F--5 12:9 F53 Department I ofthe Court, composed of Chief Justice/Madsen and Justice C. 2 Sanders, Owens and I Johnson, considered at its November 30, 2010, Motion Calendar, whether review should be granted pursuant to RAP 13 and unanimously agreed that the following order be entered. IT IS ORDERED: That the Petition for Review is denied and the Petitioner's motion to remand is denied. DATED at Olympia, Washington this Dgijpday 2010.1 5610/Ta, For the Count I CI-IIEP JUSTICE SF-00896 PRR-2011-00450 NETHE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SNOHOMISH aid* A No. 111353 #_'fy Jw ORDER If 5 IT IS HEREBY 1_1 1' fb I 5-if ag Eivv *fha Hf jg WI The I3 Fm !0>General Stafford Creek Correction Center PO ,fig l9l Constantine Wa Ol us WA, 98520 im. Us'-f g, frutmeq .tr - _,fi it sF-oo91e- PRR-2011-00450 tif: .R 5 tit in as 'Q-time ,j .3 . 1 -- mt-1, all Oiliill Ziff lint: Receives a FILED. NOV 15 2009 PAT SWARTOS, Clerk of Superior Court of Mason . Wash, STATE OF WASHINGTON MASON COUNTY SUPERIOR COURT MATTHEW G. SILVA, NO. O8-2~00l40-l Plaintiff, ORDER GRANTING PLAINTIFFS MOTION FOR ORDER TO SHOW V. CAUSE A - /f WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. . This matter caine before the Court on the Plaintiffs Motion for Order to Show Cause on September 25, 2009. The Court orally ruled, 'finding that Defendant violated RCW 42.56 the Public Records Act, on two occasions, as a matter cf law. The Court found, however, that Defendant did not act in bad faith and that the violations were the result of negligence. In reaching its decision, the Court considered the oral argument of Plaintiff and Counsel for Defendant in addition _to the following pleadings ofthe parties: 'f l. Plaintiffs Motion for Order to Show Cause, with attached exhibits; 2. Defendanfs Response to Motion for Order to Show Cause, with attached exiaiml 3. Defendant's Supplemental Response tc Order tc Show Cause; and 4. Plaintiffs Reply Re: Show Cause Response, 0 0 . QRDER PLAHQTIFF 1 ATIORNEYCGENERA1. XTIASHINGTON Morton Fon canes ro snow CAUSE Olympia, WA 985040116 - No. os-2-00140-1 (360) PRR-2011-00450 The Court does hereby find and ORDER: 1. Plaintiff' Motion for Order to Show Cause is 2. The Defendant failed to coinply with RCW 42.56, et seq. between October 4, 2007, and November 19, 2007, when it failed to provide responsive documents on receipt of payment; 2. The Defendant's violation between October 4, 2007, and November 19, 2007, was not in bad faith and constituted negligence. Therefore, the Defendant shall pay a penalty of $1500 per day for 46 days for a total ef $690.00; 3. The Defendant failed to comply with RCW 42.56, er seq. between November 19, 2007, and March 25, 2008, when it fai1ed_ to provide unredacted documents; 4. The Defendant's violation between November 19, 2007, and March 25, 2008, was not in bad faith and constituted negligence. Therefore, the Defendant shall pay a penalty of $15 .00 per day for 127 days for a total of $1,905.00; 5. Defendant is to pay Plaintiff, as judgment creditor, the total ~an1cunt of $2,595.c0; 6. Defendant has a, iight to set off Plaintiffs recovery from the debt Plaintiff owes to the Defendant; however, pursuant to the iuling in Silva v. Francis, et al., Mason County Superior -Court No. 07-2~00929-2, Defendant may not set off Plaintiffs recovery from the portion of Plaintiffs debt denoniinated as debt for legal photocopies; and 1 gf/ ORDER GRANTING 2 GENERAL OF WASHINGTON Mo'r1oN Fon TO snow 1 CAUSE Olympia, WA 9_8504~01l6 No. os-2~om4o-1 960) 586*1""*5 SF-00918 PRR-2011-00450 7. The Clerk of the Court is to send copies of this Order to Plaintiff and counsel DATED this to day of ,2oo9. . . JUDGE TON1 A. SHRLOON MASON COUNTY SUPERIOR COURT Submitted by: A. SHELDON ROBERT M. MCKENNA Attorney General SARA J. 33003 Assistant Attoi General ORDER GRANTING 3 MOTION FOR ORDER TO SHOW CAUSE Oiympa, WA 98504~0l16 NO. os~2~oo14o~1 (360) SF-00919 PRR-2011-00450 1 RECEIVED QQ APR 2 7 2010 ATTORNEY OFFICE QORRECWNS CORRECTIONS DIVISION SUPERIOR COURT OF WASHINGTON FOR MASON COUNTY MATTHEW G. SILVA, . Plaintiff, No. OB-2-00140-1 V. ORDER ON COST BILL alg' Defendants. - - This matter having come on regularly, in open court, upon plaintiff's cost bill and the defendants' objections thereto, and the court having considered the cost bill, the defendants' objections, plaintiff's responses, and the verified letter of wp* Brett Bingham, now, thereforeHEREBY ORDERED, ADJUDGED and DECREED &&yw?Mf 1 cost bill is granted. "The defendants shell pay to plaintiff the amountAspecified in the cost bill forthwith. 13 ff), $515.00 A - DATED this~ te day of 2010. TONI SHELDON, Judge Presented by: Mat Silva, pl intiff ford Creek Corrections Center 1 1 Constantine Way I Aberdeen, WA 98520 7 Approv Notice of Presentation Waived: . -- 1- 1 An&F?a Vingo :ef nse Coa ORDER ON 0 I Page 1 of 1 SF-00920 PRR-2011-00450 STATE OF WAS1-DNGTON MASON COUNTY SUPERIOR COURT: MATTHEW O. SILVA, . No. os-2-00140-1 Plaintiff, ORDER ON - MOTIONS FOR V. RECONSIDERATION OF STATUTORY FEES WASEJNGTON STATE AND CR11 SANCTTONS DEPARTMENT OF CORRECTIONS, Defendants. The Court, having reviewed the record andthe Plainti;Et"s Motion for Reoonsideration of Statutory Attorney'S Fees, Motion for CR11 Sanctions, and responses thereto, and having heard oral argument from the P1aintiH and Assistant Attorney General Douglas W. Carr on August 3, 2010, does hereby find and ORDER: . 'v 1. Plaintiff' Motion for Reconsideration of Statutory Attorney's Fee is 2. Plaintift's Motion for Sanctions is 3. Plaintii is allowed to submit a supplemental cost bill for his reasonable costs in opposing Defendants' responseto his cost bill; 4. Pursuant to the agreement and stipulation of the parties, supplemental costs in the amount of $250.00 are granted to Plaintiff; and ORDER ON PLAINTIFFS MOTIONS 1 POR RECONSIDERATION OF . - 5340116 STATUTORY ATTORNEYS FEES Olympia, WA 93504-0115 AND CR11 SANCTIONS SA00921 A NO. os-2-00140-1 A PRR-2011-00450 5 The Clerk Of the Court is instructed to send uncertilled copies of this Order to Plmtii and counsel for Defendants this day of A ?gg??gf ,201o. HONORABLE TONT SHELDON - MASON COUNTY SUPERIOR COURT Submitted by: ROBERT M. Mig - Attorney . VINGO, - 26183 Approved as . ver of Presentation, and stipulation only as to the amount of supplemental . A fa Ma}w P1a1:nt1fl:`Pro Se 1 ORDER ON PLAn~mrRs MOTIONS 2 GENERAL POR REOONSIDRRATION OF STATUTORY Pass Olympia, WA 98504-0116 AND CRII SANCTIONS 960) 586-1445 NO. os-2-00140-1 SF-00922 PRR-2011-00450 die-4 Ek" - 7 I aw, ii- ~;f-in . sf i astro if 51 'ev' Qi rg? A r~iascr"ai PaiNO. or-5-00922-5 A 0 -2-00140-i Plaintiff vs. Findings of Fact Conclusions of Law 01 . and Order Defendant - A _Findings Being familiar with the case and having heard argument of counsel on March 7, 2011 the court now finds: A i 1.1 Mr. Silva is the Judgment Creditor and defendant 'Washington State Department of Corrections (WDOC) is a judgment debtor in the above captioned cases. . A 1.2 Mr. Silva noted depositions to occur on January 10, 2011, requiring the appearance of Assistant Attorney General (AAG) Vingo and defendant WDOC. 1.3 On January 1, 2011 neither the AAG Vingo nor defendant appeared for depositions. 1.4 On January 17, 2011 Mr. Silva sent AAG Vingo a letter demanding participation in a telephonic discovery conference. A 1.5 AAG Vingo nor defendant responded to Mr. Si1va's request for the discovery 1 SF-00923 PRR-2011-00450 conference. On February 25, 201 Mr. Silva filed Plaintiffs Motion for Contempt Findings and Sanctions. - Conclusions of Law 2.1 CR 69(b) provides: In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may examine any person, including the judgment debtor, inthe manner provided in these rules for taking depositions or in the manner provided by RCW 6.32. Consequently, depositions are an appropriate avenue for a judgment creditor to obtain information concerning the judgment and as an aid for _proper executionof a judgment. . 2.2 CR 26(i) provides in part: If the court finds that counsel for any party, upon whom a motion or objection in respect to matters covered by such rules has been served, has willfully refusedubr failed to confer in good faith, the court may apply the sanctions provided nfrsadi- I mia/ under rule 37(b). A 7% 2.3 CR 43(f)(3) provides for a finding of contempt in the case Where a party refuses to attend and testify at a deposition. Order . Based upon the law of the case and after hearing argument of counsel the court hereby onosasi 3.1 Defendant and the AAG are required to participate in a deposition as scheduled fps/ 20/f 999 3.2 The court reserves its ruling on the contempt finding sanctions, and costs. 2 ji, 'dayof ff ,zorr ENDER1 couar is sronsa 1 SF-00924 i PRR-2011-00450 o. I our am . Mk OFFICE Gorrerf IVED our -3 zuri PAT SWARTOS, Clerk ofthe Superior Court of Mason Co. Wash, STATE OF WASHINGTON MASON COUNTY SUPERIOR COURT G. SILVA, t/ NO. 07-2-00922-5 Plaintiff, 08-2-00140-l v. I (PROPOSED) ORDER GRANTIN G, IN PART, MOTION FOR WASHINGTON I REVISION OF COMMISSIONERS DEPARTMENT Ol? CORRECTIONS, ORDER Defendants. These matters came before the Court on September l9, 2011, on Defendant's Motion for Revision of Court Commissioner's Order Under LCR 59. The Court consolidated the two cases for purposes of the Defendant's Motion, and heard argument nom Matthew Silva, and Tim Lang, Senior Assistant Attorney General, counsel for the Department of Corrections. The Court also reviewed and considered the Defendant's Motion, Mr. Silva's Motion to Strike Motion for Revision, and Dei`endant's Response to Motion to Strike. NOW THEREFORE, being fully advised, the Court ORDERS as follows: l. Plaintiffs Motion to Strike Motion for Revision is denied. The Defendant fled its Motion for Revision 10 days of the Commissionefs August l, 2011, Order. Additionally, the Court has authority under LCR 59(7) to revise any order or judgment related to the issues raised by the Defendants Motion. 2. . :The Commissioner did not err in ruling that CR 69(b) applies and authorizes the use of depositions to obtain testimony regarding Whether DOC has paid the judgments entered in these two matters. Although DOC maintains the judgments have been fully satistied, no . oannro?ro INPART 1 #Homer GHNISRAL naFENooi~rr's Morton Foa REVISION 1 onosn- $900925 O1YmpiftWA 9aso+o116 PRR-2011-00450 1 satisfaction ofjudgent has been filed and the Court would not permit a judgment debtor to 2 unilaterally decide Whether it has satisfied a judgment for purposes of CR 69, However, 3 although the Court has determined CR 69(b) applies, the scope of any depositions that occur (11 ffetfla of vw-s. aw 1-2. at 4 under on _69Ce> shall be limited to Doc may 5 seek a protective order if it believes Plaintiff intends to seek inforrnation beyond that relevant ju M,/asa we - afarThe Commissionefs August 1, 2011, Order awarding costs for "paralegal 8 services" is vacated in light offilnsher Constr. Co. v. Kent School Dist No. 415, 79' Wn. App. 9 841, 845, 917 P.2d 1086 (1995), and in light of Plaintiffs statement that the paralegal services 10 for which he sought reimbursement were in fact not for legal' research, but for printing, 11 copying, and mailing reported cases he requested. The issue of costs is remanded to the 12 Commissioner for consideration of 'Whether any of the costs claimed by Plaintiff should be 13 awarded considering Absher. i A 14 4. The Commissioner's August 1, 2011, Order sanctioning Defendantfs counsel is 15 vacated. The Court finds insuihcient basis to support the $200 sanction. There' is no Ending 16 of contempt in these matters, and the discovery rules to not authorize sanctions other than the 17 award of reimbursable costs, which the $200 sanction was not. 1 18 DATED this 3" day of october, 2011. 19 . CL The Honorable Toni A. Sheldon 20 Mason County Superior Court Judge Submitted by: . 21 ROBERT M. MCKENNA . I ener - &1r4?; 11 23 TIM LANG, Wssa 314 24 25 26 Sr. Assistant Attorney eneral TE Counsel the-Department of Corrections 1 SILVA 7 .la ff Pl fii, Pro Se DA ORDER GRANTING IN PART 2 AUOPNEY Mor1oN ron Revision or SF-00926 Olympia, WA 9350443116 PRR-2011-00450 We 0 THE COURT OF APPEALS OF THE STATE OF WASHINGTON MATTHEW G. SILVA, I Appellant, . WDOC et al, Respondent. DIVISION II 140.40161-4-It ci E5 --I (3170 DISMISSING APPEA 3 - TQ ?`?flttTHIS MATTER came on for bearing of the elerk's motion to dismiss on the ground of abandonment, no tiling fee or order of indigency having been submitted. Appellant has not responded to the Clerk's motion, and it appears that the appeal was taken for delay and should be dismissed for want of prosecution. RAP Accordingly, it is ORDERED that this appeal is dismissed. 774 DATED this O29 day of ,2o1o. Q52 COURT COMMISSIONER Matthew G. Silva Andrea Vingo 957l76 Attorney General-Corrections Div. WA State Penitentiary PO Box 401 16 1313 13th Ave Olympia, WA, 98504-0116 - Walla Walla, WA, 99362 SF-00927 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II MATTHEW o. s1LvA, Ne. 40161-441 Appellant, - v. MANDATE DEPARTMENT OF CORRECTIONS, Mason County Cause No. Res ondent_ 08-2-00140-1 The State of Washington to: The Superior Court ofthe State of Washington in and for Mason County This is to certify that the Court of Appeals ofthe State of Washington, Division entered a ruling dismissing appeal in the above entitled case on January 29, 2010. This ruling became the tinal decision terminating review of this court on November 30, 2010. Accordingly this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the determination of that court321, - il . -p "-Jr" ajftsq); ga-gqt a r' ii* . . _hires i. - 'v Matthew G. Silva 957176 Stafford Cr Corr Center 191 Constantine Way Aberdeen, WA, 98520 IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court at Tacoma, this gg Ziaay of if, 2010. Clerk of he Court of ppeals, State of Washington, iv. II Andrea Vingo Attorney Genera1~Corrections Div PO Box 40116 Olympia, WA, 98504-0116 SF-00928 PRR-2011-00450 THE SUPREME COURT OF WASHINGTON I f' nrt, wg LUN NO. 84668-5 filj ft? QW iQ (fl f-<4 "Yr . I-MATTHEW SILVA, . Petitioner, 0 I IGFIF: I v, NO. 9_3 I =Ef3 DEPARTMENT OF CORRECTIONS, ct al., 15 13:2 Respondents. DJ Tv C3 -- tif; .cg V.. CD 1753 Department I ofthe Court, composed of Chief Justice Madsen and Justices C. Johnson, Sanders. Owens and J. ohnson, considered at its November 30, 2010, Motion Calendar, whether review should be granted pursuant to RAP and unanimously agreed that the following order be entered, 5q"its IT IS ORDERED: . That the Petition for Review is denied and the Petitioner's motion to remand is denied. DATED at Olympia, Washington this 5 59? day ofNove1nber, 2010. I For the Court - CHIEF JUSTI SF-00929 PRR-2011-00450 I I I I I I 0 fam 5 Pi?rce CEQUNLYV mark i EN THE SUPERIOR COURT OF WASHINGTON, COUNTY OF PIERCE a a s%#ws1 Petitioner, Cause No: ORDER 0 Respondent. I -P 63f\' lf\Q, SF aww ~y ?ya|@.sumo HI KMA Qin; Attorney for Petitioner s. or Res SF 00930 PRR 2011 00450 I 3 Pl XN COUNTY CLERJCS OFFTCE . "n AM. 001122011 PM A PIERCE couvnf san - sTo'ct<, ospurv Judge John R. Hickman Dept. 22 Hearing: Oct. 12, 2011 9:00 a.m. Telephonic FILED 31%. in ear-an entiatx 001' 1 'Ei 2311 STATE or WASHINGTON A PIERCE COUNTY SUPERIOR COURT Pierce eaten id aft 3 SHAWN D. FRANCIS, No. 10-2-l0630~3 Pinaaff, ORDER AND Finninos RE: PENALTIES . DEPARTMENT OP CORRECTIONS, a subdivision of the State of Washington, Defendant. I This matter came before the Court on September 16, 2011, on the Court's order to determine penalties. The Court heard argument from Shawn Francis, Plaintiff, and Andrea Vingo, Assistant Attorney General, counsel for the Department of Corrections. The Court also reviewed and considered the following: 1) Plaintiff' Motion for Summary Judgment, including exhibits; 2) Defendant's Response to Summary Judgment, including exhibits; 3) Plaintiff' Reply to Motion for Summary Judgment, including exhibits; 4) Defenda.nt's Response to Penalties. NOW THEREFORE, being fully advised, the Court ORDERS as follows: 1. On July 15, 2011, the Court found that the Defendant had violated the Public Records Act (PRA) and entered an order reflecting this decision. A 2. The Court finds that RCW 42.56.565 (as amended by Laws of 2011, ch. 300, l, 2) applies in this ease because the judgment was not yet fnal as of July 25, 2011, and the Plaintiff is currently an inmate and was an inmate at the time of his PRA request. The Court RE: 1 ATTORNEY GENERAL OF WASHINGTON No.1o-2-10630-3 PRR-201 WA 98504-0116 1 (360) sas-14-45 further finds that the Plaintiff" has the burden of persuasion to show that the Department acted in bad faith in order to receive penalties. 3. The Court finds that the Defendant acted in "bad faith" for purposes of RCW 42.56.565 (as amended by Laws of 2011, ch. 300, 1, 2). The Court determined bad faith by applying the sixteen Yousoufian mitigating and aggravating factors to the facts of this case. Yozfsou/Gan v. Ojjice offton Sims, 1683 Wn.2d 444,467-8, 229 P.3d 735, (2010) (Yousoujicm V). pg 4. The Court awards penalties to the Plaintiff in the amount of $5 per day for 353 days of the penalty period, and $10 per day for 273 days of the penalty period, for total penalties of $4,495.00 This amount is to be paid into the Plaintiff' inmate account. 5. The Court is awarding no costs to the Plaintiff. DATED this day of October, 2011. DEP . ,l 3 'uiqii Piero nty Superior Court Jud Ubi 3- 2' 'Ji 'Submitted by: 7 A iigucica/ Pierce ow .. .. .. . 0 fr' AVING SB #26183 Ass`stant Atto Gene DATE Co sel fort Depart ent of Corrections _,iff 1% - SHAWN 'tif i Plaintiff, Pro Se -D *ll A ORDER AND FINDINGS RE: PENALTIES 1 2 NO. 10-2-10630-3 $900932 PRR-2011-00450 Olympia; WA 98504-0116 (seo) 586-1445 act is izout 1 Attoamar . fret; A A iN THE SUPERIOR COURT OIF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF Ronnie L. Hicks No 08l2-05190-9 Plaintiff i ORDER oervvluc v. TO SHOW CAUSE AND Department of Corrections, et. al. DISCLOSURE I Defendants 1 Reduced to the bare essentials, Plaintiffs Motion to Show Cause and Compel Disclosure reveals: 1) Plaintiff Hicks is an inmate in the Custody ofthe Vliashington State Department of Corrections. He was involved in the Sex Offender Treatment Program (SCTP). 2) On June 20, 2007, Plaintiff signed a form entitled apparently in response tola decision to terminate him from the program. l-le requested a termination hearinfg to be held prior to July 31, 2007. (See Plaintiffs First Amended Complaint, Eb>8 olympia, WA 98504-0316 1 - (360) 58644115 i SF-00946 PRR 2011 00450 3. The Clerk 'of the Court is instructed to send utleertitied copies of this Ord el' to Plaintiff and counsel -for Defendant. DATED this day of 2010. 5,4 J- tis Thurston Coun Court Judge Submitted by: - ROBERT ,Mo A Attomey /Eiga ., . or 'v w' 61 3 orney Gef eral ORDER GBANTNG 2 . ATTORNEY QE TO [1=1zot>o NO. 08-9:02273-8 o1ympsa,wA 9850443116 (360) 5864445 SF-00947 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BOBBY L. BINPORD, .. Appellant, V. DEPARTMENT OF CORRECTIONS, et al, Respondents. DTVISION II N01 405057-ll Ronmo ntsivnssino APPEAL - THIS MATTER canie on for hearing ofthe cleflds motion to dismiss on the giound of abandonment, no tiling fee or order of indigency having _been Appellant has not responded to the Clerl<'s motion, and it appears that the appeal was taken for delay and should be dismissed for want of prosecution. RAP Accordingly, it is ORDERED that this appeal is dismissed. DATED this clay of Andrea Vingo Attorney Div. PO Box 401 6 oiy11?p1a,WA, 98504-oi is count oomivnssionsn Bobby L. Binford #630941 Washington State Penitentiary l3l3 N. l3tli Avenue Wana Walla, WA, 99352 SF-00948 PRR-2011-00450 1 if Nliiv. $39 IN THE COURT OF APPEALS TE STATE OF DIVISION II nonsv L. Bmrono, No. 40506-7-u Appellant, 5 _lg Ii E3 v. 1vi_/whats 5- FE G7 OF CORRECTIONS, et al, Thurston County Cetuse Respondents. 08-2-02273-8 i 5 The State of Washington to: The Superior Court of the State of Washingt get in and for Thurston County it _.This is to certify that the Court of Appeals ofthe State of Washington, Division Il, entered a Ruling Terminating Review in the above entitled case on July 1, 2010. This ruling -4 CI 3,095 mc: 0% 2-3 QESQ 2; became the final decision terminating review of this court on August 3, 2010. Accordingly, this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the determination of that court. still lN Tssruvionv WHEREOF, 1 have hereunto set my hand and the seal of said Comt at Tacoma, this lg day oi:`An t, 2010 Clerk of the Court of -p s, 4* State ofWashJr1g"ton Div. II 1-T: _ll 9; - .- '12la.: \f - 1 wry'tl-.11. 1.1 .rftitir - -1123.--11. - -, - .vat v-lf' 5 -gm# rv .Th . 'L-i 3-7 . .- 21751, . 49 1 Andrea Vingo Bobby L. Binford Attorney General-Corrections Div. #630941 PO Box 40116 Washington State Penitentiary Olympia, WA, 98504-0116 1313 N. 13th Avenue Walla Walla, WA, 99362 SF-00949 PRR-2011-00450 rr? is THE SUPREME COURT OF WASHINGTON BOBBY LATHEN BINFORD, 3 NO- 34331-3 Appellant, 3 V. 3 No. 40506-7-ll DEPARTMENT Respondents. 3 Department I ofthe Court, composed of Chief Justice Madsen and Justices C. Johnson, Sanders, Owens and . ohnson, considered this matter at its June l, 2010, Motion Calendar and unanimously agreed that the following order be entered. ITIS ORDERED: That the Appellanfs Motion for Expenditure of Public Funds is denied. DATED at Olympia, Washington this 53' day of June, 2010. For the Court If CHIEF JUSTICE 5"E5`l 2-33 PRR-2011-00450 . UEXPEDITE . UNO Hearing Set AUG 2 2010 IZ Hearing is Set Date: August 20, 2010 - Time: 2:00pm - - Judge Wm. Thomas McPhee THUHSTON COUN LEE A STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT SI-IAWND. OREENEALC-E, NO. os-2-02706-3 Plaintiff, ORDER ORANTTNO DEFENDANTS MOTION EOR SUMMARY v. A JUDGMENT OFFICE OF ATTORNEY GENERAL, (PROPOSED) A subdivision of the State of Washington, - Defendant. The Court, having reviewed Defeudant's Motion for Suutaary Judgment and the records and tiles herein, and the materials submitted in support and _in opposition to Defendaufs Motion for Summary Judgment; does hereby End and ORDER: 1. Defendantfs Motion for Summary Judgment is GRANTED. 2. Plaintiffs Complaint is DISMISSED with prejudice. QRDER 1 ATTORNEY GENERAL OF WASHINGTON MOTION FOR SUMMARY JUDGMENT . NO. 08-2-02706-3 Olympia., WA (360) 536-1445 SF-00951 PRR-2011-00450 3. The Clerk ofthe Court is instructed tosend copies of this Order to the Plaintiff and counsel for the Defendant. DATED this 2 day ofAugus1:, 2010. HO ORABLE . CPI-IEE Superior Court Judge Presented By: ROBERT M. MCKENNA Attorney General . f10<. if A CHRISTINA BEUSCH, WSBA #18226 Deputy Attorney General 2 Monon FOR SUMMARY JUDGMENT P0 401.6 No. os-2-02706-3 Olympia, "ff 915504.01145 (360) 5864445 SF-00952 PRR-2011-00450 Honorable Themes McPhee 1 1% 2010 Hearing date: 9/10/COURT OF THE STATE OF WASHINGTON COUNTY OF THURSTON SHAWN D. GREENHALGH, NO. Plainfifi V, ORDER AMOTION FOR RECONSIDERATION OFFICE OF THE ATTORNEY GENERAL, - Defendarns. THIS MATTER having come before the undersigned Judge of the above-entitled Court upon motion of Plaintiff Greenhalgh for reconsideration ofthe Court's order of August 20, 2010 granting of summary judgment to Defendant in this 1natter,` and the Court having reviewed the records and files herein, including the presentations of counsel for both parties, now, therefore, EEILEEY ORDERED that E755 5 77 ij? QQ "iogjg 5 0 faf/ I) noNE TN OPEN counr day of 2010. perior Courtlf dge Oeercrs ov MOTION Fon RECONSIDERATION - 1 CHARLES 3.1; BATON HI 1525 4TH AVENUE SUITE 940 SEATTLE, 98101-2509 Tan (206)623-6619 Fm {206)443-0573 SF-00953 0 PRR-2011-00450 1 resente by: 4 9 . 3 /1441* 4 ar}es S. Hamilton, 5648 Aifomey for Plaintiff 5 I 6 9 7 3 Copy received by: 9 3 10 Efosefq, MM /92' Senior Cour1se1,Atto1*ney Ger1eral's Office ORDER REF: MOTION FOR RECONSIDERATION - 2 - SF-00954 PRR-2011-00450 LAW Oman on . CHARLES S. I-IAMIIJION 1525 411+ AVENUE Sum; 940 SEA 98101 2509 ASHINGTUN - TEL: (206)623-6619 FAX: (206)448-0573 STATE OF WASHINGTON . PIERCE COUNTY SUPERIOR COURT SHAWN D. GREENHALGH, i NO. 10-2-153 86-7 Plaintiff, STIPULATION FOR DISMISSAL V. DEPARTMENT or CORRECTIONS, Defendant. A IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff SHAWN D. GREENHALGH, and the Defendant, by and through its attorneys, ROBERT M: MCKENNA, Attorney General, and ANDREA VINGO, Assistant Attorney General, that the parties to this action seek- dismissal of Plaintiff' Complaint with prejudice pursnant to the attached letter from Plaintiff dated May 201 1. Neither party shall seek costs or attorney fees. SHAWN D. GRE GH DATE Plaintiff, . - A Vmoo, #26183 DA Assis tAtto nf Gene l' Attorney for STIPULATION FOR DISMISSAL 1 2.0 G11 NO: P.o. Box 40116 olympia, WA 98504-0116 (seo) 586>>-1445 SF-00955 PRR-2011-00450 -evLili of tr: lid if i il Ett?d' i sfrarn or WASHINGTON PIERCE COUNTY SUPERIOR COURT SHAWN D. GREENHALGI-I, NO. 10-2-l5386-7 Plaintiff, ORDER GRANTING DISMISSAL V. DEPARTMENT OF CORRECTIONS, Defendant. i THIS MATTER having come before the undersigned judge ofthe above-entitled Court and based upon the attached Stipulation for Dismissal ofthe parties, IT IS HEREBY ORDERED that Plaintiffs claims against the Defendant in the above referenced cause of action are hereby dismissed with prejudice and the Court will not retain jurisdiction over this matter. DATED this Vi day of fl/la ',20ll. BRIAN TOLIEFSQM Honorable Brian Tollefson I Judge_ of the Superior Court - Presented By: Rossa Attom . - grit' Assi Attorney neral 1 QRDER GRANTIJSIG DISMSSAL 1 ATTORNEY GENERAL OF WASHINGTON ti I - Olympia, WA 98504-0116 (iso) sas-1445 SF-00956 PRR-2011-00450 ia/ IN THE SUPERIOR COURT OF THE STATE ou? WASHINGTON IN AND FORTHE COUNTY OF SNOI-IOIVIISIDENYING TO eeove Dep't of Corrections (DOC) - SERVICE- AMEN Defendant. I This matter having come before the court on the Plaintiffs motion above-referenced, and the eoLu*t_11eving reviewed the motion and the records and files ofthe ease 'to date, and being of fhe opinion that the requirements of RCW 428.100 have not ben met; now; I thereforehereby oeoekeo and DECREED me me Pxmfiew motion he,? and me 82111110 is hereby, DENIED. I I I I Datedthie 25th day of April 2011. 5 I fr* 4 A Kenneth L. Judge SF-00957 PRR-2011 00450 -'Gite' wh: 4 count, IGUECZY t't1'2= 55 erm' r1.- e_oUnJ, BY . IN THB SUPERIOR or THE STATE Os WASHINGTON IN foto ron THE COUNTY or TI-IURSTON SHAWN GRQEENHALGH, NO. 08~2~01203~1 - vs. ORDER PARTIAL DEPARTMENTOF CORLRECTIONS, MOTION FOR SUMMARY JUDGMENT Defendant. 1 EX more TI-IIS MATTER coming before this Court on the motions ofP1a:intifE and Defendant, and ail parties having fully briefed this matter including the following pieadings: - Defendanfs Motion for Summary Judgment with Declarations; - P1aintiff's Response ann Motion for Surnrnent Judgment with Declarations; and Defencianfs Response and'Rep1y. P1a.intiff's Reply with Declaration. The Court, having considered the files and records hereing' and the Court being in eil :cnaters full advised, does hereby make the following: OF FACT: The Department contracted with the Corrections Corporation to provide housing for Washington prisoners. The contract piovides Department access to CCA participate in eduoanonal and Vocational training. The contract requires to compile and I I KaI1rs`Lu.w Firm, PS. ORDER ON MOTION F011 5215 sauna Ave Nw, suse 2 smut,-WA saw: SUMMARY JUDGMENT - 1 Ph; obs; 264-0643 Fax: (zoo zawwss SF-00958 PRR-2011-00450 maintain written materials about the programs for Washington inmates on behaifof the Washington of Corrections. 0 - 0 2. That Plaintiftrnade his Public Records Act request to the Department for the most current lists of vocational and educational programs oftered to Washington prisoners housed outside Washington on August 20, 0007. Washington Department of Corrections inmates then being housed outside of Washington were housed under contract in facilities operated by CCA. 3. On September 18, 2007, the Department informed Mt. Gfcenhalgh that the Departrnent did not have any responsive documents because the documents were created and maintained by a private corporation. 4. On September 12, 2008, the Deparnnent provided a list of availabie programs at the Minnesota CCA facility that was created by facility stan? after the records request based on e~rnai1 cornnlunications between the Department and facility. 5. On October 1, 2008, tlie Department provided Plaintii with the CCA website addresses for the current isnformation and, ultimately, printed and electronically forwarded the actual website pages to Plaintiff 6. The Department had in its possession, when it received M. Greenhalgws August 15, 2007 request, documents provided tirorn the Prairie Correctional Facility titled "Warden" Reports." The report contained information on vocational and educational programs at one of the out~cf-state facilities. The July 2007 Warden's Report was responsive to the otiginai records request. lt was disclosed to Mr. Greenhalgh at February 26, 2010. 7. The Court Ends that the Department would be interested in and would monitor programming of Washington prisoners in CCA's custody. The contract between the two made specific reference and identiied vocational and educational programs as part of the program expectations. The Court ptesuznes that the Department would be interested in, concerned with, and 1 responsible for what was being rnade ava1lable to Washington inznates. . . 1 Kahrs Law sam, ns. ORDER ON MOTICN FUR 5215 Ballard Ave. NW, Suite 2 Seattle, WA 98107 SUMMARY JUDGMENT 2 SF-00959 PRR-2011-00450 1 i CONCLUSIONS OF LAW: 1. By failing to provide Mr. Greenhalgh a copy ofthe July, 2007, Warden Report from Prairie Correctional Facility, the Department violated the Public Records Act and is subject, at a minimum, for penalties from the date ofthe original request, August 20, 2007, to the date of disclosure ofthe Warderfs Report, February 26, 12010, This is aperiod of 921 -calendar days; 2. The Depamnetet was obligated to request the infomation sought by Mr. Greenhalgh from its CCA contractor. 1 3. The Department shall request from CCA all documents relevant to the tequestby Mr. Greenhalgh. 4. Penalties for the failure oftlie Department to provide documents in its possession and for its failure to request documents from CCA shall be subsequently determined at trial. 5. Mr. Greenltalgh shall be awarded all reasonable attorney fees and costs, to be cietenniuecl subsequent to the iinal re lon of this case at the trial level. DATED this gay of December, 2010. onorable Pau a Casey Presented by: Approved as to form: KAI-IRS LAW FIRM, THE ATTORNEY 5* NE OFFICE . M. I El, ffilsy neral 1 -i'e CHAEL C. KAI-IRS, WSBA #27085 =i?3"V A SBA #2 183 Counsel for Plaintiff Counsel for ndant Kenra Law sms, as. ORDER ON MOTION FOR S215 Ballard Ave. NW, Suiteil Seattle, WA 9310? SUMMARY JUDGMENT - 3 Pm (206) 264-0643 me (206) 23v~s55s SF-00960 PRR-2011-00450 IN THE SUPERIOR COURT OF STATE OF IN AND FOR THE COUNTYOF THURSTON SHAWN i A No. 08-2-01205-l - Piaiafiff, i RELEASE AND v. A SETTLEMENT . AGREEMENT DEPARTMENT OE CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based' upon consideration and mutual promises, the Plaintiff, SHAWN GREENHALGH, by and through his attorney, MICHAEL KAHRS, and the Defendant, DEPARTMENT OF CORRECTIONS, by and through their attorneys, ROE MCKENNA, Attorney General, and ANDREA VINGO, Assistant Attorney General, agree to the following: - I. In consideration of the following provisions of the Release and Settlement Agreement, SHAWN GREENTLALGH, their heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and RELEASE AND SETTLEMENT 1 US IC I 100 olympia, WA 98504-Ol 16 (360) 586-1445 F-00961 PRR-2011-00450 future claims, damages and causes of action of `any nature arising out of public disclosure request as described in Plaintiff Complaint in thisaction, referenced bythe Defendant as PDU-832, made pursuant to* RCW 42.56 et seq., and which are the source of their 'claims against the Defendant. - I 2. This Agreement is the fnal, conclusive and' complete release of all known, as Well as all unlmovvn and unanticipated damages arising out of the incidents set forth in Plaintiffs Complaint in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 1 4. The State shall pay directly-to MICHAEL KAI-TRS, as the designated payee of Plaintiff SHAWN GREENHALGH, the sum of Thirty-Five Thousand Dollars and zero cents as full-and complete settlement of the referenced claim. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Thirty-Five Thousand Dollars and zero cents will be payable by check or Warrant to MICHAEL KAHRS, as the designated payee for Plaintiff SHAWN GREENHALGH. Plaintiff represents to Defendant that MICHAEL KAHRS has been authorized by his to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. 5. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 6. This Agreement constitutes the Enal Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 7. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. RELEASE AND SETTLEMENT 2 GENERAL OF WASHINGTON ti Di i AGREEMENT (No. 08-2-01203-I) Olympia, WA 98504-0116 gzso) 586-i445 SF-00962 PRR-2011-00450 8. The parties jointly agree that dismissal with prejudice of this claim is an appropriate resolution in consideration for paymentof the sum of Thirty-Five Thousand Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. 9. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the claim concluded by this settlement agreement. lO. The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, Wholly understood and voluntarily accepted for the purpose of making a full and fmal compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendant. SHAWN GREENHALGH #70 8 DATE Plaintiff I 1 AEL KAHRS, 2.7085 DATE Attorney for Pl tiff KAT . 1-1 tr DAT Risk Depan/ A VIN . WSBA #26183 DATE Assistant Att rney I eneral Attorney fo Defen ant RELEASE AND SETTLEMENT 3 AGREEMENT (NO. os-2~oi2o3-1) 31125, WA 98504-0116 (seo) 586-?445 SF-00963 PRR-2011-00450 I-itil? I it 'enarialtiwfi Court: UULD i 7 J- L/tggjih . . 'fra is.. 7,-2 it Fi* IVPFI5 _su` 1 i 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND POR THE COUNTY OP THU RSTON SHAWN GREENHALGH, No. os-2-01203-1 Piaimini STIPULATED oansn V. or oisivnssat DEPARTMENT or coRREcT1oNs, I I Defendant. THIS MATTER, having come before this Court on' thestipulated motion of Plaintiff, Shawn Greenhalgla, and the Defendant, Department of Corrections, both parties herein advising the Court that all matters in controversy arising out of public disclosure request referenced by the Defendant as PDU-832, made pursuant to RCW 42.56 et seq., and which are the source of their claims against the Defendant as described in Plaintiffs Complaint, have been fully settled and compromised, and the court having been advised in the premises," now, therefore, IT IS HEREBY ORDERED, that Plaintiff Shawn Greenhalgh' claim based upon' the public disclosure request as described in Plaintiff's Complaint in this action, 1 STIPULATED ORDER OF DISMISSAL I Kah,-S Law Fgrmi p_5_ 5225 Ballard Ave. seams, WA 93107 sh; (206) 264-0643 Fax; (206) mkahrs@kahrslawfirm. com SF-00964 PRR-2011-00450 referenced by the Defendant as PDU-832, is hereby dismissed with prejudice and Without costs or attorney fees to either party. A DATED this day of 2010. 5. WPG .. i ?`iw_J -eu' QM, Judge Presented by: WASHINGTON ATTORNEY GENERALRS OFFICE Robert M. rii General //In /pf' iw' A vmoo SBA- 26103 DAT Attorney for De ndant LAW Ps. KAHRS, WSBA 27005 DATE Anorney for Plaintiff STIPULATED ORDER OF DISMISSAL 2 6 Kahrs Law Firm, p_S, 5215 Ballard Ave. Nw, Searle, WA 98107 Ph: (206) 264-0643 Fax: (206) 237-8555 mkahrs@kahrslawfirm.com SF-00965 PRR-2011-00450 .- . .. lcenify to be true under penalty of DGFIUVY i . 3 i5 - - Underthe laws ofthe State of Washington that ftitai .1 i - I I _d virtues we is at an dill..- . li?llkg I.. Signed |ll "?fM|in|l Ne if' SUPERIOR COURT OF WASHINGTON IN AND FOR THURSTON COUNTY REAR M, I Re I 5 SHAWN D. OREENI-IALOH, fm/terrain Plaintiff, VS- OPINION DEPARTMENT OF CORRECTIONS, A I SUBDIVISION OF THE STATE OF WASHINGTON I Defendant. This case is before the court for a hearing on Show cause pursuant to RCW 42.5 6.550. Each side tiled a motion for summary judgment, but as explained to the parties before the hearing began, this matter is proceeding pursuant to theshow cause process created in ?.550. The Summary judgment standards are not applied here. In this case, three issues are decided. First, plaintiff contends that the department violated the Public Records Act by failing to provide at the outset an estimate ofthe time required to respond conipletely to plaintiffs request. I conclude that the department did not violate the PRA in this respect. I find that on February 6, 2008, Within five business days of receipt of plaintiffs request, the department'S public disclosure specialist, Ms. Shave, responded by stating her interpretation of the request and by notifying plaintiff that, "ffhis request will be handled in installments. Once an SUPERIOR COURT 2000 Lakeridge Dr. S.W. WA 98502 Court Opinion 1 A (360) 7096560 360 7544060 PRR-2011-00450 installment is paid for, the next installment will be gathered." She also notified plaintiff that she had completed the first installment of her search and would mail it to plaintiff upon receipt of payment. Plaintiff is correct that the departments response on February 6, 2008, did not estimate the time to complete all installments responsive to plaintiffs request. I find that plaintiff tendered payment for the first installment, which was received by the department on March 5, 2008. Within five business days, the department acknowledged receipt of the check, mailed the first installment CD as directed by plaintiff, and mailed to plaintiff a letter that concluded, "An additional 30 business' days are needed for your 2nd installment of records. You can expect a response on or before April 23, 2008." I find this pattern was repeated consistently for each installment, except the seventh. I find the following dates and events occurred: The PRA request Was received by the department on 1/3 0/ 08. Installment: 2/6/08 Initial response; installment ready. 3/5/08 Payment received. 3/ 12/08 Payment acknowledged; next ready in 30 business days, by 4/23/08. 2"d Installment: I 4/23/08 Letter to plaintiff; 2"d installment ready. I 5/6-7/08 Payment received. Payment acknowledged; next ready in 30 business days, by 6/26/08. 3'd Installment: 6/26/08 Letter to plaintiff; 3rd installment ready. 7/18/08 Payment received. 7/24/08 Payment acknowledged; next ready in 30 business days, by 9/5/08. 4th Installment: 9/5/08 Letter to plaintiff; 4th installment ready. 10/17/08 Payment received.- l0/2l/08 Payment acknowledged; next ready in 30 business days, by 12/5/08. Sm Installment: l2/ 5/ 08 Letter to plaintiff; installment ready. 12/23/08 Payment received. . 12/30/08 Payment acknowledged; next ready in 30 business days, by 2/ 12/09. TI-IURSTON COUNTY SUPERIOR COURT 2000 Lakeridge Dr. S.W. Olympia, WA 98502 ourtsOp1n1on 2 (360}709_5560 8900967 Fax: (360)754-4060 PRR-2011-00450 6th Installment: 1/23/09 Letter to plaintiff; ef" inna11menrr@ady_ 9/2/09 Payment received. 9/3/09 Substitute's letter: payment acknowledged, request closed. 9/29/09 Shave's letter: mistake, not closed, next ready in 30 business days, by ll/12/09. ll/9/09 Shave's letter: 25 additional business days requested, by 12/24/09 7th Installment: 12/22/09 Letter to plaintiff; installment ready. 1/29/10 Payment received; request closed. Plaintiffs contention that RCW 42.56.520 requires, within five business days, an estimate of time for completing all installment responses is not persuasive for two reasons. First, plaintiff did not object to the schedule for production announced by the department consistently throughout its responses. As noted inthe findings above, the first response notified plaintiff that, "Once one installment is paid f`or, the next installment will be gathered." When the first installment was paid, the department timely notified plaintiff that the next installment would be ready within 30 working days, and this pattern was followed throughout. I conclude that this was sufficient notice to . plaintiff of the response plan undertaken by the department. A - I find that at no time did plaintiff object to installment production or to the 30 business day' interval. I conclude that RCW 42.56.520 does not create a self-executing violation ofthe PRA. Instead, ?.550(2) requires that a requester object to time estimates by motion in Superior Court. Plaintiff failed to seek the remedy provided in ?.550(2) until after production was completegi and the record here does not reveal even an informal objection or inquiry? The second reason plaintiffs contention is not persuasive is a matter of statutory interpretation. The language of the statute and the case law interpreting it must be applied here in a manner consistent with the language of the PRA as a whole, including the 2005 amendments. This I Plaintiff filed this lawsuit on May 7, 2009, while installment 6 was pending (102 days after it was ready; 120 days before it was paid). The Compiaint made no mention of a PRA violation based on this estimate of time claim; this claim was introduced in the First Amended Complaint filed June 21, 2010. 2 Plaintiff cannot contend he was unaware of or unabie to assert the objection required in The record in Greenhalg/1 v. Department, Court of Appeals No. 40144-4-II, notes that he filed a timeline objection in that case during July, 2008. Further, the record here shows that he was corresponding with Ms. Shave throughout the production process; he always had the opportunity to seek clarification about the depart1nent's plan for production but did not do so. THURSTON COUNTY SUPERIOR COURT 2000 Lakeridge Dr. S.W. - Olympia, WA 98502 Court Opinion 3 (360) 7096560 - Fax; (360) 7544050 - SF-00968 PRR-2011-00450 is so because those amendments changed the responsibilities and rights of an agency Where installment production is made by the agency. Before 2005, the language in ?.520 was unequivocal, and the case law interpreting it, Violante v. King County ire District No. 20, 114 Wn.App. 565 (2002), was similarly clear. However, the 2005 amendments created an ambiguity in what was previously unambiguous language. In addition to requiring installment production of public records in some instances, the lbegislature amended ?.l20 to provide that an agency .producing by installment had no obligation to produce subsequent installments until the current installment was claimed or reviewed by the requester. Section .120 also permits an agency to charge for producing installments as they are provided. Thus production of an installment may be delayed by a requester who chooses to delay or even forego receipt of that installment, with the effect that all subsequent installments will be delayed or eliminated. An agency electing to produce by installments cannot be required to anticipate these future choices of the requester at the time the request is first received. The rights granted to an agency in amended 120 contradict the obligation under ?.520, and thus create an ambiguity. The ambiguity is resolved by interpreting contradictory provisions in a manner to give each provision meaning. As amended, the PRA when read as a Whole, requires an agency to reasonably estimate the time necessary to produce each installment and to communicate such estimate to the requester in a timely manner (within five business days) after the agency becomes obligated to produce subsequent installments under ?.l20. The department complied with this interpretation ofthe law. Application of ?.520 in the manner urged by plaintiff would subj ect an agency to such uncertainty that it could not know vvhat its obligation would be after the first delay' in the requester's payment of an installment. The interpretation urged by plaintiff would permit an absurd result. 'The second violation of the Public Records Act alleged by plaintiff is that the department failed to provide him public records in a reasonably prompt manner. Although characterized as a separate violation in his brief and oral argument, plaintiff essentially rehashes his arguments concerning time estimates for installment productions. Those arguments are no more persuasive here than above. In addition, plaintiff argues that the department violated the PRA by electing to THURSTON COUNTY SUPERIOR COURT 2000 Lakeridge Dr. S.W. - - olympia, WA 98502 Court Opinion 4 (360) _m9_5560 ru: (360) 754-4060 1 PRR-2011-00450 produce by installments. In essence, he argues that production would have occurred sooner but for the department's election to respond by installments. Plaintiff cites statutes, the AGO's nonbinding model rules, and two interdepartmental newsletters. None are directly in point. Neverthe1ess,I conclude that the department has the burden to establish that it acted reasonably in electing installment production. Reasonableness in this case is' judged through the prism of the PRA and the legion of appellate decisions emphasizing a public agency's responsibility to respond and thoroughly to each PRA request. Promptness andthoroughness are not synonyms; and each must be considered in judging the departments election to respond by installments. The evidence before me is not extensive; it consists of the-timeline established in the various declarations, the responses to discovery propounded by plaintiff, the public records themselves, and the declaration of Ms. Shave. All documents were reviewed and considered. The public records are not particularly helpful in addressing the time and effort necessary to produce them. They do, however, confirm Ms. Shave's contention that she examined them for redactions, a process she describes as requiring that each record be read and then crosschecked against the OMNI database. From a consideration of the evidence, I find: 0 Ms. Shave undertook an organized semch for responsive records Without delay. 0 The first installment of 95 pages was disclosed through Liberty, an electronic filing and delivery system. This essentially got low hanging fruit. The rapid result accomplished for this first installment does not equate to the subsequent searches; they involved fundamentally different tasks and timelines. 0 Thereafter, Ms. Shave had to make written inquiry to each institution, apparently for each affected inmate whose whereabouts during the entire period ofthe records request had not already been established. . 0 Ms. Shave' describes the process taking two to three months per installment. Nevertheless, she required more than 30 business days from payment of one installment to production of the THURSTON COUNTY SUPERIOR COURT 2000 Lakeridge Dr. S.98502 Court Opinion - 5 Fax: (360) 754-4060 SF-00970 PRR-2011-00450 next only once, the final installment. For that installment, there was a delay of 18 businessdays caused by the substitute's mistake, and then production in|58 business days. Except for the final installment, the evidence establishes that the search for each installment was started significantly before payment was received for the preceding installment? RCW 42.56.550 permits this fact~finding hearing to proceed entirely upon declarations and documentary evidence. In such case, many of the tools traditionally available to a trial court to judge the credibility of a witness are absent. Nevertheless, significant tools remain. I have perused the entire record to determine my view of the credibilityof Ms. Shave's declaration. Although an employee of the department, she has no direct pecuniary interest in the outcome of this case. I-Ier evidence is consistent with the documents created at the time of her search and the production of the installments. On its face, her declaration seems reasonable. I also note that plaintiff had the opportunity and did conduct discovery in this matter. Although the burden of proof rests with the i department, plaintiff certainly has the opportunity to offer any evidence relevant to the question of Ms. Shave's credibility. has offered no such evidence except speculative contentions concerning alternative Ways Ms. Shave might have approached the preparation of the departments responses. In sum, I find that Ms. Shave's declaration is credible. I Plaintiff' contention that the delay caused by the depa1tment's election to produce by installment was so unreasonable that the election itself was a violation of the PRA is not .supported by the facts. Between the date when the department received plaintiffs request and the date when the final installment was mailed to plaintiff 104 week elapsed. 55 of those weeks is time between notice sent to plaintiff that an installment was ready and the date payment for that installment was received from plaintiff. In conclusiorron this issue, I find that the department's decision to produce by installment was reasonable and not a violation ofthe PRA. 3 RCW 42.56.520 permits additional time to produce records beyond the initial estimate of the agency. For the final installment Ms. Shave timely communicated to plaintiff the need for a reasonable period of additional time. THURSTON COUNTY SUPERIOR COURT 2000 Lakeridge Dr. S.W. Courtss Opinion 6 Olympia, WA 98502 (360) 709-5560 nn; (36o)7s44o6o PRR-2011-00450 . The third violation of the Act alleged by plaintiff is that the department negligently closed the file after the sixth installment was delivered to plaintiff. It is undisputed that a substitute employee mistakenly closed the case and that Ms. Shave reopened it upon discovering the mistake 18 business days later. This mistake does not rise to the level of a violation of the Public Records Act. In his brief, plaintiff Writes Here, Defendant is liable to Plaintiff because they violated the PRA by forcing Plaintiff to bring this suit and then forcing him to propound formal discovery requests in order to prompt them to reopen and to fully respond to his PRA request. The record in this case establishes that plaintiff filed hislawsuit on May 7, 2009, four months before the mistaken notice of closure and at the approximate midpoint- of the seven-and~a-half month hiatus While the department was awaiting plaintiffs payment forthe sixth installment. Defendant has prevailed in this case. Counsel for defendant should prepare findings and conclusions and an order consistent with this opinion. Throughout I have attempted to identify my findings and conclusions, but separate numbered findings and conclusions should be prepared nonetheless. Either party may seek to append this opinion to the formal findings and conclusions if there is disagreement. - Date: March 23, 20ll Thomas Mc ,Judge THURSTON COUNTY SUPERXOR COURT 2000 Lakeridgc Dr. S.W. - - orympia, WA 98502 Court Opinion 7 (360) 7096560 Fax: (360) 754-4060 SF-00972 PRR-2011-00450 EXPEDITE Hearing is Set A APR 7 ZQH Date SUP Emo Time. THU BETTY HGQJOUHT . Judge Thomas McPhee ON COUNT ER . I .. I No Hearing Set I ULD STATE OF WASHINGTON THTURSTON COUNTY SUPERTOR COURT SHAWN CREENHALGH, No. 09-2-01104-1 5 Piaimtfh ORDER enimrme Dismissfu 1 . . DEPARTMENT OF CORRECTIONS, Defendant. THIS MATTER having corne before the undersigned judge ofthe above-entitled Court, and based upon the attached Stipulation for Dismissal ofthe parties, A IT IS HEREBY ORDERED that Plaintiffs claims against the Defendant inthe above- referenced cause of action are herebydismissed with prejudice and the Court will not retain jurisdiction over this matter. 4 DATED this day of 'rl 2011. . Ttiomas Moibh-se'_ Honorable Thomas McPhee Judge ofthe Superior Court Presented By: Rossut ,w . [4 1/"lyk ggfusia AVHQIGO, WDA #26133 Assis ant A orney Ge? ral DRDER 1. No, 09-2-01104-1 4$iiS??" A _O1ympia, WA 98504-0116 sF-00973 (360)585-1445 PRR-2011-00450 1 EXPEDITE APRQZ ll . 3 [7 et' Time: Judge Thomas McPhee - STATE OF WASHINGTON l_ A THURSTON COUNTY SUPERIOR COURT A SHAWN D. GREENI-IALGH, NO. 09-2_oi 104-l . Plaintiff, SHRULATION FOR DISMISSAL V. . DEPARTMENT QF .. Defendant. . 4 IT IS STIPULATED AW AGREED by and between Plaintiff SHAWN D. GREENHALGH, andthe Defendant, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and ANDREA VINGO, Assistant Attorney General, that the parties to this action seek dismissal of Plaintiffs Cornplaint 'with prejudice pursnant tO the attached letter from Plaintiff dated April 1, 2011. Neither party* shall seek costs Or attorney fees. I SHAWN D. DATE PlaintiffVINGOZNVS A #26183 DAT Assistant AttO1rney"Gen ral . - Attorney for Defendants STEULATION POR DISMISSAL 1 NO. O9-2-01104-l . Olympia., WA 98504-0116 SF-00974 PRR-2011-00450 rf-. (ft APR 2 1 2009 "sUF=`ss1os ooijai e&i1TYJ.ooULo A otaax I STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT DEREK E. GRONQUIST and NO. 06-2-0l869-6 BYRON A. MUSTARD, ORDER DEFENDANTS Plaintiffs, MOTION JUDGMENT v. a"/zW774Z/ DEPARTMENT OP CORRECTIONS, Defendant. THIS MATTER having come On for hearing on Defendant's Motion for Summary Judgment on December l2, 2008, Plaintiffs, Derek Gronquist and Byron Mustard, appearing pro se telephonically, and Defendant, appearing by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and PETER W. BERNEY, Assistant Attorney General, and the Court having considered and heard oral' argument, considered the memoranda of the parties, the Declaration of Risa Klemrne, and considered the records and files herein, and being fully advised; NOW, THEREFORE, it is hereby ORDERED that Defendant's Motion for Summary Judgment is hereby granted. This Court persuasive the reasoning of Sappenfield v. DOC, 127 Wn. App. 83 (2005), that ll incarcerated offenders, pursuant to DOC policy, are not allowed to inspect documents responsive to public records requests other than their own central and medical files. Plaintiffs, during oral argument, referred to other matters they wished to have heard prior to dismissal of this matter. . ORDER GRANTIN DEFENDANTS - - - -n OITCC IOHS IVISIOII MOTION FOR Sur/Irviaai JUDGMENT 3900975 PO BOX 40, ,6 O6-2-O 1 Olympia, WA 98504-Ol l6 (360) 586-1445 me as at aft/ /LQ/fa' Zgpg, ea -JRE.. A 1t"h"aW of"E or er any 7111. e%reathe1depi'EUR al - this Zls/fifty 2009. CHRIS WICKHAM HONORABLE CHRIS WICKHAM Superior Court Judge Presented by: ROBERT M. MCKENNA Attorney General PETER W. RNEY, BA #15719 Assistant Attorney Genet 1 Attorney for Defendant GRANTING 2 ATPOKNEY GENERAL QF WASHINGTON Mo'r1oN Fora set-arvtaatf .TUDGMENT NO. 06-2-01869-6 A SF-00976 Olympia, WA 985044116 PRR-2011-00450 (350) 585-1445 9 t=LiU .. 71_1 ;1$r j_1;atrfw 1 00010 SLEEP 1 4 5 I 6 7 STATE OF WASHINGTON 3 THURSTON COUNTY SUPERIOR COURT 9 DEREK E. GRONQUIST and NO. 06-2-0186945 BYRON A. MUSTARD, 10 ORDER DENYING Plaintiffs, MOTION TO SHOW CAUSE AND 11 DISMISSING WITH PREIUDICE v. I2 DEPARTMENT OP CORRECTIONS, I3 Defendant. 14 15 THIS MATTER having come on for hearing on Plaintiffs' Motion for Show Cause 16 on August 7, 2009, Plaintiffs, Derek Gronquist and Byron Mustard, appearing pro se 17 telephonically, and Defendant, appearing by and through its attorneys, ROBERT M. 18 MCKENNA, Attorney General, and PETER W. BERNEY, Assistant Attorney General, and 19 the Court having considered and heard oral argunient, considered the ineinoranda of the 20 parties, the Declaration of Risa Kleniine, and considered the records and files herein, and 21 being fully advised; NOW, THEREFORE, it is hereby 22 ORDERED that Plaintiffs' Motion to Show Cause is hereby denied. 23 It is further ORDERED that all remaining issues from Plaintiffs' Complaint not 24 previously dismissed by Judge Wickham are dismissed. 25 It is further ORDERED that issgdisipissed with prejudice Without award of 26 penalties or fees. 6615 5* V5 onoen DENUNG 1 AWGRNEY GENENL 95 2 MorroN ro snow CAUSE AND SF 00977 DISMISSING WITH PREJUDICE PRR 2011 00450 oiymp vt A 98504-0116 . Q13 gg; I ia, if NO. 06-2-(ll R60-6 (360) 536-5445 lir I /fs gmt! 6 /7/rf; I nf; A/ff DONE this( day ofAugust, 2009. //15 HO ORABLE HIRSCH Superior Conn; Judge Presented by: ROBERT M. MCKENNA Attorney General PETER W. BERNEY, A #15719 Attorney General Attorney for Defendant ORDER 2 GENEFAL QE WASHINGTUN Morton TO snow CAUSE AND SF-00978 DISMISSING WITH PREIUDICE PRRQ01 1430450 Oiympia, WA 98504-0116 nc nzocn . 56015864445 - - . ., FILED SQ SAI ii I CGURT ?9 T: ~i it PY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II DEREK E. GRONQUIST and BRYON A. No. 39651-3-II MUSTARD, Appellants, DEPARTMENT OF CORRECTIONS, PUBLISI-ED OPINION Respondent." A Derek EQ Gronquist and Byron AL Mustard (collectively inmates) appeal from a trial courtis orders granting the Department of Correction's (DOC) motion for summary judgment and dismissing their show cause motion. We hold that the DOC's Policy 280.510 (policy) does not violate the Public Records Act separation of powers, or collateral estoppel. ln addition, because the inmates preemptively took the position that they would not pay for any copies of documents, the DOC did not need to perform a search for responsive records. We affirm tlie orders granting partial summary judgment and dismissing the inmates' show cause motion. ch. 42.56 RCW. SF-00979 - PRR-2011-00450 No. 39651-3-I1 FACTS 1 On October 27, 2001, Derek Gronquist mailed a Public Disclosure Act request to the Airway Heights Corrections Center (AHCC) public disclosure officer asking for all documents alleging retaliatory action by AHCC staff since the facility's inception. Cironquist insisted on inspecting the records in person and' did not Want to pay for copies. Under DOC Policy 280.510, the DOC does not permit an offender to inspect public records in person except for information contained in the offender's central tile or medical file. "Inspection" appears to mean an in~person viewing of public cost to the requester. See Clerk's Papers (CP) at ,283 (explaining procedures for in-personinspection), For all other records, the DOC mails an inmate copies for a fee of $0.20 per page, plus postage. WAC The DOC notified Gronquist that, due to the facility's document retention policy, it could not provide complete documentation of every retaliatoryact alleged at the The DOC later notified Gronquist that it had identiied 70 pages of documents and requested $16.95 for copies and postage. On January 18, 2005, Gronquist filed another PDA request and sought inspection of 14 different- categories of information, including Written materials regarding himself, materials concerning a job that Gronquist appears to have Wanted, the complete employment files of two 2 At the time of Gronquist's request, the PRA was called the Public Disclosure Act and was codified at chapter 42.17 RCW. Fenner ch. 42.17 RCW (2000). Effective July 1, 2006, the act was renamed and recoditied as chapter 42.56 RCW. LAWS OF 2005, ch. 274, 102-03. The relevant portions of the current and former statute appear identical as to the issues involved in this case. . 2 SF-00980 PRR-2011-00450 No. 39651-3-II corrections officers, and records and/or training materials that appraise staff.3 On January 26, the DOC again notified Gronquist of its policy and that he needed to submit DOC form 05~066 to inspect his central file Without cost. The DOC did not provide a page count of responsive documents it found. . On February 16, Byron Mustard filed a PDA request, asliing to inspect information regarding his banking records and personnel in charge of managing his account and court- obligated deductions. Mustard stated that he did not want copies; but rather he wanted to inspect the documents. The DOC notified Mustard of DOC Policy 280.510 and stated that it would Search existing records and compile the information he sought. On March 4, 2005, the DOC notified Mustard that it had compiled 93 pages of documentation and that it would forward the documents upon receipt of $22.45. . The inmates have not paid for copies and thus the DOC has not sent the requested documents. On October 5, 2006, the inmates sued the DOC, seeking an injunction enjoining the DOC from enforcing its policy and to declare the policy contrary to statutory and constitutional law. The inmates also sought to compel inspection of the records they requested in 2001 and 2005.4 They also claimed that the DOC was collaterally estopped from enforcing the policy because of a previous judicial determination in a case brought by Gronquist. 3 Gronquist also requested a photocopy of a job opening posted in a day room and transferred $0.20 for the single photocopy. The DOC made this document available for mailing upon receipt of $0.57 (copy fee plus actual postage). Effective July 24, 2005, a PRA requester had to ile an action under chapter 42.56 RCW Within one year of the agency's claim of exemption or the last production of a record. RCW But prior to that date, the requester had five years to file an action. Former RCW 42.17.410 (1982). The inmates sent all three disclostue requests before the new statute of . 3 4 SF-00981 PRR-2011-00450 NO. 39651-3-11 On August 8, 2008, the DOC moved for summary judgment, arguing that, under Sappenjield v. Department of Correctionsf its policy was proper. On August 22, the inmates filed a motion to show cause why inspection of the records should not be compelled and the policy should not be enjoined. They alleged that the DOC failed to (1) perform an adequate search forthe records requested, (2) identify withheld records, and (3) preserve records subject to PRA requests. i The trial court granted a partial summary judgment motion in the DOC's favor, finding Sappenjield persuasive. In a separate hearing, the trial court denied the inmates' show cause motion and dismissed their complaint with prejudice. The inmates appeal both orders. ANALYSIS . I. DOC POLICY 280.510 A. Surnmary Judgment First, the inmates argue that _under the PRA, the DOC must permit them to inspect public records in person and that denying them that right amounts to a denial of their PRA requests. The inmates contend that the DOC may only charge for copies if they request that the copies be mailed to them. . - We review de novo a challenge to an agency action under the PRA. Sappenjield v. Dep 't of Carr., 127 Wn. App. 83, 88, 110 P.3d 808 (2005), review denied, 156 Wn.2d 1013 (2006). When reviewing an order granting summary judgment, We engage in the same inquiry as the trial court. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321, review denied, 136 Wn.2d 1016 limitations became effective and Within five years of any alleged exemption or production. As such, We regard their suit as timely. 5 127 Wa. App. ss, 110 Psa sos (zoos), review denied, 156 Wn.2d 1013 (2006). 4 . SF-00982 PRR-2011-00450 No. 39651-3-II (1998). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on tile, together with the affidavits, if any, show that no genuine issue as to any material fact exists and that the moving party is entitled to a judgment as a matter of law. CR 56(c). A material fact is one on which the outcome of the litigation depends, in whole or in part. Morris v. McNicol, 83 Wn.2d 491, 494, 519 P_2d 7 (1974).' We consider. all reasonable inferences in the light most favorable to the nonmoving party. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). The parties do not dispute any issues of fact as to the summary judgment inotienf Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make them available to any person. RCW 42.56.080. Agencies shall not distinguish among persons requesting records. RCW 42.56.0811 Agency facilities shall be made available to any person for the copying of public records except when and to the extent this would unreasonably disrupt the agency's operations. RCW 42.56.08 0. Agencies shall adopt and enforce reasonable rules and regulations consonant with the _of full public ntonpublici records, touprotect public records from damage or disorganization, and to prevent excessive interference with other essential agency functions. RCW 42.56.lO0. 8 An agency shall not charge a fee for inspecting public records or for locating public documents and making them available for copying. RCW 42.56.l20. But an agency may impose a reasonable charge 'for providing copies of public records, so long as the charges do not - . The inmates argue that the records they requested are not exempt Brom disclosure under the PRA. They also contend that the DOC should have -each record Withheld from inspection. But the DOC does not dispute that the records were subject to disclosure. 5 6 SF-00983 PRR-2011-00450 No. 39651~-Il - exceed the amount necessary to reimburse the agency for its actual costs incident to such copying. RCW 42.56.120. A In enforcing DOC Policy 280.510, the DOC appropriately balances the PRA's mandates' with its duty to manage prison inmates. 127 Wn..App. at 84. Sappenield, an incarcerated inmate at the AHCC, filed a PDA request to inspect information not contained in his central tile. Sappenfield,'127 Wn. App. _at 84. The informed him of DOC Policy 280.510, that it had compiled 187 pages of documents, and that it would mail the documents upon receipt of payment. Sappenjield, 127 Win. App. at 85. Sappenfield treated this as a denial and sued for an order for DOC to show cause why the records should not be made available for personal inspection. Sappenfield, 127 Wn. App. at 85-86. The trial court upheld the DOC's policy and Division Three of this court affirmed. Sappenfielti, 127 Wu. App. at 87. First, the court acknowledged that the choice Whether to copy or inspect on site is usually up to the requester, not the agency. Sappenfield, 127 Wn. App. at 88. But the court then noted that prisoner requests "are not the usual. case." Sappenjield, 127 Wn. Appf at ss. The "eeti15t generally eenirei ineuers affecting the 'prison's internal security and that inmates do not enjoy all the privileges of the public comrnunity. Sappenjield, l27`Wn. App. at 88. Further, the court noted that the PDA commands each agency to set its own disclosure rules. Sappenjield, 127 Wn. App. at 89 (citing former 42.17.290 (1995), recoditied as RCW 42.56.100 by LAWS OF 2005,_ ch. 274, 1103). The court concluded that "disclosure by mailing copies at a reasonable charge satisfies this statutory obligation." Sappenjield, 127 Wn. AppSF-00984 PRR-2011-00450 No. 39651-3-ll 'In addition, the court noted that the DOC's policy complied with its duty to adopt and enforce reasonable rules and 'regulations to protect the public records and prevent excessive interference with its essential function to securely restrain criminal offenders. Sappenfield, 127 Wn. App. at 89 (citing former RCW 42.l7.290). ln addition, while the PRA specifically prohibits agencies from denying a requester copies of records, the statute did not preclude denying requests for direct inspection when necessary to preserve the records and the agency's own essential functions. Sappenjield, 127 Wn; App. at 89 (citing former RCW 42.17.290). Thus, the Soppenfield court concluded that the DOC's policy was reasonable. 127 Wn. App. at 90. The inmates argue that Sappenfield is erroneous and should not be followed. They argue that the PRA permits inspection by any person and does not permit an agency to consider the requester's identity. But our Supreme Court recently favorably cited Sappenjield and acknowledged the unique nature of prisoner requests for PRA disclosures. Livingston v. Cedeno, 164 Wn.2d 46, 53-54, 186 P.3d 1055 (2008). . 1' 9 an ifleai?efat?a poilcy in 'whim which contained records the DOC produced in response to at PRA request, was intercepted as contraband under the prison's mail policy. Livingston, 164 Wn.2d at 48-49. The court held that the DOC's application of the mail policy to its own public records did not violatethe PRA. Livingston, 164 Wn.2d at 49. The court reasoned that "[a]cting in its custodial capacity toensure the safety of inmates, stafilrand the public, the may prohibit the entry into an institution of materials otherwise subject to disclosure under the Livingston, 164 Wn.2d at 53. The court acknowledged that, as it and the United States Supreme Court has recognized, 7 SF-00985 PRR-201 'Il00450 No. 39651-3-II prisoners have, in many respects, more limited rights and privileges because of paramount institutional goals and policies. Livingston, 164 Wn.2d at 53, lmportantly to this case, the court acknowledged that it had to give "considerable deference . . . to prison administrators to regulate communications between prisoners and the outside World." Livingston, 164 Wn.2d at 53~54 (favorably citing Sappenfield as recognizing the unique circumstances of incarceration in the context _of PRA requests). A We agree with Division Three and adopt the Soppenfield court's holding. The DOC's need to securely restrain 'incarcerated offenders and to protect public records has not changed in the years since Sappenfield was decided. Gronquist and Mustard were incarcerated offenders at the time of their disclosure requests. Their incarceration presents unique concerns in the context of PRA requests. The DOC is entitled to adopt reasonable rules to protect both the records and its essential agency f1.mctions.7 Furthermore, because the policy is valid, the DOC did not, in applying the policy, deny the inmates' requests or fail to identify Withheld documents. In fact, the DOC did not withhold documents; the inmates simply refused to avail themselves of the policy and pay for copies. DOC Policy 280.510 is a reasonable Way of addressing these concerns.8 The DOC was therefore entitled to judgment as a matter of law. We hold that the trial court did not err in granting the DOC partial summary judgment. The inmates argue that the DOC must permit inspection because RCW 42.56.090 requires inspection on an agency's premises during normal business hours. But the policy is necessary to protect the DOC's essential functions. In addition, although an agency has e. duty to permit inspection on its premises during normal business hours, there is no requirement that an agency transmit the records to the requester who is unable to come to the agency's premises. 7 8 Contrary to the inmates' argument, the DOC does not charge for inspection. The DOC charges for copies and does not permit inmate inspection of documents outside their central or medical 8 SF-00986 PRR-2011-00450 No. 3.9651-3-II B. Separation of Powers Next, the inmates argue that separation of powers enjoins us from following Sappenjield or. affirming the DOC's policy. Wedisagree. The separation of powers doctrine recognizes that each branch of government has its own . A appropriate sphere of activity. Hale v. Welloinit Sch. Dist. No. 49, 165 Wn.2d 494, 504, 198 P.3d 1021 (2009). To determine whether an action violates separation of powers, we must determine Whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another. Hale, 165 Wn.2d 'at 507. It is the judicial branch's function to . interpret the law. Hale, 165 Wn.2d at 505. It is within our appropriate sphere of activity to determine what a particular statute means and that determination relates back to the time of the sta1ute's enactment. Hale, 165 Wn.2d at 506. The legislature's role is to set policy and to draft and enact laws. Hale, 165 Wn.2d at 506. . 1 Sappenfield does not violate separation of powers. .In Sappenfield, Division Three interpreted the PRA's requirement that each agency set its ownidisclosure rules. 127 Wn. App. 89 (citing former' lt not alter the nor invade the _legislature's independence, integrity, or prerogatives. The inmates cite Fritz v. Gorton, 83 Wn.2d 275, 287, 300, 309-10, 517 P.2d 911 (1974), for the proposition that the judiciary may not alter PRA's statutory scheme under separation of powers doctrine, But, as we already stated, Scippenfield does not alter the statutory scheme or enact new legislation. It interprets an agency's implementation -of the PRA's mandate to set tiles. There is no evidence to suggest that the DOC charges for inspecting one's central or medical tiles. 9 . . SF-00987 PRR-2011-00450 I No. 39651-3-II . disclosure rules that do not interfere with the.agency's essential cr place public records in danger. Sappenfield does not violate the separation of powers doctrine. C. Collateral Estoppel In addition, the inmates argue that collateral estoppel prohibits application of Sappenfield because Gronquist previously successfully litigated this issue before the superior court and the DOC did not appeal that order. We disagree. On October 21, 2001, Gronquist sent the DOC a PDA request seeking inspection of disciplinary minutes, recordings, and findings regarding serious infractions against all AHCC inmates, including himself, in the prior 24 months. also sought DOC guidelines regarding serious infractions and information regarding the DOC's relationship with and complaints against Omega Pacific, Inc. The DOC requested additional time to process the request, and it informed Gronquist that once the compilation was complete, it would provide copies for $0.20 IJOI Eventually, the DOC informed Gronquist that due to the large number of documents retrieved, the 'cost of copies vrouldexceed $300. 'The DOC'requestediprepayment of $300 before going further with Gronquist's request as Well as additional time to assemble the requested records. Gronquist filed a show cause motion to compel inspection of the documents. Gronquist asked the trial court to compel the DOC -to make the records available for in-person inspection, not just to provide copies. The trial court found that the DOC had not provided justification for the $300 fee because it had not assembled the records before calculating the fee. The trial court appears to have been concerned with the DOC's demand for a fee based on an estimated cost. The trial court found that While the statutory scheme permits a charge for copies when requested, 0 SF-00988 PRR-2011-00450 No. 39651-3-II Gronquist did not request copies. The trial court stated, don't know if it's a fact that prisoners are routinely required to pay a fee when they request a public disclosure, but that's not before me right now. I just don't see a justification for the $300 fee." CP at 202. 'Collateral estoppel applies When: (1) the issue decided previously is identical with the one presented in the second proceeding; (2) the prior adjudication ended with a final judgment on themerits; (3) the-party against whom the doctrine is asserted was a party or in privity with a party to the prior adjudication; and (4) application of the doctrine will not Work an injustice. Hanson v. City ofSnohomish, 121 Wn.2d 552, 562, 852 P.2d 295 (1993). The burden of proof is on the party asserting the doctrine as a bar. Dep ofEco[ogy v. Yakima Reservation Irrigation Dm., 121 wn.2d 257, 296, Pi2d 1306 (1993). 6 The inmates have not _carried their burden of proving that the 2001 ruling decided an identical issue of fact as that presented in this case.9 The trial court' in 2001 appeared unclear about whether it was ruling on the policy and its ruling did not clearly bar application of the pol'icy. Instead, the 2001 trial court foundthat the DOC had not justified its demand that $1500 i'aavan?'?= trial did more 11151; copies, it also stated that it was not ruling on the DOC's policy. See Davis v. Nielson, 9 Wn. App. 864, 875, 515 P.2d 995 (1973) (When, because of ambiguity or indeiiniteness, the appellate court cannot say that the issue was determined in the prior action, collateral estoppel will not be applied as to that issue). Here, the policy's validity is at issue, not whether the copy fees were 9 The DGC was a party to the prior lawsuit and the parties do not dispute that Gronquist's prior lawsuit ended with a final judgment. Contrary to the DOC's assertion, Mustard did not have to be a party to Gronquist's prior action. Collateral estoppel's third requirement mandates that the DOC or a party in privily to if was a party to the prior action. Hanson, 121 Wn.2d at 562. 11 I SF-00989 PRR-2011-00450 No. 39651 -3-Il justitied. Accordingly, the inmates failed to show that this case presents an identical issue to Gronquist's 2001 lawsuit. ll. SHOW CAUSE MOTION -- ADEQUACY OF SEARCH RECORDS RETENTION Gronquistlo next argues that the trial cotut erred by denying his show cause motion as to his October 27, 2001, and January 18, 2005, requests. We disagree. Upon the motion of any person having been denied an opportunity to' inspect or copy a public record, the superior court may require theagericy to show cause why it has to allow inspection or copying of a specific public record or class of records. RCW The burden of proof shall be on the agency to establish that the refusal is in accordance with a statute that exempts or prohibits disclosure. RCW Where the record on a show cause motion consists entirely of written_ materials and the trial court has not seen nor heard testimony requiring it to assess the credibility or competency of a witness, weigh evidence, nor reconcile conflicting evidence, then an appellate court stands in the same position as the trial . 1 court in looking at the facts of the case and should review the record de novo. Progressive Animal 'Univilof Wn.'2d 884 592' (15994) Zink v. City ofMescz, 140 Wn. App. 328, 336, 166 (2007). Under such circumstances, the reviewing court is not bound by the trial court's iindings on disputed factual issues. PA WS, As Mustard has presented no argument on the adequacy of the DOC's search in regards to his request he has waived this issue. RAP Stare v. Thomas, l50 Wn.2d 821, 874, 83 P.3d 970 (2004) (without argument or authority to support it, an assignment of error is waived); In re Pers. Restraint of Connick, 144 Wn.2d 442, 455, 28 P.3d 729 (2001) (a pro se appellant held to the same responsibility as a lawyer and is required to follow applicable statutes and rules; failure to do so will preclude review of the asserted clairn). Therefore, we assign these arguments to Gronquist and not the joint inmates. 10 12 PRR-2011-00450 No. 39651-3-II 125 Wn.2d at 253. Here, the trial court did not consider any live testimony (nor make factual findings), so we review both facts and law de novo. Gronquist argues that even if the DOC's policy is reasonable, the DOC erred by refusing to search for, identify, and safeguard the records he requestedn He asserts that the DOC refused to search for records in response to his October 27, 2001, and January 18, 2005, requests. At the trial court, the DOC contended that it had no duty to Search for records when it knew that the inmates did not intend to pay for copies. We agree with the DOC. When inmates make it known to the DOC that they will not pay for copies of records the DOC identifies as responsive to the inmates' PRA requests, searching for, collecting, and identifying the documents would be a futile and useless waste of staff time. We have held that the policy of charging inmates for copies is reasonable, but adamantly refuses to pay for the copies. The law does not demand compliance when such compliance results in a vain and useless act. Vashon Island Comm. for SeWGov v. Wash. State Boundary Review Bd. for King Cnty., 127 Wn,2d_759, 765, 903 P.2d 953 (1995).12 The uselessness of requiring the DOC to search for identifymore illustrated by Gronduistis refusal to pay for copies of the 70 pages the DOC identified in 2001. 1 Finally, there is no evidence that any of the records that DOC destroyed were the subject of Gronquist's request because Gronquist failed to show that the destroyed documents contained information relevant to his requests. ln addition, there is no evidence that the majority of the ll The DOC argues that Gronquistnever raised these arguments' below and, thus, we should not consider them. This is incorrect. Gronquist raised these arguments in hisshow cause motion, which the DOC acknowledged below. Although this is not a mandamus action, Gronquist is essentially us to force the DOC to perform a search. As such, the "vain and useless" standard is relevant here. 13 12 SF-00991 PRR-2011-00450 No. records Gronquist requested are contained in his central file, nor is there evidence of what a centraltile might contain. Furthermore, there is no evidence that Gronquist completed DOC form 05-O66 requesting access to his central tile Without charge. Attinned. We concur: Quirm-Brintnall, J. oy CJ. dgewater, 14 SF-00992 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON A A DIVISION II Dain-3K E. oRoNQU1sr and A. i Na. 39651-3-ii MUSTARD, A Appellant, A MANDATE v. . Thurston County Cause No. DEPARTMENT OF CORRECTIONS, O6-2-01869-6 Respondent. The State of Washington to: The Superior Court ofthe State of Washington in and for Thurston County 1 State of Washington, Div. II tin 'is This is to certify that the opinion ofthe Court of Appeals ofthe State of Washington, Division II, tiled on January '19, 201 became the decision terminating review of this court ofthe above entitled case on June 7, 2011. Accordingly, this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy ofthe opinion.. HY rasrn/ioNY 1 have hereunto get *f my hand and aftixed?he seal of said Court at Tapom this da of July, 201-1. 'crs A1 1. ti# Court of A eals, SF-00993 PRR-2011-00450 THE SUPREME COURT os li%lii _tra fiilwlinimfiiFil DEREK E. GRONQUIST and A. No. 85640-lf., -tw Petitioners, - NO. 39651-3-II A #Ti eo DEPARTMENT OF CORRECTIONS, I Q, 2% Lg- ft F291 "Ti C7 C3 - -- Respondent, FilDepartment I ofthe Court, composed of Chief Iusti ee a sen and Justices C. Johnson, Chambers, Pairhurst and Stephens, considered at its June 7, 2011, Motion Calendar, whether review should be granted pursuant to RAP and unanimously agreed that the following order be entered. IT IS ORDERED: I That the Petition for Review is denied. . DATED at Olympia, Washington this vi day of June, 2Oll. Por the Court CHIEF JUSTICE SF-00994 PRR-2011-00450 1 Sri THE 0? 4, JUN-7 M1257 fllril; I I COLIFQII THE SUPERIOR COURT OF TI-IE STATE OF WASHINGTON IN AND POR THE COUNTY OF GRAYS HARBOR SHAWN GREENI-IALGI-I, NO. 08-2-0043l-3 I Plaintiff, - STIPULATED ORDER OF I V. DISMISSAL COUNT I DEPARTMENT OF CORRECTIONS, 2 Defendant. THIS MATTER, having come before this Court on the stipulated motion of Plaintiff, Shawn Greenhalgh, and the Defendant, Department of Corrections, both parties herein advising the Court that all matters in controversy arisingout of public disclosure request as described in Plaintiff Complaint in this action which originated June 21, 2007, made pursuant to RCW 42.56 et seq., have been fully settled and compromised, andthe court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff Shawn Greenhalgh's claim based upon the public disclosure request as described in Plaintiff Complaint in this action which originated June 21, 2007, is hereby dismissed with prejudice and Without costs or attorney fees to either party. STIPULATED ORDER OF DISMISSAL I 5 Box Olympia WA 98504-0116 SF-00995 (360) 586-1445 PRR-2011-00450 The Clerk is directed to send copies of this order to counsel for Plaintiff and counsel for Defendant. DATED this Hy 6f 2010. A dd 4 Presented by: Ros MCKENNA .4 Attorney Gener 6 6 vmoo, #26183 DAT Assistant Attome enert Attorney for De ndant KAHRS LAW FIRNI, P.S. ?9 MICHAEL KAHRS, WSBA 27085 DATE Attorney for Plaintiff STIPULATED ORDER OF DISMISSAL (NU 03-2-004313) PO Box 401 E6 Olympia, WA 98504-0116 SF-00995 (360) 586-1445 PRR-2011-00450 aff- f' All T57 *Vi 12.1 ii-Z R- COUEJ rx I I IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OP GRAYS HARBOR SHAWN GREENHALGI-I, NO. O8-2-00431-3 Plaintiff; vs. ORDER GRANTING I PARTIAL DEPARTMENT OF CORRECTIONS, MOTION FOR SUMMARY JUDGMENT Defendant. 5 I THIS MATTER coming before this Court on the motions of Plaintiff and Defendant, and all parties having fully briefed this matter including the following pleadings: Plaintiff" Motion for Summary Judgment with Declarations; Defendant' Response and Motion for Summary Judgment with Declaration; and Plaintiff" Reply with Declaration. IT IS HEREBY ORDERED that the Motions for Surnmary Judgment are DENIED. DATED this A day 61? June, 2010. I I he Honorable Gor i"i L. odfrey Kahrs Law Firm, P.S. ORDER ON MOTION FOR 5215 Ballard Ave. NW, Suite 2 Seattle, WA 98107 SUMMARY JUDGMENT - 1 Ph: (206) 264-0643 Fax; (206) 237-8555 F-00997 PRR-2011-00450 Presented by: 2 KAHRS LAW FIRM, P.S. "3 4 - MICHAEL KAHRS, WSBA #27085 5 Counsel fo1'Pla;intiff 6 Approved as to form: 75 THE ATTORNEY GENERAIJS OFFICE 8 Robert M. General 5 no If 10 Ano 4 vnwciofwss #26183 ll Counsel for Qefendant Kahrs Law Firm, P.S. 23 ORDER ON MOTION FOR 5215 Ballard Ave, NW, Suite 2 Seattle, WA 98107 SUMMARY JUDGMENT - 2 Ph: (206) 264-0643 Fax: (206) 237-8555 mkahrs@kahrslawfirm.com SF-00998 PRR-2011-00450 IN THE SUPERIOR, COURT OF TEE STATE OF WASHINGTON IN AND OR THE COUNTY OF GRAYS HARBOR SHAWN GREENHALGH, NO. O8-2-00431-3 Plaintiff, RELEASE AND y. SETTLEMENT I AGREEMENT .OF CORRECTIONS, -- - 1 Defendant. I rl - This is a Release and Settlernent Agreement for the aboyeweferenced action. Based upon consideration and rntitual promises, the Plaintili SHAWN GREENEMIGH, by and through his aaemey, M101-JAEL KAHRS, and the Defendant, DEPARTMENT CORRECTIONS, by and through their attorneys, ROB MCKENNA, Attorney General, and ANDREA VINGO, Assistant Attorney General, agree to the following: 1. In consideration of the following provisions of the Release and Settlement Agreement, SHAWN GREENHALGH, their heirs, assigns or other successors' ininterest, do hereby release and forever discharge the State of Washington, its offieers, agents, .en1ploy_ees, agencies, and _departments for any and all existing and - - SETTLEMENT. 1 AGREEMENT (No. 08-2-00431-3) - Olympia, WA 98504-0116 SF 00999 (seo) S86-1445 PRR-2011-00450 future claims, damages and causes of _action of any nature arising cut of public disclosure request asidescrihed in Plaintiff Complaint in this action which originated June 2l, 2007, made pursuant to RCW 42.56 et seq., and which is the source of one of his claims against the Defendant. 2. This Agreement is the final, conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incident which originated June 21, 2007. as set forth in Plaintiffs Complaint for Damages. 3. This Agreement shall he effective when signed hy all parnes and/or their legal representatives. 4. i -I The State shall pay directly to MICHAEL KAHQRS, as the designated payee of Plaintiff SHAWN GREENHALGH, the sum of Eighteen Thousand Two Hundred Sixty Dollars and zero cents as full and complete settlement of the referenced claim. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Eighteen Thousand Two Hundred Sixty Dollars and zero cents will he payable hy check or warrant to MICHAEL KAHRS, as the designated payee for Plaintiff SHAWN GREENHALGH. Plaintiff represents to Defendant that MICHAEL KAHRS has been authorized hylhis to accept payment of the settlement amount from Defendant and that such acceptance satisies all claims Plaintiff has against Defendant in this matter. - A 5. The parties agree that this Release and Settlement Agreement is not an admission of liability ornthat any claim or defense advanced hy any party lacks merit. 6. This Agreement constitutes the final Written expression of all theterms of this Agreement and is a complete and exclusive statement of these terms. 7. The parties agree that neither party is to' he considered a prevailing party in this action for any puipose, including, but not limited to, attorney fees. RELEASE AND SETTLEMENT 2 Arroinvsr emma/it or WASHINGTON . . al Sd D. . AGREEMENT (No. os-2-00431-3) Bi, - oiympia, WA 98504-0116 (360) SF-01000 PRR-2011-00450 Theparties jointly agree that dismissal with prejudice of this claim is an appropriate resolution in consideration for payment of the sum of Eighteen Thousand Two Hundred Sixty Dollars and zero cents and the other consideration provided for in this Agreement. The pmties also agree to sign and file a stipulated motion for the entry of an order dismissing this claim with prejudice. A 9. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and oicials over the claim concluded by this settlement agreement. 10, The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, Wholly understood and voluntarily accepted for the purpose of making a full and Enal compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendant. A ,n SHAWN oasarianron #7015 DATE Plaintiff 11/ KAI-IRS, 27085 DATE Attorney for P1 3 'ff Lili /:lf/0 A BA#2e1s3 DA . Assistant orney Ge 1 eral Attomey Defen --an RELEASE AND SETTLEMENT AGREEMENT (NO. Olympia, WA 98504-0116 (360) 586-1445 3 ATTORNEY GENERAL OF Criminal Justice Division A PO Box 40116 SF-01001 PRR-2011-00450 Division it T3 . rf '1 Petitioner, v. RULING DENYING DANIEL J. JUDGE and SARA OLSON, Respondents. Linniell Phipps seeks discretionary review of the trial courts denial of his motion to proceed in forma pauperis. This court grants discretionary review only when: (1) The superior court has committed an obvious error which would render further proceedings useless; (2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; (3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or (4) The superior court has certified, or that all the parties to the litigation have stipulated, that the order tnvoives a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review ofthe order may materially advance the ultimate termination of the litigation. RAP SF-01002 PRR-2011-00450 -`li;l to 117 Fl IJ Phipps apparently seeks to file a civil action against two members of the Attorney Generals Office over a public records request. He brought a motion to proceed in forma peuperis, asserting that he could not afford the filing fee. Under In re Dependency of Grove, 127 221, 241, 897 P.2d 1252 (1995), before a trial court can waive payment oi a filing fee in a civil action, the plaintiff "must prove indigency, good iaith in bringing the appeal, probable merit of the issues raised and, further, that a miscarriage of justice has occurred." The trial court _found that Phipps failed to prove that his complaint had probable merit. Phipps does not demonstrate that the trial court obviously or probably erred in making that finding or that it departed from the accepted and usual course ofjudicial -proceedings in doing so. His argument that his signature alone is enough to establish probable merit fails. A Phipps faiis to demonstrate grounds for discretionary review. Accordingly it is hereby ORDERED that Phipps's motion for discretionary review is denied. onrao this day of 2011. 5.2? 2 Eric B. Schmidt Court Commissioner 1 cc: Linniell Phipps, Pro Se Robert McKenna Andrea \/ingo Hon. Thomas ll/lcPhee 2 SF-01003 PRR-2011-00450 rv IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o|v|s|oN 1.22: . IN THE MATTER or= THE No. @3130-s-I 5 MU PERSONAL RESTRAINT oi=; AW, CERTIFICATE os FINALITY I Superior Court No. -02254-8.KNT Petitioner. I I i I I LINNIELL PHIPPS, King County I I I THE STATE OF WASHINGTON TO: The Superior Court of the State of Washington in and for King County. This is to certify that the order of the Court of Appeals ofthe State of Washington, Division I, filed on June 24, 2009, became final on April 7, 2010. A ruling denying a motion for discretionary review was entered in the Supreme Court on November 9, 2009. An order denying a motion to modify was entered on March 3, 2010. Pursuant to RAP costs in the amount of $200.00 are awarded against judgment debtor PHIPPS and are awarded in favor of judgment creditor DEPARTMENT OF CORRECTIONS. oz I_innieIl Phipps, Jr. James Clemmons IN TESTINIONY WHEREOF, I have hereunto set my hand i and atiixedthesealot 1 said Court at Seattle, this 7th 3' 5 urly I E2 Lv fp i - Richard - son A Cog istrator/Clerk of the 60; A Court Appeals, State of A Washington Division I. A SF-01004 PRR-2011-00450 sisoitfiivig lie I ATTORNEY OFFICE il ll il ~1 I .nr 21132011 'Wi Corrections Qivislon fd) CU IN THE SUPREME COURT THE STATE TR., Petitioner, V. No.s5932-9 DANIEL J. JUDGE and SARA J. RULING REVIEW OLSON, Respondents. Linniel Phipps sought to commence an action against two members of the attorney -general's ofiice relating to public records requests. He brought a motion to proceed in forma pauperis, seeking waiver of the filing fee. But the superior court denied his motion on the basis that the court was unable to find the claim had prob able merit. Mr. Phipps sought discretionary review of that ruling from Division Two ofthe Court of Appeals. But Commissioner Schmidt denied review, and a panel of Court of Appeals judges denied Mr. Phipps's motion to modify the commissioner's ruling. Mr. Phipps now seeks this court's review. Because the Court of Appeals never accepted review, Mr. Phipps may obtain review by this court only by motion for discretionary review under RAP 13.5. See RAP 13.3, RAP 12.3. 1 This court will grant such a motion only if the Court of Appeals committed an obvious or probable error, or substantially departed from ilie A 1 The parties incorrectly rely origthe rcigteria for review set forth in RAP 13 PRR-2011-00450 NO. 85932-9 PAGE -2 accepted and usual course of judicial proceedings, or sanctioned such a departure by the superior court. RAP 4 Mr. Phipps relies on cases involving prisoner access to courts. 1-le is correct that courts have a constitutional obligation to waive filing fees for indigent prisoners in some instances. Whitney v. Buckner, 107 Wn.2d 861, 865, 734 P.2d 485 (1987); Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) (both involving actions by prisoners); Bullock v. Superior Ct., 84 Wn.2d 101, 524 P.2d 385 (1974) (indigents in divorce actions cannot be required to pay for serving pleadings). The State may not limit the resolution of disputes involving fundamental rights to specific -judicial avenues and then, by imposing filing fees and other costs, foreclose an indigent person's access to those avenues. Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). "[A]bsent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Id, at 377. The State, however, has a countervailing interest of overriding significance in discouraging frivolous or malicious civil actions. Accordingly, "'the "court may pass on the complaint's" sufficiency before allowing filing in forma pauperis and may dismiss the ease if it is deemed frivolous." Smith v. Shawnee Library Sys., 60 F.3d 317, 322 (7th Cir. 1995) (quoting Bounds v. Smith, 430 U.S. at 826), see Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (both involving a federal statute that allows courts to dismiss frivolous in forma pauperis complaints). Boddie, Bullock, and Whitney hold that marriage dissolution proceedings involve fundamental rights or relationships, but 1 have found no authority for the proposition that actions relating to public records requests also involve fundamental rights. see United stares v. Kras, 409 U.S. 434, 93 s. ct. 631, 34 L. Ea. za 626 (1973) SF-01006 - PRR-2011-00450 NO. 85932-9 PAGE -3 (no constitutional right to free access to bankruptcy courts); Bowman v. Walclt, 9 Wn. App. 562, 513 P.2d 559 (1973) (no constitutional right to Waiverof fees and bond relating to execution of judgment); Malott v. Randall, 11 Wn. App. 433, 523 P.2d 439 (1974) (no Waiver of requirement that surety be posted in a shareholder's derivative action); of In re Grove, 127 Wn.2d 221, 897 P.2d 1252 (1995); Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (there is no constitutional right to appeal at public expense in civil cases Where only property or fmancial interests are threatened). A A The superior court also has inherent discretionary authority to waive filing fees in the interests of justice, even in civil actions. O'Connor v. Matzdorjf 76 Wn.2d 589, 600, 458 P.2d 154 (1969); Housing Auth. of King County v. Saylors, 87 Wn.2d 732, 742, 557 l'.2d 321 (1976); Neal v. Wallace, 15 Wn. App. 506, 508, 550 P.2d 539 (1976). And such authority also expressly exists by statute. RCW 36.l8.022. To allow Waiver of fees in a civil action, at a minimum, the affidavit accompanying the motion (1) actual, not theoretical, indigency; (2) that but for such Waiver a litigant would be unable to maintain the action; (3) that there are no alternative means available for procuring the fees; and (4) that the plaintiff' claim is brought in good faith and with probable merit. Bowman, 9 Wn. App. at 571; Neal, 15 Wn. App. at 508; In re Pers. Restraint of Williams, 171 Wn.2d 253, 256 n.2, 250 P.3d 112 (2011) (citing Neal with approval, as relating to a civil action brought by a prisoner). in addition, the court may consider the interests of the public and of other parties. Bowman, 9 Wn. App. at 571; Grove, 127 Wn.2d at 241. . Here, the trial court was unable to find 1\/lr. Phipps's claim had probable merit. In denying discretionary review, Commissioner Schmidt concluded that Mr. Phipps had not demonstrated that the trial court obviously or probably erred in making that finding or that it departed from the accepted and usual course of judicial SF-01007 PRR 2011 00450 NO. 85932-9 PAGE -4 proceedings in doing so. RAP 2.3(b) (criteria for acceptance of review). Mr. Phipps does not now attempt to show that his action has probable merit. He suggested below that only his signature was required to establish this element, citing Neal. But the decision whether to waive fees is discretionary, and even in cases involving fundamental rights the court can deny fees and dismiss the action if it deems it frivolous. It is impossible to tell from the scant record or any ofthe parties' pleadings whether this action has any merit. Thus, Mr. Phipps failed to establish that the trial court erred in-denying his request to waive the filing fee. Mr. Phipps suggests that the Court of Appeals decision conflicts with State v. Silva, l07 Wn. App 605, 27 P.3d 663 (2001), where the Court of Appeals recognized a criminal defendant's right to defend himself, including the right to reasonable access to state provided resources to enable him to prepare a meaningful pro se defense. But Silva is inapposite, since it involved a criminal prosecution and attendant constitutional rights. In sum, Mr. Phipps fails to demonstrate that the Court of Appeals erred or departed from accepted practice by denying discretionary review. Accordingly, the motion for discretionary review is denied. . QMWQ7 COMMIS SIO Jury 25, 2011 SF-01008 PRR 2011 00450 EXPEDITE El No Hearing Set Hearing is Set __I2_ater tt I une: A Honorable Paula Casey - STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT at 0 SHAPPA BAKER, No. to-2-01552.-1 7 Ptaimiff, SECOND AMENDED JUDGMENT ON OFFER OF ACCEPTANCE v. OF WASPENCTON DEPARTMENT OF CORRECTIONS, Defendant. This matter came before the Court for entry of judgment under CR 68 on Plaintiffs acceptance of the Defendanfs offer of judgment for $2.450.00. True copies of the offer, acceptance and proof of service of the same me attached hereto as Exhibit 1. Based on the offer Ofjudgrnent and acceptance, Judgment is entered as follows: Plaintiff Shappa .Baker is awarded the sum of $2,450.00 payable by Defendant Departn1entofCorrectio DATED this say of TZUU- ,201l. FAU LA CASEY Honorable Paula Casey Thurston County Snperior Court Judge SECOND ON ATTORNEY GENERAL GFFER OF ACCEPTANCE A NO, 10-2-015524 98504-0116 (seo) 536-1445 A SF-01009 PRR-2011-00450 CERTIFICATE OF SERVICE A I I certify that I on the date indicated below, Iserved a true and correct copy of the foregoing document on all parties or their counsel of record as follows: I United Parcel Service, Next Day Air I AEC/Legal Messenger I State Campus Delivery 4 US Mail Postage Prepaid I Hand delivered by TO: i SI-IAPPA BAKER, DOC #787553 AIRWAY HEIGHTS CORRECTIONS CENTER PO BOX 2049; RA54L - ARWAY HEIGHTS WA 9900l-2049 . EXECUTED this ini day of May, 2 1, at Olympia, Washington. I CJ . Legal Assistant 1 SECOND AMENDED ON 2 I ATTORNEY GENEKA-L orivaiz or ACCEPTANCE NO. 10~2-01552-1 (360) 5364445 A SF-01010 PRR-2011-00450 ELSGEDITE l2l`No Heating _Set - 2 if] 'Heating is Set Date: 3 Tiineg Honorable Paula Casey 5 7 -sierra on Wesmsoton 3 TIHURSTON soennion .9 saeine Nofio-2-o1552_1 is - Plaintlfi owen oe to 11 if-_ 1 - "nz" I DEPAR OF CORRECTIONS, ln . Defendant 14 'l5 to: 16 Under can Rule es, hereby to enew yeie, Please to 17 take judgment against it, as an- agent of the Depeittnent of Corrections, porsnant to RCW Ch.- 18 492, which shall be in ae of twe lion: Dollars lg including attorneys fees and other awardable costs accrued inthis _case by 9_0 ale of this OEer, ie addition to lnjunctiste relief by see 21 Court This Offei: emended to. settle and resolve telief souglnt 22 bjf' you in this ease; This Offer made for the inn-poses 'of Civil Rule 68,' and may not be 23 oonstoiedias a waiver of any defenses or objections, or an admission tlsat defendant is liable 24 to yon, or that 'yon have been or dainaged as aresult of any action or inaction on the 25 part tl;1e'Defendant This Ciffer is made in an attempt to anew the parties to compromise their QFFER QF 1 eL1'roa1~1eY Gsm-:nee ognasmreron - _Olympia WA Q8504-0116 (seo) 536-1445 - SF-01011 PRR-2011-00450 respective lifigeiion, elimjriaie the added com of further trial preparation, and to 'avoid the expenses of ,p gh? - t' -- RBSPECTFULLY SUTESMITTED this day of March, 2011. ROB UICll' r":f3li" 9'3" 5 Grill @5553 gp TQ . 2 oewmmerew - 1 PLADJTIFE -NO. Olympia, WA 985040116 - <;eo>5se144s I SF-01012 PRR-2011-00450 'Sbappa Baker, #787553, Airway Heights Gorreotiou Center - -P.0. Box 2049 Airway Heights WA 1 1 Arldifii Vingo, Assistant AG 1 1 AIEORLEY OF TEAR .Corrections Division P.0. Box -?0115 WA . sarah 1 Re: 'Baker 'Dep't of 'Corrections "1 Thurston County Superior Court No, 10-2-01552-1 68 Offa of Juagmav; 1 . .aolioorsledge receipt of the Gffer of Judgment in ease." . I hereby -the offer of jucigment in the larsourmt -of $2,425.50 torefleot reasonableness in settling this FRA case-. I heteby desigoate;my Jfiatluei., as mmPle_ase make the check or wazrarft. payable to Kim, Baker. His>>comt_aot infomation is listed' below. 4 Upon receipt of- tbe Qffer of pleading 1' for presentmaot- to and 1 eotryfof judgment by tbeiiomorable Judge Casey, I soil execzote same at 1 your-direction as is appropriate. 'Hiainlcs so much fob' yottr' time, attelutios and assistance, in comczlumiing I this matter. - . Corciially Yongs, - - Balca' ea= Kim 1528 Ave( 1 Spokane, WA 99202 1 (509)230-2861 1 o:file --gi Qi IN C;?PRR-2011-00450 FTILED EXPEDITE i A NO HEARING - G0 HEARING IS SET Date: October 10, 2011 "wi Time: 8:30 a.m. Judge: Bruce A. Spanner Location: Iteiephonic) BY UEPU-W SUPERIOR COURT OF WASHINGTON - IN AND FOR COUNTY a I IEIIMIE JEFFREY R. MOKEE, NO. 'Ii-2-50489-4 NOV 1 P\3i0TifT~ Ar'ro icE Corrections Division JUDGMENT vs. WASHINGTON STATE DEPARTMENT i OF CORRECTIONS (VVDOC), Defendant His matter came before the Court on PIaintiff's Motion for Show Cause on Juiy 1.5, 2011, with Piaintiff, Jeffrey R. McKee, appearing pro se, and Robert McKenna, Attorney Generai, Andrea \/Ingo, and M. Mounsey-Longmeir, Assistant Attorney General, appearing for the Department of Corrections (DOC). At the hearing, the Court found a' vioiation of 42.56, the Pubiic records Act (PRA). In reaching its decision 'ri addition the 'Court considered the orai argument of Piaintiff and counsei for Defendant I the foliowing pleadings; 1. PIaintiff's Motion for Show Cause, with attached exhibits; 2. Response to PIaintiff's Motion for Show cause, with attached exhibits. Therefore, IT IS ORDERED, ADJUDGED, AND ADECREED AS FOLLOWS: PIaintiff's Motion for Production of records to the designate third party is Jeffrey R. McKee pro se 1 Coyote Ridge Corrections Center PO BOX 769 I-IASB Connell, We 99326 SF-01014 (509) 543-ssoo PRR-2011 00450 6 Presented- 4- e~ The DOC shall send installments 3, 4 and 5 to the designated third party within ten (10) days from JUDGMENT is hereby entered in favor ofthe plaintiff, Jeffrey R. l\/lcKee, and against the DetendantDOC as noted below: 1 1. $10.00 per day for li? days (02/05/11 - Ugg 'rf Z, 2. Costs . 2751 we Total 2 2 The amount awarded to Plaintiff shall be paid by the Department of Corrections to Plaintiffs attorney, Michael G. Brannan at Northlake V\/ay, Suite E, Seattle Washington 98103. The Cou ctions is to pay Franklin Superior Court the following amount This amount is to be paid into rt registry at: 'Qing bone 4 this 7 day of -- 2011. 5 Se- ORABLE sauca A. SPANNER Superior Courtjudge BRUCE A. SPANNEB -- Approved~~as~to-form Date: (7 [3 Date: Jeffrey R. l\/lcKee 882819, pro se Andrea C, \/ingo #28183 Coyote Ridge Corrections Center Attorney General of Washington State PO BOX 789 HA38 PO BOX 40118 Connell, Wa 99328 Olympia, \/Va 98504-0118 (509) 543-5800 (380) 588~1-445 JIJDGMENT Jeffrey R. McKee 882819, pro se No. 11-2-50489-4 2 Coyote Ridge Corrections Center 1 2 PO Box 769 mae Connell, Wa 99326 PRR-2011-00450 (509) 543-5800 "Zi EXPEDITE N0 HEARING IS SET . Date: I3 Us 5 Time: . Judge: Bruce A. Spanner . J- Location: gy . I I SUPERIOR COURT OF WASHINGTON I NOV 2011 IN AND FOR FRANKLIN COUNTY I I GENERAUS FICE Corrections Division JEFFREY R. No. . Plaintiff, I FINDINGS OF FACTS AND VS- CONCLUSIONS OF LAW WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant This matter was tried to the court, without a jury upon plaintiff's Motion For Show Cause on July '15, 2011. The undersigned Judge presided at the hearing. The claims presented at the hearing for adjudication were as follows: I. Did the Defendants violate RCW 42.56.080 100, and 520, by not producing the public records plaintiff identified and submitted payment for; 2. Did the Defendants violate RCW 42.56.080 by distinguishing l\/lr. l\/lcKee form other requestors; I 3. Should the Defendants be ordered to produce the public records plaintiff I identified and paid for; . I 4. Should the Court set a penalty range at the high end ofthe range under RCW FINDINGS OF FACT AND Jeffrey R. McKee 882819, pro se CONCLUSIONS OF LAW 1 Coyote Ridge Corrections Center No. 11-2-50489-4 PO BOX 769 HA38 Connell, Wa 99326 SF-01016 (509) 543-ssoo PRR-2011-00450 Plaintiff, Jeffrey R. l\/icKee, pro se, appeared personally by telephone at the hearing. Defendant Washington State Department of Corrections appeared "through their attorney of record Assistant Attorney General Andrea Vingo WSBA 26183 who appeared personally by telephone. The following exhibits were admitted into evidence and considered by the Court: A. Plaintiff's Exhibits: . 1, 12/14/10 letter from to Terrell; 2, 1/7/11 letter from Terrell to l\/lcKee; 3, 2/5/11 letter from l\/lcKee to Terrell; 4, 3/9/11 letter from Parry to l\/lcKee; 5, Title Newsbrief 08-03; 8, Title`Newsbrief 05-11, Amendment 1; 7, 6/30/09 Centralized Requestors; . 8, Third Set of interrogatories page 6, No. 10-2-05025-1. B. Defendants Exhibits: A 1, 7/12/11, declaration of Denise Vaughn. Based on the evidence presented at trial, the Court makes the following Findings of Fact: A 1 l. FINDINGS OF FACT A. Did Defendants violate RCW 42.58.080, 10_0, and 520, by not producing the public records plaintiff identified and submitted payment for. 1. The Department of Corrections violated RCW 42.58.080, 100, and 520 by not producing the records l\/lr. l\/icKee identified and paid forin his December 14, 2010, letter (Plaintiffs Exhibit 1). B. Did Defendants did not violate RCW 42.56.080 by distinguishing ix/ir. l\/lcKee from other requestors. FINDINGS OF FACT AND Jeffrey R. McKee 882819, pro se CONCLUSIONS OF LAW 2 Coyote Ridge Corrections Center No. 11-2-5048941 PO BOX 769 HA38 Connell, Wa 99326 A SF-01017 (509) 543-5800 PRR-2011-00450 1. C. 1. D. 1. Defendants did riotdistinguishh l\/lr. McKee from other requestors by placing him on a centralized requestor list (Plaintiffs Exhibit 7). Should the Defendants be ordered to produce the public records plaintiff identified and paid for. 1 Defendants were required to send the requested records to the third party designated l\/lcKee upon receiving payment of the records. Should the Court set a penalty range at the high end of the range under RCW 1 The Defendants violated RCW 42.55.080, 100, and 520 and a penalty should be affixed. Il. CONCLUSIONS FINDINGS OF FACT AND CONCLUSIONS OF LAW 3 NO. 1l~2-~50489-4 Did Defendants violate RCW 42.56.080, 100,?and 520, by not producing the public records plaintiff identified and submitted payment for. the Defendants violated RCW 42.55.080, 100, and 520 by not producing the . requested records upon receiving payment. Did Defendants did not violate RCW 42.56.080 by distinguishing l\/lr. l\/lcKee from other req uestors. Defendants did not violate RCW 42.56.080 by placing l\/lr. l\/lcKee on the centralized requestor list. Should the Defendants be ordered to produce the public records plaintiff identified and paid for. . The Defendants violated`RCW 42.55.080, 100, and 520 and shall produce the public records plaintiff identified and paid for. Should the Court set a penalty range at the high end of the range under 1 Defendants violated RCW 42.55.080, 100, and 520 and arerequired to pay a statutory penalty from February 5, 2011 until Defendants place the records Jeffrey R. McKee 882819, pro se Coyote Ridge Corrections Center PO BOX 769 H2-L38 Connell, Wa 99326 SF-01018 (509) 543-ssoo PRR-2011-00450 8 into the mail to the designated third party and pay all Costs and etatUtory_ attorney fees pursuant to RCW DATED this 7 day of 2011. NORABLE BRUCE A. SR . ER SUPERIOR COURT JUDGE BRUCE A. SPANNER PRESENTED BYll/lCKee 882819, plaintiff se Coyote ridge Corrections Center PO BOX 789 HA38 Connell, \/Va 99328 (509) 543-5800 1 APPROVED AS TO FORM: AAG, Andrea Vingo #28183 PO BOX 401118 Olympia, \/Va 98504-0118 (380) 588-1445 FINDINGS FACT AND Jeffrey R. McKee 882819, pro Se CONCLUSIONS OF LAW 4 Coyote Ridge Corrections Center No. 11-2-50489-4 PO BOX 769 HA38 Connell, Wa 99326 - SF-01019 (509) 543-5800 PRR-2011-00450 ti' HMED suatatoa eouat EXPBDITE tsuastoa sous tr, tax No hearing set . g* 3 1 st1i;,ei20ll i - Time: Judge/Calendar: Hon. Carol BETTY CLERK IN THE SUPERIOR COURT OF STATE OF WASHINGTON IN AND FOR THURSTON COUNTY DARREN FAULK, aniadividuai, No. to-2-o27s3-7 Planter, ORDER ORANTINO a MOTION POR PARTIAL vs. suixaxfiarcr JUDGMENT STATE OF WASI-HNGTON DEPARTMENT OF - CORRECTIONS, a. public agency, Defendant. This matter came before the court on Plaintiffs Motion for Partial Summary Judgment The court has reviewed the Eles and records herein, including: l. Plaintiffs Motion for Partial Summary Judgment; 2. Declaration of Michele Earl-Hubbard; 3. Declaration of Chris Roslaniec; 4. Declaration of Darren Faullcg Defendant's Response to Plaintiffs Motion for Partial Surnrnary Judgment; 6. Declaration of Terry Pernula; 7. Plaintiff' Reply to Response Regarding Motion for Partial Summary Judgment; 8. Second Declaration of Chris Roslaniec; and 9 . 3 i _#qi into AW tumour T- . 2200 Sixth Avenue, Suite 770 ff #Vain QQ _?eatt1e, WA 98501-1' ORDER GRANTING MOTION FOR PARTIAL (206)-443f0Z00 (Phone) -1 (206)428-7169 (Fax) F-01020 PRR-2011-00450 and the pleadings on fle in this case, and otherwise being fully advised on the matter. 2 laintiffs Moti fo arti - I 1ai1'1'iiff`1ZhS l: un.-Ml .5 nil . 'i ii' 0/2/Vi The Court HEREBY FINDS that the Department of Corrections did not perform an - adequate search as required by the Public Records Act for the records requested by Plaintiff Da~r6nRaau>2>>05200~0) (350)586"f445 2. Plaintiffs action under the Public Records Act is dismissed with prejudice; 3. The Defendant is the prevailing party in this case and is entitled to its costs as allowed by law; and 4. The Clerk of the Court is directed to send a conformed copy of this order to Plaintiff and Counsel for Defendant. DATED this gg '/Tay of 2009. ggi? HONORABLE LINDA C. KRESE Submitted by: ROBERT M. MCKENNA Attorney Gener DOUGL . CARR, WSBA #17378 Assistan Attorney General Attorney for Defendant QRDER DENYING 2 ATTORNEY GENERAL PLAINTIFFS TO snow A CAUSE AND DISMISSING ACTION ()|ympga_ 93504-01 1 5 WITH PREJUDICE (NO: 08-2-05200-0) (350) 5354445 The Court of Appeals ofthe RICHARD D. JOHNSON, DIVISION I Court/idministrator/Clerk State of Of1?U?1i?}1 Square 600 Umversny Street Seattie, WA 90101-4170 (200) TDD: (206) 587-5505 November 24, 2009 Douglas Wayne Carr Frederick J. Fischer Attorney at Law DOC #249868 Atty General's Ofc Monroe Correctional Complex PO Box 40116 PO Box 777 Olympia, WA. 98504-O1 16 Monroe, WA. 98272 CASE #z 64112-3-l Frederick J. Fischer, Pet. v. WA State Dept. of Corrections, Res. Counsel: The following notation ruling by Commissioner Mary Neel of the Court was entered on November 23, 2009, regarding court's motion to dismiss and/or impose sanctions for failure to pay the filing fee or file an order of indigency, file a copy of the order seeking review and the motion for discretionary review: Petitioner has failed to perfect his notice and motion for discretionary review. Review is dismissed. Sincerely, Richard D. Johnson Court Administrator/Clerk PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent, V. FREDERICK J. FISCHER, Petitioner. D|v|s|No. 641 12-3-I CERTIFICATE OF FINALITY Snohomish County Superior Court No. 08-2-05200-0 I I THE STATE OF WASHINGTON TO: The Superior Court of the State of Washington in and for Snohomish County. This is to certify that the ruling of the Court of Appeals of the State of Washington Division l, filed on November 23, 2009, became final on December 30, 2009. c: Frederick J. Fischer Douglas Wayne Carr ij I IN TESTIMONY WHEREOF, I (JJUURT UP I . have hereunto set my hand A 4/90 and afllxed the seal of said Court at Seattle, this 30th 5 dey of December, 2009. cn 0 If Ji I '/If 4) /'Richard .Joh son A A Court ofthe Court of Appeals, State of Washington Division l. SF-01045 PRR-2011-00450 iQ? 23233 Ie- I I it 3 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON FREDERICK J. FISCHER, No. 64818-7-I Appellant, DIVISION ONE v. I UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF CORRECTIONS, I Respondent. FILED: January 24, 2011 I LEACH, J. - Frederick Fischer appeals from the trial court order dismissing his action, alleging that the Department of Corrections (DOC) violated the Public Records Act, chapter 42.56 RCW. Because DOC established that its prison surveillance video recordings provide specific intelligence information whose nondisclosure is essential to effective lavv enforcement, the recordings are exempt from public disclosure. We therefore affirm. FACTS Frederick Fischer is an inmate at the Washington State Department of Corrections Monroe Correctional Complex. He claims that on November 20, 2007, another inmate assaulted him in the lavv libraiy, which is located in the Program and Activities Building (PAB). On December 3, 2007, Fischer's counsel faxed to DOC a SF-01046 PRR-2011-00450 No. 64818-7-I 2 request under the Public Records Act (PRA) for copies of surveillance video recordings made by specific cameras in the PAB at the time of the assault. DOC eventually denied the request, claiming the recordings were exempt from disclosure under the On June 10, 2008, after DOC denied his appeal, Fischer filed this action for violation of the PRA. The trial court eventually set a show cause hearing for October 14, 2009. After considering declarations from Fischer and Richard |\/lorgan, a former prison superintendent and currently director of prisons division, the trial court dismissed Fischer's claim, concluding that DOC had satisfied its burden of demonstrating the surveillance recordings were exempt from disclosure under RCW The video recordings in question constitute specific intelligence information compiled by a law enforcement and penology agency and are exempt from disclosure pursuant to RCW Disclosure of such recordings would negatively impact the DOC's ability to maintain security in its correctional facilities and to address infractions in those facilities. Fischer now appeals. Only one of the six requested surveillance recordings exists. The remaining recordings were deleted during normal DOC operations. SF-01047 PRR-2011-00450 No. 64818-7-l 3 DECISION The PRA requires every state agency to disclose any public record upon request unless the record falls within a specific exemption? Any agency withholding a public record bears the burden of demonstrating that a specific exemption applies? Courts must construe the PRA liberally and its exemptions narrowly? In reviewing a PRA request, we stand in the same position as the trial court and review an agency's decision to withhold records de novo? RCW 42.56.240(1) exempts from public disclosure "[s]pecific intelligence information . . . compiled by investigative, law enforcement, and penology agencies . the nondisclosure of which is essential to effective law enforcement." In his supporting declaration, Fischer alleged that The video surveillance system in the PAB includes about thirteen (13) cameras, a 20" monitor and a hard-drive. The monitor and hard- 2 _sg Lindeman v. Kelso sch. Dist. No. 458, 162 wn.2<1 196, 201, 172 Pau 329 (2007); RCW 3 Prison Legal News, Inc. v. DeQ't of Corr., 154 Wn.2d 628, 636, 115 P.3d 316 (2005). 4 Lindeman, 162 Wn.2d at 201. 2 5 gee Lindeman, 162 Wn.2d at 200-01; RCW The trial court may conduct the show cause hearing solely on the basis of affidavits. RCW 6 RCW 42.56.240(1) exempts the following information from public disclosure: "Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy." SF-01048 PRR-2011-00450 NO. 64818-7-I 4 drive are set up at a desk right by the front door to the building. The monitor faces the door and can be seen by anyone who wants to look at it. lt shows the footage from all cameras simultaneously and in real time. Everyone can see the camera angles, blind spots, picture quality and surveillance coverage. Any inmate who goes into the library can take a position at the bookshelf and watch the monitor indefinitely. On appeal, Fischer does not dispute that DOC is a law enforcement or penology agency, that the surveillance videos constitute intelligence information, or that surveillance videos are essential to DOC's ability to undertake effective law enforcement? Rather, his sole contention is that DOC failed to satisfy its burden of demonstrating that nondisclosure of the surveillance videos in the PAB is "essential to effective law enforcement" because DOC allows inmates to view the same information on a video monitor located in the PAB. In opposing Fischer's PRA request, DOC relied on the declaration of Fiichard i\/lorgan, who stated that surveillance cameras provide intelligence information that is used for prison investigations, prison infractions, and criminal prosecutions and that the electronic surveillance systems, including fixed cameras, were "an essential element of effective control of a population that is 100% criminal in its composition and is accustomed to evading detection and exploiting the absence of authority, 7 King cmy. v. sheehan, 114 wn. App. 325, 337, 57 P.3d 307 (2002) (construing "intelligence information" narrowly under former RCW to include information compiled in an effort to prevent and monitor possible criminal activity). SF-01049 PRR-2011-00450 NO. 64818-7-I /5 monitoring, and accountability." Morgan explained that because DOC does not have the resources to monitor all areas 24 hours a day, the effectiveness of the system depends on preventing inmates from learning its capabilities and limitations: Not all surveillance cameras in DOC facilities are actively monitored by staff. Some cameras are only monitored by staff and create no recordings. Some cameras are only recorded during specific times of day and not others. Some camera stations (camera housings such as boxes and bubble housings) do not contain cameras at all. Some cameras have poor resolution or can be out of service. Some cameras have very narrow fields of view, while others have wide fields of view. Some are PTZ (pan, tilt, zoom) which have powerful abilities to capture fine detail at long distances. Some are controlled by the person monitoring the camera. Some pan a wide field automatically. Some cameras are so well hidden, they are not suspected by offenders to be present. On the other hand, rumors abound among inmates that there are cameras where none exist. According to l\/lorgan, providing access to surveillance videos would allow inmates to determine weaknesses and exploit those weaknesses by assaulting other inmates or committing crimes and prison infractions. Contrary to Fischer's contentions, the images on a monitor do not provide the same information as surveillance videos. As the trial court correctly recognized in rejecting Fischer's claim, real-time images do not reveal which cameras are recording, the hours of recording, the resolution and field of view of recording cameras, or staff members' ability to control specific cameras. Nor do such images reveal which cameras are not being actively monitored, the location of hidden cameras, which SF-01050 PRR-2011-00450 NO. 64818-7-I 6 cameras are not working, or which camera housings are empty. Consequently, even if the real-time images on the monitor are as accessible as Fischer claims, they provide virtually no meaningful information about the specific recording capabilities of DOC's surveillance system in the PAB. ln construing the "specific investigative records" exemption under the public disclosure act, former RCW our Supreme Court reiterated the requirement that "law enforcement" be construed narrowly, rejecting DOC's suggestion that all prison operations fall within the scope of law enforcement? The court noted that the ordinary meaning of "law enforcement" includes act of putting . law into "'the imposition of sanctions for illegal conduct, 0 and detection and punishment of violations of the law. Here, as set forth in unrefuted affidavit, DOC's statutory obligations include carrying out the terms of court-ordered sentences and detecting and punishing violations of the law. Intelligence information provided by video surveillance systems therefore falls squarely within the core definitions of "law enforcement." Concealment 8 Prison Legal News, 154 VVn.2d at 643 (providing medical care to inmates and disciplining medical employees do not constitute law enforcement). 9 Prison Legal News, 154 VVn.2d at 640 (alterations in original) (quoting Brouillet v. Cowles Publ'g Co., 114 V\ln.2d 788, 795, 791 P.2d 526 1? Prison Legal News, 154 VVn.2d at 640 (quoting Brouillet, 114 Wn.2d at 796). Prison Legal News, 154 Wn.2d at 640 (quoting LAW 901 (8th ed. 2094)). SF-01051 PRR-2011-00450 NO. 64818-7-I 7 of the full recording capabilities of those systems is critical to its effectiveness in the specific setting of a prison. An lnmate's ability to view certain real-time images on a prison monitor does not reveal the capabilities or limitations of the prison surveillance systems. Under the circumstances, DOC has satisfied its burden of demonstrating that nondisclosure of that information is essential to effective Iavv enforcement. Affirmed. 1 WE CONCUR: Q. <51 SF-01052 PRR-2011-00450 IN THE -COURT OF APPEALS OF THE STATE OF WASHINGTON . DIVISION I I FREDERICK J. FISCHER, No. . Appellant, V- A Snohomish County WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Superior Court No. 08-2-05200-0 Respondent.. I . . THE STATE OF WASHINGTON TO: The Superior Court of the State of Washington in and for Snohomish County. This is to certify that the opinion ofthe Court of Appeals of the State of Washington, Division I, filed on January 24, 2011, became the decision terminating review of this court in the above entitled case on September 21, 2011. An order denying a motion for reconsideration was entered' on it/larch 3, 2011. An order granting- a motion to publish was entered on April 12, 2011. An order denying a petition for review was entered in the Supreme Court on August 8, 2011. This case is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy of the decision. cz Frederick Fischer Douglas Carr Hon. Linda Krese ff; up uv WHEREOF, 1 have hereunto set my hand and irirur OF sat. affixed the o_i of said Court this 21st~day of .5 <10 . 3; - Q56 TSITI fg drii gg . 'yir .ayr |cH NsoN tr; jg irirre Court A 1 istrator/Clerk ofthe Court 4% wg* State ashington, Division i. 1f~' 0/2 Wash i 2 SF-01053 PRR-2011-00450 Lo 5 .nji ,fy EI Ji, it; .gill 'i xii, gi.. fp# . .Tag gi Xi I-IE UFREME 114% is I-i NO. 85814-4 1 .C i FREDERICK FISCHER, Petitioner, v. NO. 64818-7-I WASHINGTON STATE DEPARTMENT or I E2 gg; CORRECTIONS, U) 3; gi" RespondentSpecial Department ofthe Court, composed of Chief Justice Madsen and Chambers, Owens, Fairhurst and J. M. Johnson considered this matter at its August 8, 2011, Motion Calendar and unanimously agreed that the following order be entered. IT IS ORDERED: That the Petition for Review is denied. DATED at Olympia, Washington this day of August, 2011. For the Court CHIEF JUSTI 6% SF-01054 PRR-2011-00450 SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY LINCOLN L. ADDLEMAN, JR., Plaintiffs, NO. 009-2-18096-2 KNT I VS. WASHINGTON STATE CORRECTIONS ET AL, Defendants. LINCOLN L. ADDLEMAN, JR., I Plaintiffs, No. O9-2-20311-3 KNT vs. DEPARTMENT OF CORRECTIONS ORDER OF CONSOLIDATION UNDER ET AL CAUSE #09-2-18096-2 KNT Defendantsthe Court's own motion, IT IS HEREBY ORDERED that the causes are consolidated under cause number 09-2-18096-2 KNT and assigned to Judge Laura Gene I\/Iiddaugh. All issues on both cases shall be heard by the assigned l.C. Judge. ORDER RE: 1 3;-310005050 00000 DATED this 3" day of June, 2009. 'k ORDER REI CONSOLIDATION - 2 5901056 PRR-2011 00450 GE BRIAND -5 The Honorable John Erliek Hearing Date: Hearing Time: Hearing Location: STATE or WASHINGTON KING COUYNTY SUPERIOR COURT LANE ADDLEMAN JR., No. 09-2-18096-2 KNT A Plaintiff, ORDER SUMMARY A .TUDGMENT TO THE V. - DEPARTMENT OF 1 ooRREoT1oNs AND WASHINGTON STATE DEPARTMENT DEPENDANTS GREAVES AND or CORRECTIONS et ai., Defendants. The court, having reviewed the motion fer surnmary judgment and the exhibits attached thereto tiled by Defendants Department of Corrections (DOC), Terri' Greaves, and Kelly Kozelisky; Plaintiffs _response opposition and the exhibits attached thereto, and the reply' of the above Defendants, having heard oral argument Hom the parties on september 21, 2010, hereby 1. The Motion for judgment tiled by Det`endants,DOC, Greaves, and Kezelisky is A 2. Plaintiffs state law cont/'ersion claim is barred bythe doctrine of res judicata based on Plaintiff having previously litigated this claim te judgment in the U.S. District Court for the Western -District of Washington Cause No. CV-05-0709 and in Addlemarz v, State, King County Superior Court Catise No. G8-2-12237-9 KNT. 1 i 0121353 GRANTING SUMMARY 1 ATTORNEY GENERAL TO THE DEPARTMENT CORRECTIONS AND DEFENDANTS I o1ympia,wA 98504-Ol is GRBAVES AND 1<;ozEL1s1>lle 5 y,s,iitl 5 slesins 1 . _ir EAEL KAHRS, WSEA #27085 DATE Attorney for Plaintiff 1 A if li A Vial Risk ana Depa ment of Come tions 4' ON M. HO 'l LL, sistant Attorney General Attorney for Defendant 3 ATTORNEY GENERAL OF 11 AGREEMENT (NO. 06-2-13022-5) "mfg WA 98504-0116 (360}5s6~1445 SF-01083 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a copy of the RELEASE AND SETTLEMENT AGREEMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: MICHAEL C. KAI-IRS KAHRS LAW FIRM, P.S. 5215 BALLARD AVENUE, NW #2 SEATTLE, WA 98107 I certify under penalty of perjury that the foregoing is true and correct. EXECUTED this@%ay of Jul 2007 at OlympiaALKER RELEASE AND SETTLEMENT 5 ATTORNEY GENERAL OF WASHINGTON IJ t' AGREEMENT (No. 06-2-130226) Ol WA 98504-0116 5501084 ymggio) 586-1445 PRR-2011-00450 itil Hi; "Thl?fHonorable Judge David Edwards Hearing Date: 8/27/08 08 UE-T P2 IBA Hearing Time: 8:30 a.m. Hearing Location: Grays Harbor Superior Court if if? ti# tri CLERK STATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT JEFFREY R. MCKEE, NO. 08-2-00442-9 Plaintiff, ORDER DENYING MOTION TO COMPEL AND v. GRANTING MOTION TO DISMISS VAN WASHINGTON STATE REDDING AS A DEFENDANT DEPARTMENT or (WDOC), et ar, Defendants. The Court, having reviewed the record and Defendants' Motion to Dismiss Van Redding as a Defendant, does hereby find and ORDER: 1. Plaintiffs Motion to Compel Deposition Testimony is DENIED. 2. Defendants' Motion to Dismiss Defendant Van Redding is GRANTED. 3. Defendant Van Redding is DISMISSED VVITH PREJUDICE. 4. The Clerk of the Court is instructed to send uncertitied copies of this Order to Petitioner and counsel for Respondent. DATED this 2 day of ORDER DENYING PLAINTIFITS MOTION TO COMPEL AND GRANTING MOTION TO DISMISS VAN REDDING AS A DEFENDANT - NO. 08-2>>00442-9 2008. I A 31| A HONORABLE Grays Harbor Superior Court Judge I SF-01085 PRR-2011-00450 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 Submitted by: 2 ROBERT A Attorney General 35527 5 As istant Attorney General Attorney for Defendants ORDER DENYING 2 MOTION TO COMPEL AND PO Box 401I6 GRANTING MOTION Ofympia, WA 935040116 T0 DISMISS VAN R1-3DD1NO AS A (360) DEFENDANT - NO. os-2-00442-9 SF-01086 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing document on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air AEC/Legal Messenger State Campus Delivery Hand delivered by TO: JEFFREY MCKEE, DOC #882819 STAFFORD CREEK CORRECTIONS CENTER 19] CONSTANTINE WAY ABERDEEN WA 98520 EXECUTED this :Qi Zi-?gday of Septe er, 2008, at Olympia, Washington. A . AL ORDER 3 MOTION TO COMPEL AND ?6 GRANTING MOTION Olympia, WA 98504-0116 'ro DISMISS VAN REDD1NG AS A (360) 586""45 DEFENDANT - NO. 08-2-00442-9 SF-01087 PRR-2011-00450 t' Etif., fill iff; gf; i 1 - The Honorable Da ards ns tra Hearing Timeotngi ii t- ER STATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT JEFFREY R. MCKEE, No. os-2-004429 Plaintiff, BAR ORDER V. WASHINGTON STATE DEPARTMENT OF CORRECTIONS (WDOC), et al., Defendants. Plaintiff, Jeffrey R. McKee is abusing the process of Grays Harbor County Superior Court. Mr. McKee is engaging in "recreational litigation" for the purposes of his own entertainment and amusement. His litigation activities are frivolous and abusive and abuse the resources of this Court, impacting other litigants who have good-faith litigation pending. As a result of his frivolous, abusive litigation practices, the Court does hereby find and ORDER: l. Jeffrey R. McKee is barred from filing any new actions in Grays Harbor County Superior Court Without first seeking consent of the Court; 2. The Clerk of the Couit is directed to not accept for filing any new action from Jeffrey R. McKee unless Mr. McKee first obtains an order from this Court permitting such action to be filed; and BAR ORDER 1 ATTORNEY GENERAL OF WASHINGTON - Di No. os-2-00442-9 SF-01088 otyinpia, WA 98504-0116 PRR-2011-00450 (350} 535-1445 3. The Clerk of the Court is instructed to send unoertitied copies of this Order to the Plaintiff and counsel forthe Defendant. DATED this day of 1 fit! KW 2009. >>ea'v1e eewaaos DAVE EDWARDS Grays Harbor Superior Court Honorable Judge Presented By: ROBERT M. MCKENNA Attorney General JAS M. ELL, SBA #35527 As rstant Attorneys General BAR ORDER (PROPOSED) 2 ATTORNEY GENERAL OF WASHINGTON Corrections Division No. os-200442-9 PO BOX 40116 SF-01089 olympia, WA 98504-0116 PRR-2011-00450 (360) 586.1445 CERTIFICATE OF SERVICE I certify that served a true and correct copy of the foregoing BAR ORDER (PROPOSED) on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air AB C/Legal Messenger State Carnpus Delivery Hand delivered by TO: JEFFREY MCKEE, DOC #882819 STAFFORD CREEK CORRECTION CENTER l9l CONSTANTINE WAY ABERDEEN, WA 98520 EXECUTED this day of Feb ary, 2009, at Olympia, Washington. i I A LKER BAR ORDER (PROPQSED) 3 ATTORNEY GENERAL OF WASHINGTON i' No. 08-2-00442-9 SF-01090 o1ympia,wA9s5o4~01f6 PRR-2011-00450 (350)5g5,1445 its iitiif itf? nit. tif' 2' "The Honorable Dave Edwards Hearing Date: U9 F50 27 F60 T3 Hearing Time: Hearing LocationSTATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT JEFFREY R. MCKEE, NO. 08-2-00442-9 Plaintiff ORDER GRANTING MOTION EOR SANCTIONS V. PURSUANT TO CR ll WASHINGTON STATE DEPARTMENT OF CORRECTIONS - (WDOC), et al., Defendants. This matter came before the Court on the Defendanfs Motion for Sanctions Pursuant to Civil Rule ll, on January 23, 2009. The Court orally ruled, granting Defendant's motion. In reaching its decision, the Court considered the oral argument of Plaintiff and Counsel for Defendant in addition to Defendant's Motion for Sanctions Pursuant to Civil Rule ll. Plaintiff did not tile a response to Defendant's Motion. The Court does hereby find and ORDER: l. Plaintiffs Motion to Disqualify Attorney General and Assistant Attorney General Under RCW 2.4-4.020 was completely meritless, frivolous, and filed for the purpose of harassing the opposing parties in this litigation; 2. Defendant's Motion for Sanctions Pursuant to Civil Rule ll is GRANTED. 3. Plaintiff is ordered to pay to Defendant costs and attorney fees totaling $328.48; . ORDER GRANTING 1 A A ATTURNEY GENERAL MOTION POR SANCTIONS PURSUANT TO CR ll 015/111i>iH, WA 98504-0116 No. 08-2-00442-9 3901091 (360) 5861445 PRR-2011-00450 4. Plaintiff is furthered ordered to pay to punitive sanctions to Grays Harbor County Superior Court totaling $750.00, payable Within 10 days of the date of this Order. The Court FURTHER ORDERS that Plaintiff is barred Hom any further proceedings under this cause number, including discovery, motion practice, and filing any documents with the Court, until the sanctions are paid in full. If the sanctions are not paid in full by May l, 2009, Plaintiffs case will he dismissed with prejudice. The Clerk of the Court is instructed to send uncertified copies of this Order to the Plaintiff and counsel for the Defendant. DATED this M) day or EQ3r~ric;ir~;{ 2009. DAVID DAVE EDWARDS Grays Harbor County Superior Court Judge Presented By: ROBERT M. Attorney General JA orffaow L, #35527 As istant Attorneys General ORDER GRANTING 2 ATTORNEY GENERAL OF Corrections Division MOTION FOR SANCTIONS PO BOX 40116 PURSUANT TO CR 11 Olympia, WA 9s504~01 16 No. os~2-00442-9 3901092 (360) PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing ORDER GRANTING MOTION FOR SANCTIONS PURSUANT TO CR 'll on all parties or their counsel of record as follows: US Mail Postage Prepaid I United Parcel Service, Next Day Air I ABC/Legal l\/Iessenger I State Campus Delivery I Hand delivered by TO: JEFFREY MCKEE, DOC #882819 STAFFORD CREEK CORRECTION CENTER l9l CONSTANTINE WAY ABERDEEN, WA 98520 EXECUTED this A day of Febi ary, 2009, at Olympia, Wasliington. fl/ AWN R, WA KE oaosa GRANTING 3 ATTURNEY GENERAL QF MoTioN r=oR sANcTroNs PURSUANT TO CR 11 olympia, WA 98504-0116 No. os-2-00442-9 3501093 (369 PRR-2011-00450 eat- 5.2 ilj in W8 ill? ., ,wtf .- 3 The Honorable Judge Edwards Hearing Date: 7/13/09 .. 1 Hearing Tirnei Without oral argunient 59 P3 'fifiearing Location: 102 W. Broadway, #203 Montesano, WA 98563 15 --1 1' 2. 5 laSTATE or WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT JEFFREY R. MCKEE, NO. 08-2-00442-9 Plaintifi ORDER OF DISMISSAL WITH PREJUDICE V. WASHINGTON STATE DEPARTMENT or CORRECTIONS (wiooc), et al., Defendants. Pursuant to this Court's Order Granting Defendanfs Motion for Sanctions Pursuant to CR 11, entered February 27, 2009, Plaintiff Was to pay sanctions to Defendant, in the amount of $328.48, and to this Court, in the amount of $750.00 Pursuant to that Order, if Plaintiff failed to pay the court-ordered sanctions by May 1, 2009, his case was to be dismissed with prejudice. This Court hereby finds the following; 1. Plaintiff has failed to pay court-ordered sanctions to Defendant in the amount @f$32s.4s, 0 2. Plaintiff has failed to pay court-ordered sanctions to the Court in the ainount of fB750.00; and 3. Plaintiff has violated the Court's Order Granting Defendanfs Motion for Sanctions Pursuant to CR ll. ORDER 01: DISMISSAL WITH 1 GENERAL or WASHINGTON PREJUDICE 03-2-o044Q-9 3501094 Olympia, vm 93504-on I6 PRR-2011-00450 (360) This Court does hereby ORDER: l. Plaintiffs case is DISTVIISSED WITH 2. Defendant, as the prevailing party, shall be awarded statutory costs in the amount of$200.00, pursuant to RCW 4.84.0l0(6) and RCW 4.84.080; and 3. The Clerk ofthe Court is instructed to send uneertified copies of this Order to the Plaintiff and counsel forthe Defendant. DATED this (5 `l'Z\aay or ,2oo9. QEWJD EDWARDS DAVE EDWARDS Honorable Judge Presented By: ROBERT M. MCKENNA Attorney General 11441 JA M. HO ELL, WSBA #35527 Assistant Attorneys General QRDER OF DISMISSAL WITH ATTORNEY GENERAL OF WASHINGTON Correchons Division PRETUDICE sox 40116 NO. O8-2-00442-9 SF-01095 Olympi; WA 16 PRR-2011-00450 (3655 535-1445 CERTIFICATE OF SERVICE I certify that I served a true and correct copy of the foregoing ORDER OF DISMISSAL WITH PREJUDICE on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: JEFFREY MCKEE, DOC #882819 STAFFORD CREEK CORRECTION CENTER l9l CONSTANTINE WAY ABERDEEN, WA 98520 EXECUTED this day oflune, 09, at Olympia, Washington. WN R. VVALK QRDER Op DISMISSAL "yn 3 ATTORNEY GENERAL OF WASHINGTON Corrections Division PREJUBICE PO Box 40116 NO. 08-2-004429 SF-01096 olympia, w_A 98504-0116 PRR-2011-00450 (360) 536-1445 $523 55: WitThe Honorable Judge Edwards Hearing Date: 7/13/09 5 Hearing Time: without oral argument 09 Jill.. 17 ia 3 Hearing Location: l02 W. Broadway, #203 Montesano, WA 98563 5 STATE OF GRAYS HARBOR COUNTY SUPERIOR COURT JEFFREY R. MCKEE, NO. 08-2-00442-9 Plaintiff, FINAL JUDGMENT FOR DEFENDANT EY DEFAULT V. AGAINST PLAINTIFF WASHINGTON STATE DEPARTMENT OF CORRECTIONS (WDOC), et al., Defendants. I. SUMMARY OF JUDGMENT Pursuant to RCW 4.64.03 0, the following information should be entered in the Clerl<'s Execution Docket: l. Judgment Creditor: Washington State Department of Corrections 2. udgment Creditor's Attorney: Robert M. Mclienn a, Attorney General Jason M. Howell, Assistant Attorney General 3. Judgment Debtor: Jeffrey R. McKee, 882819 4. Amount ofJudgmentZ $328.48 5. Amount of Interest Owed to Date of Judgment: $0.00 6. Total of Taxable Costs and Attorney Fees: $200.00 7. Total Judgment Award: $523.43 FINAL JUDGMENT FOR DEF ENDANT ATTORNEY GENERAL WASHINGTUN BY DEFAULT AGAINST PLAINTIFF -. I Olympia, WA 98504-0116 5901097 (360) 536-1445 PRR-2011-00450 II. JUDGMENT BY DEFAULT THIS MATTER having come on regularly for hearing before the undersigned judge of the above-entitled Court, and the Court being fully advised now makes the following Judgment by Default on the ground that the Plaintiff has failed to obey the Court's February 27, 2009 order pertaining to CR ll sanctions. The Court considered the pleadings in this case and the Declaration of Jason M. Howell signed June 24, 2009, and entered an Order dismissing Plaintiffs action with prejudice. Based on the above and pursuant to CR ll and CR 4l(b), the Court enters final judgment in this matter as follows: l. Judgment by default is entered against Plaintiff in favor of Defendant. 2. Defendant is awarded judginent in the amount of $328.48 and each and every claini by Plaintiff Jeffrey R. McKee is dismissed with prejudice. 3. Defendant Department of Corrections is awarded statutory attorney fees of $200.00 as the prevailing party. 4. Defendant's total judgment award is $528.48. DATED this i day or \/dr ,20o9. EDWARDS DAVE EDWARDS Grays Harbor County Superior Court Judge Presented By: ROBERT M. MCKENNA Attorney General M.HO LL, ssistant Attorn General FINAL JUDGMENT FOR DEFENDANT 2 BY DEFAULT AGAINST PLATNTIFF PO Bo, 40116 Ol 98504-0116 5501098 586-1445 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I sewed a true and correct copy of the foregoing FINAL JUDGMENT FOR DEFENDANT BY DEFAULT AGAINST PLAINTIFF on all parties or their counsel of US Mail Postage Prepaid United Parcei Service, Next Day Air Legal Messenger State Campus Delivery Hand delivered by Il record as follows: TO: JEFFREY MCKEE, DOC #882819 STAFFORD CREEK CORRECTION CENTER 191 CONSTANTINE WAY ABERDEEN, WA 98520 EXECUTED this QQ J/&day of JUI1 O9, at Olympia, Washington. DAWN R. WA RTE FINAL JUDGMENT POR DEFENDANT 3 WASHINGTON OITCC IOHS IVISIOR BY DEFAULT AGAINST PLAINTIFP PO BOX im! No, og-2-oo442-9 oiympa, WA 9850401 16 SF-01099 _l PRR-2011-00450 (366) 586 445 1 IN THE COURT OF APPEALS OF THE STATE OF DIVISION II JEFFREY 111311 51 ff; Appellant, Ecrieas ?1lf181@R,, 3 EAAE if RULING DISMISSING APPEAL .p Q, WASHINGTON STATE I A DEPARTMENT OF CORRECTIONS, VAN REDDING, Respondents. THIS MATTER came on for hearing of the clerl<'s motion to dismiss on the ground of abandonment, no affidavit of service, tiling fee or order of indigency having been submitted. Appellant has not responded to the Clerk's motion, and it appears that the appeal was taken for delay and should be dismissed for Want of prosecution. RAP Accordingly, it is ORDERED that this appeal is dismissed. DATED this of ,zooa COURT COMMISSIONER Jason Howell Jeffrey Mckee Office of the Attorney General 882819 191 Constantine Way PO Box 40116 Stafford Creek Corr Olympia, WA, 98504-0116 Aberdeen, WA, 98520 .1 I A SF-01100 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JEFFREY MCKEE3 A Ne. 38409-4-n _1 I A 9 RULING DISMISSING APPEAL 1_3 WASHINGTON STATE gs, DEPARTMENT OP T, A CORRECTIONS, VAN REDDING, Respondents. THIS MATTER came on for hearing of the clerl<'s motion to dismiss onthe ground of abandonment, no filing fee or order of indigency having been submitted. Appellant has not responded to the Clerk's motion, and it appears that the appeal Wastaken for delay and should be dismissed for Want of prosecution. RAP Accordingly, it is ORDERED that this appeal is dismissed. DATED this' day of 2009. ICHAEL KAHRS, WSBA #27085 DATE Attorne for Plaintiff 7 . . 1 _f 7 tt__ i. 77 Qs; KATH l- IC DA Risk Manager Department of Corr ut wwf? la-l gl JA M. HO LL, WSBA #35527 DA A istant Attorney General Attorney for Defendant RELEASE AND SETTLEMENT 3 AGREEMENT - NO. 07-2-12105-l PQ BOX 40116 SF-01105 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a copy of RELEASE AND SETTLEMENT AGREEMENT on all parties or their counsel of record on the date below as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered By: Electronic Mail: TO: MICHAEL C. KAHRS KAHRS LAW FIRM, P.S. 5215 BALLARD AVE, SUITE 2 SEATTLE, WA 98107 A /'gr EXECUTED this ii' day of July, ZQQ8, at Olympia, Washington. 1 ts/ fi oii/f A DAWN WALKER STIPULATION FQR DISMISSAL 2 ATTORNEY GENERAL OF WASHINGTON D. . . No. 07-2-12105-1 8901106 Olympia, WA 98504-0116 (360)586-1445 SPILEDS in oasa caersr EIIBQRIS SQRR EI piimg The Honorable Gary Steiner nearing Location: Hearing DateHearing Tirne: PIERCE Qiiltir? (Y, Ev STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT SAMUEL J. ELLIOTT, NO. 07-2-12105-I I Plaintiff, I ORDER DISMIS SING v. COMPLAINT DEPARTMENT OP CORRECTIONS, a subdivision ofthe State of Washington, Defendant. THIS MATTER having come before the undersigned judge of the above-entitled Court, and based upon the attached Stipulation for Dismissal of the parties, IT IS HEREBY ORDERED that Plaintiffs claims against Defendant in the above- referenced cause of action are hereby dismissed with prejudice and the Conrt will not retain jurisdiction over this matter. DATED this QQ day of 2008. A A Robyn A. Lindsay COURT COMMISSIONER J-ud%f-the Superior Court Presented By: ROBERT M. KENNA Gene I gud'-r~ SON M. ELL, WSBA #35527 Assistant Attorney General ORDER DISMISSING COMPLAINT I 3901107 PO Box 40116 Ng 07-2-1Q1n5-; olympiawa 98504-0116 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a copy of ORDER DISMISSING COMPLAINT on all parties or their counsel of record on the date below as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered By: Ij Facsimile: 1 TO. MICHAEL C. KAHRS KAHRS LAW FIRM, P.S. 5215 BALLARD AVE., SUITE 2 SEATTLE, WA 98lO7 EXECUTED this I ?/day of July, 2 at Olympia, Washington. A WALKER ORDER D1s1\/11ss1No COMPLAINT A 2 ATTURNEY GENERAL OP WASHHEGEON D. . SE01108 NO. 07-2-12105-1 Olympia, WA 985040116 (300) 586-1445 The Honorable Gary Steiner Hearing Date: Hearing Time; Hearing Location; STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT SAMUEL J. ELLIOTT, NO. 07-2-l2l05-l Plaintiff, STIPULATION FOR DISMISSAL V. DEPARTMENT OF CORRECTIONS, a subdivision ofthe State of Washington, Defendants. - IT HEREBY STIPULATED AND AGREED by and between Plaintiff SAMUEL ELLIOT, by and through his attorney MICHAEL KAHRS, and Defendant, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JASON M. HOWELL, Assistant Attorney General, that the parties to this action seek dismissal of the Complaint for Violation of Public Records Act, with prejudice, in accordance with the Release and Settlement Agreement entered in the above>>~entitled action. Costs and attorneys fees are provided for in the Release and Settlement Agreement. 215105 HAEL KAH S, WSBA #27085 DATE 8 ON M. HO LL, WSBA #35527 DA ssistant Attorney General Attorney for Defendant Attorney for Haig tiff 4 ATTORNEY GENERAL OF WASHINGTON Corrections Division NO. O7-2-l2l05-l POBOX 40116 Ol WA 98504-Ol 16 SF-01109 STIPULATION FOR DISMISSAL I I . A5 PRR-2011-00450 CERTIFICATE OF SERVICE . I certify that 1 served a copy of STIPULATION FOR DISMISSAL on all parties or their counsel of record on the date below as follows: US Mail Postage Erepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered By: Electronic Mail: TO. MICHAEL C. KAHRS KAHRS LAW FIRM, P.S. 5215 BALLARD AVE., SUITE 2 SEATTLE, WA 98107 EXECUTED thisr i""day ofjuly, 2008, at Olympia, Washington. We DAWN WALKER STIPULATION DISMISSAL 2 AWORNEYPGENEML - Corrections Dmbion NO. 07-Q-i2l05-l PQEOX 40115 Olympia, WA 98504-0] I6 SF-011 10 (360) 586-1445 PRR-2011-00450 STATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT DEREK E. GRONQUIST, NO. 06-2-l324-3 Plaintiff, RELEASE AND SETTLEMENT AGREEMENT V. DEPARTMENT OF CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, DEREK GRONQUIST, Plaintiff pro-se, and the Defendant, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JASON M. HOVVELL, Assistant Attorney General, agree to the following: . l. In consideration of the following provisions of this Release and Settlement Agreement ("hereinafter referred to as Agreement"), DEREK GRONQUIST, his heirs, assigns or other successors in interest, does hereby release and forever discharges the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages and causes of action of any nature arising out of Plaintiffs public disclosure request dated February 27, 2006, as described in Plaintiffs Complaint to Compel Public Disclosure in this action, made pursuant to RCW 42.56.001 et seq., and Which is the source of his claims against the Defendant. RELEASE AND SETTLEMENT 1 AGREEMENT NO. 06-2-1324-3 SF-011 1 1 PRR-2011-00450 (360) 586-1445 2. This Agreement is the final, conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiff' Complaint to Compel Public Disclosure in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 0 4. The State shall pay directly to Plaintiff DEREK GRONQUIST, the sum of Two Thousand Five Hundred Dollars and Zero cents ($2500.00) as full _and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Two Thousand Five Hundred Dollars and Zero cents ($2500.00) will be payable by check or warrant to DEREK GRONQUIST. 5. Any settlement proceeds sent to Plaintiff at the Clallam Bay Corrections Center (or any other Department of Corrections facility) by Defendant _shall be deposited into Plaintiffs spendable accounts without any deductions by the Department of Corrections, including deductions authorized by RCW 72.09.111 and 72.09.480. 6. The State shall provide to Plaintiff DEREK GRONQUIST the following documents: 74 pages of food labeling from products used by Stafford Creek Corrections Center food service; 105 pages of modified diet menus dated March 1, 2006; 154 pages of food production sheets and associated documents for the month of anuaiy 2005; 132 pages of food production sheets and associated documents for the month of February 2005; 142 pages of food production-sheets and associated documents for themonth of March 2005; 180 pages of food production sheets and associated documents for the month of October 2005; 110 pages of food production sheets and associated documents for the month of November 2005; 120 pages of food production sheets and associated documents for the month of January 2006; 120 pages of food production sheets and associated documents for the month of February 2006; 178 pages of food production sheets and associated documents for the month of March 2 ATTORNEKGENERAL OF VYASHINGTON AGREEMENT Crimpigl 1; ustigg Sgrision NO. 06-2-1324-3 SF-01112 Olympia, will 98504-0116 PRR-2011-00450 (360) 586-1445 2006, 169 pages of food production sheets and associated documents for the month of May 2006. 6. The parties agree that this Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 7. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 8. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. 9. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Two Thousand Five Hundred Dollars and Zero cents ($2500.00) and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. 10. The Plaintiff agrees and covenants notto sue the State of Washington or its agencies, employees and officials over the claims concluded by this Agreement. A RELEASE AND SETTLEMENT 3 ATTORNEYGENERAL AGREEMENT - No. o6~2~1324~3 SF-01113 Olympia, $298504-0116 PRR-2011-00450 (350) 535-1445 11", The undersigned parties declare that the terms of this Agreement are completely read, Wholly understood, and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendants, i A 3/ ,lsi 943857 5 DATE Plaintiff, Pro Se 5 fy mr GASTREICH DATE Risk Manager Department of Corrections 3, liyita tssai aieasjs 5 ii fe alafese i tissysiitgsa 5 2 5 ON M. ELL, WSBA #35527 DATE is ssistant Attorney General Attorney for Defendant RELEASE AND SETTLEMENT 4 AGREEMENT Cflmiilgl ?ustiig Sgfision NO. 06-2-1324-3 SF-01114 5 Olympia, $298504-0116 - PRR-2011-00450 (360) 586-1445 CERTIFICATE OF SERVICE I certify that I served a copy of the RELEASE AND SETTLEMENT AGREEMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: DEREK E. GRONQUIST, DOC 943857 CLALLAM BAY CORRECTIONS CENTER 1830 EAGLE CREST WAY CLALLAM BAY, WA 98326 I certify under penalty of perjury that the foregoing is true and correct. EXECUTED this 9th day of Apr' 2 at OlympiaRELEASE AND SETTLEMENT 5 ATTORNEYRGENERAL OHWASHINGTON AGREEMENT Crimpigl ?ustipg 321151011 No. 06-2-1324-3 - SF-01115 Olympia, Ei 9g504-0116 PRR-2011-00450 (360) 586-1445 A A STATE OF WASHINGTON A CRAYS HARBOR COUNTY SUPERIOR COURT DEREK E. GRONQUIST, NO. 06-2-1324-3 1 Plaintiff, STIPULATION FOR DISMIS SAL v. DEPARTMENT OF CORRECTIONS, A - Defendant. IT IS HEREBY STIPULATED AGREED by and between 'Plaintiff DEREK GRONQUIST, and Defendant, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JASON M. HOWELL, Assistant Attorney General, that the parties to this action Seek dismissal of the Complaint to Compel Public Disclosure, with prejudice, in accordance with the Release and Settlement Agreement entered in the above-entitled action. Costs and attorneys fees are provided for in the Release and Settlement Agreement. - 3/20/2007 EREK GRO DATE Plaintiff A ON M. WELL DAT I I SBA #355 Assistant Attorney General Attorney for Defendant I STIPULATION POR DISMIS SAL 1 US lCe SF-011 16 Olympia, WA 98504-0116 PRR-2011-00450 (360)536~1445 CERTIFICATE OF SERVICE I certify that I served a copy ofthe STIPULATION FOR DISMISSAL on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: DEREK E. GRONQUIST, DOC 943857 CLALLAM BAY CORRECTIONS CENTER 1830 EAGLE CREST WAY CLALLAM BAY, WA 98326 I certify under penalty of perjury that the foregoing is true and correct. A EXECUTED this 29th day of 2007 at OlympiaDAWN R. WAEKE FOR DISMIS SAL 2 LIS ICS IVISIOH NO. 06-2-124-3 PO BOX 40116 SF-01 1 17 Olympia, WA 93504-01 16 PRR-2011-00450 (360) 536-1445 -.-. I I - ., 5 AIUQ li Tl? mg mf] GREMENAL TEUSRSE STATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT DEREK E. ORONQUIST, NO. 06-2-01324-3 Plaintiff, ORDER DISMISSINO COMPLAINT I V. DEPARTMENT OF CORRECTIONS, Defendant. THIS MATTER having come before the undersigned judge ofthe above-entitled Court, and based upon the attached Stipulation for Dismissal of the parties (the original already having been filed with the Court on April l0, 2007), IT IS HEREBY ORDERED, that Plaintiff' claims against all Defendants in the above- referenced cause of action are hereby dismissed with prejudice and the Court will not retain jurisdiction over this matter. DATED this day of ABR 0 M3 2007. DAVID FOSCLJEQ Judge ofthe Superior Court Presented By: ROBERT M. MC NNA Atto eneral on Ho ll ON M. HO LL, WSBA #35527 Assistant Attorney General ORDER DISMISSING COMPLAINT 1 - No. 06-2-01324-3 SF-01118 Oiympia, WA 93504-0116 PRR-2011-00450 (360) 5864445 CERTIFICATE OF SERVICE I certify that I served a copy of the ORDER DISMISSING COMPLAINT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: DEREK E. GRONQUIST, DOC 943857 CLALLAM BAY CORRECTIONS CENTER l830 EAGLE CREST CLALLAM BAY, WA 98326 I certify under penalty of perjury that the foregoing is true and correct. 1J i a EXECUTED this 6th day of Augu t, 2007 at Olympia, WA. -V - - 4 WIAL QQRQ . ORDER DISMISSING COMPLAINT I 2 ATYOKNEYGTENERAP - NO. 06-2-01324-3 SF-01119 Olympia, WA 93504-01 I6 PRR-2011-00450 (360) 586-1445 SNOHGMESZS cwfew QF IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF SNOHOMISH LOFTON VS NOTICE FOR DISMISSAL FOR WANT OF DEPARTMENT OF CORRECTIONS PROSECUTION AFFIDAVIT OF MAILING 1. NO ACTION OF RECORD HAS BEEN TAKEN ON THIS CASE IN THE PAST TWELVE (12) MONTHS. 2. PURSUANT TO CIVIL RULE 4l(B)(2) THIS CASE WILL BE DISMISSED WITHOUT PREJUDICE BY THE COURT FOR WANT OF PROSECUTION UNLESS WITHIN THIRTY (30) DAYS OF THE MAILING OF THIS NOTICE 0 1m A. ACTION OF RECORD IS MADE, OR B. APPLICATION IS MADE TO THE COURT AND GOOD CAUSE WHY IT SHOULD BE CONTINUED AS A PENDING CASE: (X) IN WRITING 3. THIS NOTICE WAS MAILED ON HOWELL, JASON PO BOX 40116 OLYMPIA WA 98504-0116 BY APPEARING IN PERSON HSE 3 QQ88 SONYA KRASKI, COUNTY CLERK BY SHARON HILL DEPUTY CLERK SF-01120 PRR-2011-00450 LOFTON, MONROE PO BOX MONROE ATTORNEYS OF RECORD LARNEL (284156 HOWELL, JASON CORRECTIONS COMLEX PO BOX 40116 888 OLYMPIA WA 98504 03.16 WA 98272-O888 SF-01121 PRR-2011-00450 Washington Courts - Search Case Records Page 1 of 1 Superior Court Case Summary Court: Snohomish Superior Case Number: O6-2-09347 Sub Docket Date 1 06-27~2006 2 06-27-2006 - 06-27-2006 3 06-27-2006 4 06-27-2006 5 06-27-2006 - 06-27-2006 6 1 09-11-2006 7 10-19-2006 9 10-19-2006 9 10-19-2006 - 10-19-2006 10 01-26-2007 11 02-13-2008 12 03-17-2008 13 04-01-2008 -8 Docket Code Docket Description Misc Info SM APPS NTAPR PSPO001 MT AF JDG0010 NTAPR DEF0001 ATD0001 AFSR IVITAF ORDYIVIT JDG0010 EXVVACT ATD0002 CLOD MAIL Summons Petition For Judncnal Appearance Pro Se Lofton, Larnel (284156 6 17 2 Notice Of Appearance Lofton, Larnel (284156 6 17 2 Motion To Appolnt Counsel Order To Proceed In Forma Pauperls Affidavit Judge Richard Thorpe Notice Of Appearance Department Of Corrections Ammons, Ruth Ellen Affidavit/dclr/cert Of Service Motion For Serv|ce By Mall Order Denying Motlon For Serv|ce By Mai: Judge Richard Thorpe Ex-parte Action With Order Notice Withdraw Counsel Ammons, Ruth Ellen Howell, Jason Mot For DISITIISS Fr Of Pros Clerk's Order Of Mail Return Unclaimed SF-01122 PRR 11 00450 06 2 09347 sNam 8/6/2008 D., NNE 3 sci 1 I FlLEli3 11 ct ALLAN 1111 ZW 5? 3 Ek 1 ERRBARA ciimsteri A . 5, 1 Jasc STATE GF WASEDNGTON 1 5 W/lPff\ COUNTY SUPERIOR COURT 1 DEREK E. ORONQUIST, NO. 07-2~oo212-2 Plaintifij 1 ORDER ON MOTION POR SUMMARY v. JUDGMENT 1 1 DEPARTMENT OFDCORRECTIONS, A 1 Defendant; Defendants, having :tiled a Motion for Summary Judgment in this matter, and the Court being fully advised and having examined the records and files herein, does hereby find and ORDER: A 1. Defendants' Motion for Summary Judgment is 2. Plaintiffs Complaint is dismissed with prejudice; and 1 3. The Clerk is directed to send uncertitied copies of this Order to Plaintiff and to counsel for Defendants. DATED this 2,1 day of 1 2007. 1 H'iTl!'!'Y!5'l .ATPHI 3, .1 ffl" 1 1 amc ry . erio ftiuege- 1' . ORDER ON DEPENDANDS MOTION 1 OFQWOSPUNGTON FOR SUMMARY JUDGMENT A Criminal Justlce Division PO Box 401 I6 - NO. 07-2-00212-2 O1ympia, WA 98504>>0l l6 - (3601 536-1445 SF-01123 PRR-2011-00450 Submitted by: ROBERT M. MC NNA Aitorney General sob; M. LL, WSBA #35527 ssistant Attorney General ORDER ON DEFENDANTS MOTION 2 FOR SUMMARY JUDGMENT PO B11 - No. 07-2-oo212.2 Olympia, WA93504-0116 (360) 586-E445 F-01 1 24 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a copy of the ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery A Hand delivered by DEREK E. GRONQUIST, DOC 943857 CLALLAM BAY CORRECTIONS CENTER 1830 EAGLE CREST WAY CLALLAM BAY, WA 98326 I further certify that I caused to be personally served on the following party, a copy of the foregoing document at: DEREK E. GRONQUIST, DOC 943857 CLALLAM BAY CORRECTIONS CENTER 1830 EAGLE CREST WAY . CLALLAM BAY, WA 98326 I certify under 'penalty of P?1jll1'y that the foregoing is true and correct. A EXECUTED this 14th day of 007 at OlympiaMo'r1oN 3 Fon SUMMARY JUDGMENT I P0 ,om lpnoposeoi No. ov-2-ooziz-2 Olympia. wifi 93504-0116 (360)586-1445 F-01 2 5 pig R-201 -004 50 f? SGT QQ ltd? incase# OI nes catututtiusrtca i i I 2 5 2007 SUPERIOR COURT OF WASHINGTON BAHQAHA ,ay COUNTY OF CLALLAM STENSEN, Clerk DEREK E. GRONGQUIST, Plaintiff NO. O7-2-00212-2 vs. OPINION DEPARTMENT OF CORRECTIONS, Defendant. On March l, 2007, Plaintiff filed a Complaint to Compel Public Disclosure. The Defendant, the Department of Corrections, responded and filed a Motion to Dismiss and for summary judgment. At the Plaintiffs request a hearing was continued until the 27th of July. At that hearing a Court Commissioner granted the Motion to Dismiss. Plaintiff filed a Motion for Reconsideration, which was denied by the Court Commissioner on August 10th. The Court noted that simultaneously with the Motion for Reconsideration the Plaintiff had filed a Motion for Revision. In this matte Plaintiff requested particular records from the Department of Corrections. The Department indicated they would need some time to search for those records. The Department then indicated they would need further time. The Department responded that the specific records which the Defendant requested did not appear to exist but their research had disclosed some documents which might be of interest to the Petitioner in that, although not directly within the request ofthe Plaintiff they appeared to collaterally address the same. They indicated the documents would be available for the Plaintiff to review, or the Plaintiff could pay copying costs and be provided the documents, consisting of a few pages of email. Memorandum Opinion 1 KEN .DOC JUDGE 3901126 Clallam County Superior Court PRR-2011-00450 223 East Fourth Street. Suite 8 IT Plaintiff objects to the required payment of copying costs. Plaintiff alleges that the Defendant's delay in locating and compiling the records was also unreasonable. This matter is addressed simply. The documents the Defendant requested did not exist. Therefore they could not be provided. The amount of time taken by the Department in responding to Ia request for records which did not exist is not unreasonable. The Defendant has also shown its good faith by finding documents which collaterally might have some value to the Plaintiff and notifying Plaintiff of that fact. The Court has reviewed the filed affidavits and the like, and finds that the Plaintiff" position is totally without merit. Accordingly, the Court has signed an order granting the Defendant's motion to dismiss the Plaintiff' claims. The Motion for Revision is denied and disniizsal is granted. DATED this day of 2 07. Respectfully submitted, KEN WILLIAMS I Memorandum Opinion 2 KEN WILLIAMS .DOC JU DGE 3901127 Clallam County Superior Court 223 E851 FOUFUI Stfeet, SUNG 8 ofve \nm naman erm: 00I 2% EITIGRNEI i?tiirilitliflil CIFFEC ii A CLA FL I LLAM COUNTY SUPERIOR COURT OF WASHINGTON gf.; 5 300, COUNTY OF CLALLAM BAHBAEA Cp,/54 In ENSEN, Clerk DEREK E. GRONGQUIST, Plaintiff, No. 07-2-00212-2 vs, I A A DECLARATION OF MAILING DEPARTMENT OF CORRECTIONS, Defendant. I, the undersigned, do certify the following: I am a citizen ofthe United States of America and ofthe State of Washington, over the age of twenty-one years, not a party to the above-entitled proceeding and competent to be a Witness therein. This day I placed in the U.S. Mail copies of the MEMORANDUM OPINION and DECLARATION OF MAILING, Class Postage affixed, and addressed to: Derek Gronquisti 943857, Stafford Creek Corrections Center 191 Constantine Way Aberdeen, WA 98520 Jason Howell, AAG Criminal Justice Division PO Box 40116 Olympia, WA 98504-0116 I declare under penalty of perjury under the laws ofthe State of Washi gton that the foregoing is true and correct. Signed and dated thisg ]&day of 2007, at Port Angeles, Washington. I lev ar et Strohmeyer/Lacey Fors DECLARATION OF KEN WILLIAMS JUDGE Clallam COUFI East Fourth SIVBBI, SUNG 8 WA 1 - A 1 p_STATE OF WASHINGTON A SPOKANE COUNTY SUPERIOR COURT DEREK E. GRONQUIST, A NO. 07-2-00562-0 A - Enimifn RELEASE AND SETTLEMENT AGREEMENT V, OF CORRECTIONS, A Defendant. This is a Release and $ettlement Agreement for the above-ret`erAenced action. Based upon consideration and mutual promises, the Plaintiff; DEREK E. GRONQUIST, Plaintiff Pro se, andthe Defendant, DEPARTMENT OF CORRECTIONS, by and _through its aaemeyg ROBERT M. MCKENNA, -Attorney General, and MARY C. MCLACHLAN, Assistant Attorney General, agree tothe following: 1. A In consideration of the following pfevisiens of the Release and Settlement Agreement, DEREK E. his heirs, assigns, or other successors in interest, do release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departinents for any and all existing and futureclaims, damages, and causes of action of any nature arising out oil the followingPublic' disclosure requests made pursuant to seq., as described in Plaintiffs Complaint to Compel Rublic Disclosure A and Ain P1aintiff's A A i ATTORNEY GENERAL OF WASHINGTON RELE ANI) - - . NT SETTLEMENT 1 A A Correctiens Division - - 4 1116 West Riyerside_Avenue, NCL 07-2-00562-0 A i. ~spo1ams,WA992o,1-1194 A SF-01129 A A -- -A PRR-2011-00450 puMemorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action and which are the source of his claims against the Defendant, Department of Corrections; Public disclosure requests made pursuant to RCW 42.56 et seq., as described in Plaintiffs Complaint to Compel Public Disclosure in the action tiled in Clallam County Superior Court, Cause NO. 07~2~002l2~2,` Washington Court of Appeals NO. 36948-6~lI, and which are the source of his claims against the Defendant, Department of Corrections; and The alleged Violations regarding Plaintiffs religious freedom which are described in Plaintiff' Complaint filed in the United States District Court, Western District at Tacoma, and which are the source of his claims against the defendants in that action. This Agreement is the final, conclusive, and complete release of all known, as Well as all unknown and unanticipated, damages, claims, fines, claims for fees and costs, and any other cause or claim associated with this matter arising out of the following: - 3. 1 b. C-. The incidents set forth in Plaintiffs Complaint to Coinpel Public Disclosure and Plaintiff' Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action; The incidents set forth in Plaintiffs Complaint to Compel Public Disclosure in Clallam i County Superior Ceurt V07-2-00212-2, Washington 'Court of The incidents set forth in Plaintiffs Complaint filed in the United States District Court, Western District at Tacoma, CO6-5 543 The parties agree that this _Agreement terminates all 'pending public records 'disclosures in the above-referenced action, including but not limited to the disclosure onian installment if basis of grievances as described in Plaintiffs 'Complaint to Compel Public RELEASE SETTLEMENT a 2 . Arronnar esnsruit or wnsninoion AGREEMENT Corrections Division Ne. 07-2-00562-0 - - SF-01130 a i PRR-2011-00450 . . t. I i . I - \1t1il3=}" Disclosure and Plaintiffs Memorandum in Support of Motion. to Show Cause and Response to Summary judgment in the above-referenced action. i 4. -Plaintiff DEREK E. GRONQUIST, agrees not to make future requests under the Public Records Act, RCW 42.56 et seq, for the records described in Plaintiffs Complaint to Compel Public Disclosure and in Plaintiffs Memorandum in Supportof Motion to Show Cause and Response to Summary Judgment inthis action, including but not limited to the request of grievances as described in Plaintiff' Complaint to Compel Public Disclosure and Plaintiffs Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above~referenced action. I 5 This Agreement _shall be effective when signed by all parties and/or their legal representatives. 6. The State shall pay to DEREK E. GRONQUIST the sum of Twenty-Seven Thousand Fiye Hundred Dollars and zero cents as full and complete settlement of these matters. The settlement amount of 'Twenty-Seven Hundred Dollars and zero cents will be payable as follows: The -sum of Twenty-Two Thousand Five Hundred Dollars and zero cents 3.. will be _payable by checli or Warrant to Plaintiff DEREK E. GRONQUIST. The check or Warrant should be mailed to Plaintiff' mother, 'Barbara Parker, at 855 Trosper Road, 348, Tumwater, WA. 98512. The sum of Twenty-Two .Thousand Fire Hundred Dollars and zero cents represents the portion of the settlement apportioned to the above action, NO. 07- 2-00562-0, and the aaron nies in Callas; county superior casa No. 07-2- 00212-2, Washington Court of Appeals Plaintiff represents to . Defendant that his "mother, 'Barbara Parker, has been authorized by him to accept payment of the settlement amount from Defendant and that such i acceptance satisfies all claims Plaintiff has in these matters. RELEASE AND i 3 . -- i - OITG IOIIS IVISIOH AGREEMENT A - l116West Riverside Avenue No. 0722-O05 62-0 . spokane, 99201 -1 194 - . (5o9}4ss~3iz3, .SF-01131 i- PRR-2011-00450 . [Five Thousand Dollars and zero cents will be payable . by check or Warrant to DEREK E. GRONQUTST. The sum of Five Thousand Dollars and aero cents is to be placed in the inmate account of DEREK E. GRONQUIST and is exempt from any deductions, including deductions under RCW 72.09.480, deductions for debt owed to the Department of Corrections, or deductions for legal* financial obligations. The sum of Five Thousand Dollars and zero cents represents the portion of the settlement apportioned to Plaintiffs claims filed in the -United States District Court, Westem District at Tacoma, and satisfied all claims Plaintiff has against defendants in that matter. 7. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 4 1 S. This Agreement constitutes the fmal written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. A 9. I The parties agree that neither party is to be considered a prevailing party in this actionfor purpose including, but not limited to, attorney fees. - 10. .V The parties jointly agree that dismissal with prejudice of these actions is an appropriate resolution in consideration for payment of the sum of Twenty-Seven Thousand Five Hundred and zero cents and the other consideration provided' for in this Agreement. The parties agree to sign and tile ga stipulated motion for the entry of an order dismissing this action with prejudice. The parties further agree to sign and tile la stipulated dismissal ofthe appeal of cause NO. Washington Court of Appeals 36194846- Il. The Plaintiff further agrees that he will not appeal the dismissal of .United States _District com; Western nearer at Tacoma, 3 1 11. The Plaintiff agrees .and covenants not to sue the State of Washington or its agencies, employees; and officials over the claims concluded _by this Settlement Agreement. i I 1 ATTORNEY GENERAL os WASPIINGTON SETTLEMENT 4 A Corrections Division - . 1116 West Riverside Avenue No. 1 - - sp01en?,WA 99201-1194 i (509) 4568123 i - SF-01132 PRR-2011-00450 rum" :ram U12. The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, Wholly nnderstood, and voluntarily accepted for thepurpose_ of making a full and final compromise, and settlement of any and all claims brought by Plaintiff in this action against Defendant. 2 0 sp sans s. one DATE Plaintiff; Pro @i 5% ga? MARY Wss./i #34178 DATE I Assistant Attorney General 1 Attorney for the Defendant JAS NHOW ii., WSBA #35527 DATE As istant Attorney General - Attorney for the defendants cause Nos. 07-2-00212-2, 36.948-6-11DATE 2 Risk; anage A Department of Corrections A RELEASE SETTLEMENT 1 A 15 ATTORNEY GENERAL UF WASHINGTON ri 1 AGREEMENT 1 1 A 1116 Silflezf No. A Spokane, WA 9920141-194 I 1 A (so9)~4s6~3i23_ A . -_-SF-o_11s3i' A PRR-2011-00450 QEMAATE APRm3'2nr1a i ii, ig, A Vg Rigs, A No. 36948-6-n WF A UFFERIAEM COURT OF APPEALS, DIVISION II ASH/mgmf 51m OF THE STATE OF WASHINGTON DEREK GRONQUIST, STIPULATION FOR Plaintiff-Appellant, DISMISSAL V. A DEPARTMENT OF CORRECTIONS, Defendant-Respondent. IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff/Appellant GRONQUIST and Defendant/Respondent, DEPARTMENT OF CORRECTIONS by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JASON M. HOWELL, Assistant Attorney General, that the parties to this action seek dismissal of this Appeal and thereby the Complaint for Violation of the Public Records Act, With prejudice, in accordance with the Release and Settlement Agreement entered into in Gronguist V. DOC, -Spokane County Superior Court Costsand- attorneys fees are provided for in the Release and Settlement Agreement. A /,AA/as EREK UIST DATE A Pro Se Plaintif #Appellant 1 5,/arms" A ON Lt. WELL, WSBA #35527 DATE Assistant Attorney General Attorney for Defendant/Respondent SF-01134 I PRR-2011-00450 A88 0 800 at Urinary amnzanll? UFPEEP JUSTECE DW CERTIFICATE OF SERVICE I certify that I served a copy of STIPULATION POR DISMISSAL on all parties or their counsel of record as follows: - TO: Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger A I State Campus Delivery - Hand delivered by DEREK GRONQUIST, 943 857 STAFFORD CREEK CORRECTIONS CENTER l9l CONSTANTINE WAY ABERDEEN, WA 98520 I certify under penalty of perjury that the foregoing is true and COITGECI . EXECUTED this st day of April, 2008 at Olympia, WA. gt Zn it if ?t?zza AWN R. WALKER SF-01135 3 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II QZQH DEREK GRONQUIST, 9 if A Pins ij; pl isfmm Appellant, 9 RULING DISMISSING APPEAL to DEPARTMENT OF a 3 fee EARR :ef - A CORRECTIONS, A-Respondent. I ff, 1 COUNSEL AND MR. GRONQUIST have stipulated that all the issues in this matter A have been fully settled and that the cause may be dismissed Without cost to any party. Accordingly, it is ORDERED that this appeal is dismissed Without cost to any party. DATED 2 A dey of zoos. COURT COMMISSIONER Derek Gronquist Jason Howell DOC #943857 Office ofthe Attorney General Stafford Creek Corrections Center PO Box 40116 191 Constantine Way Olympia, WA, 98504-0116 Aberdeen, 98520 SF-01136 PRR-2011-00450 at Wm ?fgm 'ef - - .g =-rg ttf" . J. Sim ig M3 Wai-xt, gaihlai' ja _i i et? "w ivrfa. . tit ity; dwiip gym. ,iw mast., smriig ,r IN THE COURT DOF APPEALS OF THE STATE OF WASHINGTON DIVISION II DEREK GRONQUIST, No. 36948-6-ll Appellant, MANDATE v. Clallam County Cause No. DEPARTMENT OF CORRECTIONS, 07-2-00212-2 Respondent. The State of Washington to; The Superior Court ofthe State of Washington in and for Clallam County This is to certify that the Court of Appeals ofthe State of Washington, Division Il, considered and granted a motion to dismiss the appeal in the above entitled case on April 3, 2008. Accordingly, this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the determination of that court. IN rEsrn\/ioNY WHEREOF, 1 have fi. . hereunto set my hand and afnxed the seal otkskaid Court at Tacoma, this day Of 2008- >>the Court A ea s, A - 'cc' State of Washington, iv. ll A Derek Gronqurst Jason Howell DOC #943 85 7 Office ofthe Attorney General Stafford Creek Corrections Center RO Box 40116 191 Constantine Way Aberdeen, WA, 98520 Olympia, WA, 98504-0116 SF-0-1137 PRR-2011-00450 STATE OF PIERCE COUNTY SUPERIOR COURT SHAWN GREENHALGH, NO. O7-2-06009-5 Plaintiff; RELEASE AND - v. I SETTLEMENT AGREEMENT DEPARTIVIENT OF CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Plaintiff, SHAWN D. GREENHALGH, by and through his attorney, MICHAEL KAHRS, and the Defendant, DEPARTMENT OF CORRECTIONS, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JASON M, HOWELL, Assistant Attorney General, agree to the following: l. In consideration of the following provisions of the Release and Settlement Agreement, SHAWN D. GREENHALGH, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and RELEASE AND 1 ATTORNEY GENERAL or 13 t' AGREEMENT (NO. 07-2-06009-5; Olympia, WA 98504-013 6 (360) 586-1445 SF-01138 PRR-2011-00450 future claims, damages and causes of action of any nature arising out of public records act as described in Plaintiff' Complaint in this action, made pursuant to RCW 42.56 et seq., and which are the source of his claims against the Defendant. 2. This Agreement is the final, conclusive and complete release of all known, as Well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiff' Complaint for Damages. 3, This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to MICHAEL KAHRS, as the designated payee of Plaintiff SHAWN D. GREENHALGH, the sum of Nine Thousand Five Hundred Dollars and zero cents as full and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Nine Thousand Five Hundred Dollars and zero cents will be payable by check or warrant to MICHAEL KATRS, as the designated payee for Plaintiff SHAWN D. GREENHALGH. Plaintiff represents to Defendant that MICHAEL KAHRS has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. 5. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 6. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusiye statement of these terms. 7. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. RELEASE AND SETTLEMENT fa ATTORNEY GENERAL on Wasi-micron C. AGREEMENT (No. 07-2-06009-5) Olympia, WA 98504-0116 (360) 586-1445 A SF-01139 PRR-2011-00450 8. The parties jointty agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Nine Thousand Five Hundred Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and tile a stipulated motion for the entry of an order dismissing this action with prejudice The Plaintiff agrees and covenants not to sue the State of Washington or 1ts a encres employees and officials over the cla ms concluded bv this settlement agreement The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read Wholly understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all clatms brought by in this action against Defendant _*ls SHAWN GREENHALG 5 #7015 5 8 DAT Plaintiff rf' AEL KAHRS WSBA #27085 Attorney for Plarntiff arg, 27 0 7 KATHY GASTREICH DATE Risk Manager Department of Cor ctrons nh 1.4 ON A LL WSBA #355'>7 DATE Attorney General Attorney for Defendant IKII i ii r-ATTORNEY GENERAL OF AGREEMENT (No. 07-2-06009-5j> orympia, WA 98504-or 16 (360) 586-1445 F-01 40 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that I served a copy of the RELEASE AND SETTELEMENT AGREEMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air lj ABC/Legal Messenger State Campus Delivery Hand delivered by TO: MICHAEL C. KAHRS KAHRS LAW FIRM, P.S. 5215 BALLARD AVENUE, NW, SUITE 2 SEATTLE, WA 98107 I certify under penalty of perjury that the foregoing is true and correct. I EXECUTED this A da August, 2007 at iympla, WA. -V Iiiz A A I R. A ER RELEASE AND SETTLEMENT 4 ATTORNEY GENERAL OF WASHINGTON IJ t' AGREEMENT (No. 07-2-06009-5) "Wg 3501141 olympia, WA 93504-0116 PRR-2011-00450 (360) 5864445 it rf rf' its OWN COURT if I stars pp/ STATE OF WASHINGTON I PIERCE COUNTY SUPERIOR COURT SHAWN D. GREENHALGH, NO. O7-2-06009-5 V. DEPARTMENT OF CORRECTIONS, a subdivision of the State of Washington, Plaintiff, ORDER THIS MATTER having come before the undersigned judge of the above-entitled Court and based upon the attached Stipulation for Dismissal of the parties, IT IS HEREBY ORDERED, that Plaintiff' claims against Defendant in the above referenced cause of action are hereby dismissed with prejudice and the Court will not retain jurisdiction over this matter. DATED this day of i- A 2007. 1* i Mary E. Icke Court Commissioner Su eriorCou1=t'" ff re" Presented By: .ir EAQTE ROBERT M. MC NNA I 'iff JASON M. HOWELL, WSBA #35527 "Af ww Assistant Attorney General ti/ A ORDER ORDER 1 fll'I'11l'1 1 1 PO 3|r_01142 Olympia, WA 98504~Ol 16 PRR-2011-00450 (360) 536-1445 fi Eli EARTE CERTIFICATE OE SERVICE I certify that I served a copy of the ORDER on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: MICHAEL C. KAHRS KAHRS LAW FIRM, Ps. A 5215 BALLARD AVENUE, NW, SUITE 2 SEATTLE, WA 98107 A I certify under penalty of perjury that the foregoing is true and correct. fl! A EXECUTED thisf?$y of 2007 at Oly pia, WA. A .5 lli: . A ln . A KER t`t` ORDER ORDER 2 ATTORNEYQIENERAL OPWASHINGTON - 3|r_01143 Olympia, WA 98504-0116 PRR-2011-00450 (360) 586-1445 FE tat CQLERWS QFE My MQ 3 ASEENQT Q?itii ?%l?lil; attain BYM i STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT SHAWN D. NO. Plaintifi STIPULATION FOR DISMIS SAL v. DEPARTMENT OF CORRECTIONS, a subdivision ofthe State of Washington, Defendant. IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff SHAWN GREENHALGH, by and through his attorney MICHAEL KAHRS, and Defendant, by and through its attorneys, ROBERT M, MCKENNA, Attorney General, and M. HOWELL, Assistant Attorney General, that the parties to this action seek dismissal of the Complaint for Violation of Public Records Act, with prejudice, in accordance with the Release and Settlement Agreement entered in the above-entitled action. Costs and attorneys fees are provided for in the Release and Settlement Agreement. 4 L7 6 MICHAEL KAHRS WSBA #27085 DATE Attorne for Plaintf 'ff 1.4.4 i- son M, HO fi LL, WSBA #35527 DA Assistant Attorney General Attorney for Defendant STIPULATION FOR DISMISSAL I ATTORNEYFQNERAP No. 07-2-06009-5 Olympia, WA 98504-0 16 eau) 586-1445 SF-01144 PRR-2011-00450 P326 A bl bg ig STATE OF WASHINGTON GRAYS HARBOR COUNTY SUPERIOR COURT KEVIN CMICIIAEL MITCHELL, I NO. os-2-00379-3 Plaintiff ORDER GRANTING MOTION TO V. I VVASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. This matter came before the Court on Defendant's motion to dismiss on October 30, I 2008. The Court orally ruled, granting Defendant's motion and requested that Defendant's counsel draft an Order reflecting that ruling. ln reaching its decision to dismiss Plaintiffs complaint as time-barred by the statute of limitations, the Court considered the pleadings in this case and the following evidence: l. Defendant's Motion to Dismiss and Memorandum in Support Thereof 2. - Plaintiffs Opposition to Defendant's Motion to Disrniss. 3; Oral argument of Plaintiff and Counsel for Defendants. The Court, having reviewed the record and Defendant's Motiongto Dismiss, does hereby rind and l. According to Plaintiffs complaint, the Defendant first claimed a statutory -exemption for records on May 7, 2007. A ORDER 1 ATTORNEY GENERAL OF MOTION TO DISMISS (PROPOSED) OITSC 10113 IVISIOII No. 08-2~00879-3 $901145 PO BOX 40116 A (360) 58641445 2; According to Plaintiff complaint. the Defendant produced records and again claimed a statutory exemption on May ll, 2007. 3. Piarnarr tiled his Complaint on July 1 1, zoos. 4. Plaintiff" Complaint is barred by theone year statute of limitations in RCW A 0 0 5. Defendant's Motion is GRANTED. 6. Plaintiff complaint is hereby DISMISSED WITH PREJUDICE. 7. . The Clerk oftlie Court is'inst1ucted_to send uncertiried copies of this Order to Plaintiff and counsel t`orDet`endant. DATED tbis day of 4 zoos. Davao Submitted by: ROBERT M. ENNA Attorney Genera JA H. ELL, WSBA #35527 Approved as to form and content: cubes, Q50 A CEL, oC#sso933 Piaraaff, pm - ORDER GRANTING DEFENDANTST MOTION TO DISMISS (PROPOSED) 0 NO. 08-2-00879-3 A Judge ofthe Superior Court 2 SF-01146 PRR-2011-00450 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 985 04-01 6 (360) 586-1445 mud ?r . armr i- 22,3 _piwitfgirecgiufer U9 .IUW STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT EPPREY R. MCKEE, NO. 08-2-00527-2 Plaintiff, (consolidated with Nos. O8-2-00528-l and 08-2-00529-9) V. ORDER GRANTING DEFENDANTS DEPARTMENT OF CORRECTIONS, MOTION POR SUMMARY JUDGMENT AND DENYING PLAINTIPFS CROSS- Defendant. MOTION FOR SUMMARY JUDGMENT MA aw 04/Mime (fin (Proposed) 5% 3 This matter came before the Court on Defendant's Motion for Summary Judgment and Plaintiffs Cross-Motion for Summary Judgment on April 17, 2009. The Court orally ruled, granting Defendant's motion and denying Plaintiffs cross-motion. In reaching its decision, the Court considered the oral argument of Plaintiff and Counsel for Defendants in addition to the following pleadings of the parties: l. Defendant's Motion for Summary Judgment, with attaclnnents; 2. Plaintiffs Brief in Response and Memorandum of Points and Authorities to Defendant's Motion for Summary Judgment, With attachments. 3. Plaintiff' Cross-Motion for Summary Judgment with Amended Response to Defendant's Motion for Summary Judgment, with attachments; 4. Defendant's Response to Plaintiffs Cross-Motion for Summary Judgment, with attachments; 1 MorioN FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS CROSS- oiympia, WA 98504-or is MOTION POR SUMMARY JUDGMENT SF-01147 (350) 5354445 No. os-2-00527-2 PRRQ01 "00450 5. Defendant's Reply to Plaintiffs Amended Response to Defendant's Motion for Sun1ma1yJudginent; and, 6. Plaintift"s Reply to Defendant's Response to Plaintiffs Cross-Motion for Summary udginent. The Court does hereby find and ORDER: 11-if - e?uhl` . er seq; 2. Defendant's Motion forSu1n1nary Judgment is GRANTED /lfPla1nt1ft"s Cro ss-Motion for Summary Judgment is and 4. This ease is DISMISSED WITH PREJUDICE. 5. The Clerk of the Court is instructed to send uneertitied copies of this Order to the Plaii iff and counsel for the Defei dants. this of - . HO RABLE ANNE HIRSCH Superior Court udge Presented by: ROBERT M. MCKENNA Attorn General aliw 1 TLS JEA E. MEYN, WSBA l5990 . Attorney General ,fq/15 I Att rney for Defendant QRDER GRANTING DEFENDANT3 2 GENERAL or WASHINGTON Morton Fon SUMMARY JUDGMENT AND DENYING PLAINTIFPS CROSS- olympia, WA 93504-0| 16 MOTION FOR SUMMARY JUDGMENT SF-01148 (360) 536-1445 No, 08~2-00527-2 PRR-2011-00450 CERTIFICATE OF SERVICE I certify that onthe date below served a copy of the Proposed ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DENYING CROSS-MOTION FOR SUMMARY JUDGMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: JEFFREY MCKEE #882819 STAFFORD CREEK CORRECTIONS CENTER l9l CONSTANTINE WAY ABERDEEN WA 98520 ef EXECUTED this day of March, 2009, at Olympia,Washi1igton. - fj /we KATRINA TOAL Legal Assistant QRDER 3 3 ATTORN EY GENEML os MOTION POR SUMMARY TUDGMENT AND DENYING PLAINTIFPS CROSS- Olympia, WA 98504-0116 MOTION FOR SUMMARY JUDGMENT SF-01149 (360) 536"|445 aa NO, 08-2-00527-2 PRR-2011-oo45o 5; COURT #Drs - fi il# A 1. as s= Qi., 3 T155 0? it 094 - IN TI-IE COURT OFAPPEALS OF STATE OF WASHINGTON DIVISION II JEFFREY R. Appellant. No. 39713-7-II v. PUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent. VAN DEREN, J. - Jeffrey R. McKee sued the Washington State Department of Corrections (DOC) for allegedly failing to produce three October 9, 2006, public record requests under the Public Records Act (PRA), chapter 42.5 6 RCW. McKee moved to disqualify the Washington State Attorney General's office from representing DOC and both parties moved for summary judgment. The trial court denied McKee's motions and, Without determining Whether DOC violated the PRA, granted summary judgment for DOC basedion RCW one year statute of limitations. We affirm the trial court's ruling that the Attorney General is properly bonded and may represent DOC but, because disputed material issues of fact preclude summary judgment on the trial court's statute of limitations ruling, we reverse summary judgment in favor of DOC and remand to the trial court to make factual findings regarding DOC's response to October 9 requests, to determine whether DOC denied him access to those records, and to further determine Whether RCW 42.56.550(b) applies. SF-01150 PRR-2011-00450 No. FACTS McKee has been a prisoner in DOC's custody since July 2005. In July 2006, under a . contract with Corrections Corporation of DOC transferred McKee to Florence Correctional Center (Florence CC) in Arizona, one of CCA's private facilities. Mcliee filed numerous grievances against Florence CC staff members and subsequently made three public records requests; to DOC by letters dated October 9, 2006, asking for all records that the Florence CC staff considered in resolving three of his grievances. On October 18, DOC informed McKee that it did not have the requested records and instructed McKee to direct his request to Florence CC. The contract between DOC and CCA required CCA to maintain its records in accordance with DOC policies and to comply with Washington's Public Disclosure Act, chapter 42.17 RCW, (now called -the PRA). 7 On January 25, 2007, DOC sent another letter to McKee, informing him that Florence CC did not have any specific staff dedicated to public disclosure requests and offering to act as liaison to help him obtain the requested records. On March 2, DOC notified McKee that tlrerewere '29 "pages" available in 'response to?his'nun1erous recordsreqt1ests,? including the--~ -- three October 9, 2006, requests. DOC informed McKee that the records would cost $0.20 per page, plus $4.05 postage, for a total of $62.25. McKee's March 7 response indicated that he no longer needed all of the records originally requested and specifically identified the records he still Wanted. His response did not indicate that he 'still Wanted the records associated with his October 9, 2006, requests. McKee asked DOC to adjust the cost of his request accordingly. On March 28, DOC informed McKee that his requested records now consisted of 5l pages and the mw Although McKee made many different public record requests to DOC, the three October 9, 2006, requests form the basis of his appeal. - 1 2 SF-01151 PRR-2011-00450 No. 39713-7~lI cost would be $12.27, plus an additional charge for one cassette tape. The DOC also stated that upon receipt of McKee's payment, it would send him the requested records. On March 30, McKee requested that DOC -waive payment for the remainder ofthe documents disclosed in DOC's March 2 letter because DOC had taken so long to make them available. In the alternative, McKee asked DOC to identify the number of documents and the cost associated with each request responded to in DOC's March 2 letter, On April 3, DOC replied that McKee had two outstanding requests, costing $10.45 and $12.27 respectively. DOC relied on McKee's March 7 statement that he waited only some of . the records, not including those in his October 9 requests and, thus, DOC did not include the cost ofthe October 9, 2006, requests. On March 4, 2008, McKee iiledz three lawsuits against DOC, complaining that DOC violated the PRA by not producing the records in response to each of his three October 9, 2006, requests. The trial court consolidated the three complaints. McKee subsequently paid DOC for copies associated with various record requests, including those he submitted on October 9. On Mcliee (1) thatrecordsmade- available- inserts March 2,-2007-, letter actually contained 284 pages, not 291 pages, and two pages of those records were exempt from disclosure; (2) that a refund of $2.20 would be issued to him; and (3) of the number of pages associated with each of his individual requests. DOC stated on appeal that the documents it claimed as exempt were not part of the three October 9 requests, but the record does not contain infomation allowing us to review this statement. McKee does not assert that the 9 identified exempt records were related to the October 9 requests. Under GR 3.1, an inmate's complaint is considered tiled on the day it is deposited in the prison's mail system. 3 2 SF-01152 PRR-2011-00450 No. 39713-7~11 On December 31, McKee unsuccessfully moved to disqualify the Attorney General's office from representing DOC, claiming that the Attorney General was improperly bonded under former RCW 43.10.010 (1973).3 Both parties then moved for summary judgment. On June 19, 2009, the trial court granted summary judgment for DOC, finding that McKee's complaints Were not filed Within RCW one year statute of limitations. The trial court did not reach the issue of Whether DOC denied access or claimed an exemption related to the October 9, 2006, requests nor did it specify how it determined RCW statute of limitations applied. McKee appeals. ANALYSIS l. ATTORNEY GENERAUS REPRESENTATION OF DOC McKee argues that the trial court erred in denying his motion to disqualify the Attorney General's office from representing DOC. He contends that, because the Attorney General has not complied with bonding requirements, all of his actions as Attorney General are invalid. DOC responds that this issue is not properly before us because the order denying McKee's "n'1otio'n"to'"disqualify the Attorney General is"not"appeMab'le'"as arnatter 'of right and 'McKee has not shown that discretionary review is appropriate. bn Under RAP an "appellate court will, at the instance ofthe appellant, review the decision or parts of the decision designated in the notice of appeal." In his notice cf' appeal, McKee designated the trial court's order denying his motion to disqualify the Attorney General. 3 At the time that McKee filed his complaints, former RCW 43.10.010 was in effect. The legislature amended the statute in 2009. LAWS OF 2009, ch 549, 5046. Because the 2009 amendments do not materially affect our analysis, we refer to the current statute in analyzing claims. - 4 SF-01153 PRR-2011-00450 No. 39713-7-ll Thus, We may properly review the trial court's decision relating to the Attorney General's compliance with bonding requirements as it was part of the proceedings at the trial court.4 A. Standard of Review "Construction of a statute is a question of law which we review de novo under the error of law standard."' Judd v. Am. el. Tel. Co., 152 Wn.2d 195, 202, 95 P.3d 337 (2004) (quoting Waste Mgmt. ofSeczrz'le, Inc. v. Utils. Comm 123 Wn.2d 621, 627, 869 P.2d 1034 (1994)). When called upon to interpret a statute, our fundamental obligation is to give effect to the legis1ature's intent. Dep 't ofEcol0gy?v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). When interpreting a statute, We first look to its plain language and, if the plain language is subject to only one interpretation, the inquiry ends because plain language does not require construction. Campbell at Gwinn, LLC, 146 Waza at 9~l0. 7 B. RCW 43.10.010 McKee argues that the blanket bond the Attorney General's office provides does not strictly or substantially comply with RCW 43.l0.0l0's bonding requirements. The legislature 'inrple'mented'tl1e' bo'nding"requirement for the"State' Attorney Generalin 888 Whenthe"Attorney Ger1eral's oflice was created. OF 1887-8, ch. 7, 1, 4. The legislative history ofthe statute does not state the purpose of the bonding requirement. LAWS OF 1887-8, ch. 7, 1, 4. RCW 43.10.010 states, in relevant partf Before entering upon the duties of his or her office, any person elected or appointed attorney general shall . . . execute and tile with the secretary of state, a bond to the state, in the sum of tive thousand dollars, with sureties to be approved by the governor, conditioned for the faithful performance of his or her duties and the paying over of all moneys, as provided by law. A 4 Moreover, the State points out that McKee has unsuccessfully raised this same argument in at least nine PRA cases. ln the interest of judicial economy, We address the issue to provide resolution ofthe argument and, thus, avoid needless, repetitive litigation. 5 SF-01154 PRR-2011-00450 No. 39713-7-Il Additionally, RCW 42.12.010 provides that "[e]very elective office shall become vacant [upon h]is or her refusal or neglect . . . to give or renew his or her official bond, or to deposit such . . bond within the time prescribed by law." Here, RCW 43.l0.010's plain language is not ambiguous. There must be a bond posted to secure the Attorney General's performance. The legislature has provided the means of posting the required bonds for elected state officers under RCW 42.08.1005 in response to McKee's motion to disqualify the Attorney General's office, the Attorney General submitted a letter from Washingtorfs Office of Financial Management (OFM) stating: In compliance With RCW 42.08.l00, a True and Certified Copy of the Original Public Officials Faithful Performance Bond was filed With the Secretary of State and the State Auditor. This bond has been in effect since January 14, 1985 and was approved by the Governor, the Secretary of State, a Justice of the Supreme Court, the State Auditor, the State Treasurer, the Attorney General, and the State Risk Manager. Clerk's Papers (CP) at 15 (italics omitted). OFM also included a copy ofthe Attorney General's $5,000 bond. McKee did not provide us with the record ofthe trial court's hearing on his motion to disqualify the Attorney General but, because the evidence satisfies the unambiguous language of both RCW 43.10.010 and RCW 42.08.100, We hold that the Attorney General is properly bonded in compliance With the bonding requirements of the State, the office is not vacant under RCW 5 Row 42.08.100 states: . The official bonds of officers shall be approved and filed as follows, to Wit: The official bond of the secretary of state shall be approved by the governor and filed in the office of the state auditor. The official bonds of all other state officers required by law to give bonds, except as otherwise expressly provided by law, shall be approved by the governor and filed in the office of the secretary of state. . 6 SF-01155 PRR-2011-00450 No, 42.12. 00, and the Attorney General has statutory authority to perform the duties of his ofiice. We aftirm the trial court's denial of McKee's motion to disqualify the Attorney General. ll. SUMMARY JUDGMENT BASED ON STATUTE OF LIMITATIONS DOC moved for summary judgment, asking the trial court to rule that it had complied with the PRA, thus entitling it to dismissal of claim. It also asked the trial court to rule that McKee's claim was time barred under RCW 42.5 6.5 one year statute of limitations? The trial court did not iirst address the issue of DOC's compliance with the PRA but, instead, ruled that McKee tiled his claims beyond RCW one year statute of limitations. McKee argues that the trial court erred in granting DOC's summary judgment motion. Specitically, McKee contends that his three PRA complaints are not barred by RCW - one year statute of limitations because DOC's March 2, 2007, letter was not a production ofthe requested material, as it did not itemize the individual cost to copy the documents associated with each October 9, 2006, request. I-le asserts that the statute of limitations began to run on either April 5, 2007, two days after DOC's April 3 letter 'informing him"oilthe'c'o'st' ofhisrequested"d'o'cuments in 'answer to demand-that-he" receive all remaining documents free or, in the alternative, that DOC tell him how much-each document on his list of requested documents cost or (2) September 9, 2008, when DOC claimed for the tirst time that some ofthe requested records were exempt? 6 RCW states, "Actions under this section must be tiled within one year ofthe agency's claim of exemption or the last production of a record on a partial or installment basis." 7 McKee also argues that DOC engaged in "[s]ilent [W]itbholdir1g" of documents, but the trial court did not reach this issue and it is not properly before us, although the trial court may consider it on remand. Br. of Appellant at 20. 7 SF-01156 PRR-2011-00450 No. 39713~7-Il We review both agency action under the PRA and a trial cou1't's disposition of a motion for summary judgment de novo. RCW Jones v. Allstate Ins. Co., 146 Wn.2d 291, 4 300, 45 P.3d 1068 (2002). Summary judgment is appropriate Where "the pleadings, affidavits, and depositions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as amatter of law." Jones, 146 Wn.2d at 300-01; CR 56(o). Under RCW a party may seek judicial review under the PRA when the party has "been denied an opportunity to inspect or copy a public record by an agency."8 Our Supreme Court has held that records are "'produced"' under the PRA when they are "made available for inspection and copying." Sanders v. State, 169 Wn.2d 827, 836, 240 l?.3d 120 (2010). RCW 42.56.550(6) provides that actions under RCW 42.56.550 "must be tiled Within one year ofthe agency's claim of exemption or the last production of a record on a partial or installment basis." RCW After theparties filed their briefs, Division One of this court held that RCW one year statute of limitations applies only when an agency claims an exemption or 'When"it in a'pieceirrea1manner,'not when 'arragency' produces' all requested records. Tobin v. Worden, 156 Wn. App. 507, 514-15, 23 P.3d 906 (2010).9 Thus, under obin, the trial court must first determine Whether the agency fully and timely produced the requested records and then determine the applicable statute of limitations. 156 Wn. App. at 512-13. Normally, atrial court's _conclusion that the agency fully and timely complied with the McKee had the right to inspect the records through a personal representative under WAC 137This results in a longer statute of limitations against an agency that and properly produces records under the PRA than against one that claims an exemption or produces the records on a partial or installment basis. 1 1 SF-01157 PRR-2011-00450 No. 39713-7~ll PRA in producing requested records will result in dismissal of the PRA violation claim. But under the PRA, at a hearing to determine whether the agency violated the PRA, the agency may also ask the trial court to determine the applicable 'statute of limitations, which DOC did here. The trial court may then necessarily resolve both the factual issue of Whether the agency complied with the PRA and fully and timely produced the records and the legal issue of the appropriate statute of limitations. Here, before granting DOC's summary judgment motion based on the one year statute of limitations, the trial court did not discuss Whether (1) it was applying the statute of limitations because DOC claimed an exemption to the requested records or (2) DOC produced the records on a partial or installment basis. The trial court did not make findings about DOC's response to the October 9, 2006, requests or how McKee's subsequent correspondence about his October 9 requests affected DOC's duty to respond to McKee's requests. DOC's March 2, 2007, letter appears to have made the October 9 documents available for McKee to copy, contingent on his paymentfo But McKee argues that, because DOC did not provide an itemized list showing the "cost'for"each requested"dc'curnent that he requested on March'3 0, to produce 'the' records he requested on October 9.11 Agencies may charge a reasonable fee for copying documents requested under the PRA. RCW 42.56.120 . 10 11 To support this argument, McKee points to an unpublished DOC policy 280.5 0(Ill)(B) that provides, staff will notify the requestor in Writing ofthe exact copying charges for the requested records" in response to a prisoner's public records request. CP at 393. McKee argues that DOC did not comply with this policy and, thus, that the March 2, 2007, letter was insufficient production of the October 9, 2006, requested documents under the PRA. But McKee sued under the PRA, which does not incorporate unpublished agency policies. Thus, this argument fails. Here, even if the DOC policies applied tc our review, DOC complied with DOC by giving McKee the exact cost for all of his records-the DOC policy does not state that the cost of records must be individually identified. 9 . . SF-01158 PRR-2011-00450 No. 39713-7-Il DOC's March 2, 2007, -letter appears to have made the October 9 requested records "available for copying and inspection." Sanders, 169 Wn.2d at 836. Thereafter, March 7, 2007, letter indicated that he no longer Wanted the records he requested on October 9. Then, on March 30, 2007, McKee demanded an itemized list ofthe cost of each record he had requested over time, apparently also including the October 9 requests that he had previously indicated he did not Want. Furthermore, McKee did not send DOC payment for his October 9 records request until he had filed his complaints against DOC nor did he ever have a person inspect the available documents on his behalf. A McKee cites no authority for his argument that the statute of limitations was extended when he asked forthe cost associated With each of his outstanding PRA requests after he indicated that he no longer Wanted copies of the documents related to his October 9, 2006, requests. It may be that DOC allowed McKee access to agency records, consistent with the intent of the PRA, but the trial court is in the best position to resolve this material factual dispute that precludes summary judgment. year statute of limitations but Within a possible two year statute of limitations under chapter 4.16 RCW. Because the applicable statute of limitations rests on disputed material facts that the trial court did not resolve, We remand for further proceedings, including legal and factual findings regarding DOC's response to McKee's October 9,_2006, requests to determine whether DOC violated the PRA and Whether RCW one year statute of limitations applies. l0 PRR-2011-00450 No. 39713-7-II Fees McKee asks us to award him attorney fees and costs for this appeal. The PRA authorizes attorney fees and costs to a person who prevails against an agency in an action under the PRA. RCW As McKee did not prevail 'against the DOC in his PRA action, We do not award him attorney fees and costs. The trial court may consider the award of attorney fees and costs at the conclusion of the case on remand. We affirm the trial court's ruling that the Attorney General is properly bonded and may represent DOC but reverse the trial court's order of summary judgment in favor of DOC based on RCW 42.5 6.5 5 .one year statute of limitations and remand for further proceedings. VAN We concursF-01160 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JEFFREY R. Marcin, I NO. 397134-11 Appellant, - V. - MANDATE WASHINGTON STATE DEPARTMENT Thurston County Cause No. OF CORRECTIONS, 08-2-00527~2 Respondent. The State of Washington to: The Superior Court of the' State of Washington in and for Thurston County This is to certify that the opinion ofthe Court of Appeals ofthe State of Washington, Division H, filed on March 8, 2011 became the decision terminating review of this court ofthe above entitled case on April 8, 2011. Accordingly, this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy ofthe opinion. . IN TESTIMONY WHEREOF, I have hereunto set my hand and afiixe?l the seal of sald Court at Taco1na,th1s,\ ay of April, 2011. if 95 - a. 'iir~'a I I 2 -g ij Clerk ofthe Court oflAppeals, State of Washin on, Div. I1 t'trlit I ga-f -g ii Jeffrey R. McKee Jean Elizabeth Meyn #8 82819 Attorney General's Ofiice Coyote Ridge Corrections Center PO Box 40116 PO Box 769 Olympia, WA, 98504-0116 Connel, WA, 99326 SF-01161 PRR-2011-00450 The Honorable F. Mark McCauley Hearing Date: Hearing Time: Hearing Location: . . 'pay STATE OF WASHINGTON ,fi GRAYS HARBOR COUNTY SUPERIOR COURT 0 SHAWN D. GREENHALGH, NO. 08-2-00504~2 Plaintiff, ORDER GRANTING v. FOR SUMMARY JUDGMENT AND . DENYING PLAINTIFFS MOTION DEPARTMENT OF CORRECTIONS, FOR SUMMARY JUDGMENT Defendant. (PROPOSED) ACTION REQUIRED This matter came before the Court for hearing on the parties cross-motions for surnrnary judgment on August 10, 2009. Michael Kahrs, Attorney at Law, appeared for the Plaintiff. Jason Howell, Assistant Attorney General, appeared for the Defendant. Following hearing, this Court took the matter under advisement. The Court notified the parties by letter dated October l4, 2009, of its decision as set forth below. I. EVIDENCE RELIED UPON This Court has reviewed the contents of this Court's file, including the following exhibits submitted in support of Plaintiff' Motion for Partial Summary Judgment, attached to the Declaration of Michael Kahrs: Exhibit A: Letter from Shawn Greenhalgh to Jane McKenzie, dated November l0, 2006; Exhibit B: Letter Hom Jane McKenzie to Shawn Greenhalgh, dated November 2l, 2006; ORDER GRANTIN DEFENDANTS ATFORNEYCGEPIPRALDQE WASHINGTON CROSS-MOTION FOR SUMMARY JUDGMENT AND DENY1NG Ol 1 wt' MOTION Fon 360 SUMMARY JUDGMENT SF-01162 tneiavi i22 2i21=.eff raai fi rivif 6 #ft NO. 08_2_00504_2 . Exhibit C: E-mail from Andrew Burke sent to staff at Stafford Creek Correction Center Paul McCoy and Warren Pratt; Exhibit D: Letter from Sheri Izatt to Shawn Greenhalgh, dated November 21, 2006; Exhibit E: Letter from Shawn Greenhalgh to Sheri lzatt, dated November 28, 2006; Exhibit F: Letter to Shawn Greenhalgh with attachments from Sheri Izatt, dated December ll, 2006; Exhibit G: Letter from Shawn Greenhalgh to Sheri lzatt, dated December l8, 2006; Exhibit H: Letter Bom Shawn Greenhalgh to Sheri lzatt, dated March 2 2007; Exhibit I: Letter to Shawn Greenhalgh from Sheri lzatt, dated April 2, 2007; Exhibit J: Letter from Shawn Greenhalgh to Sheri Izatt, dated April 5, 2007; Exhibit K: Letter to Shawn Greenhalgh from Sheri Izatt, dated April 18, 2007; Exhibit L: Letter from Shawn Greenhalgh to Gaylene Schave, dated June 27, 2008; Exhibit M: Letter to Shawn Greenhalgh from Gaylene Schave, dated July 8, 2008; Exhibit N: Letter from Shawn Greenhalgh to Gaylene Schave, dated July l-4, 2008; Exhibit O: Letter to Shawn Greenhalgh from Craylene Schave, dated July 24, 2008; Exhibit P: Letter to Shawn Greenhalgh from Gaylene Schave, dated July 3 l, 2008; Exhibit Q: Letter irom Shawn Greenlialgh to Gaylene Schave, dated August l5, 2008; Exhibit R: Letter to Shawn Greenhalgh from Gaylene Schave, dated August 26, 2008; Exhibit S: Letter from Shawn Greenhalgh to Gaylene Schave, dated August 29, 2008; Exhibit T: Letter to Shawn Greenhalgh Hom Gaylene Schave, dated September 3, 2008; Exhibit U: Letter to Shawn Greenhalgh from Gaylene Schave, dated September l2, 2008; Exhibit V: Confinement Statistics from the Department of Corrections as of December 3 l, 2007; Exhibit W: Inmate Store retention schedule maintained by the Washington Secretary of State's Oftice, submitted September 5, 2007; and Exhibit X: Inmate Store retention schedule maintained by the Washington Secretary of State's Office, submitted November 23, 1994. ORDER GRANTING DEFENDANTS 2 ATTORNEY GENERAL WASIHNGTON CROSS-MOTION Fon SUMMARY JUDGMENT AND DENYING Olympia WA 93504-0116 PLA1NT1FF's Morroiv FOR 969 5864445 JUDGMENT SF-01163 NO 08-2~00504-2 PRR-2011-00450 This Court has also reviewed the following exhibits submitted with Plaintiffs Reply in Support of his Motion for Summary Judgment, attached to the Second Declaration of Michael Kahrs: Exhibit Y: Letter to Shawn Greenhalgh with selected attachments from Gaylene Schave, dated June 10, 2008; ExhibitZ: Department of Correction's Maximum Allowable Personal Property Matrix (Men's Facilities), Attachment A to DOC Policy 440000; Exhibit AA: Letter from Shawn Cfreenhalgh to the Public Records Officer, dated November 26, 2007; and Exhibit BB: Letter to Shawn Greenhalgh with selected attachments from Sheri Izatt, dated January 7, 2008. II. ORDER The Court, having reviewed the record and Defendant's Cross-Motion for Summary Judgment under rule 56 ofthe Federal Rules of Civil Procedure, and the remaining record; does hereby tind and ORDER: l. Plaintiff" Motion for Partial Summary Judgment is DENIED 2. Defendants' Cross-Motion for Summary Judgment is GRANTED. i ORDER GRANTING DEPENDANTS 3 WASHINGTON cRoss>>MoTroN Fon SUMMARY JUDGMENT AND DENYING oiympia. WA 98504-0116 Fon (360) 586"4't5 SUMMARY JUDGMENT NO. 08-2-00504-2 PRR-2011-00450 3. Plaintiff" Complaint is DISMISSED with prejudice. 4. - Clerk of -zu uncerti opies 0 to ec' nse or the Plai tiff counsel forthe . ii DATED of i 2009. e'"l 1 MARK MCCAULEY Grays Harbor County Superior Court Judge Presented By: ROBERT M. MCKENNA 1 - General DA J. JUDGE, WSBA #17392 Senior Counsel Approved as to form/Notice of Presentation Waived: HRS, WSBA #27085 Attorney for Plaintiff ORDER GRANTING 4 CROSS-MOTION FOR SUMMARY pg Box 40116 JUDGMENT AND DENYING Olympia. WA 98504-01?6 Pon (360) 58"1'"5 Cv SUMMARY JUDGMENT SF-01165 Li/l PRR-2011-00450 Fl u. fl L-ties,-1,55 I il Fiat? I5 fit ;T3l`i?`ll l`F lieill lr IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II I SHAWN GREENHALGH, No. Appellant, V. i DEPARTMENT OF CORRECTIONS, PUBLISHED OPINION A subdivision ofthe State of Washington, Respondent. WORSWICK, A.C.J. Shawn Greenlialgli, an inmate at the Monroe Correctional Complex (MCC), requested documents under the Public Records Act (PRA), chapter 42.56 RCW, from the Washington State Department of Corrections (DOC) listing items available for purclaase at the Stafford Creek Corrections Center inmate store. then sued the DOC, alleging that ithad failed to adequately comply with his request. now appeals from a trial court order denying his summary judgment motion and granting the DOC's cross~motion for summary judgment. Holding that the DOC fully complied with request and the PRA, We aftirm. SF-01166 PRR-2011-00450 40144-4-ll FACTS 1 On November 10, 2006, Greenhalgh sent his first PRA request in this case to Jane McKenzie, a DOC Public Disclosure Coordinator (PDC) at the Monroe Correctional Complex seeking "[t]he most current Inmate' Store Price List for the Stafford Creek Corrections Center Inmate Main Store." C1erk's Papers (CP) at 38. On November 21, McKenzie sent a letter to Greenhalgh acknowledging his request as follows: This is to acknowledge receipt of your request for public disclosure received in my office on November 14, 2006. You are requesting the following documents: 1. Inmate store price list for MICC, AHCC CBCC. 2. MICC educational vocational programs. These documents are not located at MCC, therefore 1 am forwarding your requests. In the future please send your requests directly to the facility where the documents are located. I anticipate that it may take up to thirty business days to gather available documents. There will be a 20-cent per page "fee, plus the cost of postage, for any documents to be disclosed. You will be advised of the amount of the fee that will need to be paid prior to the documents being copied for release. 1 CP at 39. On that same day, Sheri lzatt, the PDC for sent~Greenhalgh the following letter: This letter is to acknowledge receipt of your Public Disclosure Request received by Stafford Creek Corrections Center on November 21, 2006, You are requesting the following documents: l. Offender store price list for Stafford Creek Correctional [sic] Center. There are 2 page(s) responsive to your request. There is a copy fee cost of $0.20 per page, plus postage of $0.39. Please submit payment to Stafford Creek Corrections Center in-the amount of $0.79 for the request. Upon receipt of payment, the documents will be mailed to you. If you choose not to pursue this public disclosure request within (30) thirty days, this request will be closed. 2 SF-01167 PRR-2011-00450 40144-4-II CP at 41. Greenhalgh responded on November 28, and provided payment for the record. On December il, Izatt mailed the record entitled "Stafford Creek Store Order List" to Greenhalgh. CP at 43-46. Greenhalgh then sent a letter to Iztt following up on the receipt of the record' as follows: Thank you for your letter dated December ll, 2006, in response to my request for public records; however, I have reason to believe that additional records exist, responsive to my request. . My request for public records specifically request(ed) the Offender Store Price List. In response to my request, you produced two (2) docurnentsw- listing presumably all of the general store items, however, these documents do not list any electrical appliances, e. radios, televisions, lamps, etc. I hereby ask that you look into this and see if there is another list, listing additional items. CP at 47 .1 The DOC did not respond to this letter. On March 21, 2007, Greenhalgh sent another letter which stated: - . This is my second follow-up letter regarding the above-referenced records request. My December 18, 2006 letter explained that your response was incomplete because the two pages of the Store List that you provided do not list any appliances such as T.V.'s and radios. Please produce the records requested in accordance with RCW 42.56.520 CP at 48. The DOC treated this letter as a new PRA request, and on April 2, lzatt sent a letter to Greenhalgh, which stated: . This letter is a follow-up response to your Public Disclosure Request received by Stafford Creek Corrections Center on March 23, 2006, requesting a copy ofthe offender store price list for Stafford Creek Correctional [sic] Center. Upon further research, we found (one) additional page responsive to your request. There is a copy fee cost of $0.20 per page, plus postage of $0.39. Please 1 Despite the assertions in this letter, Greenhalgh had not requested "the SCC Offender Store Price List," but had requested "[t]he most current Inmate Store Price List for the Stafford Creek Corrections Center Inmate l\/Iain Store." CP at 38; 3 SF-01168 PRR-2011-00450 40 44-4-ll submit payment to Stafford Creek Corrections Center in the amount of $0.59 for the request. Upon receipt of payment, the documents will be mailed to you. CP at 49. A few days later, Greenhalgh remitted payment and Izatt provided copy of the offender-store price list for Stafford Creek Correctional Center." CP at 50-52. This record included a list of electronics, including razors, lamps, headphones, and fans. G-reenhalgh filed a complaint for violation ofthe PRA on April 23, 2008. And on June 27, based on information provided to him by another inmate who formerly resided at that an additional list with various Wrist Watches for sale existed, Greenhalgh sent a letter to Gaylene Schave, a Public Disclosure Specialist at the DOC outlining his characterization of the facts surrounding his requests. In conclusion, he stated, "Por Whatever reason, PDC Izatt did not produce the fourth page of the November 2006 Inmate Store Price List. Please produce the missing page listing approximately fifty (50) Wrist Watches that were offered to offenders hous_ed at in November 2006, so that We can resolve this request." CP at 56. This was the first request for a list of Wristwatches the DOC received from Greenhalgh. On July 8, Schave sent a letter to Greenhalgh acknowledging receipt of his letter. The letter stated that an additional 40 business days would be needed to determine Whether the store list from November 2006 still existed. Greenhalgh replied and objected to the timeline. Schave again responded and stated that the DOC was searching its electronic files and that "this takes an extensive effort." CP at 59. On July 3 Schave sent another letter to Greenhalgh: This letter is in follow up to your clarification. dated June 27, 2008 and received on June 30, 2008, regarding your public disclosure request 605 4 SF-01169 PRR-2011-00450 40144 4-11 [sic] for item #12 in your letter. You state there is a listing of various Wrist Watches available through Your original request asked for the current inmate store price list for Main store. This request was responded to on December ll, 2006, when Ms. lzatt sent you the 2 page [sic] Main Store price list. In your letter dated June 27, 2008, received on June 23, 2008, you now ask for the price list for vvrist Watches available for purchase through This is a different list than the main store list previously provided. have gathered 3 pages responsive. To obtain these pages please send a check or money order in the exact amount (80.20 3 pages $0.60 [sic] with a mailing cost of $0.42) make [sic] payable to the Department of Corrections mail to the Public Disclosure Unit at PO Box 41118, Olympia, WA 98504. When your payment is received the documents will be mailed to you. 0 As stated in my letter dated of [sic] July 8, 2008, you can expect a response on or before September 3, 2008. CP at 60 (emphasis in original). Greenhalgh sent a reply letter to Schave on August 15 objecting to her "version of the facts." CP at 61. He again requested "thatyour agency produce the last page of the 2006 store list, listing the wrist Watches, or admit that the record has been destroyed." CP at 64. On August 26, Schave provided a more detailed explanation regarding the DOC's efforts 7 . to The Department has provided all records we can find in DOC files and computers responsive to your request. However, there is a possibility that additional e-mails responsive to the scope of your request may exist on back up [sic] tapes that are currently being preserved by DOC in compliance with a litigation hold the Department is adhering to. The only process currently available to DOC for restoration and review of these back up [sic] tapes is extremely time intensive. The Department has been examining how We can expedite the search of these records and definitively determine whether any additional records responsive to yourrequest do or do not exist on these tapes. We hope to have accurate time estimates for you in the next 30 business days, outlining what process we have found to search these back up [sic] tapes, in order to make certain We have provided all records responsive to your request. . 5 SF-01170 PRR-2011-00450 40144-4-ll CP at 65. Greenhalgh replied a few days later on August 29, and made a request for "the November 2006 inmate store price list, nothing else." CP at 66. Schave followed up again, notifying Greenhalgh that he could expect a response from the DOC on October 8 regarding his previous request "for the current inmate store price list for l\/Iain store." CP at 67. Then on September 12, Schave sent a letter acknowledging C-rreenhalgh's August 29 letter, which stated in part: After further review of this request, the Department has provided all records we can find in DOC files and computers responsive to your request, as stated in my letter dated August 28, 2008. The date of your initial request, November 10, 2006, does not fit into the date parameters of the [sic] up tapes currently being preserved by DOC in compliance with a litigation hold the Department is adhering to. This request is now considered closed. CP at 68. Greenhalgh ultimately served his complaint on July 15, 2008. He then moved for partial summary judgment asking the trial' court to f`md that the DOC violated the PRA and to impose peialtiesrbamd on 'contending that Greenhalgh's action was time-barred and that the DOC responded to his request by providing him the document he actually requested. As part of his summary judgment motion, Greenhalgh included several declarations from other inmates regarding their firsthand knowledge I of lists of inmate store items at the that included watches, - The first declaration, by George Clark, detailed a PRA request he made in 2008 for list of all the Inmate Store items offered to offenders housed at Medium Security Units, including the price for each item, as of l\/larch 1, 2008." CP at 73. According to Clark, 6 SF-01171 PRR-2011-00450 40.144-4-ll the DOC responded to this request with a four-page document, including a list of wrist watches. The next declaration, by Kevin Corning, stated that during his time at between February 2007 and July 2007, "the Inmate Store [list] consisted of four (4) pages of items: two pages listing primarily food items, personal care items and over-the-counter drugs; one page listing electrical appliances (T.V., radios, fans, etc.); and one page listing approximately fifty (50) wrist watches." CP at 80. And the final declaration, from Hogan Burt, stated that during his time at the between 2001 and 2007, "the inmate store list consisted of four (4) pages" including "one page listing various wrist watches." CP at 82. Burt also stated that after reviewing "the two pages of documentation that provided [Greenhalgh] in response to his November 26, 2007 public records request . . it is clear to me that the third and fourth pages are missing, the page listing the . .wrist watches." CP at 83. In a letter ruling to the parties dated October 14, 2009, the trial court ruled in favor of the DOC, holding that the DOC complied with Greenhalgh's requests. Crreenhalgh now appeals. STANDARD OF REVIEW We review challenges to agency actions under the PRA de novo. O'NeilI v. City of 1 Shoreline, 170 Wn.2d 138, 145 n.l, 240 P.3d 1149 (2010); RCW Appellate courts stand in the same position as the trial court where the record, as here, 'consists only of affidavits, memoranda, and other documentary evidence. Progressive Animal Webiczre Socjf v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994) (PAWS ll). We also review summary judgment orders de novo. v. Line USA, Inc., 163 Wn.2d 236, 243,178 P.3d 7 SF-01172 PRR-2011-00450 40144-4-ll 1 981 (2008). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We consider all facts and reasonable inferences' in the light most favorable to the nonmoving party. McNabb v. Dep'z' of Corr., 163 Wn.2d 393, 397, 180 P.3d 1257 (zoos). A Mere allegations, argumentative assertions, conclusory statements, and speculation do not raise issues of material fact that preclude a grant of judgment. See Grimwoocl v. Univ. of Puget Sound, 110 Wn.2d 355, 360, 753 P.2d 517 (1988); Seven Gables Corp. v. MGMUA Ent. Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Once the moving party meets its burden to show that there is no genuine issue as to any material fact, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing that a genuine issue as to a material fact exists. Strong v. Terrell, 147 Wn. App. 376, 384, 195 P.3d 977 (2008). 1. The PRA requires agencies to produce "identifiable public records." RCW 42.5 6.080. A person seeking documents must identify or describe the documents with reasonable clarity to allow the agency to locate them. Hangarmer v. City 151 Wn.2d 439, 447, 90 P.3d 26 (2004). The PRA does not "require public agencies to be mind readers." Bonamy v. City of Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998). A 8 SF-01173 PRR-2011-00450 Former RCW 42.56.520 compels agencies to respond to PRA requests within tive business days of receipt of the request by: 1(1) making the records available, (2) providing a reasonable estimate of when the records will be available, or (3) denying release of the records. Former RCW 42.56.520 (2006).2 Agencies may request additional time "based upon the need to clarify the intent of the request, to locate and assemble the infomation requested, to notify third persons or agencies affected by the request, or to determine Whether any of the irrforrnation requested is exempt and that a denial should be made as to all or part of the request." RCW 42.56.520 (2006). . Despite argument to the contrary, a review of his PRA requests and the exchanges between him and the DOC all show that the DOC complied with the requests under the PRA. ln November_2006, Greenhalgh requested "[t]he most current Inmate Store Price List for the Stafford Creek Corrections Center Inmate 'Main Store." CP at 38. And just a few days later, he received correspondence from the DOC acknowledging his request, after which the f' scope of requests started to expand. The record suggests that the' DOC continued to comply with lGreenhalgh's_ efforts to seek additional information. And even though Greenhalgh provided declarations from fellow inmates, none of them concretely support his contention that a document prices existed in November 2006 or that such a list was Ll- 2 Various provisions ofthe PRA have been amended subsequent to the requests in this case. We reference the statutory language in effect at the time. 9 SF-01174 PRR-2011-00450 40144-4-II part of "the most current Inmate Store Price List for the Stafford Creek Corrections Center Inmate Main Store."3 CP at 38 A careful review of the record clearly shows that the DOC complied with the specific requests that Greenhalgh made. He did not request, as his fellow inmate Clark did, for example, list of all the Inmate Store items offered to offenders housed at Medium Security Units, including the price for each item, as of l\/larch l, 2008." CP. at 73, Even Greenhalgh's successive requests that expanded the scope of his original request were adequately responded to by the DOC. Because the DOC clearly made the records that existed available. to 1 Greenhalgh and provided reasonable estimates of when the records would be made available, his argument fails.4 Affirmed. - 0 0 Worswick, We concur: /if at Hy, J. 'i MWA Van Deren, J. 3 Clarl<'s declaration discusses only his own PRA request for the store price list as of March I, 2008. Corning's declmation mentions only what he knew to be available in 2007, not 2006: And Burt's declaration encompasses a six-year range (2001 to 2007) of what price lists he recalls, but he does not specifically substantiate Greenhalgh's claim that a document with Wrist Watches existed as of November 2006. 4 As We hold that the DOC fully complied with PRA request, We do not reach his statute of limitations arguments, nor do We award attorney fees and penalties under RCW I0 SF-01175 PRR-2011-00450 . . IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II SHAWN GREENHALGH, No. 40144-4-ll A I Appellant, MANDATE v. Grays Harbor County Cause No. 08-2-00504-2 DEPARTMENT OF CORRECTIONS, a I subdivision ofthe State of Washington, Respondent. 'The State of Washington to: The Superior Court of the State of Washington in and for Grays Harbor County This is to certify that the opinion of the Court of Appeals ofthe State of Washington, Division ll, filed on March 15, 2011 became the decision terminating review of this court ofthe above entitled case on April 15, 2011. Accordingly, this cause is mandated to the Superior Court from which the appeal Was taken for further proceedings in accordance with the attached true I copy ofthe opinionii*-4* tifQ.. 2-.zz 'slit-i vga ft *t?het . .gilt ffi FQF4 ny-.-., ., ua, ;*ff7Pigqafgi H41 53TESTIMONY W1-IEREOF, I have hereunto set my hand and affigcgd the seal of said Court at Taco' this ,l da of I kid 2011. Courtiof A peals, State of ll SF-01176 PRR-2011-00450 Page -2- Mdaxidate Shawn Greenhalgh v. Dept of Corrections, COA 4 Daniel John Judge Shawn Crreenhalgh Attorney Genera1's Office #701558 WA State Reformatory - MCC PO Box 40126 OBOX 777 Olympia, WA, 98504-0126 Monroe, WA, 98272 SF-01177 0 PRR-2011-00450 .- . i -vw .mussioii cquiin, wx HEEFTDQ is 1 Date: - "mef . BETTYJ, suui_m,cLERi< Judge: . - A STATE OF 1 - SUPERICJR COURT Daniel R. Quinn - _Case N011 O-2-02603-4 Plaintiff 'li . VS, T. Ordeij volunia . _dismissal of acUons @?iu WASHINGTON STATE DEPARTMENT OF 3 - Qefendends) - Tnis matter hsifing come reguierly before ihe court on p|aintiFFs' Motion for voluntary dismissal (without prejudice) and being othenvise fully advised makes The foliowing. Order: - 1. Piein'?ifFs motion to voiuniarily dismiss his Pitiblio Records Complaint, Is GRANTED: 2. The oierk of the court is directed to send ei confirmed copy of this Ofderto the Washington State Depertmeni of _Corrections and to ell parties in this matter of record. Deierdanu 2011, - Honorable Judge 3 carol Murphy .- is SF-01178 PRR-2011-00450 IIearin%Set IZI Hearing is et JUL 3 Ztlii Date: July 29, 2011 I Time: 11:00am 1 The i STATE OF VVASHINGTON THURSTON COUNTY SUPERIOR COURT TODD DOMKE, NO. 1042-02691-3 Plaintiff, ORDER ON PLAINTIFF JUDGMENT AND Y. ON CROSS I MOTION FOR SUMMARY DEPARTMENT OF JUDGMENT I CORRECTIONS, Defendant. THIS MATTER having come on for hearing on July 29, 2011, on Defendant's Motion for Summary Judgment, Plaintiff TODD DOMKE, appearing pro se telephonically, and Defendant DEPARTMENT OF CORRECTIONS, appearing by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JEAN E. Assistant Attorney General, and the Court having considered and heard oral argument, AND HAVING CONSIDERED the following pleadings and memoranda with attached declarations and exhibits ofthe parties: 1. Public Records Complaint; A 2. Plaintiffs Motion for Summary Judgment' (CR 56), dated May 30, 201 1; I ORDER ON SUIVIMARY 1 ATTORNEY GENERAL OF WASHINGTON JUDGMENT AND ON M000 P.O. 40116 CROSS MOTION FOR SUMMARY SF-01179 Olympia, wix98504-0116 .TUDGMENT No. 10-2-02691-3 00400 060) 586-1445 3. Plaintiffs Motion for Judgment on the Pleadings (CR 12 or for Summary Judgment (CR 56), dated May 30, 2011; 4. Defendant's Response to Plaintiffs Motions for Summary Judgment and Defendant's Cross Motion for Summary Judgment, dated July 18, 2011; 5. Defendant's Motion for Summary Judgment and `Memorandum in Support Thereof, dated June 30, 2011 (portions as referenced in Defendanfs Response to Plaintiffs Motions for Summary Judgment and Defendant's Cross Motion for Summary Judgment, dated July 18, 2011); tiffs Reply to Defendant's ons for Summary Judgmen - onse to Defendanfs Cross Motion for Summary 7. NOW, THEREFORE, concludes that: The Defendant satisfied the requirements of Public Records Act, chapter 42.56 RCW, and did not violate the Public Records Act chapter 42.56 RCW. ITIS that 1. The Court adopts the arguments of Defendant's Response to Plaintiffs Motions for Summary Judgment and Cross Motion for Summary Judgment, dated July 18, 2011; 2. Plaintiffs Motion for Summary Judgment (CR 56), dated May 30, 2011, is 3. Plaintiffs Motion for Judgment on the Pleadings (CR 12 or for Summary'Judgment (CR 56), dated May 30, 2011, is 1 o1u3ER ON 2 ATTORNEY GEMM OF WASHENGTON JUDGMENT AND ON Dim" P.O. 40116 cnoss MOTION Fon SUMMARY SF 01180 Olympia, 16 JUDGMENT ;@_2_02691_3 PRR 2011 00450 (360)586-1445 4. Defendant's Cross Motion for Summary Judgment, dated July 18, 2011 is 5. Plaintiffs Complaint is DISMISSED WITH and - - efendant is the pr vailin 1 an 1 . ~a-i costs as allowed by DONE IN OPEN COURT this 1/"day of July, 2011. 1 1 HONO LE OL Superlor Court Judge Presented by: ROBER M. MCKENNA Approved as to form: Attorn General gi "xl/1 JE E. MEYN, WS A 15990 TODD ASS1 tant Attorney General Pla1nt1ffPro Se )H~p Atto ey for Defendant ORDER ON SUMMARY 3 ATTORNEY GENERAL QF WASPDIGTON JUDGMENT AND ON DEFENDANTS CROSS MOTION OR SUMMARY 181 Olympia, WA 98504-0116 JUDGMENT - NO. l0-2-02691-3 00450 (360) 536-1445 EXPEDITE I 4' '4 E35 F, paiwmiras 5 lf] No I-Iearin%Set Healiing 13.1 It 29 2011 i ate: JU 1' A Time: 11:iJ)0am 2 ii im The Honorable Carol Murphy 1 1 11,1111 1 1 22111 STATE OF WASHINGTON I THURSTON COUNTY SUPERIOR COURT TODD DOMKE, NO. 10-2-02691-3 Plaintiff, ORDER ON SUMNIARY IUDGMENT DISMIS SAL V. DEPARTMENT OF CORRECTIONS, Defendant. TI-IIS MATTER having come on for hearing on July 29, 2011, on Defendant's Motion for Summary Judgment, Plaintiff TODD DOMKE, appearing pro se telephonically, and Defendant DEPARTMENT OF CORRECTIONS, appearing by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and JEAN E. MEYN, Assistant Attorney General, and the Court having considered and heard oral argument, considered the memoranda and declarations of the parties, and considered the records and files herein, and being fully advised; NOW, THEREFORE, the court makes the following Findings of Pact, Conclusions of Law: ORDER ON SUMMARY JUDGMENT 1 ATTORNEY GENERAL QF WASHINGTON DIS SSAL Correctlons No. 10-2-02691-3 SF-01182 I. FINDINGS OF FACT A 1.1 That the Plaintiff made two separate Public Records Act requests on January 27, 2004 and January 28, 2004 to the Defendant, which received both requests on January 29, 2004. . 1.2 The request on January 27, 2004 was the following: am writing to request records (copy) from a hearing I had while in IMU August 19, 2003. Also can you supply me with the record on which account I was placed in 1.3 The request on January 28, 2004 was the following: am requesting records Hom 7-23-03 the date according to my counselor Garrison I was assigned IMS program." A 1.4 The Defendant responded to both requests on February 4, 2004, in which the Defendant acknowledged receipt of the two requests in Finding 1.1. 1.5 The Defendant responded to the Plaintiff on February 5, 2004 that it had searched for the requested records and had found "no documents . . . for the dates that you specified." 1.6 The Defendant completed its response to the Plaintiffs January 27, 2004 and January 28, 2004 public records requests on February 5, 2004 and the Plaintiff' claims began to accrue for purposes of the statute of limitations on February 5, 2004. 1.7 From 2004 until 2010, the Plaintiff made no request for records under the Public Records Act to the Defendant. 1.8 On October 4, 2010, the Plaintiff submitted a Request for Disclosure of Records form to the Defendant for the following: Records from 7-23-03 IMS Program Assignment Initiated by Counselor Garrison all records related to my IMS program assignment on 7-23 -03) at WSP 2.Copy/record of a hearing I had in WSP on August 19, 2003." A onosu ON SIJMMARY JUDGMENT 2 ATTORNEY GENERAL QF WASHINGTON DISMISSAL A No.10-2-02691-3 . PRR-2011 00450 (360) 586-1445 1.9 The October 4, 2010 public records request described in Finding 1.8 is a new and separate Public Records Act request and not an extension of Plaintiff' public records requests on January 27, 2004 and January 28, 2004. 1.10 Plaintiffs October 4, 2010 public records request described in Finding 1.8 did not extend the accrual date for statute of limitations purposes of Pl_aintiff's claims in his Complaint beyond February 5, 2004. Based on the foregoing Findings of Fact, the Court makes the following: II. CONCLUSIONS OF LAW 2.1 Under RCW 42.56.55 "[a]ctions under this section must be filed within one year of the agency's claim of exemption or the last production of a record on a partial or instalhnent basis." 2.2 Chapter 4.16 RCW prescribes limitations on civil actions. RCW 4.l6.005 provides as follows: "Except as otherwise provided in this chapter, and except when in special cases a different limitation is prescribed by a statute not contained in this chapter, actions can only be commenced within the periods provided in this. chapter after the cause of action has accrued." 2.3 RCW 4.16130 provides as follows: action for relief not hereinbefore provided for, shall be commenced within two years after the clause of action shall have accrued." 2.4 It is necessary for a court to rule on the facts of an agency's response in order to determine whether the one-year statute of limitations under RCW 42.56.550(6) or the two-year limitation under RCW 42.16.130 applies. McKee v. Department 0fCorrecz'i0ns, 160 Wn. App. 437, 445, 248 P.3d 115 (Div. 2, 2011) 2.5 Because the Defendant's response to Plaintiff's public records request was not by a claim of exemption or production of a record on a partial or ORDER ON SUIVIMARY JUDGMENT 3 ATTORNEY GENERAL WASHINGTON DISNUSSAL NO. 10-2-02691-3 O1ympia,.WifiX 98504-01 16 PRR-2011 00450 (360) 586-1445 installment basis, the one year statute of limitations under RCW 42.56.550(6) does not apply. 2.6 Plaintiffs claims began to accrue for purposes of the statute of limitations on February 5, 2004, which resulted in the expiration of the two-year statute of limitations under chapter 4.16 RCW on February 5, 2006. 2.7 Plaintiff tiled his Complaint on December 15, 2010 and served the Defendant on December 16, 2010. 2.8 The claims in Plaintiff's Complaint are time-barred by the statute of . limitations under chapter 4.16 RCW. NOW, THEREFORE, it is hereby ORDERED that: 3.1 Defendant's Motion for Summary Judgment is granted. 3 .2 Plaintiffs Complaint is dismissed with prejudice. Ut/l{\ 3. antfis-t eva; ing party and awarded costs as allowed 4.84.010. DONE IN OPEN COURT this 'il/Liday of July, 2011. 061/09% 1 Superior Court Judge Presented by: ROBERT M. MCKENNA Approved as to form: Att ey General fd V960 1\f\ JE E. MEYN, 15990 DDOMKE As istant Attorney General Plaintiff Pro Se A Ile' Attorney for Defendant ORDER ON SUMMARY JUDGMENT 4 ATTORNEY GENERAL WASHINGTON tlg?yis?on NO. 10-2-02691-3 5901185 98504-01 16 PRR-2011 00450 (350) 536"14"*5 - "1 If* 1 4 ?3 ?i'T 'if1155 -M m" ~r Qg?ahh &m f> ?_Q!lj E53 Lj-53Eff; 1; N, 1231; 2 MQ i' Q3 4 -drag 3 18e PRR-2011-00450 CU-310 P11420 1 co c1_1?111< ZUWAPH 22 125 'fl A BARBARA STATE OF WASHINGTON CLALLAM COUNTY SUPERIOR COURT A RAYNE U. WELLS, JR., No. 11-2-00224-4 . iPlaintiff, ORDER OF DISMISSAL v. (PROPOSED1 WASHINGTON STATE 1 A A DEPARTMENT OF CORRECTIONS, A Defendant. THIS MATTER having come on for hearing on April 1, 2011, on Motion to Show Cause, Plaintiff D. WELLS, appearing pro se telephonically (or: failing to appear), and Defendant' DEPARTMENT OF CORRECTIONS, appearing 1?11eph0niea11y by and through its attorneys, ROBERTM. MCKENNA, Attorney General, and JEAN E. MEYN, Assistant Attorney General, and the Court having considered and heard oral argument, .considered the memoranda and declarations Of the parties, and 'considered the records and tiles herein, and being fully advised; A NOW, THEREFORE, it is hereby: that the'Cou1't adopts the arguments 'regal-ding CR 12 and (5) of Defendant's Response to Show Cause dated March 29, 2011, and 1' Oar# 1 - RDER OF DISMISSAL 1 87 I 4 FURTHER that rhis matter' is dismissed prejudice for lack of jmisdiefion undef RCW 4.2s.o2o; CR 1201) (4) ond (5). . DONEINOPEN coURTr1;1s 2011. Presented by: ROBERT M. MCKENNA Attorn General ~Assi Attorney General Att ey for Defendants Approved as to form: Plaintiff Se Superior Court Judge 1 1 88 AITORNEY GENERAL or I A CERTIFICATE os, SERVICE A certify that I served a copy of the foregoing1docume11to11 alnl parties or theircounsel of record as follows: US -Mail Postage Prepaid United Parcel Service,iNext Day Air ABC/Legal Messenger State Campus Delivexy Hand delivered by A TO: - I RAYNED. WELLS, WA Doc #819131 A ISLAND COUNTY JAIL A A PO BOX A CCUPEVILLE WA 98239 I certify under penalty of perjmy that the foregoing is true and correct. A EXECUTED mis of March, 201 at lympi WA. A ,gf BERLY OL Legal Assist - 4 .SF-01189 A a RNEY OFWASHINGTON 4 clam Copy I JUN 9 4 my THOMAS R. rfattou SPUKANE I STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT STACY L. BOYD, NO. 08-2-02485-l 3 Plaintiff; STTPULATION AND ORDER OF DISMISSAL AS TO DEFENDANTS v. DALE STATE OF WAS HINGTON. DEPARTMENT OF and DANIEL DA LE, individually; and IANE DOE DALE, and the maxital community composed thereof, Defendants. IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff Stacy L. Boyd, acting by and through Micheile K. Wolkey, and the Defendant State of Washington, acting by and through Robert M. McKenna, Attorney General, and Dannette W. Allen, I Assistant Attorney General, that regarding the above-entitled action Defendants Dale may be dismissed with prejudice and without costs, this matter having been fully settled and compromised between the Plaintiff and Defendant State of Washington. STIPULATION AND ORDER OF DISMISSAL AS ATTORNEY GENERAL OF WASHINGTON TO DEFENDANTS DALE West 1116 Riverside Avenue Spokane, WA 99201-1 |94 (509) 456-3123 SF-01190 PRR-2011-00450 DATED this _Lil day of Moy, 2009. ROBERT M. MCKENNA Attomey General WOLKEY, MCKINLEY, P.S. 1? DA ETTE W. ALLE SB #15502 MICHELLE K. WOLKEY, WSBA #20 MARY C. MCLACHLAN, WSBA No. 34178 MATTHEW C. ALBRECHT, WSBA #36801 Assistant Attorneys General Attorneys for Piaintiff Attorneys for Defendant State of Washington, Department of Corrections PALNE, OF FIN, BROOKE MILLER, LLP JOHN C. RISEBOROUGH, WSBA #7740 Attorney for Defendants Dale ORDER THIS MATTER having come before the undersignedjudge of the above-entitled Court, based on the foregoing stipulation, now, therefore, IT IS HEREBY ORDERED that regarding the above-entitled action Defendants Dale are dismissed with prejudice and without Costs. DONE IN OPEN COURT this day of 2009. JUDGE MARYANN c. MQRENO STIPULATION AND ORDER OF AS 2 ATTORNEY GENERAL OF WASHINGTON T0 DEFENDANTS DALE West 1116 Riverside Avenue Spokane, WA 99201-1 194 (509) 456-3123 F-01 1 91 PRR-2011-00450 Cferkc py DATED this day of May, 2009. ROBERT M. MCKENN A Attorney General WOLKEY, MCKINLEY, P.S. W. ALLEN, WSBA #15502 MICHELLE K. WOLKEY, WSBA #20249 MARY C. MCLACHLAN, WSBA No. 34178 MATTHEW C. ALBRECHT, WSBA #36801 Assistant Attomeys General Auomeys for PlaintiE - Attomeys for Defendant State of Washington, Department of Corrections PAINE, HAMBLEN, COFFIN, BROOKE MILLERRISEBOROUGH, WSBA #7740 Attorney for Defendants Dale ORDER THIS MATTER having come before the undersigned judge of the above-entitled Court, based on the foregoing stipulation, now, therefore, rr is I-EREBY ORDBRED the regarding the above-entitled action Defendanis Dale are dismissed with prejudice and without costs. counir this day of May, 2009. JUDGE STIPULATION AND ORDER OF DISMISSAL AS 2 ATTORNEY GENERAL OF WASHINGTON TO DEFENDANTS DALE West 1116 Riverside Avenue Spol> I l-ir? `ii' MOTION FOR JUDGMENT AS A `i`t $263325 i-i'f3l1 6 MATTER OF LAW FOR SUM CERTAIN WITH eva 456-2122 REGARD TO ONE DOCUMENT SF-01199 PRR-2011-00450 . 0 Defendant's Motion for Judgment as a Matter of Law for Sum Certain is GRANTED with regard to the two-page e-mail dated October 15, 2007, and judgment shall be entered against Defendant in the amount of $105 .00. i The Clerk of the Court is directed to send a conformed copy of this order to Plaintiff and Counsel for Defendants. . EXECUTED this day of January, 2009, at spokaneasmtf "2 HW . Q.. . JUDGE TARI S. EITZEN Submitted by: ROBERT M. MCKENNA Attorney General .1 V) I MARY C. MCLACHLAN, WSBA #34178 Assistant Attorney General Attorneys for Defendant A Approved as to form: AARON W. COATS, Plaintiff pro se ORDER DENYIN DEFENDAN MOTION 2 ATTORNEY GENERAL QF FORSUMMARY JUDGMETWAND GRANTING MOTION FOR JUDGMENT AS A spokane, WA 992014194 MATTER OF LAW FOR SUM CERTAIN WITH (509) 4565123 REGARD TO ONE DOCUMENT SF-01200 N0 PRR-2011-00450 FILED NR 8 32009 THOMAS SUPERIOR COURT OF WASHINGTON COUNTY OF SPOKANE No 08-2 03114 9 AARON COATS ORDER GRANTING SUMMARY Plaintiff JUDGMENT V. DEPARTMENT OF CORRECTIONS et al. Defendant. "fiat 3' .en 55This is a de novo judicial review of a public records request. RCW 42.56.550 Though the statute allows forthe reviewing court to conduct such a hearing based solely on affidavits, the court in this action heard oral argument on two occasions, January 12, 2009, and April 2, 2009. The court has reviewed all the submissions ofthe parties. Plaintiff Aaron Coats, an inmate in the custody of the Washington. State Department of Corrections, made a request on February 18, 2008, (apparently received bythe AHCC Religious Activities Center (RAC) on February 26, 2008) for documents from DOC pursuant to RCW 42.56. He wanted records pertaining to annual religious celebrations (including sign-in sheets for annual ceremonies and for weekly services) at Airway Heights Corrections Center for 2007. DOC timely compiled 206 documents and notified Plaintiff of the copying cost. He remitted $45.80 for copying costs and DOC gave him 206 documents. A few days later Plaintiff complained that there were missing documents, specifically "weekly sign->>in sheets" and "an 'approved list' of offenders who were to ,attend the Annual Wicca Celebration." DOC regarded this request as a new request, and the court 'concurs in this characterization, There were further communications regarding the request and ultimately Plaintiff filed this Complaint in Spokane County Superior Court on July 7, 2008, alleging the State had failed to oaosn mos 1 or 3 cr-ososoc (Rev 03/2001) SF-01201 PRR-2011-00450 disclose requested records within tive days, in violation of the Public Disclosure Act. His prayer for relief included disclosure, money penalty, costs and attorney fees. Many pleadings and documents have been filed. This cotut denied the State's motion for summary judgment by written order on January 20, 2009, after a hearing (January l2, 2009) was conducted with Plaintiff appearing telephcnically. This court granted Plaintiffs Motion for Judgment as a Matter of Law for a Sum Certain With Regard to One Document that had been withheld, albeit unintentionally, when the 206 pages were provided. Plaintiff was awarded $5 per day for 21 days, for a total of $105 for the inadvertent withholding of 2 pages (one document, a two page email dated October _15, 2007). Pursuant to RCW 42.56.550 (4) Plaintiff is also entitled to his costs. This left one issue for resolution: whether DOC destroyed weekly religious service sign-in sheets forthe 90 days prior to the Christian Annual Event of 2007, after Plaintiffs February 21, 2008, public records request. The court requested and received additional briefing from the parties. Oral argument on this remaining issue was heard on April 2, 2009. Sign->>in sheets for weekly religious services are informal documents created by a previous chaplain at AHCC so he could keep track of who attended (and how often) various religious services. Inmates are allowed to attend yearly religious festivals/celebrations only if they have regularly attended the weekly services for that particular religion/group for 90 days before the annual celebration. The reason is obvious. Without this rule, it is thought that some or many inmates would attempt to attend multiple annual religious celebrations. At the end of the month the bundled weekly sign-in sheets are tabulated and transferred to a report. Before 2008, those weekly sign-in sheets were discarded/destroyed after the data was transferred to the report. The Public Records Act prohibits the destruction of public records after a request for such records has been made. RCW 42.56.100 On February 18, 2008, Plaintiff requested weekly sign- in sheets for the December 19, 2007, Christian Celebration. They hadbeen destroyed in the regular course of business at the end of that month, December. Two months later Plaintiff requested those December 2007 weekly sign-in sheets. There is no material issue of fact. While Plaintiff suspects and pines that DOC had the weekly sign-in sheets for December, 2007, in mid February 2008 when he requested them, he has come forth with no evidence that is the ease. He offers the testimony of two inmate chapel clerks who speak to the practice in general. Michael L. Longozo provides a declaration dated October 31, 2008, that have been employed" as a chapel clerk at that he prepared weekly sign-in sheets for use at weekly services and compiled them for reports. He declares that the weekly sign-in sheets were held and stored in a large file cabinet, and "were retained for several months." He does notsay what time frame he references. i Inmate and chapel clerk Robert Angelotti's declaration, dated October-25, 2008, that have been employed as a chapel clerk"; that the weekly sign-in sheets were held and stord in the large file cabinet in the main sanctuary in the chapel; that the weekly sign-in sheets were" retained for several months." He does not say what time frame he references. ORDER PAGE 2 OF 3 Cl-03-0300 (Rev 03/2001) SF-01202 PRR-2011-00450 There is credible evidence that prior to February 2l, 2008, weekly sign-in sheets were not maintained for more than three months, and it was not unusual for them to be kept for less than three months. There was not an Administrative Assistant assigned to the RAC prior to December 3, 2007. The office was poorly organized and there were stacks of papers on tops of surfaces as well as in file cabinets and drawers. Ms Barilcnecht started as the AA at RAC on December 3, 2007. She received Plaintiffs request on February 26, 2008, and expended some twelve hours searching for the documents requested. Her affidavit states the December 2007 weekly sign-in sheets had already been destroyed, after the December report was compiled. Plaintiff cites DOC Policy 560.210 VII (B) and (C) (effective 9/22/05) for the proposition that weekly sign-in sheets are (and were) to be retained for 90 days. That is an erroneous reading of the policy, which actually says odenders must sign up 90 days in advance, prior to special religious activities and events, if they want to be allowed to attend. Further, the offender must then demonstrate active participation in that religion through regular (at least 75%) attendance for those 90 days. There are no disputed issues of material fact. Plaintiffs theory that December 2007 weekly sign- in sheets were destroyed after his public record's request was received on February 26, 2008, is based on speculation and conjecture. 1 Summary Judgment is granted in favor ofthe State. The State will prepare an Order. Both parties have prevailed on major issues. Plaintiff only prevailed in part. There is no evidence DOC acted in bad faith. No attorney's fees ar awarded. DATED this 2"d day of April 2009. 0 A 'i I 0 ORDER PAGE 3 OF 3 CI-03-0300 (Rev 03/2001) PRR-2011-00450 ev . 5 rain WTO Fi- tnrruufar Kaus earner STATE OF VVASHINGTON SPOKANE COUNTY SUPERIOR COURT AARON W. COATS, NO. 08-2-03114-9 A 1311"-fifi ORDER GRANT1NO SECOND MOTION EOR SUMMARY .TUDGMENT DEPARTMENT OF CORRECTIONS, et al. Defendants. THIS MATTER having come regularly before the Court on Defendant's Second Motion for Summary Judgment, the Court having heard oral argument and reviewed the memorandums and evidence submitted by the parties, and being otherwise fully advised makes the following ORDER: 1) Judgment shall be entered for Plaintiff for $5.00 per day for 21 days, for a total of $l05.00, for the inadvertent withholding of a two-page e-mail dated October 15, 2007; 2) Plaintiff is entitled to his costs, per RCW 3) There are no disputed issues of material fact; and 4) Both parties prevailed on major issue No attorney fees are awarded. DONE IN OPEN COURT this 3 da 2009. I lf' ITZEN ORDER GRANTING SE 3 ATTORNE a I I 1V1S MOTION FOR SUMMARY JUDGMENT West 1116 Riverside Avenue NO. O8-2-031 14-9 Spokane, WA 99201-1194 3901204 (509) 456-3123 PRR-2011-00450 Submitted by: ROBERT M. MCKENNA Attorney General MARY C. CLACHLAN, WSBA #34178 Assistant Attorney General Attorneys for Defendant Approved as to form by: /0 RON W. COATS, DOC 705838 Plaintift; pro se ORDER GRANTING DEFENDANTS SECOND 2 OR SUMMARY JUDGMENT West 1116 Riverside Avenus NO. 08-2-03114-9 spokane, WA 99201-1194 $901205 (509) 456-3123 PRR-2011-00450 5" i narsn/it nina Alf *ninnaa STATE OF VVASHINGTON SPOKANE COUNTY SUPERIOR COURT AARON W. COATS, NO. O8-2-03114-9 Plaintifil JUDGMENT v. DEPARTMENT OF CORRECTIONS, et al. Defendants. The above cause having come on regularly before the Court on Defendant's Motion for Suminary Judgment or, in the Alternative, Motion for Judgment as A Matter of Law for Sum Certain and on Defendant's Second Motion for Summary Judgment, Plaintiff appearing pro se, and Robert M. McKenna, Attorney General, and Mary C. McLachlan, Assistant Attorney General, appearing for the Defendants; and evidence both oral and documentary having been introduced, the case argued, and the court being fully advised, now, therefore, JUDGMENT is hereby entered in favor of the Plaintiff, and against Defendant -Department of Corrections, and Plaintiff is hereby awarded the following penalties and costs: JUDGMENT 1 ATTORNEY GENERAL OF WASHINGTON Corrections Division 08 '2'031 14-9 West 1116 Riverside Avenue Spokane, WA 99201-1 194 (509) 456-3123 SF-01206 PRR-2011-00450 0 $5.00 per day for 21 days, for a total of $105.00 for the inadvertent Withholding of 2 pages; and 0 $508.29 for costs incurred from Omega DONE IN OPEN COURT this ji day fig; 09. .TUD ET Submitted by: ROBERT M. MCKENNA Attorney General MARY C. MCLACHLAN, WSBA #34178 Assistant Attorney General Attorneys for Defendant JUDGMENT 2 ATFORNEY GENERAL OF WASHINGTON Corrections Division 08'2'03 1 14`9 West 1116 Riverside Avenue Spokane, WA 99201-1194 (509) 456-3123 F-01207 PRR-2011-00450 PRED FEE li 5 ZQQ5 THOMASR FA A SPOKANE STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT RONALD L. BASKETT, NO. 07-2-05302-l Plaintiff ORDER GRANTING MOTION TO DISMISS v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. I. BASIS THIS MATTER having come regularly before the Court on Defendants' Motion to Dismiss Pursuant to CR 12(b)(6) on January 18, 2008, Without oral argument, the Court having reviewed the memorandums and evidence submitted by the parties. Mary C. McLachlan, Assistant Attorney General, represented the Defendant, and the Plaintiff is acting pro se. II. FINDINGS AND CONCLUSIONS 1. Statute permits the Defendant DOC to respond to a public records request Within five business days of receiving the request of Plaintiff As the file reveals, Defendant did comply with the statute. Plaintiff' Exhibit AA, and RCW 42.56.520; and 2. Plaintiff was not entitled to have copying costs waived due to his status as an indigent inmate. _See RCW 42.56.120 ORDER GRANUNG DEFENDANTS 1 ATTORNEY GENEML OF WASHINGTON . I t. D. . MOTION T0 850,208 NO. 07-2-05302-1 50 Spokane, WA 9920l~l 194 PRR 2011 004 (509)456_3123 ORDER Based upon the findings and conclusions above, the Plaintiff' claims are dismissed with prejudice and the Clerk ofthe Court is directed to send a conformed copy of this order to Plaintiff and Counsel for Defendants. ft DONE IN OPEN COURT this 5 day of February, zoosSYPOLT Sp a County Superior Court Judge Submitted by: ROB MCKENNA Attorney General A _[Aa 5 L4 MARY . MCLACHLAN, WSBA #34178 Assistant Attorney General Attorneys for Defendants ORDER GRANTING DEFENDANTS MOTION TO DISMISS NO. O7-2-05302-1 2 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division 8901209 1116 West Riverside Spokane, WA 99201-1 194 PRRQ01 M0450 (5o9) 456-3123 funn! UQ -libraiia "reams F11 ra11ef,asr eossrv etsrfeg STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT DEREK E. GRONQUIST, NO. 07-2-00562-0 Plaintiff, STIPULATED ORDER OF DISMISSAL v. DEPARTMENT OF CORRECTIONS, I Defendant. THIS MATTER having come before this Court on the stipulation of theiparties, and it appearing to the Court that all matters in controversy herein between the Plaintiff, DEREK E. GRONQUIST, Pro Se, and Defendant, DEPARTMENT OF CORRECTIONS, have been fully settled and compromised, and the Court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff DEREK E. GRONQUISTS claims against Defendant, DEPARTMENT OF CORRECTIONS, in the above~referenced action, are hereby STIPULATED ORDER OF DISMISSAL I ATTORNEYCGENIERALDQE WASHINGTON orrec ions 1v1s1on 07'2'00552'0 1 116 West Riverside Avenue Spokane, WA 99201-1194 SF-01210 (509) 456-3123 PRR-2011-00450 - ldismissed with prejudice and Without costs as agreed by the parties in their Release and Settlement Agreement DATED this ay of 41.* 2008. TARI S. EITZEN Superior Court Judge Presented by: ROBERT M. MCKENNA Attorney General vga? MARY C. MCLACHLAN, WSBA #34178 DATE Assistant Attorney General Attorney for the Defendant - if . a 25/as REK E. GEQUN DATE Plaintifi Pro Se STIPULATED oanna or DISMISSAL 2 ATTORNEYCGENEFALDQF 116 West Riverside Avenue Spokane, WA 99201-1 194 SF-01211 (509) 4568123 STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT DEREK E. GRONQUIST, NO. 07-2-O05 62-0 Plaintifii RELEASE AND SETTLEMENT AGREEMENT v. DEPARTMENT OF CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Plaintiff; DEREK E. GRONQUIST, Plaintiff Pro Se, and the Defendant, DEPARTMENT OF CORRECTIONS, by and through its attorneys, ROBERT M. Attorney General, and MARY C. MCLACHLAN, Assistant Attorney General, agree to the following: 1. ln consideration of the following provisions of the Release and Settlement Agreement, DEREK E. GRONQUIST, his heirs, assigns, or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages, and causes of action of any nature arising out ofthe following: a. Public disclosure requests made pursuant to RCW 42.56 et seq., as described in Plaintiffs Complaint to Compel Public Disclosure and in Plaintiff's RELEASE ANT) SETTLEMENT 1 ATTORNEY GENERAL OF WASHINGTON t. D. . 0 3116 lglilirsidrcisilgiienue O. - - - SF 01212 po 2239) 456-3123 PRR-2011-00450 b. c. 2. Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action and which are the source of his claims against the Defendant, Department of Corrections; Public disclosure requests made pursuant to RCW 42.56 et seq., as described in Plaintiffs Complaint to Compel Public Disclosure in the action filed in Clallam County Superior Court, Cause NO. Washington Court of Appeals NO. 36948-6-ll, and which are the source of his claims against the Defendant, Department of Corrections; and The alleged violations regarding Plaintiffs religious freedom which are described in Plaintiffs Complaint filed in the United States District Court, Western District at Tacoma, and which are the source of his claims against the defendants in that action. This Agreement is the tinal, conclusive, and complete release of all known, as Well as all unknown and unanticipated, damages, claims, fines, claims for fees and costs, and any other cause or claim associated with this matter arising out of the followingdisclosures in installment ba The incidents set forth in Plaintiffs Complaint to Compel Public Disclosure and Plaintiffs Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action; The incidents set forth in Plaintiffs Complaint to Compel Public Disclosure in Clallam County Superior Court NO. O7-2-00212-2, Washington Court of Appeals NO. and The incidents set forth in Plaintiffs Complaint filed in the United States District Court, Western District at Tacoma, The parties agree that this Agreement terminates all pending public records the above-referenced action, including but not limited to the disclosure on an sis of grievances as described in Plaintiffs Complaint to Compel Public RELEASE AND SETTLEMENT 2 ATTORNEYCGENQBALDQE orrec ions ivision AGREEMENT 1 1 I6 West Riverside Avenue No. 07-2-00562-O 3501213 Spokane, WA 99201-1194 PRR-2011-00450 (509) 4563123 Disclosure and Plaintiff Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action. 4. Plaintiff] DEREK E. GRONQUJST, agrees not to make future requests under the Public Records Act, RCW 42.56 et seq, for the records described in Plaintiffs Complaint to Compel Public Disclosure and in Plaintiffs Memorandum in Supportof Motion to Show Cause and Response to Summary Judgment in this action, including but not limited to the request of grievances as described in Plaintiffs Complaint to Compel Public Disclosure and Plaintiffs Memorandum in Support of Motion to Show Cause and Response to Summary Judgment in the above-referenced action. 5. This Agreement shall be effective when signed by all parties and/or their legal representatives. 6. The State shall pay to DEREK E. GRONQUIST the sum of Twenty-Seven Thousand Five Hundred Dollars and zero cents as full and complete settlement of these matters. The settlement amount of Twenty-Seven Thousand Five Hundred Dollars and zero cents will be payable as follows: The sum of Twenty-Two Thousand Five Hundred Dollars and zero cents a. will be payable by check or Warrant to Plaintiff, DEREK E. GRONQUIST. The check or Warrant should be mailed to Plaintiffs mother, 'Barbara Parker, at 855 Trosper Road, 348, Tumwater, WA 98512. The sum of Twenty-Two Thousand Five Hundred Dollars and zero cents represents the portion of the settlement apportioned to the above action, NO. 07- 2-005624-0, and the aaron mea in county superior cam No. 07-2- OO212-2, Washington Court of Appeals 36948-6-H. Plaintiff represents to Defendant that his mother, Barbara Parker, has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in these matters. ATTORNEY GENERAL OF WASHINGTON RELEASE AND SETTLEMENT 3 t_ orrec ions ivision AGREEMENT 1 116 West Riverside Avenue NO. 07-2-00562-0 Spokane, WA 99201-1194 SF-01214 509 456-3123 PRR-2011-00450 b. The sum of Five Thousand Dollars and zero cents Will be payable by check or Warrant to DEREK E. GRONQUIST. The sum of Five Thousand Dollars and zero cents is to be placed in the inmate account of DEREK E. GRONQUIST and is exempt from any deductions, including deductions under RCW 72.09.480, deductions for debt owed to the Department of Corrections, or deductions for legal financial obligations. The sum of Five Thousand Dollars and zero cents represents the portion of the settlement apportioned to Plaintiffs claims filed in the United States District Couit, Western District at Tacoma, and satisfied all claims Plaintiff has against defendants in that matter. 7. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 8. This Agreement constitutes the final written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 9. The parties agree that neither party is to be considered a prevailing party in this action for any purpose including, but not limited to, attorney fees. 10. The parties jointly agree that dismissal with prejudice of these actions is an appropriate resolution in consideration for payment of the sum of Twenty-Seven Thousand Five Hundred and zero cents and the other consideration provided for in this Agreement. The parties agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. The parties further agree to sign and file a stipulated dismissal of the appeal of cause NO. 07-2-00212-2, Washington Court of Appeals 36948-6- II. The Plaintiff further agrees that he Will not appeal the dismissal of United States District Court, Western District at Tacoma, ll. . The Plaintiff agrees .and covenants not to sue the State of Washington or its agencies, employees, and officials over the claims concluded by this Settlement Agreement. RELEASE SETTLEMENT 4 . ATTORNEY GENERAL OF WASHINGTON t. D. AGREEMENT 16 No. O7-2-00562-0 $901215 g-1 194 PRR-2011-00450 12. The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, wholly understood, and voluntarily accepted for the purpose of making a full and final compromise, adjustment, and settlement of any and all claims brought by Plaintiff in this action against Defendant. I 1, _f it if EREK E. GRO DATE Plaintiri Pro 2% V;/a ga? MARY MCLACHLAN, WSBA #34178 DATE Assistant Attorney General 1 Attorney for the Defendant JA How 1 1; L, WSBA #35527 DATE As istant Attorney General Attorney for the defendants cause Nos. O7-2-00212-2, 36.948-6-IIDATE Risk anage Department of Corr ctions RELEASE AND SETTLEMENT 5 10115 ISIOH AGREEMENT 1 1 Z6 West Riverside Avenue NO. 07-2-00562-0 - Spokane, WA 99201-1194 SF-01216 (509)456-3123 PRR-2011-00450 FILED SEP - 3 2008 SPOKANE COUNWY CLERK STATE on WASHINGTON SPOKANE coUN'rv SUPERIOR COURT MATTHEW SILVA, i No. os-2-01809-6 Plaintiff; onnaa GEANHNG Morion 'ro nisivnss FIRST V. AMENDED PUBLIC RECORDS CRS RILEY, et al., Defendants. THIS MATTER having come regularly before the Court on Defendants' Motion to Dismiss First Amended Public Records Complaint, the Court having reviewed the memorandums and oral evidence submitted by the parties, and being otherwise advised, makes the following ORDER: - 1. Defendants' Motion to Dismiss Plaintiff First Amended Public Records Complaint is oansa Gamma 1.. D. MOTION T0 DISMISS NO. 03~2~0l809-6 Spokane, WA 9910i-H94 (509) SF-01217 PRR-2011-00450 Cleric Copy in i -P09 Plaintiffs claims are dismissed with prejudice; and 3. The Clerk of the Court is directed to send a conformed copy of this order to Plaintiff and Counsel for Defendants. DATED this 5 day ofA}; ,zoos Submitted by: ROB MCKENNA Attorney General /Wi 2 HONORABLE MARYANN C. MORENO Presiding Superior Court Judge MARY C. MCLACHLAN, WSBA #34178 Assistant Attorney General Attorney for Defendants ORDER GRANTING DEFENDANT MOTION TO DISMISS NO. 08-2-01809-6 2 ATTORNEY GENERAL OF WASHINGTON Corrections Division West 1116 Riverside Avenue Spokane, WA 99201-1194 (509) 456-3123 SF-01218 PRR-2011-00450 alitlgr F, Vi ?tats at aalginigtna Qitiainrt MATTHEW SILVA, No. Appellant, v. RULING STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, Respondent. Having considered Without oral argument the Court's motion to dismiss this appeal for abandonment; having also considered the record and tile, including the Court's letter of October 15, 2008, which letter advised the appellant that his appeal had been set on the commissionefs docket of November 12, 2008 for dismissal for abandonment, based upon his failure to either pay the $250 filing fee or obtain an order for expenditure of public funds; and having determined that the appellant has done neither, nor otherwise SF-01219 PRR-2011-00450 No. 27467-5-HI responded to the Court's letter; and being ofthe opinion that the above facts evidence abandonment ofthe appeal; now, therefore. IT IS ORDERED, the appeal is dismissed as abandoned. November 1 7 2008 I 'j Monica Wasson Commissioner 2 SF-01220 PRR-2011-00450 - :ITIS I 1 av T55 ea #522 $5 1 5 _1 32 a S1333 1; COURT OF APPEALS, DIVISION STATE OF WASHINGTON MATTHEW Appellant, MANDATE V. -WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Spokane County No. 08-2-01809-6 No. 27467-5-ill Respondent. The State of Washington to: The Superior Court of the State of Washington, in and for Spokane County This is to certify that the Ruling ofthe Court of Appeals ofthe State of Washington, Division Ill, filed on November 17 2008 became the decision terminating review of this court in the above- entitled case on April 16, 2009. The cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy of the Ruling. In testimony whereof, have hereunto set my hand and affixed the seal of said Court at Spokane, this 7th clay of ll/lay, 2009. Cie of the Court of Appeals, State of Washington Division Ili cc: ew Silva A ary C. McLachlan j% l-lon. Maryann C. Moreno i. i "i-in 'm 'vi Put Q5 :ffm I $15 i if- aaxrtagt finPRR-2011-00450 ff frarasaas I THE SUPREME COURT or WASHINGTON MATTHEW SILVA, Appellant, V. STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, I I Respondent. 3 NO. 82481-9 No. Spokane County Superior Court No. 08-2-01809-6 Department I ofthe Court, composed of Chief Justice Alexander and Justices C. Johnson Sanders, Owens and J. M. Johnson, considered this matter at its February 3, 2009, Motion Calendar and unanimously agreed that the following order be entered. IT IS ORDERED: That the Appellant's Motion for Expenditure of Public Funds is deniecil2.3; -- DATED at Olympia, Washington this 6m day of February, 2009575 i CIFJU 5 SF 01222 5 3 PR-R-2011-00450 i Ld L. MJ LL) For the Court I if i 5 ff CD ,fi FRED HDISZWB THOMAS R. r=Ai.r.ouisT SPOKANE COUNTY cusnn (CIerk's Date Stamp) SUPERIOR COURT OF WASHINGTON COUNTY OF SPOKANE CASE NO: 08-2-04386-4 SILVA, MATTHEW I piaimiff ORDER OF DISIVIISSAL OF CASE V. WITHOUT PREJUDECE WASHINGTON STATE DEPT OF CORRECTIONS Respondent I. BASIS As no answer has been filed in the above case, pursuant to CR 4 and CR 12, the Superior Court ordered the parties to show cause, if any, why the above entitled action should not be dismissed. II. FINDINGS No answer having been filed in the above case pursuant to CR 4 and CR 12, this case shouid be dismissed without prejudice. ORDER IT IS HEREBY ORDERED that the above case is dismissed without prejudice. SPOKANE COUNTY SUPERIOR COURT Dated: February 18, 2009 Presiding Judge ORDER OF DISMISSAL Page 1 of 1 (LCR 4, LCR 12) SF-01223 PRR-2011-00450 fun Ts 1; C-ji, 'ws mv.-J . I - sf . NYN aiasw 1 . 1 STATEOF WASHINGTON THURSTON COUNTY SUPERIOR COURT HEFFREY R. NO. 10-2-01366-8 Plaintiff; ORDER GRANTING MOTION TO AND V. STAYING DISCOVERY . WASHINGTON STATE DEPARTMENT OF CORRECTIONS, (Proposed). Defendants. - TI-IIS MATTER having oome before the Couft on_he'aTlng of Defenda.ut's Motion to dismiss 'plaintiffs action and Motion to Stsy Dgscovery, the (i?nrmt memoranda and evidenos submitted by makes the . IQ 1. Dsfondanfs Motion to dismiss Plaintiff' action pursusrat state Pu 1o ecor . 3. Plaintiff' action is dismissed as with prejsldicoORDER MOTION TO DISMISS AND STAYLNG DISCOVERY NO. 10-2-01366-sf SF-01224 PRR-2011-00450 3 . u. se f- g-5, 121' 5 . wr I DATED this of 2 0_ I /2/k i /if . ;An PAULA CAS: hur ton County Superior Co submmed by: MCKENNA- Attorney Genejrail - iw? 1 OHAD LOWY, WSBA #33128 Assistant Attorney General Attorney for Defendant - ORDER 3 ATTORNEY GENERAL OF: WASHINGTON MOTION 'ro DISMISS mm STAYHJG DISCOVERY NO. WA 9350443115 (seo) 586-1445 SF-01225. PRR-2011-00450 THE SUPREME COURT OF WASHINGTON JEFFREY R. 3 NO- 35698-2 Appellant, V. 3 No. 41682-4-n 3 Respondent. 3 Department I of the Court, composed of Chief Justice Madsen and Justices C. Johnson, and unanimously agreed that the following order be entered. IT IS ORDERED|1Il "DATED atO1yn1pia, Washington this of April, 2011. For the Court CHIEF JUSTICE SF-01226 ,il Ci PRR-2011-00450 l\J l\-3 CD $32 (D C3 CL |502 maji?r~C- CD 'Qi 'Ti FW Z- .. mas "r 1] EXPEDITE 29 El ISIC AUG 19 BH an is I Datizliaugust 19, 2011 . BETTY J. GUULD. CLERK Tiine: 11:00 ani. 'Judge Christine Pomeroy . . STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT GEORGE EARTZ, NO. 11-2-00712-7 Plaintiff, ETNDEIGS AND RDER OF 1sMis~sAL V. OP - CORRECTIONS OOC PUBLIC RECORDS - Defendant. This matter came before the Court Ona Show Cause hearing on July 22, 2011. At the hearing, the Court considered the oral testimony of the Plaintifii arguments from both parties, in addition to the following pleadings: 1. Plaintiffs Response to Defendant's Answer; 2. Defendant's Responsive Briefing To Plaintiff' Public Record's Complaint; and 3. Plaintiffs Reply The Court does hereby FIND: 1 1. Plaintiff was proyidedlthe two emails be is seeking in this lawsuit by Department of Corrections personnel; 2. Plaintiff Wasin possession of tbe emails prior to filing this action; . . FINDINGS AND ORDER OF 1 NO. 11-2~00712-7 . WA 98504-one SF 01227 (360) 586-1445 PRR-2011 00450 't i . a I - 1 3. When Plaintiff was asked to provide the staff names and dates of emails he said were not provided so that a further search could be conducted, Plaintiff refused to provide the information; 3 4. A This action was not reasonably-regarded as necessary to obtain the records; A A 5. This matter is niyolousg and Plaintiff filed his acticnafter the one year statute of limitation. The one-year statute of limitation should be narrowly confined to ensure that persons get timely and appropriate responses to their requests. This matter is tinie~barred. NOW THEREFORE, itis hereby ORDERED: - . 1. This matter is dismissed with prejudice for failure to state a claim on which relief maybe granted; i . - i 2. The Defendant is the prevailing party; and 3; This dismissal constitutes- astrilge for urposesof Substinite House Bill 1037. - DATED this 'day of A ,zcnr - I . 0 . ORABLE or-nusrmn oivrsnor Thurston County Superior ourt Judge Submitted by: A RGBERT Lou/"Y, Wsi-3A #33128 Assistant Attorney General -Attorney for Defendant rumtues AND onnsn on DISMISSAL 2 595 WASMGTON Olympia, WA 98504-0116 . SP01228 (360) 586-3445 PRR-2011-00450 1.5. 1.1. .gr -.L . vunn 4| 'll ?"|Lf1tl' CGLERT -if PTT 5,5 EI EXPEDITE El No Hearing Set - '19 WY 104 El Hearing is Set Date: May 7; 2010 . Ti1ne:2:3O p.rn. (telephonic) GGELD CLEHF Honorable Thomas McPhee BY if STATE OF WASHINGTON . THURSTON SUPERIOR COURT DAVID K. CHESTER, No. 10-2430288-7 fl fl Platoon; ORDER MOTION TO DISMISS V. . WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendants. THIS MATIER having come regularly before the Court on Defendanfs Motion to dismiss Plaintiffs action, the Court having reviewed the memoranduins and evidence submitted by the parties and being otherwise fully advised tnakes the following ORDER: i 1. Defandmifs Motion to disrniso Plaintit"f's action pursuant to Superior Corn-t ard all ?1 . 2. Plaintiffs action is dismissed with prejudice; - DATED nas ay-of ,2o1o_ HO ORABLE OMAS MCPI-IEE Submitted by; A ROBERT M. Atto 655% aL AD LOWY, WSBA #33128 Assistant Attorney General Attorney for Defendant 1 Motion ro DISMISS (NO. 10-2-00288-7) Olympia, wixossodfoiis (360) 5864445 SF-01229 PRR-2011-00450 COURT Qi' "1 i E, _rf 2 nun# is s= as IN THE COURT OF APPEALS OF THE STATE gl A DIVISION II RY El--Pill DAVID K. CHESTER, No. 40866-0-ll . Appellant, UNPUBLISI-IED OPINION V. - WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent. J. - David Chester, an inmate at the.AirWay Heights Corrections Center, appeals the dismissal of his public records complaint against the Department of Corrections (DOC), arguing that his complaint presents new issues not covered by the settlement agreement reached with DOC in a previous public records action. We affirm. FACTS On April 10, 2007, Chester submitted a public records request to DOC. Chester sought oocu1nents__re1acins.to disci1?1.i1nrr .proceedings or an Center physicians assistant. After an exchange of correspondence, DOC disclosed 179 pages of responsive documents to Chester. The agency also informed Chester that 691 pages of documents were exempt from disclosure as "litigation and Work product files." Clerk's Papers (CP) at 38. On November 15, 2007, Chester tiled a complaint against DOC in Spokane County Superior Court, alleging violations of the Public Records Act (PRA), chapter 42.56 RCW. The _court dismissed the complaint and Chester appealed. While his appeal was pending, he signed a release and settlement agreement with DOC. Chester agreed to release and discharge "any and all existing and future claims, damages and causes of action of any nature" arising out of the PRA as set forth in his complaint and appeal. CP at 60. The agreement was "the tinal, SF-01230 PRR-2011-00450 No. 40866~0-ll conclusive and complete _release of all known, as Well as all unknown and unanticipated damages" arising out of the incidents set forth in his complaint and appeal. CP at 61. In return, Chester received a settlement of $3,000. Division Three of this court entered the agreement on March 12, 2010, dismissing Chester's appeal with prejudice. But unbeknownst to DOC, Chester had tiled another~PRA complaint in Thurston County Superior Court on February 16, 2010, in which he complained about DOC's failure to disclose the same records at issue in the Spokane County complaint. Chester served DOC With this complaint on March 16, 2010, four days after entry ofthe release and settlement agreement. DOC moved to dismiss Chester's Thurston County complaint under CR arguing that it was barred by the doctrines of res judicata, collateral estoppel, and accord and 1 i satisfaction; The trial court granted the motion to dismiss and denied Chester's motion or reconsideration. ANALYSIS DISMISSAL UNDER CR A-I -- i A ..-. Mewtrial court's ruling on a motion to dismiss for failure to state a claim on which relief can be granted is a question of law that We review de novo. CR Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). Courts should dismiss a claim under CR 12(b)(6) only if it appears beyond a reasonable doubt that no facts exist that would justify recovery. Cutler, 124 Wn.2d at 755. CR 12(b)(6) motions should be granted sparingly and only Where the face of the complaint reveals that there is an insuperable bar to relief. Cutler, 124 1 Chester does not dispute that the State can raise the issues by a CR 12(b)(6) motion. 2 SF-01231 PRR-2011-00450 No. 40866~0~lI 0 `Wn.2d at 755; see also Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d 1308 (1986) (action may be dismissed under CR 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, that would entitle him to relief). The State argues on appeal that the trial court properly dismissed Chester's Thurston County action under CR 12(b)(6) because it is barred by the doctrines of accord and satisfaction and res judicata. B. Accord and Satisfaction The State contends that the release and settlement agreement was an accord and satisfaction that extinguished" Chester's PRA claims based on the records at issue. An accord and satisfaction consists of three elements: (1) a bona iide dispute, (2) an agreement to settle that dispute, which is the accord, and (3) performance of that agreement, which is the satisfaction. Pczopao v. Dep of Soc. Health Servs., 145 Wn. App. 40, 46, 185 P.3d 640 (2008). 'When an accord is fully performed, the previously existing claim is discharged; courts presume that the parties have considered and settled every existing difference. Paopao, 145 Wn. App. at 46; `OP?g6n"M2l2i' Tris' `I'3Zz7'z'orz" 109' Wn"AppI 405the settlement agreement at issue, Chester agreed to release DOC from "any and all existing and future claims, damages and causes of action of any nature arising out of [the] public records act" as described in his Spokane County complaint. CP at 60. The agreement also was "the final, conclusive and complete release of all known, as Well as all unknown and unanticipated damages" arising of the incidents set forth in the Spokane County action. CP at 61. ln return, Chester received $3,000 "as full and complete settlement." CP at 61. 3 SF-01232 PRR-2011-00450 No. 40866-0~Il Chester admits that his Thurston County complaint concerns the same parties and the same documents as those in the Spokane County action, but he asserts that the Thurston County complaint raises new claims regarding DOC's failure to provide an index explaining why it is withholding each individual document. See RCW 42.56.2l0(3) (agency responses refusing disclosure shall include a statement of the exemption authorizing the withholding and an explanation of how the exemption applies to the record withheld). A comparison of the complaints reveals that Chester's Spokane County complaint focused on DOC's failure to disclose the requested records or claim a statutory exemption within five business days. See RCW 42.56.520 (requiring agencies to respond to PRA request within five business days). His Thurston County complaint expands on this issue by alleging that DOC violated the PRA in failing to (1) respond to his request, (2) provide him "the fullest assistance," and (3) "timley [sic] provide an exemption log to explain why the records were not timely produced." CP at 22. Even if the Thurston County complaint raises new claims, these claims were prohibited damages arising out of the same PRA request. The doctrine of accord and satisfaction justified the trial court's dismissal of Chester's complaint. C. Res Judicata Furthermore, if the settlement agreement did not bar the Thurston County action by its terms, it did so by operation ofthe doctrine of res judicata. Filing two separate lawsuits based onthe same event is precluded in Washington. Easley v. Pitcher, 152 Wn. App. 891, 898, 222 P.3d 99 (2009), review denied, 168 Wn.2d 1028 (2010). 4 SF-01233 PRR-2011-00450 No. 40866-0~Il Under the doctrine of res judicata, a matter which has been litigated or which could have been litigated in a former action should not be permitted to be litigated again. Easley, 152 Wn. App. at 899. 0 The doctrine of res judicata requires a concurrence of identity in four respects: (1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality ofthe persons for or against Whom the claim is made, Schoeman v. New York Lyfe Ins. Co., 106 Wn.2d 855, 858, 726 P.2d 1 (1986). Res judicata also requires a final judgment on the merits. 106 Wn.2d at 860. The entry of the release and settlement agreement was a final judgment on the merits, and Chester concedes that the persons and parties in the two actions are the same. Ryan v. Diafos, 110 Wn. App. 758, 764, 37 P.3d 304 (2001). Chester argues, however, that the subject matter and causes of action differ because his Spokane County action did not challenge DOC's failure to provide an index explaining Why the attorney-client and yvork-product privileges applied to each document Withheld. But the documents at issue in the Thurston County action are the same 'as"'th6s'e' ia the _Spokane "C`duiity "actidn, dana Chester"could` 1Iave'rai'sed"t11i's challenge" "in" the Spokane County litigation. Chester's Thurston County complaint is barred by the doctrine of res judicata as Well as that of accord and satisfaction, and the trial court did not err in dismissing it under CR Consequently, Chester is not entitled to an award of attorney fees on appeal. RCW RAP 18.1. 5 SF-01234 PRR-2011-00450 No. Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 206.040, it is so ordered. J. We eo11eur: 11tna11J` A.C.J. 6 SF-01235 PRR-2011-00450 EXPEDITE . IZI No Hearing Set 1 El Hearing is Set Date: Mi if li Time: NLE ei Judge: e' STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT SHAWN D. FRANCIS, NO. ll-2-00828-0 Plaintiff, RDER OP FINDINGS V. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Defendant. This matter came before the Court on a Show Cause hearing on August 12, 2011. At the hearing, the Court considered the arguments from both parties, in addition to the following pleadings: 1. Plaintiffs Motion for Summary Judgment/Motion for Show Cause 2. Defendant's Response Brief; and 3. Plaintiffs Reply. The Court does hereby FIND: A 1. PDU-6484 was submitted on Plaintiffs behalf. Through Plaintiff' admission in discovery, PDU-7049 was also submitted on Plaintiffs behalf. 2. Plaintiff was not denied access to records as Plaintiff received the records directly from DOC and was in possession of records prior to filing this action. 3. Records in this matter were made available to Plaintiff on April 29, 2009. Plaintiff filed his action on April ll, 2010. It is contrary to the purpose of the Public Records onosn OF FINDINGS 1 EIC NO. 11-2-00828-0 PO Box 401% SF-01236 Olympia, WA 98504-0116 PRR-2011-00450 (360) 586-1445 Act that in a situation where records are produced in a single installment there is a longer statute of limitations then Where records are produced in installments. In McKee v. DOC, 160 Wash. App. 437, 248 P.3d 115 (2001), Division ll did not clearly adopt the holding in Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010), therefore the Court finds that Plaintiffs cause of action accrued on April 29, 2009, and this matter is barred by the one-year statute of limitation. NOW THEREFORE, it is hereby ORDERED: 1. The Defendant is the prevailing party; and 2. This matter is dismissed with preju ice. Dated this ay of gg 1, 2011. - RABLE CASEY Thurston County Superior Court Ju submiaed by: ROBERT M. MCKENNA Attorney General EQD M. LOWY, WSBA #33128 Assistant Attorney General Attorney for Defendant Approved as to form and notice of presentment waived: SHAWND FRANCIS Plamti Pro Se ORDER OF FHQDINGS 2 ATTORNEY GENERAL OF WASHINGTON NO. 1l~2-00828~0 Corrections Division PO 40116 OX SF-01237 oiympia, WA 98504-0116 PRR-2011-00450 (360) 586-1445 STATE OF WASHINGTON SNOHOMISII COUNTY SUPERIOR COURT CARLOS JOHN WILLIAMS, No. 10-2.-00473-5 1 Plaintiff, 0 ORDER ORANTING MOTION TO DISMISS V. A DEPARTMENT OF CORRECTIONS, I I 1 Defendant. THIS MATTER having come regularly before the Court on Defendant's Motion to Dismiss Plaintiffs action, the Court having heard argument and reviewed the Inemorandums and evidence submitted bythe parties and being otherwise fully advised makes the following ORDER: l. Defendant's Motion to dismiss Plaintiffs action pursuant to Superior Court Civii Rule 112(b)(5) an-a~1efSPlaintiffs action is dismissed w-i-tl=I prejudice; A 3. The Law Clerk is instructed to send uncertified copies of this Order to Plaintiff and counsel for Defendant; 1 DATED this day of 2011. ONCRABLE Iwyf Superior Court Judge rg ORDER ORANTINO 1 I 1 ATTORNEY QF MOTION TO D1sMIssf A 3901238 NO- 104-06473-5 1 PRR-2011-00450 Olympia, WA 98504-0116 $05 1>>iA? Submitted by: ROBERT M. MCKENNA A Attorney jet 1; OHAD LOWY, WSBA #33128 Assistant Attorney General Attorney for Defendant GRANTING 2 TO DISMISS A A A NO. 10~2-06473-5 5901239 Olympia, yy); 98504-0116 PRRQ01 1430450 mem 586-1445 Defendant. i I Ii* f71wtf* Fi" i /"ef Honorable fi; ,it ,Eff .iff?5%?a?eaas?AFR itiljg I RETW J. mam; a IN THE SUPERIOR COURT OF THE STATE OF WASHING I IN AND FOR THE COUNTY OF THURSTON 5*-5/3525 5 2 11; CUE oo to @5150 {/571163 Order to Show Cause Public Records Should Not be Made Available. Having heard argument of counsel and having considered the records and files herein, including: 1. Plaintiffs Complaint for Disclosure of Public Records; 2. Plaintiff' Motion for Order to Show Cause; 3. Memorandum in Support of Plaintiff' Motion for Order to Show Cause and exhibits; 4. Declaration of Paul Wright and exhibits; 5. Defendant's Answer; 6. Defendant's Response to Order to Show Cause and exhibits; 7. Plaintiff" Reply to Defendanfs Response to Order to Show Cause; ORDER DENYIN IN PART AND GRANTING IN PART MOTION TO SHOW CAUSE - 1 SF 012 0 EADOCSO 3\Propos-ed Ordqg 4 50 'tx 8. Defendant's Surreply to Plaintiff' Reply to Defendant's Response to Order to Show Cause; and the pleadings on tile in this case, and otherwise being fully advised on the matter, THE COURT NOW MAKES THE FOLLOWING FINDINGS: l. Plaintiff Prison Legal News, through its editor Paul Wright, on or about January l7, 2000, requested records from the Defendant Department of Corrections regarding disciplinary actions by any licensing authority against DOC medical care providers and regarding DOC medical employees practicing with a restricted or suspended license. Mr. Wright also requested postmortem documents regarding situations in which the actions or inactions of DOC medical personnel contributed in any Way to prisoner deaths. On or about January 23, 2000, Mr. Wright requested records regarding DOC medical care providers who have been disciplined, tired or otherwise sanctioned in regard to conduct of their medical duties. These requests were made pursuant to Washington's Public Disclosure Act. 2. On January 26, 2000, the DOC first responded to Mr. Wright, informing him that it would investigate and respond within 30 Working days. Similarly, on February l, 2000, the DOC responded to the January 23, 2000, request by informing Mr. Wright that it would investigate and respond Within 30 Working days. The DOC next Wrote to Mr. Wright, regarding both requests, on March 8, 2000, stating that it would investigate and respond within approximately 60 business days. The DOC next Wrote to Mr. Wright on May 30, 2000, stating that it would disclose one document; it also stated that other responsive records existed, that it was notifying affected staff members and that it would notify Mr. Wright of the availability of documents on June 21, 2000. 3. On June 20, 2000, the DOC stated that it would disclose ll pages of documents in response to Mr. Wright's January 17 request and 1207 pages of documents in response to Mr. Wright?s January 23 request; both sets of documents would be made available, at copying costs of 20 cents per page, in redacted form. In its June 20 letter, the DOC cited Prison Legal ORDER DENYING IN PART AND GRANTING IN PART MOTION TO CAUSE - 2 SF 1 I 764\Com 3\Proposed 450 gl News v. DOC, cause number 002-00432-7, and RCW and 70.02.050 as support for its redactions. On July 30, 2000, Mr. Wright Wrote to the DOC appealing the June 20 letter. On August 22, 2000, the DOC affirmed the decision stated in the June 20 letter. On October 20, -2000, the DOC Wrote to Mr. Wright and disclosed approximately 1200 pages of responsive records in a redacted form. The DOC also stated it was Withholding an unspecified number of responsive records in their entirety but failed to provide a statement identifying the documents. The DOC enclosed a list of exemptions in its October 20 letter, citing RCW 70.02.020, 42.17 .3 1i0(l)(b), and, apparently, it again cited Prison Legal News v. DOC, cause number 002- 00432-7. 4. Defendant DOC complied With the process required bythe Public Disclosure Act at RCW 42.17.320 Specifically, the DOC's initial response and subsequent self-granted extensions Were proper and timely; the DOC was not required to disclose each individual record as it became available; and it was proper for the DOC to expand its list of claimed exemptions for redacted records or records Withheld in their entirety until the records were ultimately disclosed; 5 Defendant DOC properly redacted names, pronouns and identifying information of individuals who have provided information during the course of an internal, non-criminal investigation or of individuals who have been disciplined as a consequence of these investigations based on RCW and These exemptions should be construed more broadly than less broadly based upon a balancing of the public interest here; 6. Defendant DOC properly redacted personnel employee files that do not contain evidence of any complaints, investigations and/or disciplinary action based on RCW 7. Defendant DOC properly redacted preliminary drafts, notes, recommendations and inter-agency meniorandums in which opinions are expressed or policies formulated or ORDER DENYING IN PART AND GRANTING IN PART MOTION TO SHOW CAUSE - 3 1 764\Com ;i\Pf0p0S?d . recommended and these preliminary records are not publicly cited in subsequent official agency action based on RCW 8. Defendant DOC properly redacted records of all comments by attorneys on draft disciplinary letters based on RCW 4217.3 9. Defendant DOC properly redacted both the names of patients and all health care information about those patients, including medications prescribed or administered, body parts or conditions of organs, and any other information gathered in the context of the health care provider-patient relationship based on RCW 70.02.020; 10. Plaintiff Prison Legal News is not entitled to a statutory penalty or attorneys' fees pursuant to RCW 11. As of the June 29, 2001, proceedings before the Cotut, Defendant had I failed to produce a statement identifying documents Withheld in their entirety as required by RCW 12. As of the June 29, 2001, proceedings before the Court, Defendant DOC had failed to identify with specificity the exemption to the Public Disclosure Act upon which each specific redaction is based; 13. The Court was not required to, and has not, performed in carnera review of the unredacted records; and 14. Subsequent to this Court's oral ruling on June 25, 2001, the Defendant DOC complied with paragraphs 4 and 5 of the Court's Order. See Attachments A and B. BASED ON THE ABOVE FINDINGS, IT IS HEREBY ORDERED AS FOLLOWS: 1. Plaintiffs Motion for Order to Show Cause is DENIED IN PART AND GRANTED IN 2. Defendant DOC is not required to produce additional records or records in a less redacted form; ORDER DENYING IN PART AND GILANTING IN PART MOTION TO snow CAUSE 4 1 4 764\(` om 3\Proposcd 4 50 2. I - 3 3. Plaintiffs request for an award of attorneys' fees and a statutory penalty pursuant to RCW '42.17.340(4) is denied; 4. Defendant DOC is required to produce a statement of records withheld in their entirety pursuant to RCW identifying the type of record, its date and number of pages, and, unless otherwise protected, the identity of the author and recipient, or, if protected, other means of sufficiently identifying particular records Without disclosing protected content; and 5. Defendant DOC is required to identify with specificity the exemption to the Public Disclosure Act upon which each sh ec`fc redac 'on is ased. noNE day of M-mn, 2002. A MQPHEE COMMISSIONER Presented by: Attorney General Christine Gregoire Attorneys for Washington State Department of Corrections By /l 1 Micha P. Sellars, WSBA 21331 Kasey Myhra, WSBA 27100 Copy Received; Approved as to Form; Notice of Presentation Waived Davis Wright Trernaine LLP Attorneys for Plaintiff Prison Legal News, Inc. d/b/a Prison Legal News Andrew Mar, WSBA 29670 Alison P. Howard, WSBA 30124 Evans McMillion, WSBA 30141 ORDER DENYING IN PART AND GRANTING IN PART MOTION TO SHOW CAUSE - 5 1 764\C@m 3\Propused ofd??i'510s1?1'cf10? PRR-2011-00450 ll A A 1 HOU- A-HHS Hifsch 2 '07 A9211 3 ., A, t_ 1 J, nit?wIg~g~% JN THE SUPERIOR COURT OF THE STATE OF AWASHINGTOIW "??"tdtiA f5t? 7 IN AND EOR THE COUNTY OF THURSTON I 8 PRISON LEGAL NEWS, INC., NO. 01-2-00828-2 9 Plaintiff, 10 STIPULATED JUDGMENT JN v. I PAVOR OF PRISON LEGAL NEWS 11 A 12 WASHINGTON STATE DEPARTMENT OF CORRECTIONS, 13 A DefendantJudgment Creditor: 18 2. Judgment Debtor: 19 A A I 3. Attorneys for Judgment CreditorAttorney for Judgment Debtor-*lr STIPULATED JUDGMENT I SEA 2031450v4 0069248-000001 $901245 PRR-2011-00450 SUMMARY OF JUDGMENT PRISON LEGAL NEWS INC. Washington State Department of Corrections Michele L. Earl-Hubbard Davis Wright Trernaine LLP 2600 Century Square 1501 Fourth Avenue Seattle, WA 98101-1688 Peter Berney, AAG Robert M. McKenna, Attoiney General forthe State of Washington PO BOX 40116 Olympia, WA 98504-01 16 AMOUNTS OWED Amount of statutory penalties: $200,361.25 Awarded attorneys' fees: $337,646.00 Awarded costs: 3,147.44 TOTAL JUDGMENT: $541,154.69 Rate of interest accrual on TOTAL JUDGMENT amount beginning on July 6, 2007: 12% per annum STIPULATION The parties stipulate to the following facts and to entry ofthe judgment described herein. This litigation involves two written Public Record Act requests mae to the Department of Corrections in anuary 2000 - one on January 21, 2000 and the other on January 25, 2000. This litigation has been ongoing for the past seven years. Prison Legal News tiled suit against the Department of Corrections on May ll, 2001, over its refusal to provide records requested by PLN in its two written requests. On April 9, 2002, the Thurston County Superior Court ruled against PLN and held the records were exempt. On October 14, 2003, the Court of Appeals upheld the trial court's ruling. On July 14, 2005, the Washington State Supreme Court reversed and ordered the records released. The State Supreme Court also held that PLN was entitled to its reasonable attorneys' fees, costs and a statutory penalty between $5 and $100 per day for each day records were denied. DOC provided responsive records to PLN two hundred and siXty~siX (266) days later on April 6, 2006. Twelve (12) days later, on April 18, 2006, DOC admitted that it could not provide a copy of all ofthe original records ordered released by the State Supreme Court STIPULATED JUDGMENT - 50v4 0069248 00 SP01246 PRR-2011-00450 because nineteen (19) pages of those records had been destroyed during the appeal by redaction ofthe original documents. The parties agree that the fees and costs requested by PLN are reasonable. The parties further agree that a penalty of between $5.00 a day and $100.00 a day has been imposed for every day the documents were withheld from January_`21, 2000 and January 25, 2000, respectively, until April 18, 2006. The parties agree that for purposes of settlement the statutory penalties should be calculated per day per request letter as opposed to per day per record or some other method. The parties hereby stipulate to entry ofthe judgment herein calculated as follows: Attorneys' fees of $337,646.00; Costs of $3,l47.44; and Statutory Penalties of $200,361.25 For a mal judgment of $541,154.69 DAVIS WRIGHT TREMAINE LLP Robert M. McKem1a, Attorney General for Attorneys for Prison Legal News Inc. the State of Washington BVI jig A By! ic ar - ubbar 26454 Peter W. Berney, WS A #15719 JUDGMENT The Washington State Supreme Court having ordered that Prison Legal News be paid statutory penalties, reasonable attorneys' fees, and costs in this action pursuant to the Public Records Act, RCW 42.56, et seq., and the parties having reached as agreement as to the reasonableness of fees and costs and an appropriate penalty; IUDGMENT - 3 314 4 - SEA 20 50V 0069248 000001 SP01247 PRR-2011-00450 The Court hereby grants judgment as follows: Attorneys' fees of $337,646.00; Costs of $3,147.44; and Statutory Penalties of $200,361.25 For a total judgment of $541,154.69. NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Prison Legal News is hereby granted judgment against the Department of Correction-s in the amount of $541,154.69, which includes attorney's fees, costs and statutory penalties This judgment shall bear interest at the rate of 12% per annum beginning on July 6, 2007. IT IS HEREBY DIRECTED that this Judgment be entered against the above named Defendant. ENTERED this day of June, 2007. I Hirsch, Superior Court Judge Presented By: DAVIS WRIGHT TREMAINE LLP Attorneys for Prison Legal News Inc. By: igff; lu! 2' l\/Iiche Earl-Hu bard, A #26454 Approved as to Eonn; Notice of Presentation Waived Robert M. McKenna, Attorney General for the State of Washington By; Pe er Bern WSBA #15719 STIPULATED JUDGMENT - 4 sap, 2031450v4 0069248~000001 3901248 PRR-2011-00450 I Hon. Anne Hirsch JUL 2 7 2007 A I. 2 1; IN THE SUPERIOR COURT OP STATE OF WASHINGTON I IN AND POR THE OF THURSTON ,g PRISON LEGAL NEWS, INC., No. Ol-2-00828-2 Plaintiff, SATISFACTION OF JUDGMENT V. (PULL SATISPAOTION) WASHINGTON STATE DEPARTMENT OE CORRECTIONS, CLERICS ACTION REQUIRED A Defendant. A The Clerk is instructed to enter a Full Satisfaction of Judgment. Judgment Creditor: PRISON LEGAL NEWS Judgment CreditOr'S Attorney: Michele Radosevich and Davis Wright Tremaine LLP acknowledge receipt of full payment of the judgment, including Statutory penalties and costs, entered against the Washington State Department of Corrections, the Judgment Debtor, under Judgment NO. O7-9-00600-4, dated June 8, 2007, and authorizes the Clerk of the above-entitled Court to enter a full Satisfaction ofj udgment. Amount of Satisfaction: $541,154.69 Davis Wright Tremalne LLP SATISFACTION OF JUDGMENT - LAW OFHCES 2600 Century Square - |501 Four A SEA 2059342vl 0069248-000001 Was1111g1o1 9111111-1611 (205)622-3150 - Fax; (zoeiszsa SF-01249 PRR-2011-00450 JUL 2 7 2007 suaeescsr ff DATED fhiSQ~_LLday 0fJu1y,2007- I I DAVIS WRIGHT TREMAINE LLP Attorneys for Prison Legal News Inc. (244 Michele Radosevich, WSBA #24282 STATE OF WASHINGTON A ss. COUNTY OF KING On this lp'H" day of July, 2007, before me, a No-tary Public in and forthe State of Washington, personally appeared Michele Radosevich, personally known to me to be the person who executed this instrument and acknowledged it to be on oath stated that she was authorized to execute the instrument and acknowledged it as the attorney of judgment creditor to be the free and voluntary act of such party forthe uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above if a `-_ggi "r a - I a 2 _liuaelaevtc PIC ctm? fe gi NOTARY PU in and forthe State of Washington, residing at 3 My appointment expires 5 [3 ,fl ,ff -mf" *n 4. -rw A if rrint Name ggi' iCetfEUR7t 'gifj Davis Wright Tremaine LLP 2 2600 Century Av SEA 2059342v1 0069243-000001 WaShi~gt?" (205) 5224150 - Fax: (206) 528-1699 F-01250 PRR-2011-00450 ,fdl ;i *-It-'tat tm O3 st-*fa vs- mr- 1; Aoi. if 't Fist. -.THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II PRISON LEGAL NEWS, INC., a Washington No. 28771-4-II non-profit corporation, Appellant," v. WASHINGTON STATE DEPARTMENT OF UNPUBLISI-TED OPINION CORRECTIONS, I i Res ondent. -- The editor of the Prison Legal News (PLN) asked the Department of Corrections (DOC) for information pertaining to its medical care providers under the Public Disclosure Act. When DOC took some months to completely respond, and did so with redacted documents, PLN obtained an order requiring DOC to show cause Why it had delayed and Why it should not disclose the full documents. PLN also sought attorney fees and the statutory penalty against DOC for its late and incomplete disclosures. The trial judge ordered DOC to produce logs of the Public Disclosure Act exemptions it used and logs of the records it withheld entirely; otherwise, the court denied PLN relief. Except for documents that contained drafts of possible SF-01251 PRR-2011-00450 No. 28771-4-II disciplinary actions against staff, we agree with the trial court's analysis. Accordingly, we affirm except as to these draft documents. FACTS Between January and August 2000, Paul Wright, a prisoner and PLN editor, made seven requests for documents from DOC under the state's Public Disclosure Act (PDA). DOC received the first request on January 21, 2000. In it Wright asked for: (1) documents of all disciplinary actions against DOC medical providers by any licensing authority; (2) names of all doctors, nurses, physician assistants, and mental health providers DOC employed; (3) records related to DOC medical staff practicing with restricted or suspended licenses; (4) records of prisoner deaths in 1999; (5) records of prisoner deaths where medical negligence was a factor; (6) post mortem documents regarding prisoner deaths; and (7) records of staff and prisoner assaults requiring medical treatment from 1994 through 1999. On January 25, Wright delivered a second PDA request to DOC. It sought records of: (1) DOC medical providers who had been disciplined or fired; (2) names of disciplined staff members, and the actions taken; and (3) names of DOC staff with arrest records. DOC responded to the first request Within five days_ on January 26, 2000. DOC informed PLN that it needed approximately 30 additional days to find and compile the requested documents. DOC responded to the second request, also within five days, on February 1. Again DOC told PLN that it required approximately 30 additional days to find and compile the requested documents. 2 SF-01252 PRR-2011-00450 No. 28771-4-II The infomation PLN sought was potentially located at 16 different facilities across Washington. DOC asked agency staff at each facility to determine whether they had the requested documents and to respond within 30 days or by February 25. Thirty-seven DOC employees participated in the records search. The staff responded within the required timeframe and, on March 8, 2000, DOC made available to PLN: (1) the names of medical staff members, (2) the number of inmate deaths in 1999, and (3) the quarterly Intelligence Reports. DOC also advised PLN that it would require approximately 60 additional business days to respond to the records requests for: (1) licensing actions related to DOC medical providers, (2) post mortem records concerning prisoner deaths, (3) disciplinary actions involving DOC medical providers, and (4) the names of DOC employees with arrest records. The March 8 DOC letter also told PLN that DOC had no single post mortem document concerning prisoner deaths. I In making the documents available, DOC notified affected staff, conducted a final agency review of the disclosed material, and sought legal advice from the office of the Attorney General. On May 30, DOC updated PLN on the two requests by advising it that one document was ready for disclosure and that several other documents would be ready around June 21, unless an affected staff member sought to enjoin the disclosure, as allowed under the current collective bargaining agreement. DOC also reported that it did not maintain records containing formal medical findings pertaining to prisoner deaths. A On June 20, DOC provided PLN with information on DOC medical employees practicing with restricted licenses. DOC also made available 1,207 pages of investigative records 3 SF-01253 PRR-2011-00450 No. 28771-4-II pertaining to disciplinary action against DOC medical staff. But DOC withheld or redacted names and other identifying information on documents under RCW and On July 30, PLN appealed the June letter. DOC affirmed the decision and informed PLN on August 22. On September 20, PLN wrote a check for $243.60 for copying costs, but it made the check out to the Secretary of State. DOC returned the check, and PLN made out another check, one month later on October 20, 2000, and received the documents. DOC also provided PLN a chart explaining the general basis for each redaction or exemption. After the show cause hearing, the trial court ruled that DOC did not violate RCW 42.17.320. The courtfound that DOC responded to PLN's requests in a reasonable timeframe. The court did require DOC to produce a log indicating specific exemptions for each non- disclosed document or redaction. The court also allowed for a second hearing on whether PLN could reasonably ascertain the reasons for each non-disclosure or redaction. PLN did not request a second hearing. PLN now argues that DOC failed to respond to its requests in a timely fashion and that it Withheld information not 'covered by the statutory exemptions. Specifically, PLN challenges DOC's (1) redactions in which it blacked out names and identifying information; (2) withholding of preliminary drafts, notes, recommendations, and opinions; and (3) Withholding of patient health care information. PLN seeks an order stating that DOC must produce complete documents; it also seeks an award of its attorney fees and a statutory penalty for each day DOC wrongly withheld information. 4 SF-01254 PRR-2011-00450 No. 28771-4-11 ANALYSIS Washington's Public Disclosure Act requires every govemmental agency to disclose any public record upon request unless the record falls within certain specific exemptions. O'Connor v. Dep't of Soc. and Health Servs., 143 Wn.2d 895, 905, 25 P.3d 426 (2001). Courts construe the Act broadly and its exemptions narrowly. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129, 580 P.2d 246 (1978). The PDA is a strongly worded mandate for broad disclosure of public records. Aznren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997). Any written information about government conduct is a public record, regardless of its physical form or characteristics. RCW Smith v. Okanogan Co., 100 Wn. App. 7, 12, 994 P.2d 857 (2000). Chapter 42.17 RCW specifies that "|j]udicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo." RCW Ockerrnan v. King County Dept. ofDev. Envtl. Servs., 102 Wn. App. 212, 216, 6 P.3d 1214 (2000). Moreover, Where the trial court record consists only of affidavits, memoranda, and other documentary evidence, we stand in the same position as the trial court. Progressive Animal Wehfare Soc'y v. Univ. of Washington, 125 Wn.2d 243, 252, 884 P.2d 592 (1994). The state agency bears the burden of proving that a specific exemption applies. RCW Hoppe, 90 Wn.2d at 130. I. Timely Response Under RCW 42.17.320, a state agency has five business days to respond to a records request. The agency must either provide the records or acknowledge that it has received the request and give an estimate of the time it will need to produce the records. RCW 42.17.320. 5 SF-01255 PRR-2011-00450 No. 28771-4-II And an agency may request additional time "to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine Whether any of the information requested is exempt and that a denial should be made as to all or part _of the request." RCW 42.17.320 RCW 42.17.290 requires an agency to adopt rules that facilitate "full public access to public records [and that] provide for the fullest assistance to inquirers and the most timely possible action on requests for information." RCW 42.17.270 requires a state agency to make public records "available for inspection and copying, and [the agency] shall, upon request for identifiable public records, make them available to any person." PLN contends that DOC violated RCW 42.17.270, RCW 42.l7.290, and RCW 42.17.320 when it did not fully assist PLN and failed to timely produce the information requested. PLN does notcontend that DOC failed to adopt the required rules or failed to follow them. Rather, PLN argues that DOC granted itself a number of time extensions and that the nine months DOC took to produce the records was simply too long. We disagree. PLN's request called for a substantial number of records from a number of facilities spread across the state. Thirty-seven state employees participated in the search for records to meet PLN's request. Moreover, the requested records were at least potentially subject to exemptions to protect employees and inmates and to prevent disruption of prison operations. DOC was also required to consider legal action from affected staff members as allowed under their collective bargaining agreement. Apparently because of these problems, DOC sought legal advice from the Attorney General before producing the documents. Finally, at least some SQ01256 PRR-2011-00450 No. 28771-4-II of the material in the documents was subject to deletion and the redaction process itself took time. Moreover, PLN misstates the record in arguing that DOC took nine months to produce the documents. DOC produced some records as early as March 8, 46 days after PLN's first request, when it made available: (1) the names of medical staff members, (2) the number of inmate deaths in 1999, and (3) the quarterly Intelligence Reports. I On May 30, DOC updated PLN on the two requests, noting one document was ready for disclosure, and that several other documents would be ready around June 21, unless an affected staff member sought to enjoin the disclosure, as allowed under the current collective bargaining agreement. 2 And on June 20, DOC provided PLN with information on DOC medical employees practicing with restricted licenses. DOC also made available 1,207 pages of investigative records pertaining to disciplinary action against DOC medical staff. Thus, DOC provided PLN with a response Within the statutory requirement and access to information Within five months, not nine months as PLN contends. Prompt disclosure under RCW 42.17.270 is required only after the agency identifies the record and ascertains that it is not subject to any exemptions. And an agency may make public records available on a piecemeal basis if, under the circumstances, it is reasonable to do so. Ockerman, 102 Wn. App. at 219-20. Finally, RCW -42.l7.340(2) provides a remedy for a requesting person who believes that the agency has not given a reasonable time estimate. The person may seek an order for the SF-012577 PRR-2011-00450 No. 28771-4-Il agency to show cause Why its estimate is reasonable and the agency then has the burden of proving that its estimate is reasonable. RCW Limstrom v. Ladenburg, 98 Wn. App. 612, 615 n. 1, 989 P.2d 1257 (1999). PLN did not challenge DOC's time estimate as it could have under RCW 42.17.340(2) at a time when the court could have ordered DOC to produce the records earlier. PLN makes its argument too. late. Because of the large volume of records and the complexity of ensuring that exempted materials were not released, We conclude that DOC did not unreasonably delay releasing the records. II. Redactions and Withholding of Documents . RCW 42.17.310 provides specific exemptions to disclosing public records and states in part: (1) The following are exempt from public inspection and copying: Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies . . the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy. Information revealing the identity of persons who are Witnesses to or victims of crime or who file complaints with . penology agencies . . if disclosure would endanger any person's life, physical safety, or property.. If at the time a complaint is filed the complainant, victim or Witness indicates a desire for disclosure or nondisclosure, such desire shall govern. RCW PLN maintains that DOC improperly Withheld information. Specifically, PLN argues that DOC's redactions do not fall under RCW the investigative records 8 SF-01258 PRR-2011-00450 No. 28771-4-II exception, or RCW the witness exception. PLN contends that the trial court erred by broadly construing these exemptions. Because we review the record de novo, we need not address PLN's argument that the trial court improperly construed the exemptions. The question is whether, narrowly constming the exemptions, DOC properly withheld the information. A. Investigative Records Investigative records are exempt "if they were 'compiled as a result of a specific investigation focusing with special intensity upon a particular party." Dawson v. Daly, 120 Wn.2d 782, 792-93, 845 P.2d 995 (1993) (quoting Laborers lnt'l Union, Local 3 74 v. Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982)). The Act does not define the phrase "specific intelligenceinformation." King County v. Sheehan, 114 Wn. App. 325, 337, 57 P.3d 307 (2002). In the absence of a statutory definition, we give words their ordinary meaning. Washington State Coalition for the Homeless v. Dep't of Soc. and Health Servs., 133 Wn.2d 894, 905, 949 P.2d 1291 (1997). And we look to dictionary definitions to do so. Washington State Coalition for the Homeless, 133 Wn.2d at 905. An agency may withhold individual names contained in investigative records if: (1) the records were compiled by law enforcement, and (2) the records are essential to effective law enforcement. Cowles Publ'g Co., 109 Wn.2d at 727-28 (redacted names); Newman v. King Coanly,.133 Wn.2d 565, 572, 947 P.2d 712 (1997) (full records). PLN argues that the investigative records exemption does not apply because DOC investigations into medical misconduct are not investigations of illegal acts. PLN further contends that even if DCC medical 9 SF-01259 PRR-2011-00450 No, 28771-4-II malpractice investigations are considered "law enforcement," the redactions were not essential to law enforcement. . PLN relies on Brouillet v. Cowles Pz.lbl'g Co., 114 Wn.2d 788, 791 P.2d 526 (1990). In Brouiller, the court held that the investigative records exemption did not apply to the Superintendent of Public Instruction's office (SPI) because revoking a teacher's certificate does not constitute law enforcement. Brouillet, 114 Wn.2d at 795. Accepting a dictionary definition of "law enforcement" as act of putting . . law into effect; . . the carrying out of a mandate or command," the court held that because revoking teaching certificates was discretionary, SPI was not carrying out a command. Brouiller, 114 Wn.2d at 795 (quoting LAW DICTIONARY, 474 (5th ed. 1979)). The court also noted that law enforcement requires a sanction for illegal conduct--usually a fine or prison term. Brouillet, 114 Wn.2d at 796. SPI, however, could revoke licenses for reasons other than illegal conduct. Brouiller, 114 Wn.2d at 796. PLN also relies on Melville v. State, 115 Wn.2d 34, 793 P.2d 952 (1990). In Melville, the court dismissed a tort claim, concluding that DOC had no statutory duty to provide mental health services. Melville, 115 Wn.2d at 38-39. By analogy, PLN reasons that because health care professionals are not involved in DOC operations like Wardens and guards, the redactions were not essential to law enforcement. We disagree. 5 First, DOC is by statute a law enforcement agency. RCW 72.09.0l0; McLean v. Dept. of Corr., 37 Wn. App. 255, 258, 680 P.2d 65 (1984). DOC must enforce laws, rules, and regulations within the institution so as to "preserve the peace" of staff and inmates. McLean, 37 SF-011960 PRR-2011-00450 No. 28771-4-Il Wn. App. at 258. Second, the exemption statute specifically lists penology agencies as agencies that qualify for the investigative records exemption. RCW And DOC is obligated to provide inmates with adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the inmates' safety. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d Thus, the scope of DOC's dutyto care for and supervise inmates is broad. See McLean, 37 Wn. App. at 258. DOC presented evidence that its internal investigations are highly confidential and depend on the trust and cooperation of staff. "Confidentiality is a key component to the [misconduct investigative] process and this expectation is shared with staff members and offenders." Clerk's Papers (CP) at 1433. If staff or inmates knew that their names were subject to disclosure, they would be less likely to come forward and report misconduct. Finally, according to DOC affidavits, medical staff would be at risk for physical altercations or other retaliatory actions if an inmate believed that a particular health care worker was harming or abusing a fellow inmate. And staff must conduct confidential interviews about medical care complaints and, at times, must conduct medical examinations in inmate units. Inmates face the same risk. Releasing an inmate informant's name could require DOC to place the inmate in protective custody, to protect the inmate from retaliation from the general prison population. Similarly, in conducting investigations, DOC affords confidentiality to staff who must work within the prison population because inmates often retaliate against informants, whether they are prisoners or staff members. Thus, the evidence shows that releasing staff and inmate names would hinder future investigations as witnesses would fear inmate retaliation. See 11 SF-01261 PRR-2011-00450 No. 28771-4-II also Cowles Publ'g Co., 109 Wn.2d at 732-33 (disclosure of names could reveal investigatory techniques and procedures, and hinder voluntary cooperation). DOC also presented evidence that releasing the names of disciplined staff members would compromise the staff members. Inmates would use the information to blackmail or intimidate the staff members and obtain favors. Moreover, inmates would refuse treatment from a disciplined staff member and this Would create an unmanageable situation for DOC because often only one medical staff person is available. DOC has shown that it must protect the identities of staff, inmates, and Witnesses to preserve its ability to investigate medical misconduct. - - PLN argues that the court in Cowles Publishing took live testimony before reaching its conclusion regarding the PDA's investigative exception, While here the court relied on conclusive declarations. The PDA, however, allows the trial court to conduct a hearing based solely on affidavitshearing With the opportunity to present live testimony. We conclude that DOC properly Withheld the names and other identifying infomation of staff persons, Witnesses, and inmates involved in DOC internal investigations of misconduct. B. Preliminary Drafts and Notes A RCW exempts, "[p]reliminary drafts, notes, recommendations, and intra- agency memorandums in which opinions are expressed or policies formulated or recommended," unless the document is "publicly cited by an agency in connection with any agency action." PRR-2011-00450 No. 28771-4-H The purpose of this exemption is to allow frank and uninhibited discussion during the decision-making process. Hoppe, 90 Wn.2d at 132. It protects "the give and take of deliberations necessary to formulation of agency policy." Hoppe, 90 Wn.2d at 132-33 (citations omitted). For that reason, the exemption only protects documents that are part of deliberative or policy-making process." Brouillet, 114 Wn.2d at 799 (quoting Hoppe, 90 Wn.2d at 133). It does not protect all documents in which opinions are expressed regardless of Whether the opinions pertain to the policy formulation. "Hoppe, 90 Wn.2d at 132-33. Moreover, unless disclosure would reveal and expose the deliberative process, as distinct from disclosing the facts underlying a decision, the exemption does not apply. Hoppe, 90 Wn.2d at 133. To rely on this exemption, an agency must show that: (1) the records contain pre- decisional opinions or recommendations of subordinates expressed as part of a deliberative process; (2) disclosure would be injurious to the deliberative or consultative function of the process; (3) disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, (4) the materials exemption cover reflect policy recommendations and opinions and not the raw factual data on which a decision is based. Columbian Publ'g Co. v. Vancouver, 36 Wn. App. 25, 31-32, 671 P.2d 280 (1983). Subjective evaluations are not exempt under this provision if they are treated as raw factual data and are not subject to further deliberation and consideration. Hoppe, 90 Wn. App. at 134. Once the policies or recommendations are implemented, the records cease to be protected under this exemption. Brouillet, 114 Wn.2d at 799-800. 13 SF-01263 PRR-2011-00450 No. 28771-4-II PLN reasons that opinions expressed in draft employee notifications, discipline letters, and discipline action letters reflect policy-implementing, not policy-making and, thus, are not exempt from disclosure under RCW PLN also contends that if the draft letters were protected, they lost any protection once the policies or decisions they dealt with were implemented. Finally, PLN maintains that the court should have required DOC to show that the requested documents contained no factual materials or subjective material treated as factual material. DOC provided no evidence for the trial court in support of its argument that the draft letters were protected. To support its argument before us, DOC points to the assistant attorney general's argument to the trial court. This is insufficient. DOC has the burden of showing that a specific exemption to public disclosure applies. Here, that burden includes a showing that the policies discussed in the draft documents have not been implemented, Progressive Animal Webfare S0c'y v. Univ. of Washington, 125 Wn.2d 243, 256-57, 884 P.2d 592 (1994); that the drafts do not contain unprotected factual material, Hoppe, 90 Wn.2d at 133; and that disclosure would inhibit the flow of recommendations, Hoppe, 90 Wn.2d at 133. DOC has not met its burden. On remand, the trial court shall order disclosure of the letters. C. Patient Health Care Infomation RCW 70.02.020, or the Uniform Health Care Information Act, reads in relevant part that, "a health care provider, an individual who assists a health care provider in the delivery of health care, or an agent and employee of a health care provider may not disclose health care 14 SF-01264 PRR-2011-00450 No. information about a patient to any other person Without the patient's Written authorization." RCW 70.02.020; see also RCW 42.17.312 A statute defines health care information as "any information, Whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care." RCW PLN argues that under these statutes, DOC can redact only the patient's name and other patient identifying information, such as the patient's identification number. And once this information is Withheld, according to PLN, the medical privilege no longer applies because to be protected, the information must both identify the patient and relate to the patient's health care. PLN further argues that DOC redacted names of non-patients and DOC and Personnel Appeals Board staff not protected under the statute. We disagree. Although non-patients and DOC staff names are not exempt from disclosure under the medical information exemption, they are exempt under the law enforcement. and Witness exemptions. And the medical records requested were all related in some way to the medical staff misconduct investigations. We have held that DOC properly Withheld these names under the law enforcement investigative exemption as discussed earlier. To protect the identity of the patient, DOC redacted some of the following information in various records: the patient's medical complaint, the provider's diagnosis, exam results, medication prescription, therapy, and test results. 1 . DOC reasons that because inmates are in close and continuous contact with each other, an inmate could readily associate another inmate's medical treatments, diagnosis, complaints, 15 SF-01265 PRR-2011-00450 No. 28771-4-II and prescribed medications to his or her identity. This is certainly plausible. And we have no way of knowing from the redacted records before us whether DOC redacted more information than necessary. Neither did the trial judge. At the end of the hearing, the court ruled generally that it recognized the validity of the medical privilege but declined to rule on any specific document with exemptions. Rather, the court urged the parties to discuss the extent to which PLN needed further information to evaluate DOC's claimed exemptions of both parts of documents and entire documents] And the court said that if the parties could not resolve the problems, it would hold another hearing. PLN did not ask for another hearing. We are not willing to speculate as to whether DOC redacted more than was necessary to protect the patient's identity when PLN was given the opportunity to clarify the issue and chose not to pursue it. Attorney Fees and Statutory Penalties RCW mandates an award of attorney fees and costs in favor of a person who prevails in a PDA action against' a government agency. Once a violation of the PDA has been established, courts are required to award reasonable attorney fees and statutory penalties. Yousouficm v. Ojice of Ron Sims, ll4 Wn. App. 836, 855, 60 P.3d 667 (2003). But the PDA applies only to public records. Smith, 100 Wn. App. at 12, A public record is any writing; (2) containing information relating to the conduct of government or performance of any governmental or proprietary function; (3) prepared, owned, used, or retained by any state or local wg 1 The order on show cause also directed DOC to identify the specific exemption DOC claimed as to each redaction. PLN has not assigned to error to this; nor does it contend that DOC has failed to comply with the order. F-012366 PRR-2011-00450 No. 28771-4-I1 agency regardless of physical form or characteristic. RCW Smith, 100 Wn. App at 12. Under the Act, an agency is not required to create a record. Srnirh, 100 Wn. App. at 13- 14. DOC gave PLN a chart explaining the general basis for each redaction. The court, however, required DOC to produce a more specific statement as to records withheld in their entirety under RCW identifying the type of record, its date and number of pages and, unless otherwise protected, the identity of the author and recipient or, if protected, other means of sufficiently identifying the document without disclosing protected content. But this court-ordered log is not a public record because it was not an existing DOC document when PLN made its PDA requests. 3 In addition, the log does not contain information relating to government conduct, performance, or a proprietary function. A document relating to a governmental function is "used" by the agency if it is applied to a given purpose or instrumental to an end or process. Concerned Ratepayers Ass'n v. Pub. Utility Dist. No. I of Clark County, 138 Wn.2d 950, 959, 983 P.2d 635 (1999). The critical inquiry is whether the requested information bears a nexus to the agency's decision-making process. Concerned Rotepoyers Ass'n, 138 Wn.2d at 960. A nexus between the information at issue and an agency's decision-making process exists where the information relates to the conduct or performance of the agency or its proprietary function and is a relevant factor in the agency action. Concerned Ratepayers Ass'n, 138 Wn.2d at 960-61. The log was created by court order to help PLN understand why DOC withheld certain documents. It was not used in any DOC decisionmaking process. Thus, the log is not a public 17 SF-01267 PRR-2011-00450 No. 28771-4-II record under RCW and PLN is not entitled to attorney fees for its work in obtaining the log. But PLN has also prevailed on its request for documents containing draft opinions as to disciplined staff. Accordingly, a commissioner of this court will award PLN attorney fees and costs incurred only for obtaining these documents upon compliance with RAP 18.1. RCW Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Repoits, but will be filed for public record pursuant to RCW 2.06.0-40, it is so ordered. 7 . We concur: 4 I Eg:/xnifel . H/ka L7 Qu' n~Brintna A.C.J 18 SF-01268 PRR-2011-00450 lW/??/tw it 2 . in - QFHCE 1 .3003 FTHE PE Wigs s.>>orv.m IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON envision ii U, G, Aa; TliafPRISON LEGAL NEWS, INC., a No. 28771-4~ll fiat, Washington non-profit corporation, Fgi Appellant, It v. RULING AWARDING ATTORNEYS FEES I I AND COSTS WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent. In its ,Opinion filed on October 14, 2003, this court awarded Prison _Legal News, lnc., its attorney fees and costs for obtaining documents containing draft opinions as to disciplined staff, under RCW and RAP 18.1. Prison Legal Newsrequests $12,032.60 in attorney fees and $2,995.78 in costs. The Department of Corrections objects to the amount of attorney fees requested. This court finds that the 20 percent apportionment used by Prison Legal News is appropriate but that Prison Legal News inappropriately included fees pertaining to a medical malpractice matter. Accordingly, it is hereby I SF-01269 PRR-2011 00450 28771-4-ll ORDERED that Prison Legal News is awarded $10,996.60 in attorney fees and $2,995.78 in costs against the Department of Corrections. i mday of ,2003._ ZA. i, Eric B. Schmidt Court Commissioner cc: Gregg Overstreet Signe Brunstad Michele Earl-Hubbard Andrew I\/lar Alison Page Howard Michael Patrick-Sellars Kasey C. l\/lyhra "7 A SF-01270 PRR-2011-00450 IN THE COURT OF APPEALS OFATHE STATE OF WASHINGTON DIVISION II ,Ae.zf-.Anka W. C3 . 'rf - fe PRISON LEGAL NEWS, INC., A il if ASSII SI WASHINGTON ll y, COPRORATION, ti QIEUA Appellant, NO.28771-4-II QZZPESE limi ii i; E17 ?illiifi v. ORDER GRANTING TO li 1 rf WASHINGTON STATE A Qi fa DEPARMTNET OF 23; OOHECTIONS, A $151 :Ir I Respondent. .3 hm Yu# "ff AA) .nn APPELLANT has filed a motion to modify a Com1nissioner's ruling dated November 7, 2003, in the above-entitled matter. Following consideration, the court grants the motion. Accordingly, it is ORDERED that Prison Legal News is awarded $12,032.60 in attorney fees and $2,995.78 in costs against the Departme of Corrections. DATED this #day of 2003. PANEL: j. Seinfeld, Bridgewater, FOR THE COURT: 1/ I JUDGE 7 SF-01271 PRR-2011-00450 CASE #z 28771-4-H - Order Granting Motion to Modify Pg 2 Prison Legal News Inc, Appellant v. Wa State Dept of Corrections, Respondent Signe Brunstad Perkins Coie LLP 1201 3rd Ave Ste 4800 Seattle, WA, 98101 Kasey C. Myhra Betts Patterson Mines 701 Pike St Ste 1400 Seattle, WA, 98101 Andrew Mar Attorney at Law 1501 4th Ave Ste 2600 Seattle, WA, 98101->>1664 Alison Page Howard Attorney at Law 2600 Century Square 1501 4th Ave Seattle, WA, 98101-3225 Greg Overstreet Perkins Coie LLP 111 Market St NE Ste 200 1 Olympia, WA, 98501-1017 Michael Patrick Sellars Attorney at Law Atty General Ofc Division PO Box 40145 8 Olympia, WA, 98504-0145 Michele Earl-Hubbard Davis Wright Tremaine LLP 1501 4th Ave Ste 2600 Seattle, WA, 98101-1688 SF-01272 PRR-2011-00450 LE IN CLERKS OFFICE SUPREME COURT. STATE OF WASHINGTON i CHIEF JUSTICE TN T3 SUPREME COURT OF TI-E STATE OF PRISON LEGAL NEWS, INC., Petitioner, 3 No. 74890-0 v. 3 En Banc DEPARTMENT OF i Filed Mt tt# 2 65 Respondent. 0 5 SANDERS, The diffusion of information and the arraignme nt of all abuses at the bar of public reason, I deem [one of] the essential principles of our government, and consequently [one of] those which ought to shape its administration. -Thomas Jeffersonl We here consider Whether identifying information in public records related to medical misconduct investigations in Washington prisons and patient information other than names or identification numbers are exempt from Thomas Jejjferson on Politics Government (quoting Inaugural Address, 1801 ME 3 2322 (alterations in original)) (on digital archive at the University of Virginia, The Jefferson Literary Debating Society), available at efferson/quotations/j effl350.htm. SF-01273 PRR 2011 00450 No. 74890-0 disclosure under the public disclosure act (PDA), chapter 42.17 RCW. We hold that the Department of Corrections (DOC) must release the names of disciplined medical staff and of witnesses, Further, the PDA does not permit DOC to withhold all patient information in a blanket fashion, but DOC must demonstrate that each piece of health care information it seeks to withhold is readily identifiable with a patient. We remand to the trial court for thisdetermination. FACTS AND PROCEDURAL HIST ORY Paul Wright, a prisoner and editor for Prison Legal News (PLN), made seven requests for documents from DOC under the PDA. PLN made the first request to DOC on January 21, 2000. PLN requested (1) documents of all disciplinary actions against DOC medical providers by any licensing authority; (2) names of all doctors, nurses, physician assistants, and mental health providers DOC employed; (3) records related to DOC medical staff practicing with restricted or suspended licenses; (4) records of prisoner deaths in 1999; (5) records of prisoner deaths where medical negligence was a factor; (6) postmortem documents regarding prisoner deaths; and (7) records of staff and prisoner assaults requiring medical treatment from 1994 through 1999. A On January 25 Wright made a second PDA request. Wright requ ested records of (1) DOC medical providers who had been disciplined or fired; (2) names of disciplined staff members, and the actionstaken, and (3) names of DOC staff with arrest records. SF-01374 PRR-2011-00450 No. 74890-0 On January 26 in response to the first request, DOC told PLN that it needed approximately 30 additional days to find and compile the requested documents. On February l, in response to the second request, DOC told PLN that it again required approximately 30 additional days to find and compile the requested documents. On March 8 DOC made available to PLN (1) the names of medical staff members, (2) the number of inmate deaths in 1999, and (3) the quarterly intelligence reports. DOC told PLN that it needed approximately 60 additional business days to 1 respond to the records requests for (1) licensing actions related to DOC medical providers, (2) postmortem records concerning prisoner deaths, (3) disciplinary actions involving DOC medical providers, and (4) the names of DOC employees with arrest records. DOC also told PLN that DOC had no single postmortem document concerning prisoner deaths. On l\/lay 30 DOC told PLN that one document would be disclosed and that other documents would be disclosed on June 21, unless an affected staff member sought to enjoin the disclosurez DOC told PLN that it did not maintain records containing formal medical fmdings pertaining to prisoner deaths. On June 20 DOC made available to PLN ll pages of documents concerning DOC medical employees practicing with restricted licenses. DOC also made avail able 1,207 pages of investigative records pertaining to disciplinary action against DOC 2 The parties agree that the collective bargaining agreement then in place allowed affected employees to seek such an injunction. SF-01235 PRR-2011-00450 No. 74890-0 medical staff. DOC redacted names and other identifying information for both disciplined staff and Witnesses (a category in which DOC included both accusers and investigating personnel as Well as others3) under RCW and DOC redacted the names of patients, as Well as terms related to the health care or medical conditions of those patients, citing RCW 42.l7.3l2 and RCW 70.02.020. On July 30 PLN appealed to DOC to reverse its June 20 decision. On August 22 DOC told PLN that DOC affirmed its decision. On September 20 PLN Wrote a check for $243.60 for copying costs, but PLN erroneously Wrote the check to the secretary of state. DOC notified PLN of its error. PLN Wrote another check and received the documents on October 20. At this time DOC _gave PLN a two -page chart showing the claimed statutory basis for redactions and nondisclosures. PLN filed an action With the Thurston County Superior Court on May ll, 2001. A show cause hearing was held June l. PLN alleged that DOC did not respond to PLN in a reasonable time and that various PDA exceptions claimed by DOC did not apply. The trial court held that DOC did not violate the PDA, and the time it took to respond to PLN's requests was reasonable. The court required DOC to produce a log specifying which exemption had been claimed for each nondisclosed document or redaction. The court also stated that a second hearing could be requested if PLN and 3 DOC, in its letter to PLN, stated: "The redacted information includes the names of the disciplined employees, the names of the irnnates involved, the names of all witnesses and pronouns referring to those Witnesses, identifying locations, and . identifying dates. In addition, specific medical information was redacted per RCW 70.02.050." Papers (CP) at l72-73. . 0 SF-012426 PRR-2011-00450 No. 74890-O DOC could not negotiate the amount of specificity required regarding which exemption applied to each nondisclosure or redaction. PLN did not request a second hearing. PLN appealed to the Court of Appeals, Division Two. The Court of Appeals upheld the trial court determination that the time in which DOC responded was reasonable and upheld DOC's redactions of names and identifying information of patients, witnesses, investigators, accusers, and the accused, as well as redactions related to patient health care. But the Court of Appeals reversed the trial court on DOC's withholding of preliminary drafts, notes, recommendations, and opinions. The Court of Appeals ordered its commissioner to award attorney fees and costs incurred to obtain the latter documents but did not order that the statutory penalty be imposed. PLN petitioned this court but only on the application of certain PDA exemptions and the failure of the Court of Appeals to award a statutory penalty. The State did not cross~petition the determination that it had wrongfully withheld preliminary drafts and notes. ANALYSIS I. Statutory Framework The PDA is a strongly worded mandate for broad disclosure of public records. /lmren v. City of Kalama, l3l 25, 31, 929 P.2d 389 (l997). Washington's PDA requires every governmental agency to disclose any public record upon request, unless the record falls within certain specific exemptions. 'C0nn0r v. Dep 't of Soc. SF-01257 PRR-2011-00450 No. 74890-0 Health Servs., 143 Wn.2d 895, 905, 25 P.3d 426 (2001). Any Written information about government conduct is a public record, regardless of its physical form or characteristics. RCW Smith v. Okanagan County, 100 Wn. App. 7, 12, 994 P.2d 857 (2000). A Chapter 42.17 RCW provides, "[j]udicia1 review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo." RCW Ockerrnan v. King County Dep 't of Dev. Envtl. Servs. 102 Wn. App. 212, 216, 6 P.3d 1214 (2000). Moreover, Where the trial courtrecord consists only of affidavits, memoranda, and other documentary evidence, We stand in the same position as the trial court. Progressive Animal Wehfare Soc jf v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994). Courts construe the PDA broadly and its exemptions narrowly. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129, 580 P.2d 246 (1978). The state agency bears the burden of proving that a specific exemption applies. RCW Hoppe, 90 Wn.2d at 130. II. Investigative Records Exemption . The Court of Appeals held that the names of disciplined DOC medical staff and of Witnesses (including inmates involved) could be Withheld from the documents "pertaining to DOC medical employees currently employed by the DOC who are PRR-2011-00450 No. 74890-O practicing with a restricted or suspended license"4 and from documents "pertaining to any DOC medical care providers that have been disciplined, fired, or otherwise sanctioned, with regards to the conduct of their duties in the provision of medical care to prisoners or staff."5 DOC argued that the names of the disciplined employees were exempt from disclosure under RCWR and that the names of "victims" and "Witnesses" were being Withheld under both RCW 42. 17.3 l0(l)(d) and However, the Court of Appeals appeared to have relied solely on RCW -42. 17.3 lO(l)(d) to uphold DOC's refusal to release this information. RCW 42.17.310 exempts certain specific categories of information from public disclosure: (1) The following are exempt from public inspection and copying: Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person 's right to privacy. i Information revealing the identity of persons who are Witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person 's life, physical safety, or property RCW (Q). 4 CP at 172, iss. 5 CP at 173, ist, PRR-2011-00450 No. 74890-0 Thus, under RCW the "specific investigative records" must be compiled by a "law enforcement" or "penology" agency. PLN does not dispute that DOC is a law enforcement or penology agency or that the records in question were "specific investigative records."6' 7 6 "Records are 'specific investigative records' if they were 'compiled as a result of a specific investigation focusing with special intensity upona particular partyf" Dawson v. Daly, 120 Wn.2d 782, 792-93, 845 P.2d 995 (1993) (quoting Laborers Inzf'l Union, Local 374 v. Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982)). 7 The Washington Coalition for Open Government (WCOG) now urges in its amicus brief before the Supreme Court a different approach from either the parties or the WCOG amicus brief before the Court of Appeals. WCOG argues that the records in the case at bar were not "investigative records" tmder RCW While the WCOG argument is inventive, itnarrows the definition beyond plain meaning of the statutory term. This court, in Dawson v. Daly, stated: I Records are "specific investigative records" if they were "compiled as a result of a specific investigation focusing with special intensity upon a particular party." 120 Wn.2d at 792-93 (quoting 31 Wn. App. at 448). This interpretation has not been challenged by the parties. WCOG would add an-element to the term "investigative records," implying the requirement that the investigation be statutorily mandated. Thus, only records of statutorily mandated "investigations" would qualify as investigative records. But the statute simply doesn't say "records for investigations mandated by statute." It says "specific investigative records compiled by investigative, law enforcement, and penology agencies RCW 42.17.3 A statute which is clear on its face is not subj ect to judicial interpretation In re _Marriage oflfovacs, 121 Wn.2d 795, 804, 854P.2d 629 (1993). The plain meaning of "investigative" counters WCOG's argument. "Investigate" is defined by Webster 's as "to observe or study closely inquire into systematically THIRD NEW INTERNATIONAL DICTIONARY 1189 (2002). There is no element of legislative mandate in the dictionary definition of the term. Further, it would lead this court in future cases to try and determine Whether an "investigation" is required by statute. This would lead to endless analysis of broad statutory grants of authority to agencies to PRR-2011-00450 No. 74890-O The investigative record must also be "essential to effective law enforcement." 8 Again, the burden is on DOC to prove that the records are essential to effective law enforcement,9 and the exemption must be construed narrowly. IG DOC claims part of its law enforcement "mission" is "to provide for the health care needs of the state's prison inmates." Answer to Pet. for Review at 9. DOC also claims disclosure of the names of disciplined employees and witnesses, including accusers, would endanger the safety and security of DOC 's staff and inmates. Id. DOC's specific factual allegations are (1) if the names of disciplined staff are released, those staff will be at risk of reprisal from inmates for the conduct that resulted in their discipline (Clerl<'s Papers (CP) at 1433-34, 1446) (2) disciplined staff could also be blackmailed by inmates into illegal acts, such as providing prescription medication which is. not medically necessary, or into violating prison rules (CP at 1434, 1446 -47), (3) disciplined staff might be subject to "ridicule, retaliation, and distrust by other staff members" (CP at 143 5) (4) confidentiality of "employees or offenders involved in an investigation of staff misconduct" (all "witnesses" under determine whether a particular "investigation" is within the scope of such delegation. Finally, case law conflicts with WCOG's definition. Nothing in statute mandates that police departments have internal investigations divisions, yet those records were held to be "investigative records" in Cowles Publishing Co. v. State Patrol, lO9 Wn.2d 712, 748 P.2d 597 (1988). 8 DOC did not claim that the names could be withheld under the other possible exemption in this subsection, the protection of a person's right to privacy. 9 Row Hoppe, 90 wand at 130. SF-01221 PRR-2011-00450 No. 74890-O DOC's classification) is necessary to investigate such misconduct because if staff and offender names Were released to the public, offenders and staff would be les likely to report misconduct (CP at l433, 1446); (5) "inmate confidential informants" of staff medical misconduct would have to be segregated from the general population and be placed in "permanent protective custody" if their names were released (CP at 1433); and (6) disclosure of the names of disciplined staff could lead to refusal by inmates to be treated by that staff person, or to potential medical staff choosing not to work in a DOC facility, both circumstances that DOC claims will result in making it more difficult to provide inmates with health care (CP at l43 5, l447-48). These claims were made in declarations by Eldon Vail, Deputy Secretary of DOC, Jane Robinson, Health Care Manager for McNeil Island Corrections Center, and Elizabeth Anderson, Health Care Administrator for DOC. Some of these claims appear questionable on their face. Prevention of mistreatment of disciplined staff by fellow employees is Within the control of DOC. Similarly, it is hard to see how the confidential informant or complaining inmate would be at risk from other inmates because they provided information concerning stajf misconduct. And We do not believe DOC suggests inmates Who complain about staff must have their identities protected so that retaliate against inmates. Preventing thelatter scenario is again Within the control of DOC, and the only person to Whom the inmate can complain is another staff member. Thus, Whether or not the 1? Hoppe, 90 Wn.2d at 129. SF-01143 PRR-2011-00450 No. 74890-O PDA exempts the names of complaining inmates from disclosure, it would ap pear to be a nonissue regarding retaliation from staff members who already know, or whose colleagues know, the identity of the complaining inmate. The dissent appears to accept DOC's unsupported contention that staff will retaliate against inmates for reporting staff misconduct. Dissent at 5, 10. The dissent's approach would have the perverse result of failing to deter staff misconduct by keeping secret the identity of staff who have harmed prisoners through medical misconduct. The dissent would reward DOC's failure to prevent staff misconduct with secrecy in order to avert additional staff misconduct. The other factual claims are not invalid on their face, but the validity of the factual claims, and thus whether disclosure of such names could have pote ntially negative effects within the prison, is not the issue. The issue under the plain language of the relevant statute is whether it is "essential to effective law enforcement" to prevent such effects. This determination turns on the definition of "effective law enforcement," or even more specifically, "law enforcement." DOC claims "law enforcement" must be defined very broadly: "the legal, safe, secure and orderly operation of its prisons." Br. of Resp't (Ct. App. No. 28771-4) at 2l, 23. DOC's proposed definition ignores the command of our prior case law that exemptions to the PDA be construed narrowly. Hoppe, 90 Wn.2d at l29. Were we to accept DOC's definition, investigations of all aspects of DOC 's operations would be off limits from public disclosure and only by accepting DOC 's invitation to define ll SF-01283 PRR-2011-00450 Na 74890-0 every activity it undertakes as "law enforcement" can We uphold the lower court. But neither providing patient care to DOC inmates nor disciplining medical employees is "law enforcement" as that term is commonly understood. The PDA itself does not define "lavv enforcement" or state what is "essential" for such enforcement to be "effective" "Words of a statute not particularly defined are to be given their ordinary, everyday meaning." New YorkLU'c Ins. Co. v. Jones, 86 Wn.2d 44, 47, 541 P.2d 989 (1975). 4 ln Bronillet v. Cowles PublishingCo., 114 Wn_2d 788, 791 P.2d 526 (1990), We turned to Blocks Law Dictiononjf, stating that "[l]aW enforcement involves '[t]he act of putting . . law into effect; . . the carrying out of a mandate or command." Brouiilct, 114 Wn.2d at 795 (quoting Blackis Low Dictionary 474 (5th ed. l979)). We also stated that "[l]aW enforcement involves the imposition of sanctions for illegal conduct." Id. at 796. And the current edition of Blocks Law Dictionary has an even more succinct definition: "The detection and punishment of violations of the law." BZack's Law Dictionary 901 (8th ed. 2004). According to these definitions the investigations by DOC into medical misconduct ere not conducted for purposes of "law enforcement," and therefore the information which DOC seeks to exempt could not be "essential for effective law enforcement." Brouillct supports this conclusion. Broitillct concerned a request for the release of records showing the reasons for teacher certificate revocations. This court focused miie PRR-2011-00450 No. 74890-0 on the fact that the Office of the Superintendent of Public Instruction (SPI) did not enforce law; SPI administered a school system. Broaillet, 114 Wn.2d at 795.11 Other cases interpreting RCW 42. 17.310 reinforce a narrow definition of "law enforcement" requiring the subject of the investigation be law enforcement. 12 In Newman v. King County, 133 Wn.2d 565, 573, 947 P.2d 712 (1997), this court focused on records that would "jeopardize criminal investigations" in analyzing whether a document was essential to effective law enforcement. In Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983), Division Two ofthe Court of Appeals focused not on the fact that a law enforcement agency was investigated, or that law enforcement personnel would have their identities disclosed, but rather that the investigation of job performance would not result in criminal sanction and thus was not essential to effective law enforcement. Ial. at 30-31.13 The dissent's discussion of Brouillet focuses on the role of the agency, but the Brouillet majority first focused on the function of the investigation. "An examination of the term 'law enforcement' reveals that revocation involves neither criminal nor civil law enforcement." Broaillet, 114 Wn.2d at 795 (emphasis added). ll 12 DOC admits that if this definitional requirement were adopted, their investigations into medical misconduct would not meet the definition. does not contend that the investigations themselves are 'law enforcement' investigations, but the release of the names and identifying information of witnesses and disciplined staff interferes with DOC's law enforcement mission; namely the legal, safe, secure and orderly operation of its prisons." Br. of Resp't DOC (Ct. App. No. 28771 -4) at 23. 13 The dissent again focuses on the role of the agency, rather than the purpose of the investigation, alleging that we "mischaracterize[]" the case. Dissent at 8 -9. However, the Court of Appeals in Columbian Publishing focused on the purpose of the investigation is purely a personnel matter," 36 Wn. App. at 31), in spite of the fact that the records in that case were produced by law enforcement personnel and were 13 SF-01285 PRR-2011-00450 No. 74890-0 DOC relies on Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988) and Tacoma News, Inc. v. acoma-Pierce County Health Department, 55 Wn. App. 515, 778 P.2d 1066 (1989). Cowles was a plurality opinion in which the court held that the State Patrol could withhold the names of officers against whom internal investigations had sustained complaints, along with names of the complaining parties and witnesses in those cases. The plurality reasoned that a functioning internal investigation process was "required" for effective law enforcement. Cowles, 109 Wn.2d at 729. lt specifically stated that "[s]uch a procedure is necessary to ensure that law enforcement officers do not abuse their authority or engage in unlawful activities." Ia'. (emphasis added). 14 Of course, while the malpractice of medical personnel may at times reach criminal proportions, the DOC investigations were not conducted to investigate criminal wrongdoing but as a matter of personnel admin istration. Cl? at 1447, 1450 (Vail declaration). Additionally, the Cowles court focused on the fact that witnesses and complaining parties would be less likely to come forward or participate in the internal obviously intended to improve the functioning of th police department, a law enforcement agency. 14 The dissent's quotation of the immediately preceding sentence in Cowles omits the Cowles court's explicit holding as to why a "workable reliable procedure for accepting and investigating complaints against law enforcement officers" is needed. Dissent at 9 (quoting Cowles, 109 Wn.2d at 729). See discussion, supra. But of note is that even were we to accept the dissent's truncated characterization, the investigation of police performing the functions of their jobs is an investigation of law enforcement. Only by accepting the dissent's-and DOC's overly broad characterization of all prison operations as "law enforcement" can Cowles be seen as remotely analogous. 14 SF-01286 PRR-2011-00450 No. 74890-O investigations if their identities were known. But this concern, as noted above, is of lower weight when the potential "retaliation" threat to participants in the process is not the threat from a rogue police officer, but from a nurse or physician 's assistant, and DOC authorities have control over their institutions and the interactions between staff accused of wrongdoing and other staff members and prisoners who are complainants or witnesses. As in Cowles, in Tacoma News the court adopted a narrower definition of "law enforcement" than that urged by DOC. The court made its determination based on "what information, if disclosed, would render ineffective the Health Department 's enforcement of laws and regulations." Tacoma News, 55 Wn. App. at 521. The Tacoma News Tribune had requested copies of written omplaints relating to an investigation of the quality of the care provided by a particular Pierce County ambulance service. Although the narrow definition of "law enforcement" is most important for our purposes, it is noteworthy that the court made a detailed inquiry into the withheld information. The court allowed the health department to withhold the names of complainants and witnesses but ordered disclosure of the name of the ambulance company investigated (the subject in the same position as the DOC medical employees in the present case). The dissent would focus on the role of the agency, rather than the function of the investigation. The dissent's approach conflates the "law enforcement or penology agency" prong of the test with the "essential to effective law enforcement" prong. l5 SF-01287 PRR-2011-00450 No. 74890-0 Under the dissent's reasoning, which echoes arguments put forward by DOC, no internal investigation of any facet of running a prison would be subject to disclosure. Because DOC could claim that disclosure of any misfeasance or-malfeasance by prison staff could potentially affect DOC's ability to 'preserve the peace' of staff and iimraies" or affect the "secure and orderly operation of its prisons all investigations which could cause the least disruption of the prison's op eration would be exempt from disclosure. Dissent at 4 (quoting McLean v. Dep 't of Corn, 37 Wn. App. 255, 258, 680 P.2d 65 (l984)); Br. of Resp't, supra note l2. Thus, under the dissent's view, the third prong of the test explicitly provided for in statute would be meaningless. Since the DOC alleges that all aspects of the "secure and orderly operation of its prisons are "essential to effective law enforcement," nose dixit all investigations of the operation of its prisons are exempt from disclosure. Had the legislature determined that all investigations potentially affecting operation of a penology agency would be exempt from disclosure, the legislature would surely have used more direct language. Indeed, the legislature could have simply eliminated the requirement that records of such investigations be "essential to effective law enforcement." "Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous." Watcom County v. City ofBelling/win, l28 Wn.2d 537, 546, 909 P.2d l303 (l9Q6) (citing Stone v. Chelan County Dep ll0 Wn.2d 806, 810, 756 P.2d 736 PRR-2011-00450 No. 74890-0 (1988); Tommy P. v. Bal. ofCounty Comm 'rs, 97 Wn.2d 385, 391, 645 P.2d 697 (l982)). A We reject DOC's proffered definition of "law enforcement" and hold that nondisclosure is not "essential to effective law enforcement." DOC must release the unredacted investigative records. 15 Health Care Information A A DOC also redacted all references to medical information concerning inmates, including names, treatments, medical conditions, etc. The basis for these redactions Was new 7o.o2.020, as incorporated into the PDA through new 42.17.312. 16 new 70.02.020 prohibits disclosure of "health care information" Without the pati ent's . Written authorization. "Health care information" is defined as: [A]ny information, whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and 15 Before the Court of Appeals, DOC also claimed that RCW provided an additional ground for refusing to release the names of "complainant witnesses." Br. of Resp't (Ct. App. No. 28771 -4) at 32. The Couit of Appeals, while citing the statute in its description of the parties' arguments, did not analyze the nondisclosure under this section. See Prison Legal News, Inc. v. Dep 'f of Cori". noted at 118 Wn. App. 1069, 2003 WL 223 32994, at Perhaps this was because DOC specified that only the names of complainant Witnesses were Withheld under RCW see Br. of Resp't DOC (Ct. App. No. 28771 -4) at 33 11.7, and the Court of Appeals found those persons covered by RCW 42.17.310 Neither party has analyzed this issue in its briefing before this court. On its face RCW 42.17 .3l0(1)(e) only protects the identity of Witnesses to or victims of "crime," not the medical misconduct at issue in the . current case. Perhaps some of that misconduct' might have risen to the level of a crime, but DOC has not identified any such misconduct. 16 RCW 42.17.312 states, "Chapter 70.02 RCW applies to public inspection and copying of health care information of patients." 1 SF-01289 PRR-2011-00450 No. 74890-0 directly relates to the patient's health care, including a patient 's i deoxyribonucleic acid and identified sequence of chemical base pairs. The term includes any record of disclosures of health care information. RCW 70.02.0l0(6) (emphasis added). Washington courts have recognized the definition of "health care information" has "two requisites - patient identity and information about the patient 's health care." I/Wight v. Jackie, l2l Wn. App. 624, 630, 90 P.3d 65 (2004). On its face the statute appears to allow for disclosure of information such as maladies, treatments, etc., when the identity of a patient is not disclosed or cannot be readily associated with the patient PLN has not contested the nondisclosure of patient ames or identification numbers. DOC contends that such information can re adily be associated with the identity of a patient. In its briefing, DOC claims that "inmates who are in close and continuous contact with each other would be able to associate the information to a particular inmate." Supp. Br. of Resp't at l5. However, DOC has not cited to any evidentiary 17 - support for this conclusion in the record. 17 DOC also claims that PLN could "cross reference" a list of deceased inmates it has been provided with medical information to determine patient identity. Supp. Br. of Resp't at l5. However, DOC does not even make a plausible attempt to demonstrate how, with only the names of deceased inmates and the descriptions of medical care provided in records of medical misconduct, it could connect the names to the maladies. Presumably a person trying to do this would already have to know the malady from which the inmate died. In any case, the additional information needed to have any possibility to connect these dots would not appear to ma ke the iden_tity "readily associated" with the information that directly relates to the patient's health care, as required by the statute. 8 SF-01290 PRR-2011-00450 No. 74890-0 As noted, we construe exemptions to the PDA narrowly, requiring the state agency to bear the burden of proving that a specific exemption applies. RCW Hoppe, 90 Wn.2d at 129-30. The DOC's blanket approach in redacting all health care information conflicts with the requirement to construe ex emptions narrowly. Further, the broad mandate favoring disclosure under the PDA requires the agency demonstrate that each patient's health care information is "readily associated" with in order to withhold the health care information under RCW Vifhere there is a dispute over whether health care information is readily identifiable with a specific patient even when that patient's identity is not disclosed, the trial court can use in camera review should it need to examine unredacted records to make its independent determination. See, e. ACLU of Wash. v. Cin/ ofSe0:r1fZe, 121 Wn. App. 544, 89 P.3 295 (2004). A The Court of Appeals did not decide this issue on the statutory language. Its only comment about DOC 's claims was that they were "plausible" Prison Legal News v. Dep 't ofC0rr., noted at 118 Wn. App. 1069, 2003 WL 22332994, at However, the court applied an equity/exhaustion argument to deny PLN disclosure. At the end of a very confused oral argument, the trial court judge told the parties: 1 see a big distinction between records entirely withheld and records redacted. And if the parties cannot agree on a process for handling those, then it can be brought back to the court and I 'll consider arguments of both sides If you can agree, fine; if you can then I guess I will lead a second round of hearing to resolve the issues that you 've identified that are arising out of my decision here. 19 SF-01291 PRR-2011-00450 No. 74890-0 Report of Proceedings (RP) at 40-41. The trial court judge was not clear which "claims of exemptions" (CP at 1520; RP at 37) he was referring to in this conclusory statement, nor whether he was allowing PLN to contest specific redactions based on whether those redactions were within the scope of the trial court 's general rulings on the validity of the claimed exemptions." However, the Court of Appeals characterized this exchange as offering PLN an opportunity to "clarify the issue," Prison Legal News, 2003 WL 22332994, at The Court of Appeals then refused to address whether DOC "redacted more than was necessary to protect the patient's identity" when PLN "chose not to pursue it." Id. The Court of Appeals did not accurately characterize the trial court's concluding offer at the show cause hearing. The trial court 's statement actually appeared to give PLN an opportunity to challenge whether certain records, based on certain exemptions, should have been withheld in their entirety or whether they should have been disclosed in redacted form. 19 18 After the show cause hearing, DOC did produce a chart identifying the specific exemption DOC claimed for each redaction or withheld document. This was attached to the order ending the case. CP at 1526 ~21l9. 19 As the trial judge stated, "the parties and this court agreed that we would first address generally' the availability and scope of the exemptions claimed by the Department of Corrections here without making them records specific, and we've undertaken that process." CP at 1510 (RP at 27). ln response to the exemption rulings from the bench, counsel for PLN stated, "part of what we would be seeking would be a clearer relationship between these exemptions and the actual redactions made." CP at 1521 (RP at 38). 20 SF-01292 PRR-2011-00450 No. 74890-O This Would not have been reasonably interpreted by PLN 's counsel as a chance to argue that specific health care information should have been disclosed because it was not readily identifiable with a patient. Indeed, since all such information had been redacted, along with the patient identity, it is hard to see how the PLN attorney could Counsel was clearly stating that a determination would have to be made as to which of the several claimed exemptions just the health care exemption-the department was applying to the redacted text. The trial court then inquired Whether DOC had identified which exemptions were applied to records it had disclosed but redacted and which had been applied to records not disclosed. CP at 1521 (RP at 38 After a discussion of Whether the documents were centrally located, the trial judge suggested the department identify which records were redacted or Withheld under which exemptions. CP at 1522 -23 (RP at 39~40). ln response, DOC produced a chart. Supra note 19. The context of this entire discussion involved categorizing redacted and Withheld records according to the possibly applicable exemptions. It did not focus, as the Court of Appeals indicated, on Whether documents Withheld under the medical records exemption were identifiable with specific patients. And the follow -up hearing offered was to resolve Whether it would be too "onerous" on DOC to identify the specific exemption applied to each record: How onerous is it upon the defendant to be required to identify all Withheld records and redactions to a specific claim of exemption? And that's to be discussed; that's one extreme. The other extreme is no identification at all other than what you've already done, and then there may be some middle ground that may satisfy folks as well. If you can agree, fine; if you can't, then I guess Will lead a second round of hearing to resolve the issues[.] CP at 1523 (RP at 40). The follow-up hearing was not offered specifically regarding the medical exemption, as indicated by the Court of Appeals. And since, as noted above (n ote 19) DOC produced a chart showing which exemption applied to which redaction or Withheld record, no fo llow-up hearing Was required. 21 SF-01293 PRR-2011-00450 No. 74890-O have discovered which information was or was not readily associated with a patient's identity. PLN did not forfeit the right to contest whether specific health care information was readily identifiable with specific patients given a proper interpretation ofthe trial court's statement. We hold that on remand DOC must prove that ea ch patient's health care information would be readily identifiable with that patient even if that patient 's identity isn't known, given that PLN has not contested the nondisclosure of patient names or identification numbers. IV. Statutory Penalties and Attorney Fees Row states; 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 less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record. PLN, as the prevailing party in this action, is entitled to its costs and -reasonable attorney fees. The Court of Appeals did not award a statutory penalty af remand to the trial court for imposition of a statutory penalty. This couit recently decided the PDA requires the imposition of a penalty, but the amount ofthe penalty (within statutory limits) is in the first instance determined by the trial court after proper consideration of the circumstances. Yousoufian v. Ojice ofRon Sims, 152 Wn.2d 421, 98 P.3d 463 22 SF-01294 PRR-2011-00450 No. 74890-0 (2004). Thus on remand the trial court is directed to determine the .amount of statutory penalties. CONCLUSION "Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues ar vital to our national health." New York Times Co. v. United States, 403 U.S. 713, 724, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) (Douglas, J., concurring). Neither providing patient care to DOC inmates nor disciplining medical employees is "law enforcement" Within the meaning ofthe PDA. Whether health care information is readily identifiable with a patient must be determined on a case-by-case basis with regard to each specific patient. Should DOC continue to claim that the health care information of certain specific patients is readily identifiable with those patients, the trial court must review those specific exemption claims on remand. We also remand to the trial court to determine the amount of attorney fees and expenses" for all proceedings to date plus the amount of statutory penalties. 1- 23 SF-01295 PRR-2011 00450 No. 74890-0 WE CONCUR: '74/La qu, 9 jr W, 34; SF-01296 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep'z' of Corr., No. 74890--0 Pairhurst, I., dissenting in part, concurring in part No. 74890-0 FAIRHURST, (dissenting in part, concurring in part) - More than 1,200 records were produced by the Department of Corrections (DOC) in response to public disclosure requests by Prison Legal News (PLN). Clerk's Papers (CP) at 1432. Rather than Withholding records at issue here in their entirety, Doc merely redacted the names of Witnesses, victims, disciplined medical staff, identifying locations and dates, as Well as inmates' specific health care information Where inmates did not authorize disclosure. CP at 172, 1432. Far from degrading the goals of openness of the public disclosure act (PDA), chapter 42.17 RCW, DOC disclosed as much information as possible While maintaining the need for confidentiality in conducting internal investigations and the privacy rights of inmates regarding their health care information. Because DOC met its burden in proving that redacted portions 'of records fell Within the investigation exemption to the PDA, I disagree with the majority's holding to the contrary and would affirm the Court of Appeals on this issue. However, because of the limited facts presented on the health care exemption issue, I concur in the majority's decision to remand for further consideration of 1 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep'z' of Corr., No. 74890-O Fairhurst, J., dissenting in part, concurring in part redacted health care information. I also would hold that on remand the trial court should assess penalties, attorney fees, and costs only for those specific instances in which the Court of Appeals or trial court on remand has determined that DOC has violated the PDA. ANALYSIS I agree with the majority that the PDA is a mandate for disclosure of public records and that courts must construe its exemptions narrowly. The PDA does not intend, however, for agencies to blindly fulfill disclosure requests without also considering competing public interests associated with their governmental roles. If such strict compliance were required, the legislature would not have created exemptions that do not require compliance in specific situations where other policy considerations outweigh the public's interest in disclosure. At issue here are two exemptions: an investigative records exemption, RCW and (2) a health care information exemption created by RCW 70.02.020, which is incorporated into the PDA by RCW 42.l7.3l2. DOC bears the burden of proving that these exemptions apply. Cowles Publ'g Co. v. Spokane Police 139 Wn.2d 472, 476, 987 P.2d 620 (1999). Agency actions taken under the PDA are reviewed de novo, and where the trial court considered 2 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep 'rf of Corr., No. 74890-0 Fairhurst, I., dissenting in part, concurring in part only affidavits and documentary evidence, as Was the case here, the reviewing court is in the same position as the trial court. Dawson v. Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993). A. Investigative Records Exemption DOC Withheld the names and identifying features of disciplined staff, victims, and Witnesses under RCW RCW exempts from disclosure under the PDA "specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement." The investigative records exemption, RCW has been interpreted to require three things: (1) the information is intelligence information or an investigative record, (2) which was compiled by a law enforcement agency, and (3) protecting the information is essential to effective law enforcement. See Newman v. King County, 133 Wn.2d 565, 572-73, 947 P.2d 712 (1997)1; Cowles Palal' Co. v. Pierce County Prosecr/a'or's O]j'ice, 111 Wn. App. 502, 506, 45 P.3d 1 The Newman court actually presents the test here as having two parts because it combines numbers (1) and however, substantively the test is the same. 3 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep't of Corr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part 620 (2002). As the majority concedes, PLN does not dispute that DOC is a law enforcement agency. Majority at 8. Nor does it dispute that the records in question are specific investigative records. Id. Thus, the debate is solely over Whether the information redacted is essential to effective law enforcement. Resolution of this issue depends upon interpretation of the term "essential to effective law enforcement." RCW The PDA does not define law enforcement nor what is essential to make it effective. Our case law has defined "law enforcement" to involve act of putting law into effect; . the carrying out of a mandate or command," the "imposition of sanctions for illegal conduct," and "imposition of a fine or prison term." Brouillet v. Cowles Piibl'g Co., 114 Wn.2d 788, 795-96, 791 P.2d 526 (1990) (quoting in part LAW DICTIONARY 474 (5th ed. 1979)). Here, the redactions are essential to DOC's effective law enforcement. DOC is a law enforcement agency that "must enforce laws, rules and regulations Within the institution so as to 'preserve the peace' of staff and inmates." McLean v. Dep 't of Corr., 37 Wn. App. 255, 258, 680 P.2d 65, review denied, 101 Wn.2d 1023 (1984). That duty involves the law enforcement acts of both putting lavv into effect and carrying out mandatory commands. SF-01306 4 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep 't of Corr., No. 74890-O Fairhurst, J., dissenting in part, concurring in part As attested to by DOC employees, release of the names of disciplined employees and witnesses would interfere with DOC's duty and ability to operate its prisons in a legal, safe, secure, and orderly manner. Release of such information could put disciplined staff, victims, and other witnesses at risk of physical harm or manipulation as retribution. CP at 1433-35, 1446, 1450. Disclosure of names of disciplined staff would also likely make it more difficult for DOC to maintain staff necessary to provide constitutionally mandated health services. CP at 1436, 1446-48, 1451. And perhaps most important and obvious, disclosure of the names of disciplined staff and of witnesses and complainants would likely also chill individuals from coming forward, thereby impairing DOC's future investigations of employee misconduct. CP at 1432~34, 1446. The majority disregards these assertions out of hand by concluding that neither staff nor inmates could possibly be at risk of retribution because DOC has complete control over its prisons. This is a dangerous conclusion to draw considering the prison environment. DOC cannot control every act of retribution taken by inmates or, regrettably, even by its staff. As Eldon Vail, Deputy Secretary for DOC, knows, "offenders regularly retaliate against informants SF-o13o1' 5 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep'z" of Corr., No. 74890-0 Fairhurst, I., dissenting in part, concurring in part through violence or other means, whether or not it is a staff member or another offender." CP at 1434. The majority also reasons that because employee investigations Will not result in criminal sanctions, they are not part of DOC's law enforcement duties. Majority at 12. The majority then concludes that because the investigations are not themselves law enforcement, the redaction of names from the investigative records cannot be essential to effective law enforcement. Id. That conclusion is incorrect and is unsupported by the cases' cited by the majority, Brouillet, 114 Wn.2d 788; Newman, 133 Wn.2d 565; Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). See majority at 13. 1 In Brouillet, the Superintendent of Public Instruction and the Washington Education Association sought to withhold records regarding the reasons for revocation of teacher certificates under the investigative records exemption to the PDA. Brouillet, 114 Wn.2d at 791-95. Rather than explicitly holding that investigations must be for law enforcement purposes, this court essentially reasoned that Withholding the records was not essential to any criminal law enforcement purpose and required disclosure. Icl. at 795-97. The revocation of teacher certificates did not qualify as criminal law enforcement, nor did the 6 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep't of Corr., No. 74890-O Fairhurst, I., dissenting in part, concurring in part defendants point to another law enforcement role to which the nondisclosure of the records was essential. Id. Implicitly, the superintendent and the Washington Education Association had no law enforcement role to which Withholding the records was essential. See id. That is not the case here. As discussed above, DOC does have a law enforcement role--enforcing laws, rules and regulations to maintain the peace and security of its prisons. The redactions of disciplined medical staff, as well as Witnesses to medical staff misconduct, are essential to the efficacy of DOC's internal investigations, an integral part of its law enforcement role. This cou1t's reasoning in Newman also did not require that investigations be for law enforcement purposes for withholding of investigation records to be essential to effective law enforcement. In Newman We held that Withholding records pertaining to an open criminal police investigation was per se essential to effective law enforcement. Newman, 133 Wn.2d at 575. While We did state that the PDA exempts disclosure of records that would "jeopardize criminal investigations," as the majority asserts, We did not limit exemption to criminal investigation records. Id. at 573. We merely limited our reasoning to the facts before us. See id. Moreover, We cited Cowles Publishing Co. v. State Patrol, 109 SF-01303- 7 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep't of Corr., No. 74890-O Fairhurst, J., dissenting in part, concurring in part Wn.2d 712, 728, 748 P.2d 597 (1988) for the exemption proposition which, as discussed in greater detail below, did not involve an investigation that would result in criminal sanctions. Instead, it involved a law enforcement agency's internal investigation, like the one here. Id. Thus, we did not intend to require that investigations result in criminal sanctions in order for the withholding of investigation records to be essential to effective law enforcement. Likewise, Columbian Publishing did not hold that investigations must result in criminal sanctions in order for nondisclosure of investigation materials to be essential to effective law enforcement. The majority asserts that the Court of Appeals held that the investigation into the police chief's job performance "would not result in criminal sanction andthus was not essential to law enforcement." Majority at 13. But that is a mischaracterization. The Court of Appeals actually held that the City of Vancouver, who was investigating the job performance of one of its employees, was "not functioning as an investigative, law enforcement, [or] penology agenc[y]' as the exemption requires." Columbian Publishing, 36 Wn. App. at 30 (alterations in original). The court then reasoned that even if the city could somehow assert that it was acting as a law enforcement agency in its supervisory role, the records were not compiled through a specific investigation 8 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep'r of Corr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part intended to "ferret out criminal activity or to shed light on some other allegation of malfeasance." Id. at 31. Columbian Publishing is distinguishable from our case because here DOC was acting as a law enforcement agency, and its investigation was ferreting out the malfeasance of prison ,staff misconduct. Furthermore, this court allowed the redaction of names from investigative records that were not part of a law enforcement investigation but which were essential to effective law enforcement in State Patrol, 109 Wn.2d at 728. There, the Spokane Police Department released documents related to internal investigations of officers for misconduct but redacted the names of officers, victims, and witnesses. Id. at 714. The department argued that redaction of officers' names was necessary to ensure effective internal investigations. Icl. 1 In holding that such names were exempt from disclosure, the court reasoned that "[e]ffective law enforcement requires a workable reliable procedure for accepting and investigating complaints against law enforcement officers." Id. at 729. This court reasoned further that such internal investigations depended upon the "trust and cooperation" of the officers--if officers knew that a sanctioned officer's name would be disclosed, then fellow officers would be less likely to make complaints or come forward as witnesses. Id. at 733. SF-o13o5' PRR-2011-00450 Prison Legal News, Irtc. v. Wash. State Dep't of Corr., No. 74890-O Fairhurst, J., dissenting in part, concurring in part This case is directly analogous to State Patrol. As were the facts there, DOC is only trying to exempt names from the records, not the entire record. Likewise, DOC has brought forth evidence that failure to redact names of disciplined medical staff, victims, and Witnesses Will deter individuals from making complaints in the future and, thus, will hinder similar future investigations. The majority fails to make a persuasive factual distinction between State Patrol and this case. The majority asserts that here any retaliation threat to Witnesses or victims is negligible because, unlike police officers, over who police departments have no control, DOC has complete control of its staff members and prisoners. Majority at 14. But if DOC had such complete control _over its staff, there would be no misconduct in the first place. DOC cannot control everything that goes on in a prison 24 hours a day any more than police departments can control everypolice officer all the time. Although PLN and the majority are also quick to discard State Patrol as merely a plurality opinion, this court had the opportunityto overrule or disavovv its reasoning in Broaillet, but chose not to do so. Instead, in a unanimous opinion, the court clarified its earlier reasoning and distinguished it from the case then at hand. SF-0130-610 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep't of Corr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part See Brottillet, 114 Wn.2d at 797. The court clarified that in State Patrol the internal investigations Were not law enforcement, but that disclosure of names from the investigations would undermine the job done by the officers in the agency--which was law enforcement--by undermining confidence in the police and interfering with future investigations. Thus, State Patrol is still good law and supports a similar conclusion here. 2 Moreover, the Court of Appeals has applied the investigation exemption similarly in subsequent cases. In Tacoma News, Inc. v. Tacoma-Pierce County Health Departrnent, 55 Wn. App. 515, 522, 778 P.2d 1066 (1989), Division Two of the Court of Appeals held that "nondisclosure of Witness and information source identity is an important means of ensuring the efficacy of Health Department investigations," through which the heath department enforces statutes, regulations, and rules. The court did not hold that the investigations at issue would actually result in criminal penalties against ambulance companies but that the investigations facilitated the department's enforcement of statutes and regulations. Id. at 520-21. Furthermore, based on affidavit testimony, the court reasoned that disclosing the identities of sources of information would likely discourage individuals from providing information in the future, which would frustrate the investigative PRR-2011-00450 Prison Legal News, Irie. v. Wash. State Dep 't of Corr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part process. Id. at 522. Similarly, in this case, disclosure of the names of victims or witnesses would likely discourage them from coming forward in future investigations due to embarrassment and/or fear of retaliation? Also pertinent to this discussion is Ames v. City of ircrest, 71 Wn. App. 284, 294, 857 P.2d 1083 (1993) (citing Broaillet, 114 Wn.2d at 797; State Patrol, 109 Wn.2d at 730), where Division Two of the Court of Appeals explicitly held that "records of an investigation of a law enforcement officer by a law enforcement agencymay be partially exempt even if the investigation is not a 'law enforcement' investigation with the possibility of criminal sanction." But the court concluded that nondisclosure was not essential to effective law enforcement because the identity of the disciplined person could not have remained anonymous even absent disclosure because of previous press releases. Ames, 71 Wn. App. at 296. That is 2 The majority also asserts in passing that the Court of Appeals in Tacoma News was more accurate because, although it allowed redaction of witness and/or complainant names, it ordered disclosure of ambulance company names, the equivalent of the disciplined medical staff here. Majority at 14. But the majority fails to mention the distinction made by the Court of Appeals. The court there stated that unlike the situation present in Stare Patrol, in Tacoma News, the investigation was not a sensitive, internal investigation, which depended upon cooperation of its employees. Tacoma News, 55 Wn. App. at 523. Here, the investigations at issue were confidential, internal investigations more like those at issue in Stare Patrol than those in Tacoma News. SF-013087 2 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep'1f of Corr., No. 7-4890-() Fairhurst, J., dissenting in part, concurring in part not the case here--the evidence indicates that absent forced disclosure, the identities of the individual medical staff disciplined would stay confidential. The majority here need not create a requirement that investigations be for law enforcement purposes to narrowly apply the investigative record exemption and to uphold the purposes of the PDA. Allowing exemption of nonlaw- enforcement investigative materials as essential to law enforcement does not allow any action taken by a law enforcement agency to be exempt. Information must still pertain to a specific investigation, and the nondisclosure must be essential to the law enforcement duties of the agency at issue. Newman, 133 at 572-73. The majority trivializes that burden. Moreover, many of the cases that PLN and the majority use to argue against application of the investigative exemption concern attempts to withhold entire records. See Newman, 133 Wn.2d at 575 (upholding blanket exemption of all records pertaining to an open police investigation); Broaillet, 114 Wn.2d at 790-93 (where a school system attempted to withhold entire documents pertaining to teacher sexual misconduct, and the court ordered release of the documents but allowed redaction of victim information); Columbian Publishing, 36 Wn. App. at 26 (where the city sought to withhold entire documents from The Columbian and 13 PRR-2011-00450 Prison Legal News, Inc. v. Wash. State Dep't of Corr., No. 74890-0 Fairhurst, J., dissenting inpart, concurring in part the court ordered their release). ln contrast, here DOC released numerous records pertaining to the misconduct with which PLN is interested and has merely redacted names of disciplined employees, victims, and other witnesses. See State Patrol, 109 Wn.2d at 733 (allowing redaction of disciplined police officers to ensure the integrity of the internal investigation process); Tacoma News, 55 Wn. App. at 521- 22 (allowing redaction of complainants and witnesses to ensure the efficacy of health department investigations). Disclosure of the identities of disciplined medical staff and witnesses to the misconduct are not necessary to serve the public's interests in disclosure, but instead would hinder fulfillment of DOC's law enforcement objectives. Allowing redaction of names while mandating disclosure of records pertaining to medical misconduct applies the investigative record exemption narrowly and balances disclosure with maintaining the effectiveness of investigation processes. B. Health Care Information Exemption The parties also dispute whether DOC should be permitted to redact inmates' health care information when they have also redacted inmate names and identification numbers. PLN asserts that once the names and identification numbers are removed, the health care information can no longer be linked to SF-0131-0 14 PRR-2011-00450 Prison Legal News, Inc. v. Wash. Stare Dep'1fofC0rr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part particular inmates. DOC argues to the contrary that given the context of a prison, even without .names and numbers, health care information can readily be associated with individual inmates. However, unlike DOC's argument regarding the investigative records exemption, DOC does not sufficiently support its argument for application of the health care information exemption with affidavits or other evidence. In reviewing agency actions under the PDA, this court is put in the same position as the trial court and is asked to weigh the facts de novo. See Dawson, 120 Wn.2d at 788. Because there are very few facts in the record for us to consider, I agree with the majority that remand for closer consideration is warranted. On remand, however, the court should consider the prison context. RCW 70.02.020 prohibits disclosure of "health care information," which is defined as "information that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care." RCW That definition includes patient identity and (2) information about the patient's health care. Wright v. Jec/cle, l2l Wn. App. 624, 630, 90 P.3d 65 (2004). PLN asserts that the redacted information-information pertaining to inmates' health care--does not satisfy the identity requirement of "health care 15 PRR 2011-00450 Prisori Legal News, Irie. v. Wash. State Dep't of Corr., No. 74890-0 Fairhurst, J., dissenting in part, concurring in part . information" because DOC already redacted inmates' names and identifying numbers. Pet'r's Suppl. Br. at 13-14. According to PLN, health care information could not possibly be used to infer the identities of inmates receiving the care. Id. Case law has not interpreted the definition of health care information so strictly. ln Doe v. Group Health Cooperative of Puget Sound, Inc., 85 Wn. App. 213, 932 P.2d 178 (1997), overruled ori other grounds by Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998), only the name of an individual was disclosed. However, the court held that given the context of the environment in which the information was disclosed--a training session for medical personnel, specifically regarding how to access mental health treatment history of patients-- recipients could readily infer that the individual was receiving mental health treatment, information about his health care. Id. at 217-18. The reciprocal of the situation in Doe is present here. Although the names and identifying numbers of inmates have been redacted because of the context of a prison and the environment in which inmates live--in close proximity to one another' with calculated routines--inmates could readily infer from information such as injuries, treatments, or even just dates on which such events occurred, to Whom the health care information pertained. PLN puts forth only bald assertions SF-01315 16 PRR 2011-00450 Prison Legal News, Inc. v. Wash. State Dep'z' of Corr., No. 74890-0 Fairhurst, J., dissenting-in part, concurring in part that once the names of prisoners are removed, it simply would not be possible to link disclosed health care infomation to specific prisoners. Pet'r?S SLQJ.. Br- at 14. Those assertions fail to consider the practical realities of a prison. CONCLUSION Because DOC satisfied the investigative record exemption, I would affirm the Court of Appeals on that issue and dissent from the majority's opinion to the contrary. But I agree with the maj ority's decision to remand for further consideration on the redactions of health care information. I also would hold that on remand the trial couit should assess penalties, attorney fees, and costs only for those specific instances Where the Court of Appeals or the trial court on remand has determined that DOC has violated the PDA. ima . 17 PRR 2011-00450 Et. ~lli??ii?lTEUR 0i.YMPif THE SUPREME COURT OF WASHINGTON PRISON LEGAL NEWS, INC., A A Petitioner, NO. 74890-0 V. A Thurston County No. DEPARTMENT OF CORRECTIONS, 01~2-00828~2 Respondent. 3 No. 28771-4-ll TI-IE STATE OF WASHINGTON TO: The Superior Court of the State of Washington in and for Thurston County. The opinion ofthe Supreme Court ofthe State of Washington tiled on July 14, 2005, became final in the above entitled cause on August 3, 2005. This cause is mandated to the superior court from which the appeal was taken for further proceedings in accordance with the attached true copy or" the opinion. Pursuant to Rule of Appellate Procedure 14.3, costs are taxed as follows: Costs in the amount of $2,393.03 are awarded in favor of Petitioner, Prison Legal News and against Respondent, Washington State Department of Corrections. aa . ff? SF-01314 PRR-2011-00450 MANDATE Page 2 .a nat; I have affixed the seal of the Supreme Qg? Court ofthe State of Washin ton and rggrii tiled this Mandate this day fy it ji of August, 20 5. 1 at . "fm "rw" tea - Clerk ofthe Supreme Court State of Washington cc: Michele Earl-Hubbard Alison Page Howard Michael Patrick Sellars William John Crittenden Patrick Denis Brown Robert Bertelson Mitchell Julie Anne Halter Greg Overstreet Sigue I-I Brunstad Patricia J. Arthur David C. Fathi Reporter of Decisions SF-01315 PRR-2011-00450 SUPERIOR COURT STATE WASHINGTON FOR THE COUNTY OF WALLA VVALLA CHAMBERS OF pg EOX 835 JUDGE DONALD VV. SCHACHT DEPARTMENT No. 99362 April 1, 2009 Mr. Ray Frost No. 254144 11919 W. Sprague Avenue - Airway Heights, WA 99001 Mr. Jason Howell Assistant Attorney General P.O. Box 40116 Olympia, WA 98504 Re: Frost v. Department of Corrections Walla Walla County Cause Number 08-2-00066-5 Gentlemen: . As set forth in the Court's letter of March 2, 2009, the Court considered without oral argument Defendant's Motion for Summary Judgment or Alternative Motion for Judgment as a Matter of Law for Sum Certain, and Plaintiff' Motion for Summary Judgment and Cross Claim on March 30. The Court finds there is no need for live testimony or oral argument. This is a Public Records Act ease. _Plaintiff was an inmate at the Washington State Penitentiary who is now housed at Airway Heights Corrections Center. Plaintiff has been housed at the Washington State Penitentiary, Stafford Creek Correctional Center, Clallum Bay Correctional Center and now Airway Heights during the pendency of this action. A Plaintiff has made five requests for disclosure assigned- the following numbers: 4 1 ~0208 06, 58-020906, 215-043 007, 256-060705, 316-0703 07. Defendant first argues on summary judgment that requests 41-020806 and 58~020906 are separate requests. The Court so finds. Defendant argues these requests are barred by the statute of limitations. The Court so finds. Request 41-020806 (made on 2/5/06) was fo.r Plaintiff" infraction record in his Department of Correction's central file. The requested records that were in the' file were provided' on 6/6/06. Plaintiff made a second request on 2/9/ 06, Number 58~020906, for additional and more specific- infraction records from his central file. Plaintiff paid for his requegted copies and they were sent to his Washington - -1 - ir, .V 4 .i SF-01316 PRR-2011-00450 Mr. Ray Frost - 2 - Aprii 1, 2009 Mr. Jason Howell State Penitentiary address. He apparently had been transferred to Stafford Creek. The copies were sent to Plaintiff on March 13, 2006. Presumably, they were forwarded to Plaintiff' new address, although he claims he never received them. Plaintiffs amended complaint was filed on February 14, 2008. This was the first time Plaintiff raised issues on requests Number 4l~020806 and 58~020906. No matter what date in 2006 started the running ofthe one year statute of limitations, filing in 2008 is clearly outside that time frame. Defendant's motion for summary judgment on these two requests is granted. Finally, the original complaint was filed on January 24, 2008. Therefore, a full one year of 2007 had passed between 2006 time frame and 2008 filings. - The Court further finds that the Defendant has complied with the requirements of the Public Records Act when records are sent, not that receipt must be accomplished or guaranteed. As to request 215-043007, the Court is satisfied that the Department of Corrections complied with the Public Disclosure Request and made the requested records available. The record is clear that Plaintiff never tendered the required payment of $4.14. Said claim is dismissed. Next, as to request Number 256-060705, Defendant demonstrated they responded to the request, indicating there were no records that existed. As argued by Defendant, there is no duty to provide non-existent records. The same analysis applies to request 3 l6~070307. These claims are dismissed as well. Plaintiff seeks court assistance requiring response to request Number 166-041107. As pointed out by Defendant, Plaintiff did not plead request Number 166-041167. Therefore, that issue is not before the Court and will not be considered. Plaintiff has filed a Cross Motion for Summary Judgment and a Motion to Strike the Declaration of Aiyeku and for CRU sanctions. All of these motions are denied. There is no legal or factual basis to support them. Plaintiff filed numerous and multiple Public Disclosure Requests. The Court finds that the Department of Corrections has fully complied with and responded to all of the requests. Likewise, the Court finds that if there were likely delays in initial responses by Department of Corrections in acknowledging the requests or with time estimates, they were diminutive violations. Considering the ultimate and timely response and disclosure of all of Plaintiff" requests, imposing such a penalty herein would not be in the spirit of the Public Disclosure Request statute, nor would it appropriately punish a non-prejudicial and non-intentional delay, nor would it be SF-01317 PRR-2011-00450 Mr. Ray Frost - 3 - April l, 2009 l\/lr. Jason Howell likely to prevent future violations. Therefore, there will he no finding of a monetary penalty against the Department of Corrections. The Court finds there is no basis to allow Plaintiffs request for additional discovery, Plaintiff was given additional time to respond to the summary judgment argument and Plaintiff is entitled to no relief herein. The Court finds Defendant is entitled to its requested summary judgment relief in that there are no genuine issues of material fact and/or that the Defendant is entitled to - summary judgment dismissal as a matter of law. Likewise, the Defendant is entitled to summary judgment if there is no documentary evidence that would lead to but one conclusion as tothe facts and the law. That is the case here. The order granting Defendant's Motion for Summary Judgment has been signed and filed. A copy Will be provided to both parties. Very truly yours, Kina!! 5?m?5` DONALD W. SCI-IACHT DWS/tmd Enc. SF-01318 PRR-2011-00450 - Donald W. Schacht Friday, March l, 2009 Hearing Time: 1:00 p.m. Pfeaifilng/Location: Via Teleconference STATE OFWASHINGTON . WALLA WALLA COUNTY SUPERIOR-COURT RAY FROST, NO. 08-2-00066-5 Plaintiff, ORDER GRANTING MOTION SUMMARY JUDGMENT V. DEPARTMENT OF CORRECTIONS, Defendant. Defendant, having filed a Defendanfs Motion Summary Judgment And Memorandum In Support Thereof in this matter, and the Court being fully advised and having examined the records and files herein, does hereby find and ORDER: l. Defendant's Motioncfor Summary. Judgment is 2. Plaintiffs Complaint is dismissed with prejudice; and 3. The Clerk is directed to send uncertified copies of this Order to Plaintiff and to counsel for Defendants. DATED this ig; day of ,2o09. Hon. Donald W. Schacht Walla Walla County Superior Court Judge GRANTING i GENERAL QF WASHINGTON MOTION SUMMARY JUDGMENT 9 NO. 08-2-00066-5 PRR-2011-00450 Olympia, WA 98504-0116 (360) 5s6-1445 Submitted by: ROBERT M. MCKENNA Attorney General IAS M. HO LL, SBA #35527 ORDER GRANTING 2 AWOWEYCGENEMDQF WASHINGTON MOTION SUMMARY IUDGMENT - NO. 08-2~00066-5 PRR-2011-00450 Olympia, WA 98504-0116 (360) 586-1445 CERTIFICATE OF I certify that I served a copy of the foregoing document on all parties or their counsel of record as follows: - US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery And Hand delivered by DOC Personnel I TO: RAY E. FROST, DOC #254144 AIRWAY HEIGHTS CORRECTIONS CENTER P.O. BOX 2079 AIRWAY HEIGHTS, WA 99001-2079 I certify under penalty of perjury that the foregoing is true and correct. EXECUTED this of February, 0 9 at WA. Dr-twist WALKER A Legal Assistant ORDER GRANTIN 3 F-01321 po Bax 40116 PRR-201 Olympia, WA 98504-0`1l6 (360) 586-1445 EXPEDITE [Il Hearing 1S Set Date Time RICHARD D. HICKS El No Hearing Set IN THE SUPEMOR COURT OF THE STATE OE WASHINGTON IN AND FOR THE COUNTY OF THURSTON JACK WILDER, NO. 08-2-00723-2 Plaintiff, RELEASE AND V. SETTLEMENT AGREEMENT DEPARTMENT OP CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Plaintift; JACK WILDER, by and through his attorney, MICHAEL KAHRS, and the Defendant, DEPARTMENT OF CORRECTION S, by and through their attorneys, ROB MCKENNA, Attorney General, and PETER BERNEY, Assistant Attorney General, agree to the following: l. In consideration of the following provisions of the Release and Settlement Agreement, JACK WILDER, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages and causes of action of any nature arising out of public disclosure requests as RELEASE AND SETTLEMENT 1 Kam., Law Firm, AGREEMENT (08'2'00723'2) 5215 Ballard Ave. NW, s66a16, WA 93107 sr-01322 Ph: (206) 264-0643 Fax: (206) 237-8555 1-00450 mkahrs@kahrslaWfirm.com described in Plaintiffs Amended Complaint in this action, made pursuant to RCW 42.65 et seq., and which are the source of his claims against the Defendant. 2. This Agreement is the final, conclusive and complete release of all known, as well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiff' Amended Complaint in this action. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to MICHAEL KAHRS, as the designated payee of Plaintiff JACK WILDER, the sum of Seventy-Five Thousand Dollars and zero cents as full and complete settlement of this matter. This settlement sum includes costs, penalties and attorney fees, if any. The settlement amount of Seventy- Five Thousand Dollars and zero cents will be payable by check or warrant to MICHAEL KAHRS, as the designated payee for Plaintiff JACK WILDER. Plaintiff represents to Defendant that MICHAEL KAHRS has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. 5. The Department of Corrections agrees not to initiate any garnishment action against Mr. Wilder in any court of the State of Washington against any of the monies paid to Michael Kahrs in this Settlement Agreement. However, Plaintiff agrees that any proceeds of this settlement deposited into his inmate trust account are subject to the full deductions by the Department of Corrections as outlined in RCW 72.09.470 and RCW A 6. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. AGREEMENT 5215 Ballard Ave. NW, Seattle, WA 98107 SF-01323 Ph: (206) 264-0643 Fax: (206) 237-8555 PRR-201 1-004 50 mkahrs@kahrslaWfirm.com 7. This Agreement constitutes the final written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 8. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, the awarding of attorney fees. 9. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Seventy~F ive Thousand Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. 10. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the claims concluded by this settlement agreement. ll. The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, Wholly understood and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendant. fwfrDATE Petitioner i?u In ?0 i AEL KAHRS, 27085 DATE Attorney for Plaintiff RELEASE AND SETTLEMENT 3 Kahrg Law Firm, p_S, AGREEMENT 5215 Ballard Ave. NW, Seattle, WA 98107 sF-01824 Ph: (206) 264-0648 Fax: (206) 237-8555 RR-201 1 -004 50 mkahrs@kahrslaWfirm. com 1 DATE RISK anager Department of Corrections 7 A aa 3 SO PETE 15719 DA Assistant Attorney Genera Attorney for Defendant AND SETTLEMENT 4 Kahrs Law Firm, p_S_ AGREEMENT (08'2'00723'2) 5215 Ballard Ave. NW, seam, WA 98107 SF-01325 Ph: (206) 2640643 Fax; (206)237-8555 1-00450 mkahrs@kahrslaWtirm.com EXPEDITE ?51 `1'1 El Hearing is Set' 1'1 Date: gm Tlme: D. HICKS snassinri neun 5 asrrv l. noni, Ii |ZlNo Hearing Set ii ii waii IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON JACK WILDER, NO. 08-2-00723-2 Plaintiff, STIPULATED ORDER OF v. DISMISSAL DEPARTMENT OF CORRECTIONS, . Defendant. THIS MATTER, having come before this Court on the stipulated motion of the parties, and both parties herein advising the Court that all matters in controversy between the Plaintiff, Jack Wilder, and the Defendant, Department of Corrections, have been fully settled and compromised, and the court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff Jack Wilder's claims against the Defendant Department of Corrections, in the above~referenced cause of action, are hereby dismissed with prejudice and Without costs or attorney fees to either party. (08'2'00723'2) 5215 Ballard Ave. NW, Seattle, WA 98107 Ph: (206) 264-0643 Fax: (206) 237-8555 rc] lrm.com .saw The clerk is directed to send copies of this order to counsel for Plaintiff and counsel for Defendant. 0 if ji? DATED this day of er, ,2oo9, I Presented by: REQHARD PlE?l>06 10 20 1 OF 1 04-2-08876~1 TITLE: THOMPSON VS NCKENZTE A O4 O8 2004 CAUSE: WRM WRIT OF MANDAMUS Dv; 1 DSCK DATE: 12 27 2005 DISMISSAL BY CLERK CDCM 12 27 2005 CASE DISMISSED ON MOTION OF CLERK STATUS CNPL DATE: 12 27 2005 A - NOTE1: I NOTE2: 2 DATE: RESTORE DATE5000000000 000 0 A 00000 0C 0 0 0C 000 PA1=caf1c@1 SF-01334 PRR-2011-00450 3/22/2006 Washington State Courts: HSLir1l< Application Screen Page 1 of I tett A I I ICI i DISPLAY DOCKET SNOEOMISH SUPERIOR 03-22-06 10:19 4 OF 4 O4-2-08876-1 A A TITLE THOMPSON vs MCRENZIE 0 A NOTE2 CAUSE: WRM NRIT OF MANDAMUS 4 CMPL DATE: 12/27/2005 DATE CODE SECONDARY WITH ENCLOSURE 25 10 25 2004 DECLARATION OF MAILING 26 10 25 2004 NTC NOTE FOR CALENDAR 11-03-2004MA A ACTION MOTION FOR WRIT QF MANDAMUS 27 10 29 2004 DECLARATION OF MAILING - ll O3 2004 ERG NOT CONEIRMD NOT HRD 28 11 UQ 2004 LTR LETTER OF CONFIRMATION 29 11 23 2005 CLKS MOT FOR DISMISS FR WNT OF PROS 30 12 27 2005 CLOD ORDER OF DISMISSAL 2 3 _1 4 4 E7=P>wd E8=Ew>Link Application Screen gg JSM007 DISPLAY DOCKET SNOHOMISH SUPERIOR 03-22-06 10:19 3 OF TITLE THOMPSON vs MCRENEIE NOTE1 PNOTE2 CAUSE WRM WRIT OF MANDAMUS STATUS: CMPL DATE: 12/27/2005 7 DATE CODE SECONDARY 17 07 13 2004 DECLARATION OF MAILING 18 O7 13 2004 NTC NOTE POR CALENDAR 07-21-2004MA ACTION PETITION FOR MRIT OF MANDAMUS ACTION THOMPSON PRO SE 19 O7 21 2004 HSTRIC HEARING STRICREN: IN COURT OTHER JUDGE RICHARD J. THORPE 20 O7 22 2004 LTR LETTER TO PLTP FROM LAWCLERK SCOTT HALLORAN ADVISING 7~21~04 MOTION MAS STRICKEN 21 O8 20 2004 LTR LETTER TO MR THOMPSON PROM LAWCLERK BARRY RE MOTION 22 O9 29 2004 LTR LETTER TO LAWCLERK BRIDGES RE MOTION 23 O9 29 2004 DECLARATION OF MAILING 24 O9 29 2004 LTR LETTER TO LAWCLERK BARRY FROM PLTP A Mp __SWp_%q Enter=Pr0CeSS F7=Bwd F8=Fwd PAl=Cancel SF-01336 PRR-2011-00450 3/22/2006 Washington State Courts: Application Screen Page 1 of 1 ti` Screen 5a JSM007 DISPLAY DOCKET SNOHOMISH SUPERIOR 10:19 2 OF 4 O4-2-08876-1 TITLE: THOMPSON VS MCKENZIE A NOTE1: - A NOTE2: A CAUSE: WRM WRIT OF MANDAMUS STATUS: CMPL DATE: 12/27/2005 DATE CODE SECONDARY 3 05 I0 2004 DECLARATION OF MAILING 9 05 10 2004 NTC NOTE FOR CALENDAR ACTION PETITION FOR WRIT OF MANDAMUS ACTION WITHOUT ORAL ARGUMENT 10 05 13 2004 AFML AFFIDAVIT OF MAILING ll 05 20 2004 LTR LETTER TO CLERK FROM PTNR CONFIRMING HEARING SET FOR I 05 2I 2004 HRG STRICKN: NOT CONFIRMD NOT HRD 12 05 20 2004 DECLARATION OF MAILING 13 05 26 2004 PT PETITION FOR WRIT OF MANDAMUS 14 06 O9 2004 DECLARATION OF MAILING _l5 O6 14 2004 LTR LETTER TO COURT ADMINISTRATOR FROM PTNR RE CASE STATUS A 16 O6 14 2004 LTR LETTER FROM LAWCLERK BARRY IN RESPONSE F1=Help Enter=Proc@ss F7=Bwd F8=Fwd PA1=Cancel SF-01337 is1ink.oou1'ts.Wa. PRRQ01 1430450 3/22/2006 Washington State Coufts: Application Screen PM 'tni Application Screen Page 1 of 1 - "El 1115355259 Waiqii 1 - 'fif . JSM007 DISPLAY DOCKET SNOHOMISR SUPERIOR 03-22-06 10:19 1 OF 4 04-2-03375-1 TITLE: THOMPSON VS MCKENZIE NOTE2: CAUSE: WRM WRIT OF MANDAMUS CMPL DATE: 12/27/2005 DATE CODE SECONDARY 1 O4 O8 2004 PETITION FOR WRIT OF MANDAMUS O4 O8 2004 APPS APPEARANCE PRO SE I PSP01 THOMPSON, TIMOTHY A - 2 O4 O8 2004 NTC NOTE FOR CALENDAR 04-09-2004 (TOO LATE TO CALENDAR) 3 04 O8 2004 AFML AFFIDAVIT OF MAILING 4 O4 O8 2004 ORDER TO PROCEED IN FORMA PAUPERIS JDGO6 JUDGE LARRY MCKEEMAN - O4 08 2004 EXWACT EX-PARTE ACTION ORDER 5 05 O7 2004 NTAPR NOTICE OF APPEARANCE RSP01 MCKENZIE, JANE ATRO1 COOK, ANNETTE ELENA 6 05 07 2004 RSP RESPONSE TO PETITION 7 05 10 2004 LTR LETTER TO CLERK FROM PTNR WITH ENCLOSURE uM 1: 1 Fl=Help Enter=Process F7=Bwd F8=Fwd PA1=Cancel A I A SF-01338 PRR-2011-00450 3/22/2006 The Honorable: Robert D. Austin Hearing Date: December 19, 2003 Hearing Time: 9:15 a.m. Hearing Location: Telephonic .THE SUPERIOR COURT OF THE STATE OF IN AND FOR THE COUNTY OF SPOKANE BRANDT SAPPENFIELD, NO. 03-2~03381-7 Plaintiff, ORDER OP DISMISSAL V. THE DEPARTMENT OF CORRECTIONS, Defendants. THIS MATTER having come before the undersigned judge of the above-entitled Court upon motion to show cause by Plaintiff, and the Court having heard telephonic argument on December 19, 2003, and reviewed the records and files herein, including: 1. Plaintiffs Complaint for Order to Show Cause and Compel Public Disclosure; 2. Defendants' Response to Complaint for Order to Show Case and Compel Public Disclosure. A 3. Plaintiffs Motion for Order to Show Cause. 4. Plaintiffs Memorandum of Authority in Support of Motion for Order to Show Cause. 5. Defendants' Response to Motion for Order to Show Cause. 6. Plaintiffs Reply to Defendants' Response to Motion for Order to Show Cause. ORDER OF DISMISSAL 1 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division . PO BOX 40116 Olympia, WA 98504-01 16 SF-01339 (seo) 586-1445 PRR-2011-00450 IT IS HEREBY ORDERED as follows: The timeframe for the responses to Mr. Sappenrield's October 9, 2002, February 5, 2003, and February 9, 2003 public disclosure requests were reasonable. The Department of Corrections is in compliance with RCW 42.17 when they treat inmates different than the public with regard to Public Disclosure requests. The Department of Corrections complies with the Public Disclosure Act when they assemble the documents requested by inmates, other than their central and medical tiles, and charge a reasonable fee for copy and postage costs. Department of Corrections Policy 280.510 does not violate the Public Disclosure Act. IT IS FURTHER ORDERED that this C5156 is DISMIS SED. DATED this ,ig day of . 2004. ii. ROBERT D. AUSTIN Spokane Superior Court Judge Presented by: CHRISTINE O. GREGOIRE Attorney General I 7 ANNETTE COOK, WSBA #31450 Assistant Attorney General Attorneys for Defendants ORDER OF DISMISSAL 2 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division PO Box 40116 olympia, WA 98504-0116 SF-01340 (360) 586-1445 PRR-2011-00450 110 P-3d sos 127 waS1i-App_ ss, 110 P-3d sos (cite as: 127 Wasnapp- ss, 110 Psa sos) Court of Appeals of Washington, Division 3, Panel Eight. Brandt SAPPENFIELI), Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent. No- April 19, 2005- Reconsideration Denied May 26, 2.005- Background: Prison inmate filed motion for order to show cause why Department of Corrections (DOC) allegedly refused his request for inspection of records under public disclosure act (PDA) by applying policy providing inmates access' without charge to their personal records, but requiring payment of fee to mail copies of additional public records, and sought declaratory and injunctive relief reflecting invalidity of such policy under PDA. The Superior Court, Spokane County, Robert D- Austin, J., entered judgment of dismissal. Inmate appealed. Holding: The Court of Appeals, Sweeney, held that DOC policy was reasonable and satisfied its disclosure obligation under PDA. Affirmed- West I-leadnotes Records 326kl5 Records %62 326k62 . Department of Corrections policy providing prison inmates access without charge to their personal records, but requiring payment of fee to mail copies of additional public records, was reasonable and satisfied its disclosure obligation under public disclosure act (PDA). West's RCWA 42.l7_270, 42.l7.280, 42.17.290 *84 Stephen K, Eugster, Eugster Law Office PSC, Spokane, WA, for Appellant. Annette E. Cook, Law Office of Annette Cook, Federal Way, WA, for Respondent. SWEENEY, ll 1 The Department of Corrections (Corrections) Page 1 reserves the right to withhold agency records from inmates, except for the inmate's own file and health records. Corrections has a published procedure for 'providing additional records to inmates- Records requested by inmates are copied and mailed to the inmate, subject to a copying charge of 20 cents per page plus postage, payable in advance. Brandt Sappenfield challenges this procedure- And he sued when Corrections offered to mail the records he asked for but refused to arrange for him to inspect them in person at no charge. The court dismissed Mr- Sappentield's motion to compel disclosure on his terms- We conclude that Corrections's procedures appropriately balance public disclosure act mandates with its duty to manage prison inmates. And we affirm the trial court's ruling. FACTS 1] 2 Brandt Sappenlield moved in the superior court to order Corrections to show cause why it refused his request for an in-person inspection of some Corrections records, pursuant to the public disclosure act (PDA) (chapter 42-17 Mr. Sappenfield was an inmate at the Airway Heights Correctional Center- He made several written requests to inspect certain Corrections records (not his own tile). He first asked to inspect the "Supply lnventory Tracking Request (SITR) forms for Unit Clerl<'s Papers at 4. Building Unit C-4 housed Mr- Sappenfield- And, according to him, the documents were also located there- ll 3 The public disclosure coordinator at Airway Heights compiled the requested documents and informed Mr. Sappenfield of Corrections Policy No- 280510. Policy No. 280.510 gives inmates a right of access on demand only to documents in their own file. And it establishes a procedure for other documents. Documents approved for disclosure are copied and mailed to the inmate subject to a 20 cents per page copying charge. The documents are mailed when payment is received. 1| 4 The public disclosure coordinator compiled l87 pages of documents requested by Mr. Sappenfield and told him that these would be mailed upon receipt of $46-62- 1] 5 Mr- Sappenfield treated this response as a denial of his PDA request. And he tiled an administrative appeal challenging the validity of the Corrections policy. He alleged the policy was contrary to RCW (C) 2005 ThomsonfWest. No Claim to Orig- Govt. Works. SF-01341 PRR-2011-00450 110 P.3d 808 (Cite as: 127 Wash.App. 83, *85, 110 P.3d 808, **809) 42.17-270 through .290 and was invalid on its face and **810 as applied to his request- He asserted that the policy exceeded Corrections's statutory authority to adopt reasonable PDA compliance procedures- He argued that it was not reasonable either to deny an inmate's request to inspect records in person or to demand payment for copies to be mailed. Especially where, as he contended was the case here, the records were located in the same building or complex where the inmate was housed. FNI. "Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make them available to any person-" RCW 42.17-270 Agency records "shall be available for inspection and copying during the customary office hours." RCW 42.17-280 If the agency does not have customary office hours, then the statute imposes hours of availability. RCW 42-17.280 Agencies may adopt reasonable rules and regulations consonant with the hill disclosure purpose of the PDA. "Such rules and regulations shall provide for the fullest assistance to inquirers and the most timely possible action on requests information-" RCW 42.17.290 1] 6 Corrections`s central PDA administrator denied the appeal because the requested records were not part of Mr- Sappentield's tile and were therefore subject to its policy. She noted that RCW 42.17.290 requires that agencies adopt disclosure practices that protect public records from disorganization and damage and prevent excessive interference with agency functions- 1] 7 Later Mr. Sappentield asked to inspect two additional sets of records. Corrections again responded that there *86 would be a 20 cents per page charge plus postage. The charges would total $208.48 and $16-93 respectively- Mr. Sappenfield again replied that he wished only to inspect the documents, not to receive copies, and that he was unwilling to pay any fees- He asked to inspect the records himself. He did not suggest that a non- inmate representative be allowed to inspect them for him. 'll 8 Mr. Sappenfield also wrote to the state attorney general and asked for a review of Corrections's denial of his request for personal inspection of the records- He again did not mention the idea of a Page 2 explained that Corrections's response was not a refusal to disclose the records- 1] 9 Mr. Sappenfield then sued for an order for Corrections to show cause why the records should not be made available for personal inspection. He asserted that Corrections violated the PDA when it failed to permit his inspection of the records and failed to state a proper statutory exception. He argued that Corrections's PDA procedures unlawfully distinguished among persons- He asked the court to compel Corrections to arrange for in- person inspection, to issue a declaratory judgment that Policy No. 280.510 was invalid on its face, and to permanently enjoin Corrections from enforcing that policy. He asked for the PDA penalty plus costs and attorney fees, or for the statutory $125 attorney fee. 'll 10 Mr. Sappenfield testified by affidavit that the records he requested were stored in the same unit in which he was housed and, therefore, would not need to be transported. Mr. Sappenfield's affidavit also asserts that the records would not be at risk of damage or disorganization and that Corrections would not be burdened by acceding to his request. Corrections showed that the documents were stored elsewhere. 1] 11 The court held a hearing by phone. The court found that Corrections complied with the PDA by making copies available by mail at a reasonable charge. *87 DISCUSSION 1l 12 Mr- Sappentield urges that sound governance of a free society demands full access by the sovereign people to information about the workings of government agencies that serve them. And while that is certainly true, his requests here also implicate appropriate concerns for the sound governance of a state prison system. 11 13 Central to Mr. Sappenfield's argument is the notion that "disclosure" in the PDA means only in- person inspection of original documents- He regards anything other than strict compliance with the precise terms of a request, even an offer to copy and mail, as a denial. This comes from language in the PDA requiring agencies to make public records available for inspection, to provide "the fullest assistance" to inquirers, and not to distinguish representative. An assistant attorney general between them- RCW .-290- He argues (C) 2005 Thomson/West. No Claim to Orig- U.S. Govt. Works. SF-01342 PRR-2011-00450 110 P.3d 808 - (cite as; 127 Wash.App. ss, 110 P.3d sos, that an agency **811 may respond to a request for ineperson inspection by copying and mailing the records only if a specific disclosure exemption applies. Corrections procedures distinguish between PDA requests by inmates and requests by the public at large. Mr. Sappenfield also challenges that distinction. fl 14 Corrections responds that the PDA requirement that public records be available for one site inspection by members of the public presumes that the members of the public are able to present themselves at the site of the records. And nothing in the statute requires the agency to bring the records to any requester. Offering to copy and mail the records at a reasonable charge is, then, a statutorily adequate response. RCW 42.l7.270, .300. 1] 15 Corrections argues that the PDA requires procedures for the dissemination of public records to be such as not to compromise essential agency functions- And Corrections records are stored all over the state. Even if requested records are on- site, inmates would have to be transported out of secure areas or records would have to be transported to them- Individual supervision would have to be provided *88 during personal inspection to fulfill Corrections`s statutory obligation to protect its records. 11 16 The question here is whether the PDA requires personal inspection by inmates of original Department of Correctionsfs documents. We review a challenge to an agency action under the PDA de novo- RCW Hangartner v- City of Seattle, 151 Wash_2d 439, 447, 90 P_3d 26 (2004)- 'Il 17 Denial of a PDA request must be accompanied by a written statement of the specific reason disclosure is denied. RCW 42.17.320 And the general rule is that agencies may not "distinguish . among persons" who request records. RCW 42.17-270. An agency may not ordinarily deny direct inspection and insist on mailing copies--public records must be available for "inspection" during customary hours of operation or statutorily imposed hours. RCW 42-l7.290- Mr- Sappenlield is correct that the choice whether to copy or inspect on site is usually up to the requester, not the agency. ln Spokane Research Defense Fund v- City of Spokane, for example, the trial court compensated a requesting party who was permitted to inspect but not to copy- Spokane Research Defense Fund v. Page 3 City of Spokane, 121 Wash.App. 584, 592, 89 P.3d 319 (2004), review granted, 153 Wash-2d 1002, 103 P-3d 1248 (2005). 18 The circumstances here, however, are not the usual case. Matters affecting a prison's internal security are generally the province of prison administrators, not the courts. Turner v. Safley, 482 U-S. 78, 84-85. 107 2254, 96 L.Ed.2d 64 (1987). Prison inmates do not enjoy all the privileges of the public community--they are imprisoned. Mit/trandir v. Dep'r of Corr., 164 Mich-App. 143, l47~48, 416 352 (1987). ln Mithrandir, the corrections department denied a request by prison inmates to inspect certain records in person but gave the inmates the option either to appoint a representative to inspect the files or to receive copies upon payment of the appropriate fee. Id- at 145, 416 352- This was reasonable. Id. at 149, 416 352. Mr. Sappenlield cites Mithrandir for his position that Corrections improperly *89 denied his request to send an agent to inspect the records. The record does not support his claim, however- Mr. Sappenfield never asked permission for a representative to inspect the records. He now contends for the first time that Corrections should have offered, sua sponte, personal access to a non~inrnate representative. But no rule, statute, or case requires such an offer- The PDA does, however, command that each agency set its own disclosure rules. RCW 42.l7.290- And disclosure by mailing copies at a reasonable charge satisfies this statutory obligation. 19 The PDA commands agencies to adopt and enforce reasonable rules and regulations not only to maximize public access but also to protect the records in their care from potential damage or disorganization, as well as to prevent excessive interference with essential functions of the agency. RCW 42.l7.290- Corrections is, then, statutorily required to adopt procedures that protect the integrity of its records and also avoid interference with Corrections's essential function to securely restrain criminal offenders. 'll 20 The PDA provides: "Nothing in this section shall relieve agencies from honoring requests received by mail for 'copies of identifiable public records. RCW 42-17.290 (emphasis added)- It does not categorically preclude denying requests for direct inspection when necessary to preserve the records and its own essential functions. (C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works- SF-01343 PRR-2011-00450 110 P.3d 808 (cite as: 127 Wash.App. ss, *89, 110 P.3d sos, 1] 21 Decisions from other jurisdictions are generally not helpful because they interpret different statutes. The case of Owens v. Horn, for example, cited by Corrections, is distinguishable- Owens v. Horn, 684 A.2d 208 (Pa.l996). Unlike Washington's PDA, the public disclosure statute does not require agencies to mail copies to any member of the public who cannot travel to the location of the records. Id. at 210. 22 The trial court here correctly concluded that Corrections's policy is reasonable. Prison inmates Page 4 have access without charge to their own personal records- Access to *90 additional public records can be obtained by means of copies mailed upon payment of a reasonable fee. 1l 23 We affirm the order of dismissal. WE CONCUR: KURTZ and BROWN, JJ 127 83, 110 P.3d 808 END OF DOCUMENT (C) 2005 Thomson/West. No Claim to Orig- U.S. Govt- Works. F-01344 PRR-2011-00450 i '1 ni ra.. 5? 'f COURT OF APPEALS, DIVISION STATE OF WASHINGTON BRANDT SAPPENFIELD, Appellant, MAN DATE NO. 22735-9-Ill DEPARTMENT OF CORRECTIONS, Respondent. v. Spokane County No. The State of Washington to: The Superior Court ofthe State of Washington, in and for Spokane County This is to certify that the opinion ofthe Court ofAppeais ofthe State of Washington, Division tiled on April 19, became the decision terminating review of this court in the above-entitled case on January 31, 2006. The cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy of the opinion. In testimony whereoti I have hereunto set my hand and affixed the seal of said at Spokane, this 7th ay of bruary, 2006. -Y Clerk ofthe Court of Appeals, State of Washington . Division IIE cc: Ste ren K. Eugster eter W. Berney Hon. Robert D. Austin i` Q. . I X, Uvoa . unugqbt jg", 0| i' I I I dvi' I 1 i" . at SF-01345 PRR-2011-00450 THE SUPREME COURT or WASHINGTON BRANDT SAPPENPIELD, Petitioner, V. DEPARTMENT OP CORRECTIONS, Respondent. No. 77285-l ORDER No. 2273 Al 53 gy rig, <@aa 5 fa~ fa. I Department II ofthe Court, composed of Chief Justice Alexander and Justices Madsen, Bridge, Owens and .M. Johnson, considered this matter at its January 31, 2006, Motion Calendar, and unanimously agreed that the following order be entered. IT IS ORDERED: That the Petition for Review is denied. _i DATED at Olympia, Washington this ji day of January, 2006. For the Court /3rataww" :Nfl a~ . I iw!-.1-if-r fgf. gf -- . rn.; Q, EF JUSTICE SF-01346 PRR-2011-00450 .. RECEIVED OFFICE MAR 2 ZUUE OF CORRECTIONS Qmw&T QF m@5w?m@?mm QF mm. FQQ MQNT UF HF Qm&m?QT1mm? . 1. mm QF n?QmmQ BEEN QM IM THE TMELVE TU EHLE TMIH EE m??mi?5?w w??MQm? FEEJUDZCE EY THE QQURT yma w@mT QF @HQ?Ecw?1mm WETHEM 3% Q@v? GF THE walking QF THX3 Q. GF HEQURDJ UH H. r"3'e |53 :f`f1CT ;?"Jl5fT"f $5 E2 =af#52 illEZQQT $ff? EEF @mF'3fUfSF-01347 PRR-2011-00450 Wa hmgton State Courts: Application Screen Page 1 of 1 I ta JSM007 DISPLAY DOCKET GRAYS HARBOR SUPERIOR4 05-ll-05 12:06 1 OF 2 04-2-00262-8 NO 4 TITLE: WILLIAM GOODLOE VS DEPARTMENT OF CORRECTIONS NOTE2: CAUSE: MSC MISCELLANEOUS STATUS: CMPL DATE: 04/28/2006 DATE CODE SECONDARY 02 25 2004 MTAF MOTION AND 2 O2 25 2004 ORDER TO PROCEED IN FORMA PAUPERIS JDG02 JUDGE DAVID FOSCUE 3 O2 25 2004 CMP COMPLAINT T4 02 25 2004 NTHG NOTICE OF HEARING 02-22-2004 ACTION SHOW CAUSE DATE HAS ALREADY PASSED 5 O2 25 2004 CRML CERTIFICATE OF MAILING I 5 05 O3 2004 MTAF MOTION AND 7 05 03 2004 NTHG NOTICE OF HEARING 05~l7-2004M ACTION MOTION SERVE BY MAIL 8 05 17 2004 HEARING COURT NONAPPEAR 9 03 23 2006 CLKS MOT FOR DISMISS FR WNT OF PROS 10 04 O3 2006 MAIL MAIL RETURN - UNCLAIMED 11 O4 28 2006 CLOD ORDER OF DISMISSAL i= l>>f A ML 1_1_ Enter=Process F7=Bwd F8=Fwd PAl=Cancel SF-01348 PRR-2011-00450 5/1 1/2006 W3j?hiHgt0H State Courts: Application Screen Page 1 of 1 a"aa JSM007 DISPLAY DOCKET GRAYS HARBOR SUPERIOR 05-11-06 12=07 2 OF 2 NO I TITLE: WILLIAM VS DEPARTMENT OF CORRECTIONS I NOTE1 5 NOTE2: CAUSE: MSC MISCELLANEOUS STATUS: CMPL DATE: 04/2a/2006 A DATE CODE SECONDARY JDGO2 JUDGE DAVID FOSCUE MEILM 062806 I 2 V4m,( xwwa Wi F1=Help Enter=PrOCeSS F7=Bwd PA1=Cance1 SF-01349 PRR-2011-00450 5/11/2006 Washington State Courts: Application Screen Page 1 of 1 UTII1 _'nt JSM003 DISPLAY BASIC GRAYS HARBOR SUPERIOR 05-11-TITLE: WILLIAM GOODLOE VS DEPARTMENT OF CORRECTIONS O2 25 2004 CAUSE: MSC MISCELLANEOUS Dv: I DSCR O4 28 2006 DISMISSAL BY CLERK JODF DATE: 04 28 2006 FILED STATUS CMPL DATE: O4 28 2006 I NOTEIL: - NOTE2: OEE-LINE DATE: RESTORE .UII t,n1I 0,00100t 00,,t0t 010n,n000n I I I 0101 SF-01360 PRR-2011-00450 5/11/2006 RECEIVE AW 1,2 2335 ara ra ir Swaama safer at may _t?aa1tn1111aa:1r1 tial STATE OF WASHINGTON MASON COUNTY SUPERIOR COURT CLARK STUHR, Petitioner, NO. v. D) 1 ORDER DENYING DEPARTMENT OF CORRECTIONS, MOTION FOR ORDER TO SHOW CAUSE 1 Res ondent. 1 THIS MATTER having come on for hearing on the motion of Petitioner, Clark Stuhr, appearing pro se, and Respondent, Department of Corrections (DOC), appearing by and through its attorneys, ROB MCKENNA, Attorney General, and PETER W. BERNEY, Assistant Attorney General, and the Court having considered and heard oral argument, considered the memoranda of the parties and the Declarations of Rita Thomas, Kay Wilson- Kirby and Don Wilbrecht, and _considered the records and tiles herein, and being fully advised; now therefore, IT IS HEREBY ORDERED that Petitioner's motion for order to show cause is denied. The documents requested by Petitioner are exempt from disclosure pursuant to 1 ATTORN EY GENERAL OF WASHINGTON MOTION FOR ORDER To SHOW Criminal Justice Division PO 40116 CAUSE (NO. 05-2-00207-1) Olympia, SF-01351 (360) 536-1445 PRR-2011-00450 RCW The court finds that the Respondent has not violated the Public Disclosure Act. IT IS FURTHER ORDERED that this case is dismissed. A DATED this ffl* day 0fAp1~11, 2006. COMMISSIONER RICHARD ADAMSON Court Commissioner Presented by: ROB MCKENNA Attomey General I 3 6 PETER W. BERNEY, SBA #15719 DA Assistant Attorney Gene QRDER DENYING 2 ATTORNEY GENERAL OF WASHINGTON MGTION FOR ORDER TO SHOW Criminal Justice Division PO 40ll6 CAUSE (NO. ofympia, 16 5501352 (360) 586-1445 PRR-2011-00450 QEEV A SEP 2 6 2065 Ai Urtitik 5Rlt\ftlNAt Hearing as set Date November17 2006 Time. 0.00 a.m. Judge/Calendar; THOMAS El EXPEDITE (if filing within 5 court days of hearing) 2 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY BUZZARD JR NO. 04-2-01295-1 Plaintiff/Petitioner, VS. NOTICE FOR DISMISSAL A FOR WANT OF PROSECUTION KAY . (QM DWP) A 1 Defendant/Respondent. 1. There has been no action of record on this case for the past twelve (12) months. 2. Pursuant to Civil Rule this case will be dismissed without prejudice by the Court for vvant ot prosecution unless within thirty (30) days ofthe mailing of this Notice an application is made to the Court in writing or by appearing in person, and good cause is shown vvhy it should be continued as a pending case. 3. The court hearing on this matter will be held beiore the Judge Vt/l\/l. THOMAS on Friday, November 17, 2006, at 9:00 a.m. at Thurston County Superior Court, Building 2, 2000 Lakeridge Drive SVV, Olympia, Washington. -4. This Notice was mailed or delivered through a messenger service to the attorneys and/or parties listed below on September 25, 2006. DATED: September 25, 2006 BETTY J. COULD, COUNTY CLERK - Denise Deputy Clerk Attorneys oi Record: .- if r" by Ronald Buzzard Jr. Attorney at Law 6564 State Hwy 96 PO Box 40116 Olney Springs, CO 81062-8700 Olympia, 9850-4-0116 I SF-01353 PRR-2011-00450 NOTICE FOR DISMISSAL - 1 McPhee Dismissal Notice and OYOIGT-UGC. 7/23/02 Egg I ticrtm' jg I CI EXPEDITE (itfiling within 5 court days of hearing) N0lr' 2 1 ZUQSQ rl ritil r' . I I-learing is set: AT Gary rr 5 20 - Date: December 22, 2006 CHIM NAL I QM 8* I2 Judge/Calendar: Wm. Thomas McPhee 0l?PtiTy SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY RONALD BUZZARD JR I NO. 04-2-01295-1 Plaintitt/Petitioner, vs. NOTICE FOR DISNIISSAL FOR WANT OF PROSECUTION KAY WILSON-KIRBY Defendant/Respondent. 1. There has been no action ot record on this case forthe past twelve (12) months. 2. Pursuant to Civil Rule 41 this case will be dismissed without prejudice by the Court tor want ot prosecution unless within thirty (30) days of the mailing oithis Notice an is made to the Court in vvrittng or by appearing in person, and good cause is shown vvhy it should be continued as a pending CEISS. 3. The court hearing on this matter will be held before the Judge Thomas ll/lcPhee on Friday, December 22, 2006, at 9:00 a.m. at Thurston County Superior Court, Building 2, 2000 Lakeridge Drive Olympia, VI/ashington. 4. This Notice was mailed or delivered through a messenger service to the attorneys and/or parties ltsted below on November 20, 2006. DATED: November 20, 2006 BETTY J. COULD, COUNTY CLERK By: Terry Donnelly, Deputy Clerk Attorneys of Record: Ronald Buzzard Jr Peter Berney 6564 State I-lvvy 96 Attorney at Law Olney Springs CO 61062-6700 PO Box 40116 Olympia 96504-0116 SF-01354 PRR-2011-00450 Washington State Courts: }ISLink Application Screen Page 1 of 1 DISPLAY DOCKET THURSTON SUPERIOR 07-20-09 15=24 4 04-2-01295-1 NO JUDGE TI TITLE: RONALD BUZZARD JR VS KAY AKA ET AL NOTE2: CAUSE: MSC MISCELLANEOUS STATUS: CMPL DATE: DATE CODE SECONDARY ACTION CLERKS DISMISSAL 35 I2 22 2006 MOTION HEARING JDG04 JUDGE WILLIAM THOMAS MCPHEE CC DONNELLY CR BEEHLER 36 12 22 2006 CLOD ORDER OE EI=Help E7=Bwd E8=Ewd f? nr.; -I iPEl3 P014 P515 PEI6 PE17 PEI8 19019 P920 It P321 PE22 P523 12924 SF-01355 PRR-2011-00450 7/20/2009 Washington State Courts: Application Screen Page 1 of 1 Jus-Link Application Screen JSM003 DISPLAY BASIC THURSTON SUEEATDE 07-20-09 15:25 1 04-2-01205-i NO JUDGE It RONALD BUZZARD JR vs EAT WILSON-KIRBY AKA ET AL 00 16 2004 CAUSE: Esc MISCELLANEOUS Dv; RESOLUTION: DSCK 12 22 2000 DISMISSAL BY CLERK JODF 12 22 2006 FILED STATUS 1 CMPL DATE: 12 22 2006 CCNSOLIDTI NOTE2: OFF-LINE DATE: RESTORE DATE: Fl=H@lp no EE03 EE04 EE05 EE00 EE07 DE00 PFO9 P011 HEET2 SF-01356 PRR-2011-00450 7/20/2009 arrogant aarvaatfs .7 - if wg 4 in EQREECTEOEE JAN it Ztltil I STATE OF SPOKANE COUNTY SUPERIOR COURT DAVID K. CHESTER, Il, NO. O8-2-01-443-l Plaintifi ORDER DENYING PLAINTIPFS v. MOTION TO SHOW CAUSE AND COMPEL DISCLOSURE AND DEPARTMENT OF CORRECTIONS, ORDER OF DISMISSAL an agency of the State of Washington, (PR D) Defendant. MATTER having come on for telephonic hearing on November 7, 2008, on the Motion to Show Cause and Compel Disclosure of Plaintifi DAVID K. CHESTER ll, appearing pro se, and Defendant Department of Corrections appearing by and through its attorney, PETER W. BERNEY, Assistant Attorney General, the Court, having considered Plaintiff' Motion and Defendantfs Response, the Declarations of Denise Vaughan and David Chester, and having heard oral argument and considered the record and tiles herein and being fully advised; now therefore, 7 IT IS HEREBY ORDERED that l. Defendant has complied with the state Public Records Act, RCW 42.56'er seq., therefore Plaintiff" Motion to Show Cause and Compel Disclosure is denied. 2. This case is hereby dismissed. oaoss DENYING i ATTURNEY GENERAL QF, WASHINGTON MOTION 'ro snow CAUSE AND CQMPEL DISCLOSURE Olympia, WA gamut 16 or DISMISSAL No. os-2-01443-1 SF-01357 can 586-1445 PRR-2011-00450 rt* DATED this of at yy te 2009 A A A Superlor Court Jucige Eresented by: ROBERT M. MCKENNA Attorney General . Qi PETER W. BERNEY, WSE #15719 DATE Assistant Attorney General Approved as to form and notice of presentation waived by: /Mogof) DAVID K. CHESTER, I DATE Plaintiff, Pro Se ORDER DENYING 2 ATTORNEY GENERAL QF WASHINGTON MOTION TO snow CAUSE AND COMPEL DISCLOSURE AND ORDER oiympia OF DISMISSAL No. os-2-01443-1 SF-01358 (360)536-1445 PRR-2011-00450 "Winn ,na ri ri rare mr' fy/ ,f :gf A ga fi* sglihif STATE OF WASHINGTON SPOKANE COUNTY SUPERIOR COURT DAVID K. CHESTER, li, NO. 08-2-01403-l Plaintiff, ORDER DENYING v. MOTION TO SHOW CAUSE AND COMPEL DISCLOSURE AND DEPARTMENT OF CORRECTIONS ORDER OF DISMISSAL OF THE STATE OF WASHINGTON, and TERRY PERNULA, in her official capacity as a Public Disclosure Specialist OR THE DEPARTMENT OF CORRECTIONS, -N- Defendant. A THIS MATTER having come on for telephonic hearing on November 7, 2003, on the Motion to Show Cause and Compel Disclosure of Plaintiff, DAVID K. CHESTER Il, appearing pro se, and Defendants, Department of Corrections (DOC), and TERRY PERNULA appearing by and through their attorney, PETER W. BERNEY, Assistant Attorney General, the Court, having considered Plaintiffs Motion and Defendants' Response, the Declarations of Terry Pernula and David Chester, and having heard oral argument and considered the record and tiles herein and being fully advised; now therefore, rr is HEREBY ORDERED that l- Defendants have cornplied the state Public Records Act, RCW 42.56 ei seq. therefore Plaintiffs Motion to Show Cause and Compel Disclosure is denied. fi' r%a 5%-1445 PRR-2011-00450 @llIr gipqpiralla 3 i A rf tilts Statr Mains DAVID K. CHESTER, II, No, consol'd with no. Appellants, STATE OF WASHINGTON, v. RULING DEPARTMENT OF CORRECTIONS, Respondent. Having considered the fact that Mr. Chester filed these consolidated appeals from adverse public records act decisions without paying the $250 filing fee, and the fact that the Supreme Court denied his motion for expenditure of public funds to maintain these appeals; having also considered the Court's letter of March 17, 2009 to Mr. Chester advising him of these facts and that it therefore had noted his appeals on the SF-01361 PRR-2011-00450 No. 27638-4-IH, eonsol'd with no. Comn1issioner's April 15, 2009 docket for dismissal as abandoned; and having determined that Mr. Chester did not respond to the Court's letter; now, therefore IT IS ORDERED, the above appeals are dismissed as abandoned. April 21 ,2oo9 Monica Wasson Commissioner 2 SF-01362 PRR-2011-00450 /iv ity ;-it it it th . rr ~riiL5f'27-5 ra ig ~ft't5?Ztiier *onli* if-'H A 'ififf Ir 'Iii' -i i 'wtf 'ity Lviffi. 1 it 1 Li. _.i-iris i COURT OF APPEALS, DIVISION STATE OF WASHINGTON DAVID K. CHESTER, II, IVIANDATE Appellant, v. 2 No. consolidated With No. STATE OF WASHINGTON, DEPARTMENT OF TRANSPORTATION, Spokane County Nos. O8-2-01403-1 Respondent. i and 08-2-01443-1 The State of Washington to: The Superior Court of the State of Washington, in and for Spokane County This is to certify that the Ruling ofthe Court of Appeals of the State of Washington, Division flied on Aprii 21, 2009 became the decision terminating review of this court in the above-entitled case on August 17, 2009. The cause is mandated to the Superior Court from which the appeal vvas taken for further proceedings in accordance with the attached true copy of the Ruling. In testimony whereof, I have hereunto set my hand and affixed the seal of said Court at Spokane, this 27th day of August, 2009. JG 0 Cler ofthe Court of Appeals, State ofWashington Division Ill cc; i? K. chester, ii gg eterW. Berney ,f Hon. Gregory D. Sypolt ,IDIQA, 'i VI I ?ff ahf. 'ggi "gi . ?5I71iT5'1rt`t+ u--}rtf1I??g if-fill tm' 5 . .t=IJt='i" ii ii ti ltlitgii 1- i A yu-t-, if' A .. 4; 1 -"flu-r -t-MtvIprigf irIit glis ff 09, "in I ivgimiiyi .l_,q - - -:mit i .f -tt tz.-ff ,mit 5' -lp" itliit-.Witt? .lf twill; gif! ry' Jr FUI- ii ,gf tiitlrh I ,ff <1 Ah? Iv" gy SF-01363 PRR-2011-00450 THE SUPREME COURT OF WASHINGTON DAVID K, CI-IESTER, II, NO. 82616-I A Petitioner, v. Nos. (consolidated) DEPARTMENT OF CORRECTIONS, A STATE OF WASHINGTON, et al. Spokane County Superior Court Nos. O8-2-01403-I and 08-2-01443-l Respondent. .ofthe Court, Of Alexander Chambers, Fairhurst and Stephens, considered this matter at its March 3, 2009, Motion Calendai and unanimously agreed that the following order be entered. IT IS ORDERED: The Petitioner's Motion for Expenditure of Public Funds is deniedDATED at Olympia, Washington this day of March, 2009. Porthe Court CHI I US SF-01364 PRR-2011-00450 3/ No Hearing Set 1| Ex EXPEDITE I Date; 9-l 1-09 Time: Without Oral Argument El Hearing is Set ii Hon. Anne Hirsch ll STATE Gi? VVASHENGTON A THURSTON COUNTY SUPERIOR COURT U. CARTER, 1 A NO. 09-2-01295-l Plaintiff, FINAL JUDGMENT FOR PLAINTIFF AGAINST ON OFFER V. AND ACCEPTANCE WASHINGTON DEPARTMENT OF CORRECTIONS, Defendant. I. SUMMARY OF JUDGMENT Pursuant to RCW 464.030, the following infomation should be entered in the Clerl<'s Execution Docket: 4 Judgment Creditor: Germaine D. Carter, DOC 776240 3. Judgment Debtor: Washington State Department of Corrections 2. Judgment Debtor's Attorney: Robert M. McKenna, Attorney General Jason M. Howell, Assistant Attorney General 4. Amount ofludgrnentz $500.00 5. Amount of Interest Owed to Date of Judgment: $0.00 6. Total amount of taxable Costs and attorney's fees: $0.00 7. Total Judgment Award: $500.00 8. Debtor shall pay award to the registry ofthe court. FTNAL JUDGMENT EOR ATTURNEYCGENERAL AGAINST DEFENDANT ON OFFER Olilic AND ACCEPTANCE - NG. 09-2-01295-1 5501355 Olympia, WA 98504-0116 . PRR-2011-00450 (350) 586_l445 II. JUDGMENT ON OFFER AND ACCEPTANCE This matter came before the Court for entry of judgment under CR 68 on Plaintiff" acceptance of the Defendanfs offer of judgment for True Copies ofthe offer, acceptance and proof of service ofthe same are attached hereto as Exhibit l. Based on the offer of judgment and acceptance, Judgment is entered as toliowsz Plaintiff, Gennaine Carter is awarded the sum of $500.00 payable by Defendant Department of Corrections to the registry of the court DATED this 3 dayor ,zoos ANNE Hisscia Hon. Anne Hirsch A Thurston County Superior Court Judge Presented y; ROBERT M. MCKENNA Attorney Crener .l JA ON M. WELL, WSBA #35527 Assistant Attorneys General twat .TUDGMENT ron PLAINTIFF 2 ATTORNEY GENERAL Aoamsr DEFENDANT ON orrsa AND ACCEPTANCE No. 09-2-01295-1 3901366 Olympia, WAQSSO4-0116 PRR-2011-00450 (360) 5864445 EXHIBIT 1 El EXPEDITE El No Hearing Set El Hearing is Set Datei Time: Hon. Anne Hirsch A STATE OF WASHINGTON HURSTON COUNTY SUPERIOR COURT GERMAINE D. CARTER, No. 09-2-01295-1 1 1 Plaintiff, OFFER OF JUDGMENT TO PLATNTIEE V. WASHINGTON DEPARTMENT OF CORRECTIONS, Defendant; TO: D. 1 Under Civil Rule 68, defendant hereby offers to allow yon, Plaintiff Germaine D. Carter, to take judginent against the Department of Corrections, which judgment shall be in the_ ainount of Five Hundred Dollars including attorneys fees and otherawardable costs aeciued in this case by plaintiff to the date of this Offer, in addition to any and all injunctive relief ordered by the Couit. This Offer is extended to settle and finally resolve all legal and equitable relief sought by you in this case. This Offer is made for the purposes of Civil Rule 68, and may not he construed as a Waiver of any defenses or objections, an adniission that defendant is liable to you, or that you have been injured or daniaged as a result of any action or inaction on the part of the defendant. This Offer is made in an OFFER oi-1 IUD GMENT TO 1 1 V, WASHINGTON No. 09-2-01295-i 1 SF-01368 - oiympia, WA 98504-0116 - PRR-2011-00450 (350)586-1445- attempt to allow the parties to Compromise their respective litigation positions, to eliminate the added costs of further trial preparation, and to avoid the risks and expenses of tnal. RESPECTFULLY SUBMITTED this day of August, 2009. ROBERT M. NNA Attorney Genera' I SON M. HOWELL, A Assistant Attorney General OFFER OF JUDGMENT TO PLAINTIFF i 2 SC 1VIS1OD NO. O9-2-01295-1 $901369 so BOX 40116 . - . Olympia, WA 9s5o4~o116 A (seo)-sae-1445. CERTIFICATE OF SERVICE I oeitify that I served a true and oorreot copy ofthe foregoing OPP ER OF JUDGMENT TO PLAINTIPP on all parties or their counsel ofreoord as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand delivered by TO: GERMAINE D. CARTER, DOC #776240 STAFFORD CREEK CORRECTIONS CENTER 191 CONSTANTINE WAY ABERDEEN, WA 98520 EXECUTED this day of Augos 009, at Olympia, 'Washington I DA R. WA Legal Assistant QFFER 01: IUDGMENT TO PLAINTIFF 3 ATTORNEY GENERAL OF WASHINGTON Corrections Division No. 0942-01295-l PO BOX40116 SF-01370 I oiympia, WA 98504-0116 PRR-2011-00450 (360) Sse-1445 I ix] NO HEARING IS SET Date? 'fiT@= Oaste "Hon; Anne Hirsch STATE OF WASHINGTON SUPERIOR COURT GERMQINE O. Plaintiff, v. ACCEPTANCE TO ACCEPT WASHINGTON DEPARTMENT OR OFFER OF A 'Defendant. - TOT OF Plaintiff hereby agrees to accept the offer of juagement in the amount of Five Hundred incluoing attorney'a fees ano other awardable cost accrue? in this Case by plaintiff tothe datetof this offer, . Plaintiff ?oee not agree that the Department of Corrections can pay auch money to plaintiffte account and take any i dednctione for themselves. This would violate the clean Mantle doctrine. eIf the defen?ante wish to proceed in thie matter, it should be noted that Five Hun?re? Dollars ($500.00) would actually be the equivalent_of plaintiff settling for an amount substantially lower than that numberi This notice of acceptance is maae in an attempt to allow parties to compromise their respective litigation poeitione and to eliminate the a?ded coat of further trial preparations. Reapectfully submittaa thie'2Gth of Ruguat, QOOR. g,?4 *maine D. Car ro ee Staffor' Creek Correctione Center lal Conatantine Way, Aber?een, WA 98520~9504 gp-. fa - "Mum time oi; PRR-2011-00450 - - 01372 PRR 2011 00450 . iz STATE GF WASHINGTON THURSTON COUNTY SUPERIOR COURT tl GERMAINE D. CARTER, No. 09~2-01295-1 Plaintiff SATISFACTION OF JUDGMENT V- WASHINGTON DEPARTMENT OF CORRECTIONS, Defendant. THIS IS TO That the judgment tiled herein on November 6, 2009, in favor of Plaintiff, Germaine D. Carter, and against Defendant, the Washington Department of Corrections, in the amount of $500.00 has been fully paid and discharged on November 19, 2009, by payment to him and is hereby Satisfied in full. Payment was hand delivered to Kristi A. Troudt vvho was authorized by Mr. Carter to receive the payment. Exhibit l, letter dated November 10, 2009; Exhibit 2, Acknowledgement of Receipt. RESPECTFULLY SUBMITTED this gay of November, 2009. ROBERT M. MCKENNA Attorney General PE ER .B NE Assistant Attorney Gen ral SATISFACTION OF IUDGMCENT 1 WASHINGTON CFITCC IOHS NU- 993-01295-1 SF-01373 PO Box 40116 PRR-2011-00450 oiympia, WA 98504-0116 (360) 566-1445 ss. OF THURSTON 4 I STATE OE On this day personally appeared before me PET ER W. BERNEY, Assistant Attorney General, representing the Defendant, the Washington Department of Corrections, and to me known to be individual described in and who executed the Within and foregoing instrument, 1 and aelcnowledged that he signed the same as his free and voiuntary act and deed tor the uses and I purposes therein mentioned. GIVEN under my hand and official seal on November J, 2009. "r "va M7 ff 1 wi' (PRINTED NAME) ?rfrf [Pug 0 60/ PUBUC gf Notary Public in and for the State of Washington. ei, 543-11 My Commission Expires: 2* ww Satisfact Judgment Summary (RCW 4.56.l00): Judgment Creditor: Germaine D. Carter, #776240 Judgment Creditors Attorney: Pro Se Judgment Debtor: Department of Corrections Judgment Debtor's Attorney: Robert M. McKenna, Attorney General Peter W. Berney, Assistant Attomey General Amount or Type of Satisfaction: $500.00 Satisfaction paid: November 19, 2009 Satisfaction is Full or Partial Cause No.: 09-2-0l295-l Date of Entry of Judgment: November 6, 2009 SATISFACTION 01: JUDGMENT A 2 ATTORNEY GENERAL OF WASHINGTON it NO- 09401295-1 SF-01374 PRR-2011-00450 oxympia, WA asset;-or 16 (360) 5864445 la ll-el CERTIFICATE OF SERVICE I certify that on the date below I served a tme and correct copy ofthe SATISFACTION OF JUDGMENT on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air ABC./Legal Messenger State Campus Delivery Hand delivered by TO: GERMAINE CARTER #776240 STAFFORD CREEK CORRECTIONS CENTER 191 CONSTANTINE I ABERDEEN WA 98520 EXECUTEI) this day of November, 2009, at Olympia, Washington. I fm KA RINA TOAL Legal Assistant 5 ATIS1: ACTIQN 01: JUDGMENT I 3 A"rroRNaY GENERAL or WASHINGTON i' NO- 09~2~01295-1 $01375 PRR-2011-00450 WA 93504-0116 I (360) 586-1445 SF-01376 PRR-2011-00450 EXEIBIT f"'A Germaine Carter, 776240 Stafford Creek Corrections Center 191 Constantine Way; mm I ll' WA 98520-9504 NQV A -3 "Fd November 10, EGO9 coaarcrxoasmana Peter W. Berney Assistant Attornet General P.O. Box 40116 Olympia, WA 95504-0116 RE: Carter V. DOC, No. O9~2~Gl295~l Dear Mr. Berney: I, Germaine D. Carter, ao hereby give Kristi A. Troudt auxi authority ix; receive retain settlement check, for from the Washington State Attorney General's Office and/or Thurston County Superior Court Clerk'e Office. Thie authorization. was eigneci by me, Germaine Carter, freely, voluntarily, and without coercion or duress. I, Germaine D. Carter, further authorize the Washington State Attorney General'e Office and the Thurston County Superior Court Clerkis Office to release the aforementione? settlement check to Krieti A. Troudt. rmaine Carter, . 6240 SF-01377 PRR-2011-00450 EXHIBIT 2 November 19, 2009 I, Klisti A. Troudt, on November 19, 2009, hereby acknowledge receipt of one check made out to Germaine D. Carter, No. 66170213 for $500.00 4/ A. TROUDT 1 SF-01379 PRR-2011-00450 STATE OF WASHINGTON PKERCE COUNTY SUPERIOR COURT EUGENE WGEISHOFSKI, NO. 07-2-05785-O Plaintiff, RELEASE AND SETTLEMENT AGREEMENT V. DEPARTMENT OF CORRECTIONS, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Plaintiff, EUGENE WGEISHOFSKI, by and through his attorney, MICHAEL KAHRS, and the Defendant, DEPARTMENT OF CORRECTIONS, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and PETER BERN EY, Assistant Attorney General, agree to the following: l. In consideration of the following provisions of the Release and Settlement Agreement, EUGENE WGEISHOFSKI, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages and causes of action of any nature arising out of public disclosure requests as described in Plaintiffs Complaint in this action, made pursuant to RCW 42.56 et seq., and which are the source of his claims against the Defendant. RELEASE AND SETTLEMENT 1 ATTORNEY GENERAL OF WASHINGTON C. t. D. AGREEMENT No. 07-2-05785--o SF-01380 olympia, WA 98504-0116 PRR-2011-00450 4360> 586-1445 2. This Agreement is the final, conclusive and complete release of all lmovvn, as Well as all unknown and unanticipated damages arising out of the incidents set forth in Plaintiff' Complaint for Damages. 3. This Agreement shall be effective when signed by all parties' and/or their legal representatives. 4. The State shall pay directly to MICHAEL KAHRS, as the designated payee of Plaintiff EUGENE WGEISHOFSKI, the sum of Nine Thousand Dollars and zero cents as full and complete settlement of this matter. This settlement sum includes costs,- penalties and attorney fees, if any. The settlement amount of Nine Thousand Dollars and zero cents will be payable by check or Warrant to MICHAEL KAHRS, as the designated payee for Plaintiff EUGENE WGEISHOFSKI. Plaintiff 'represents to Defendant that MICHAEL KAHRS has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. A 5. The employee of the Department of Corrections who sent the investigative records developed by the Department of Corrections following allegations of abuse by EUGENE WGEISHCF SKI, on or about August 18, 2007, shall provide a declaration, under oath, setting forth the facts of his providing the investigative records to the Department of Social and Health Services, including to whom the records were provided and when they were provided. 6. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. 7. This Agreement constitutes the final written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 8. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. RELEASE AND SETTLEMENT 2 ATTORNEY GENERAL or WASHINGTON AGREEMENT No_o7-2-05785-0 olympia, WA 98504-0116 PRR-2011-00450 (360) 5364445 i9. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Nine Thousand Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. l0. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the Public Record Act claims concluded by this Settlerneit Agreementi ll. The undersigned parties deelare that the terms of this Release and Settlement Agreement are completely read, wholly understood and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all. claims brought by Plaintiff in this action against DefendantDATE Plai tiff rr yy yyiir it wigmm yytr, (Q /grl if ga MICHAEL KAHRS, 27085 DATE Attomey for Plaintiff A 1 ..E. "gn KAT GAS i* DAT Risk anager 'n Department of Corrections PETER BERNEY WS A #15719 DATE Assistant Attorney Gen ral Attorney for Defendant fil RELEASE AND SETTLEMENT 3 ATTORNEYGENERAL AGREEMENT NO. 07-2-05785-0 SF-01382 Olympia, WA 98504-0116 PRR-2011-00450 (360) 536-1445 FILED I 0?Ep7` 1 Bylfi C9 "ty Clerk _o STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT EUGENE WGEISHOFSKI, NO. O7-2-05785-0 Plaintiff, ST IPULATED ORDER OF v. DISMISSAL DEPARTMENT OF CORRECTIONS, Defendant. THIS MATTER, having come before this Court on the stipulated motion of the 1 parties, and both parties herein advising the Court that all matters in controversy between the Plaintifi Eugene Wgeishofski, and the Defendant, Department of Corrections, have been fully settled and compromised, and the court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff Eugene Wgeishofski's claims against the Defendant Department of Corrections, in the above-referenced cause of action, are hereby dismissed with prejudice and Without costs or attorney fees to either party. STIPULATED ORDER QF DISMISSAL 1 ATTORNEY GENERAL OF WASHINGTON NO Criminal Justice Division PO Box 40116 SF-01383 Olympia, WA 98504-0116 PRR-2011-00450 (360) 586-1445 The clerk is directed to send copies of this order to counsel for plaintiff and counsel for defendant. A I A DATED this 255 day of THE HON LE LINDA LEE Judge of the Superior Court Presented by: ROB MCKENNA Attorney General 5* j, 7, f'T~ 'ap lf? PETER 3 EY, WS B9 #15719 DATE Assistant Attorney Gene al Attorney for Defendant KAHRS LAW FIRM, A CHAEL KAHRS, WSBA 27085 DATE Attorney for Plaintiff FILED 5 - DEPT 19 Nav 2 ZE37 i IN ?1 I p' Clerk Hiram DEPUW STIPULATED ORDER Op 2 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division NO. O7 2 05785 0 P0 BOX 40116 3501384 oxympia, WA 98504-0116 PRR-2011-00450 (360)586_1445 EXPEDITE [fl No Hearing Set IZI Hearing is Set Date: October 2, 2009 Time: 2:30 p.nT. (via telephonic appearance) Judge Anne Hirsch STATE OF WASHINGTON TEURSTON COUNTY SUPERIOR COURT KELLY EROWN, No. os-2-00632-5 Plaintifi ORDER OF (Clerl<'s Action Required) DEPARTMENT OF CORRECTIONS, Defendant. . This matter Caine on before the above-entitled court on fgf-1) Kelly Brown, Plaintiff Pro Se, and Jason M. Howell, Assistant Attorney General, attorney for Defendant. The Court having heard the arguments, and being familiar with the record and pleadings on tile herein, TT IS HEREBY ORDERED that this action be disniissed without prejudice for Want of prosecution. Dated this aayaf (4 bi ,2no9_ 'fi Honor ble Anne Hir ch Thurston County Superior Court Judge Presented by: IAS M. HO LL, 35527 #1 Assistant Attorney General 19 ,f 5 I QRDER GF DISMISSAIJ 1 ATTORNEY GENERAL OPT WASHINGTON No. 08-2-00632-5 SF-01385 Olympia, WA 98504-0116 PRR-2011-00450 (360) 536-1445 CERTIFICATE OF SERVICE I certify that I served a copy of ORDER OP DISMISSAL on all parties or their counsel of record as follows: US Mail Postage Prepaid United Parcel Service, Next Day Air AEC/Legal Messenger State Campus Delivery I-Iand delivered hy I TO: KELLY BROVVN, DOC #788039 WASHINGTON CORRECTIONS CENTER P.O. BOX 900 SHELTON, WA 98584-0900 A141 A1141 EXECUTED this iday of Sep her, 2009, at Olympia, WashingtonWAL ORDER OF 2 ATTORNEY GENERAL OF WASHINGTON Corrections Division No. as-2-00632-5 P0 Bm, 40,16 SP01386 Olympia, WA 98504-0116 PRR-2011-00450 2007 PAM L.. s\\1o\4o\v\\3H COUNTY QLERK OF oouil IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF SNOHOMISH MOYLAN VS NOTICE FOR DISMISSAL FOR WANT OF DEPARTMENT OF CORRECTIONS ET AL PROSECUTION AFFIDAVIT OF MAILING 1. NO ACTION OF RECORD HAS BEEN TAKEN ON THIS CASE IN THE PAST TWELVE (12) MONTHS. 2. PURSUANT TO CIVIL RULE 4l(B)(2) THIS CASE WILL BE DISMISSED WITHOUT PREJUDICE BY THE COURT FOR WANT OF PROSECUTION UNLESS WITHIN THIRTY (30) DAYS OF THE MAILING OF THIS NOTICE: A. ACTION OF RECORD IS MADE, OR B. APPLICATION IS MADE TO THE COURT AND GOOD CAUSE WHY IT SHOULD BE CONTINUED AS A PENDING CASE: (X) IN WRITING BY APPEARING IN PERSON 3 3. THIS NOTICE WAS MAILED ON PAM L. DANIELS, COUNTY CLERK BY SHARON HILL DEPUTY CLERK BERNEY, PETER WILLIAM PO BOX 40116 OLYMPIA WA 98504~Oll6 SF-01387 PRR-2011-00450 ATTORNEYS OF RECORD MOYLAN, CI-IAUNCEY BERNEY, PETER WILLIAM 1727 BELMONT AVE APT #309 PO BOX 40116 SEATTLE WA 98122 OLYMPIA WA 98504-0116 SF-01388 PRR-2011-00450 Washington State Courts: ]ISLinl< Application Screen Page 1 of 1 5 5 Application Screen JSM003 DISPLAY BASIC SNOHOMISH SUPERIOR 12-22-09 13:31 I OE I 05-2-09905-2 TITLE: MOYLAN VS DEPARTMENT OE CORRECTIONS ET AL FILED: 07 07 2005 CAUSE: MSC MISCELLANEOUS DV: RESOLUTION: DSCK DATE: 07 24 2007 DISMISSAL BY CLERK COMPLETION: CDCM DATE: 07 24 2007 CASE DISMISSED ON MOTION OF CLERK STATUS CMPL DATE: 07 24 2007 CONSOLIDT: NOTEI: NOTE2: OEF-LINE DATE: RESTORE DATE: ENTERZPIOCQSS Enter Clear li Refresh ]i Disconnect__} P1303 |[?t7io ti P1313 PF14 PEIS i PFI6 HIPEI7 PETS 9F19 PE20 P1321 PE22 PFZEJ PF24 SF-01389 PRRQO1 "00450 12/22/2009 Washington State Courts: Application Screen Page 1 of 1 Eto, ~t~tt@ Application Screen JSMOD7 DISPLAY DOCKET SNOHOMISH SUPERIOR 12-22-O9 4 OE 4 O5-2-OQQO5-2 MOYLAN VS DEPARTMENT OF CORRECTIONS ET AL NOTEIZ NOTE2Z MSC MISCELLANEOUS STATUS: CMPL DATE: DATE CODE SECONDARY ll 22 2005 HRG NOT CONFIRMD NOT HRD 24 O5 31 2006 NT NOTICE OF CHANGE OF ADDRESS OF CHAUNCEY MOYLAN 25 O6 18 2007 CLKS MOT EOR DISMISS FR WNT OF PROS (SENT TO NEW ADDRESS DO NOT DISMISS UNTIL 7/2&/07) 26 O6 29 2007 MAIL MAIL RETURN UNCLAIMED 27 O7 24 2007 CLOD ORDER OF DISMISSAL F1=Help Enter=Process F7:Bwd F8=Fwd PAl=Cancel Enter NPAIL I I PA2 Clear Refresh Disconnect PFO2 PPO3 ]f_P'Po4 PFORTI PPoe PPO7 PPoa !fPP1o]| I PP14 PFI5 PFI6 PFI7 PF19 PFZO PP21 FLPF22 PP23 SF-01390 PRR-2011-00450 12/22/2009 El EXPEDITE is Hearing is Set I Li; ii MM Date: Time: THE HONORABLE A. PO QQWY Wet STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT MICHAEL B. LIVINGSTON, NO. 03-2-01372-0 Plaintiff, ORDER DENYING MOTION V. FOR ORDER TO SHOW CAUSE RUBEN CEDENO, THOMAS D. MCINTYRE, ASSIGNED TO: JUDGE CHRISTINE A. POMEROY Defendants. THIS MATTER having come on for hearing on the motion of Petitioner, Michael Livingston, appearing pro se, and Respondent, Department of Corrections (DOC), appearing by and through its attorneys, CHRISTINE O. GREGOIRE, Attorney General, and PETER W. BERNEY, Assistant Attorney General, and the Court having considered and heard oral argument, considered the memoranda ofthe parties and the Declarations of Sue Gibbs, Ruben Cedeno and Michael Holmberg, and considered the records and tiles herein, and being fully advised; now therefore, 1 ATTORNEY GENERAL OF WASHINGTON MOTION FOR ORDER T0 SHOW Criminal Justice Division PO . 401 I6 CAUSE oiym,-ia, 98504-05 16 (360) 536-1445 PRR-2011 00450 IT IS HEREBY ORDERED that Petitioner's motion for order to show cause is denied. Respondent had complied with the requirements of the state Public Disclosure Act, RCW 42.l7.250, et seq., when it deposited Petitioner's requested public records in the United States mail on March 2l, 200. That Petitioner was not allowed to possess such records at the institution Where he was incarcerated at the time for safety and security reasons means his remedies lie elsewhere than the Public Disclosure Act. DATED this day of July, 2004. CHRISTINE A. POMEROY JUDGE CHRISTINE A. POMEROY Superior Court Judge Presented by: CHRISTINE O. GREGOIRE Attorney General DQ, aw( PET W. BE WSBA #15719 Assistant Attorney neral Approved as to form Notice of Presentment Waived a;2i% LI IN STON DAT Plaintiff Pro Se ORDER DENYING 2 ATTORNEY GENERAL OF WASHENGTON MOTION FOR ORDER TO SHOW Criminal Justice Division PO 40116 CAUSE (03-2-01372-0) oiympia, vii); 98504-01 is (360) 536-14435 PRR-2011 00450 :ef :JgenTHE CQURT OF APPEALS GF TI-IEST.-ATE OF WASHINGTON DIVISION II MICHAEL B. LIVINGSTON, NO. 32253-6~l| Appellant, v. RULING AFFIRMING JUDGMENT DEPARTMENT OF CORRECTIONS, Respondent. Michael Livingston appeals a Thurston County Superior Court order denying his show cause motion to compel the Department of Corrections (DOC) rs. Livingston to disclose the training records of one of its corrections office contends DOC violated the Public Disclosure Act (PDA) when the staff at Cedar nter intercepted mail containing the training records and Creek Corrections Ce refused to deliver them to him. This court reviewed the matter pursuant to its own motion on the merits. RAP 18.14. SF-01393 PRR-2011-00450 32253-6-Il While Livingston was an inmate at Olympic Corrections Center (OCC), he filed a public records request for the training records of OCC corrections officer Marlene Amundsen. He asserts that he made the request in connection with a complaint that he intended to file against Amundsen. Shortly after he made his request, Livingston was transferred out of OCC to the Cedar Creek Corrections Center Sue Gibbs, records coordinator for OCC, mailed the training records to Livingston at The mail room staff at determined that Livingston could not receive those records because of a DOC policy that prevented inmates from obtaining personal information regarding DOC staff. Livingston sought review of this decision by superintendent, Fiuben Cedeno, and by the regional director, both of whom upheld the mail room decision. Livingston appealed the regional director's decision to the superior court, which held that DOC complied with the requirements of the PDA when it mailed the training records to Livingston, and that, therefore, "his remedies [lay] elsewhere than the Public Disclosure Act."1 Livingston contends that the mailroorn staff were acting as agents of the DOC records custodian when they intercepted the requested records and then refused-to deliver them to him. Thus, those acts violated" the PDA. This argument is not persuasive. First, as the superior court determined, the superintendent of and his staff operate independently of the records coordinator. The records 1 C|erk's Papers at 105. 2 SF-01394 PRR-2011-00450 32253-6-Il coordinator evaluated Livingston's request pursuant to the guidelines provided in RCW 42.17.260 and .270, and granted it. The superintendent denied delivery of the records under his authority to make and enforce rules for the administration, supervision, discipline and security of Cedar Creek Corrections Center. See RCW 72.02.045(1) and (4). ln that capacity, -he could have refused to deliver documents sent to Livingston by any agency in the state. Challenges to mail restrictions must be directed to the rules and policies upon which they were based. Such decisions do not implicate the PDA. Second, even assuming that the superintendent and mail room staff were agents of the records coordinator, they did not violate the PDA. The Act requires every governmental agency to disclose any public record upon request unless the record falls within certain specific exemptions in the PDA, or is protected by some other statute. RCW 42.17.310; RCW Progressive Animal We/fare Socy v. University of Washington, 125 Wn.2d 243, 261-62 (1994). RCW 72.09.530, is such a statute; it authorizes the secretary of DOC to adopt a uniform policy that prohibits the receipt or possession by inmates of materials determined to be contraband. The policy is to provide maximum protection of legitimate penological interests, including prison security and order. It-is true, as Livingston argues, that statutes providing exremptigns must be consistent with the PDA. RCW 42.17.920. lt is also true that, generally, agencies may not distinguish among persons who request records. RCW 42.17.270 However, prison inmates do not enjoy all the privileges of the public community. Sappeniield v. Department of Corrections, 110 P.3d 808, 811 (2005) 3 SF-01395 PRR-2011-00450 32253~6-ll (citing ll/lithrandir v. Department of Corr., 164 l\/lich. App. 143, 147-48, 416 352 (1987)). Fiestrictions upon prisoners' rights are permissible, as long as those restrictions are "reasonably related to legitimate penological interests." Turner V. Saf/ey, 482 U.8. 78, 89, (1987); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). This reflects the idea that matters affecting a prison's internal security are generally the province of prison administrators, not the courts. Turnen 482 U.8. 78, 84-85. RCW 72.09.530 is not inconsistent with the aims of the PDA, and it operates to exempt from disclosure records that would endanger prison security or order. Neither is there any evidence to support Livingston's contention that the superintendent or his staff acted in bad faith in denying delivery of the training records. To prove bad faith, one must show actual or constructive fraud or a neglect or refusal to fulfill some duty not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Fiip/ey v. Grays Harbor County, 107 App. 575, 584 (2001) (citing Bentzen v. Demmons, 68 Wn. App. 339, 349 n.8 (1993)). There are legitimate reasons to deny inmates access to staff training records. Such records could provide information on individual skill levels and vulnerabilities and could compromise individual safety and prison security, as well as providing a means of harassmentn The fact that one inmate obtained training records for other staff members is not dispositive in the absence of any evidence about the circumstances of either case. 4 SF-01396 PRR-2011-00450 32253-6-Il Livingston having demonstrated no violation ofthe Public Disclosure Act, it is hereby ORDERED that the judgment is affirmed. DATED this 9/2 day of ,2005. Ernetta G. Skerlec Court Commissioner cc: Michael Livingston, Pro se Peter W. Berney Hon. Christine A. Pomeroy Thurston County Superior Court County Cause Number: 5 SF-01397 PRR-2011-00450 ;SI'/fmTHE COURT OF APPEALS OF THE STATE OF WASHINGTO DIVISION II MICHAEL B. LIVINGSTON, No. 32253-6-II A Appellant, RUBEN CEDENO and THOMAS D. PUBLISHED OPINION Defendants, DEPARTMENT OP CORRECTIONS, Respondent. PENOYAR, J. - Michael B. Livingston, a former inmate, appeals the trial court's denial of his motion to show cause under the Public Disclosure Act for the Department of Corrections' (DOC) alleged nondisclosure of public records. Livingston argues that the DOC violated the PDA and that the trial court erred by not requiring the DOC to show cause for violating the PDA. Livingston requested that a DOC employee's records be released to him. The DOC's public disclosure coordinator mailed the records to Livingston, but the DOC superintendent withheld them from Livingston under the DOC mail room policy. We hold that the DOC did not violate the PDA and affirm. 1 Famer RCW 42.17.250-.348 (2002) I SF-01398 PRR-2011-00450 No. 32253-6-H FACTS Michael B. Livingston (Livingston) was an inmate at Olympic Corrections Center (OCC) and later at Cedar Creek Corrections Center While at OCC, Livingston submitted a request to the public disclosure coordinator, seeking disclosure of the training records of a corrections officer, Marleen Amundson. The public disclosure coordinator mailed a copy of the records to Livingston and the records arrived at Like all other incoming mail, the records were inspected during mail screening process. After inspecting them, Withheld the records from Livingston under DOC Policy 450.100 that authorizes the DOC to inspect and read all incoming mail to prevent offenders from receiving material that threatens the security and order of the facility? Livingston received a mail rejection form, explaining that the DOC superintendent did not permit DOC employee records to be released to inmates. Since Amundson was a DOC employee, the superintendent explained that Livingston could not have access to her employment records. Livingston appealed to the superintendent/field administrator. The superintendent denied his appeal, stating that he would not "allow an employee training record into the institution to be given to an inmate." Clerk's Papers (CP) at 5. Livingston again appealed. This time, he appealed to the DOC regional administrator who also denied Livingston's appeal, explaining that "after (documents) leave the PDC's office and arrive in an institution's mail room, mail policy comes into effect . . [and the] superintendent . has the authority to restrict any item from entering CP at 6. 2 While the record does not disclose the rational behind the DOC's mail room policy, the Wisdom of not allowing inmates to obtain personal information about DOC employees is evident. If inmates could obtain employees personal information, they could use the information as leverage against DOC employees. 2 SF-01399 PRR-2011-00450 No. 32253-6-II Livingston tiled an action in superior court seeking an order to require the DOC to show cause for its refusal to allow him access to public records. The superior court denied the motion to show cause and Livingston appealed. ANALYSIS THE PUBLIC DISCLOSURE ACT Livingston asserts that the DOC violated the PDA because, although the records were mailed to him, the DOC did not ensure that the records were delivered not actually disclose the records. Livingston requests costs, attorney fees, and a fee for each day he was denied access to the records as permitted by former RCW The DOC counters that it did not violate the PDA because the public disclosure process was completed when the coordinator sent the records. The DOC asserts that, for PDA purposes, it is irrelevant that the documents were withheld at mail room. The issue here centers on whether the DOC violated the PDA by withholding public records from an inmate under its mail room policy and should therefore be required to show cause for Withholding public documents. We review a challenge to an agency action under the PDA de novo. Former RCW Hangartner v. City of Seattle, l5l Wn.2d 439, 447, 90 P.3d 26 (2004). 3 P`ormer'RCW 42.l7.34O(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 less than tive dollars and not to exceed one hundred dollars for each day that he [or she] was denied the right to inspect or copy said public record. 3 SF-01400 PRR-2011-00450 No. Under the PDA, agencies are required to make public records available for public inspection and copying. Former RCW The statute only requires that agencies "make available" public records-it does not require agencies to guarantee disclosure or guarantee that mailed documents will be physically received by the person making the request. Former RCW lf an agency refuses to disclose public documents, a trial court may order that the agency show cause for its refusal. Fenner RCW There could be numerous situations in which records mailed under a PDA request are lost or destroyed in the mail. There also could be many situations Where records are delivered to a requester's residence but not actually received by the requester. In these situations, there can be no PDA violation because the records are mailed and the PDA compliance discharged. The PDA cannot impose on agencies the burden to ensure physical delivery of all records to all persons. We hold that the trial court did not err in denying Livingston's motion to show cause because the DOC did not violate the PDA and was therefore not required to show cause under former RCW 4 Former RCW 42. l7.26O(l) provides: Each agency, in accordance with published rules, shall rnake available for public inspection and copying all public records, unless the record falls Within the specific exemption of subsection (6) of this section, RCW 42.l7.310, 42.l7.3l5, or other statute which exempts or prohibits disclosure of specific infomation or records. i (Emphasis added). 5 Fenner RCW 42.l7.340(l) provides: Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying ofa specyic public record or class of records. The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records. (Emphasis added). - 4 SF-01401 PRR-2011-00450 No. 42.17 It did not withhold documents or deny Livingston's request for documents. The public disclosure coordinator mailed the requested documents, complied with the PDA, and, in this instance, the DOC was not subject to the show cause provision of former RCW 42.l7.4O. The DOC's obligations under the PDA were discharged when the coordinator mailed the records to Livingston. The mail room policy, blocking Livingston's access to the records, is not relevant to a request to show cause for nondisclosure under the PDA. We decline to hold that if an agency does not ensure that records are physically delivered to an incarcerated individual, then an agency violates the PDA. 4 Livingston includes in the record documentation that another inmate received employee records and relies on the DOC's disclosure to this inmate to argue that the DOC arbitrarily denied his request. DOC Policy 450.100 gives the DOC discretion to withhold records; it does not require that all records be withheld. Therefore, it is not relevant that another inmate received records because the DOC has discretion to decide if it will withhold records. Because we hold that the DOC did not violate the PDA, we decline to award attorney fees or statutory penalties to Livingston. A Affirmed. 5 Penoyanf Iconcur: Ci 1 5 SF-01402 PRR-2011-00450 No. 32253-6-II J. (Dissent) -- Because I disagree that the Department of Corrections can use its mail room policy to circumvent the intent and plain language ofthe Public Disclosure Act (PDA), I dissent. We construe the PDA6 liberally, in favor of disclosure, and construe exemptions to the Act narrowly. .Fenner RCW 42.17.251 (2002); see Hangartner v. City of Seattle, 151 Wn.2d 439, 450, 90 P.3d 26 (2004) (citing Dawson v. Daly, 120 Wn.2d 782, 790, 845 P.2d 995 (1993) (the PDA generally requires agencies to disclose requested documents unless a "specific statutory exemption" app1ies)). Fenner RCW 42.17.340(l) states that the agency bears the burden of showing that a "refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records." See also Daly, 120 Wn.2d at 789 (citing Brouillet v. Cowles Pub'g Co., 114 Wn.2d 788, 793, 791 P.2d 526 (1990)). The PDA has numerous exemptions, including one that protects some portions of an employee's personnel records and another that protects law enforcement investigative records. Former RCW But the Department did not invoke one of these exemptions and the PDA does not exempt records that may violate a mail room policy regardless of its rationale-here, threatened security and order? Moreover, even if an agency can articulate a plausible reason for not disclosing records, it still must produce the records absent a PDA authorized exemption. See, eg., King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002). 6 Pormer RCW 42.17.250?.348 (2002). 7 It is not easy to find a connection between a correction ofticer's training records and a security threat. 6 . SF-01403 PRR-2011-00450 No. 32253-6-ii In short, if the PDA does not authorize an exemption, the exemption does not exist. Finally, the PDA does not allow an agency to "distinguish among persons requesting records." Former RCW 42.17.270 (2002). Perhaps to avoid these clear rules, the Department crafts an argument that it fully complied with the PDA when it mailed the requested documents to itself on Livingston's behalf. And, continues the Department, the PDA does not require an agency to guarantee that the requestor actually receives mailed PDA records. Thus, reasons the Department, it is not subject to the expedited legal procedures set forth in the PDA and no judge can decide Whether its reasons for not producing the records are valid under the PDA. Unfortunately, the majority accepts the Depart1nent's reasoning. I would too if the U.S. Postal Service had lost the records. But it did not; the Department seized the records. The Department, not the Postal Service, has prevented Livingston from getting the requested records and it should answer for its failure to deliver. Because _the Department claimed no PDA exemption, I would remand for the trial court to order the Department to produce the records and to impose the appropriate PDA sanctions against the Department for its willful failure to do so. J. 7 SF-01404 PRR-2011-00450 $3 FE C.. CHI JUSTICE IN THE SUPREME COURT OF THE STATE OF WASHINGTON MICHAEL B. LIVINGSTON, No. 796Q8-4 Petitioner, V. . RUBEN CEDENO and THOMAS D. MGINTYRE, En Banc I Defendants, DEPARTMENT OF CORRECTIONS, I Respondent. Filed JUL U3 2003 . . - MADSEN, I _-Michael Livingston challenges a split Court of Appeals decision affirming the denial of his motion for a show cause hearing brought under the public disclosure act, chapter 42.17 RCW (now the public records act).1 In response to Livingston's public records request, the Department of Corrections (Department) copied and mailed departmental records to him at the correctional 1 Effective July 1, 2006, the public disclosure provisions of chapter 42.17 RCW were reorganized into their own chapter, chapter 42.56 RCW and named "the public records act." Laws of 2005., oh. 274, lO2'. Both parties cite to the new chapter, which in relevant part is identical to the prior act. SF-01405 PRR-2011-00450 No. 79608-4 institution where he was then incarcerated. Upon arrival, the documents were intercepted as "contraband" under the mail policy applicable to all incoming and outgoing materials. Livingston contends the Departments action in barring his receipt ofthe documents violated the public records act. We hold the Department's application of the mail policy to its ovvn public records did not violate the public records act, and we affirm the Court of Appeals. FACTS Michael Livingston filed a public disclosure request While incarcerated at the Olympic Corrections Center. Clerk's Papers (CP) at 56. He sought the training records ofa corrections officer. Id The Department confirmed receipt of the request and told Livingston it would give the officer a chance to file a privacy injunction? CP at 58. The officer did not obj ect, so the Depart1nent's public disclosure officer copied and mailed the record to Livingston, who had been transferred to the Cedar Creek Corrections Center in the meantime. CP at 14, 60. When the records arrived at Cedar Creek, they were screened. Cedar Creek officials then Withheld the records from Livingston under department Policy Directive No. DOC 450.100, which authorizes the Department to inspect and read all incoming mail to prevent offenders from receiving material that threatens the security and order of the facility. Livingston received a mail rejection form, 2 The statute provides that any personal information appearing in such a document, such as a social security number, can be redacted. Former RCW 42.17.260(1) (1997); RCW 2 SF-01406 PRR-2011-00450 Nc. 79608~4 eitplaining the superintendent did not permit department employee records to be released to inmates. CP at 63. The mail rejection form informed Livingston that unless he forwarded the rejected mail to a nonincarcerated person, the Department would either donate or destroy it. Livingston filed an appeal, The Cedar Creek superintendent denied the appeal, stating he would not "allow an employees training record into the institution to be given to an inmate." CP at 66 (capitalization omitted). The Department's regional administrator denied Livingstonfs subsequent appeal, stating that when public disclosure documents "arrive in an institution's mailroom, mail policy comes into effect. . [and the] superintendent . . . has the authority to restrict any item from entering [the facility]." CP at 6 (first alteration in original). Livingston appealed this decision through the Department, which upheld it. CP at 65. He then filed a motion in Thurston County Superior Court, asking the Department to show cause for withholding the record. CP at 2. The trial court denied the motion. CP at 105. Livingston appealed, and a majority of the Court of Appeals affrmed, holding, "[t]he statute . . . does not require agencies to guarantee disclosure or guarantee that mailed documents will be physically received' by the person making the request." Livingston v. Cedeno, 13 5 Wn. App. 976, Qso, 146 Psa 1220 (zoos). 3 SF-01407 PRR-2011-00450 No. 79608-4 ANALYSIS The issue presented in this case is whether the Department violates the public records act when it copies and mails public records requested by an inmate, yet withholds the same records upon arrival under the mail policy applicable ata correctional institution. It is well settled that a reviewing court interprets the disclosure provisions of the public records actliberally and the exemptions from disclosure narrowly. Hangartner v. City ofSeaz'tle, 151 Wn.2d 439, 450, 90 P.3d 26 (2004); see also former RCW 42.17.251 (1992); RCW 42.56.03 O. In general, an agency must disclose a public record unless a statutory exemption applies. Hangarrner, 151 Wn.2d. at 450; former RCW 42.l7.26O(l) (1997); RCW Here, neither the Department nor the affected correctional officer invoked any statutory exemptions before the Department released and mailed the records to Livingston. Indeed, the Department contends it fulfilled its obligation under the statute when it approved the request and sent the record in the mail. The Department argues its decision to intercept the requested public record is unrelated to the public records act. According to the Department, its authority to preclude Livingstorfs receipt ofthe record arises under RCW 72.09.53 0,3 which 3 RCW 72.09.530 provides, The secretary shall, in consultation with the attorney general, adopt by rule a uniform policy that prohibits receipt or possession of anything that is determined to be contraband. The rule shall provide consistent maximum protection of legitimate penological interests, including prison security and order and deterrence of criminal activity. The rule shall protect the 4 SF-01408 PRR-2011-00450 No. 79608-4 authorizes the secretary ofthe Department to read all incoming mail and to confiscate contraband arriving in the prison mail system. RCW 72.09.530 is the basis for Policy Directive No. DOC 450.100, which is designed to "prevent offenders from receiving . . contraband, or any other material that threatens to undermine the security and order of the facility, through the mail; and to prevent criminal activity." CP at 127. The Department points out that former RCW which requires public agencies to make records available for inspection and copying, does not guarantee documents will be physically received by the person making the request. Livingston claims it is not enough that the Department mailed the requested records. He argues the Department may not mail public records to an inmate and then withhold those same records absent a statutory exemption. He contends the Depart1nent's mail room policy is not an exemption that can be used to deny an inmate access to public records. To support his claims, Livingston cites to this court's decision in Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990), where we held that a regulation guaranteeing the confidentiality of certain records cannot serve as an exemption. He also points to WAC 44- 14- legitimate interests of the public and inmates inthe exchange of ideas. The 9 secretary shall establish a method of reviewing all incoming and outgoing material, consistent with constitutional constraints, for the purpose of confiscating anything determined to be contraband. The secretary shall consult regulmly with the committee created under RCW 72.09.570 on the development of the policy and implementation of the rule. 5 SF-01409 PRR-2011-00450 No; 79608-4 06002(l), which provides, agency cannot define the scope of a statutory exemption through rule making or policy." We agree with Livingston that RCW 72.09.53 0, which authorizes the Departn'1ent's mail policy, is not an exemption to disclosure under the public records act. However, we disagree that the Departments use of its mail policy- to confiscate materials that the Department determines "threatens to undermine the security and order of the facility"--violates the act. CP at l27. The public records act requires the department to release its records to the public. However, whether the Department must allow them inside a correctional facility is a distinct issue, subject to different statutory obligations. Under RCW 72.09.53 0, the Department has broad discretion to deny entry of any materials it determines may threaten legitimate penological interests, without exception for public records. Whenever possible, statutes must be read in harmony and each must be given effect. Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000); Publishers Forest Prods. Co. v. State, 81 Wn.2d 814, 816, 505 P.2d 453 (1973). The public records act and RCW 72.09.530 are aimed at two different concerns. The primary purpose ofthe public records act is to provide broad access to public records to ensure government accountability. To that end, each agency "shall make available for public inspection and copying" all nonexempt public records. RCW Agencies must honor requests received by mail and may not 6 SF-01410 PRR-2011-00450 No. 79608-4 "distinguish among persons requesting records." Fenner RCW 42.17.270 (1987); RCW 42.56.080 The primary objective ofthe correctional system, on the other hand, is "to provide the maximum feasible safety" for the public, staff, and inmates. RCW Accordingly, RCW 72.09.530 directs the Department to screen all incoming and outgoing materials and intercept any "contraband" in order to protect legitimate security concerns Within the state penal institutions. "Contraband" is defined as "any obj ect or communication" banned by the Department horn any institution under its control. RCW In its capacity as an agency subject to the public records act, the Department must respond to all public disclosure requests without regard to the status or motivation ofthe requester. The statutorydirective to screen incoming and outgoing mail does not relieve the Department of its obligation to disclose public records requested by an inmate. However, it does authorize the Department to decide whether those records will be permitted inside the institution. Acting in its custodial capacity to ensure the safety of inmates, staff; and the public, the 4 RCW 72.09.010 stares, It is the intent ofthe legislature to establish a comprehensive system of corrections for convicted law violators Within the state of Washington to accomplish the following objectives. (1) The system should ensure the public safety. The system should be designed and managed to provide the maximum feasible safety for the persons and property ofthe general public, the staff, and the inmates. 7 SF-01411 PRR-2011-00450 No. 79608-4 Department may prohibit the entry into an institution of materials otherwise subject to disclosure under the public records act. As the United States _Supreme Court and this court have recognized, "many rights and privileges are subject to limitation in penal institutions because of paramount institutional goals and policies." State v. Hartzog, 96 Wn.2d 383, 391, 1 635 P.2d 694 (l981);_ see also Hudson v. Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). In particular, considerable deference must be given to prison administrators to regulate communications between prisoners and the outside World. hornburgh v. Abbott, U.S. 401, 408, 109 S. Ct. 1874, 104 2d 459 (1989); see also Sappenfield v. Dep of Corrs., 127 Wn. App. 83, 110 P.3d 808 (2005) (recognizing the unique circumstances oifincarceration in the context of public disclosure requests), review denied, 156 Wn.2d 1013 (2006). Livingston argues the Departments use of its mail policy to restrict access . to public records violates the public records act's requirement that it not "distinguish among persons requesting records." RCW 42.56.080 On the contrary, the Department treats public disclosure requests equally, Whether received by ordinary citizens or inmates. The Department's application of the mail policy to public records upon their arrival at a correctional institution does not amount to impermissible disparate treatment under the public records act. The inmate's status and motivation is not a factor in the Department's decision to release a document. But whether a document is allowed inside an institution 8 SF-01412 PRR-2011-00450 No. 79608-4 under the Department's control is a discrete issue, subject to a different statute that requires the Department to take into account "legitimate penological interests, including prison security and order." RCW 72.09.53 O. Whereas the Department is limited in its discretion to decide whether to make its records publicly available, it has broad discretion to decide whether such records may be allowed inside a correctional institution. The public records act does not limit the Department's discretion in prohibiting entry of public records that it reasonably deems inappropriate in a prison setting? ln his dissent, Judge questioned the legitimacy ofthe Department's action, finding it improbable an officer's training records could undermine prison security. Livingston, 135 Wn. App. at 982 J., dissenting). Livingston has not challenged the reasonableness of the Departn'1ent's 5 In the dissent's view, our holding is "impossible to reconcile" with Prison Legal News, Inc. v. Department ofCorrections, 154 Wn.2d 628, 115 P.3d 316 (2005). Concurrence at 5. On the contrary, the records in that case were not confiscated as "contraband." Indeed, Prison Legal News involved -a distinct issue. In that case, the Department claimed the names of disciplined staff members were exempt from disclosure under RCW 42. as "specitic investigative records" whose release would thwart "effective law enforcement." This court declined the Departmenfs "invitation to define every activity it undertakes as 'law enforcen1ent'" and concluded the exemption was inapplicable. Prison Legal News, l54 Wn.2d at 640. We observed, "[w]ere we to accept [thc Department's] definition, investigations of all aspects of [the Departmenfs] operations would be off limits from public disclosure." Id. Unlike in Prison Legal News, the issue in this case is not whether the agency may refuse to make records publicly available. The Department is not claiming an exemption nom public disclosure. The issue is whether the Departments unwillingness to allow certain public records inside correctional facilities violates its duty to make such records publicly available. It is Livingstorfs condition of incarceration that limits his access to the documents at issue, not the Department's unwillingness to make them available for public inspection. 9 SF-01413 PRR-2011-00450 No. 79608-4 mail policy or the characterization of the record as "contrabandg" he only challenges _the Department's authority to apply the policy to public records. Nevertheless, we note the Department couldlhave reasonably determined the records could prove detrimental to prison security by, for example, revealing training vulnerabilities of correctional ofticers. We reject Livingston's contention the Department cannot withhold any materials from an inmate absent a specific exemption that applies to that material. Such a rule would create an exception to RCW 72.09.530 for public records act materials that is not contained in the statute. Additionally, construing the statute to include such an exception would create the anomalous situation that an inmate could possess materials the Department would otherwise ban from the institution so long as the material is obtained through a public disclosure request. For . example, an inmate convicted of child molestation who is ordered not to possess photos of children could gain access to such materials if requested through a public disclosure request, even though the Department could otherwise restrict the in1nate's access to such photos. Nothing inthe legislative intent language of RCW 72.09.010 or the language of RCW 72.09.530 supports such a construction. RCW 72.09.530 directs the Department to regulate incoming and outgoing mail to the maximum extent permissible under the constitution in order to provide the "maximum protection" of prison security and order. Carving out a broad exception for all public records is contrary to this express statutory directive and 10 SF-01414 PRR-2011-00450 No. 79608-4 would provide an inmate with far _greater rights than required by the First Amendment to the United States Constitution. As a condition of confinement, an inmate's first amendment right to send and receive mail lawfully may be restricted by prison regulations reasonably related to legitimate penological interests. hornburgh, 490 U.S.'at 407; Turner v. Sajley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). In the absence of clear legislative intent or a constitutional requirement, we are disinclined to impose additional restrictions on the Department's right to regulate an inmate's receipt of rnail. Livingston also contends the_Court of Appeals' decision in this case aonnicrs with sappenfteze, 127 wa. App. ss. The issue in sappeafeeza was Whether the Department could, consistent with the public records act, require an inmate to pay for and obtain by mail copies of department records, or send a personal representative to inspect the records, rather than inspect the original documents in person. Id. at 88-89. The Court of Appeals, Division Three, held such a policy was reasonable and did not violate the act given the necessary restraints placed on prisoners. Id. at 89. The decision by Division Two of the Court of Appeals in this case does not conflict with Sappenfield, which is factually distinguishable. It is Worth noting, however, that in affirming the Departmenfs procedure, the Sappenfield court discussed, with approval, Mithrandir v. Department of Corrections, 164 Mich. App. 143, 147-48, 416 352 (1987). ln that case, ll SF701415 PRR-2011-00450 No. 79608-4 the Michigan Court of Appeals approved a prison procedure denying an inmate a right to personally inspect records but allowing either appointment of a representative to inspect the files or the opportunity to receive copies upon payment of the appropriate fee. Similar to Sappenjield and Mithrandir, the Department's mail policy here provided an alternative procedure for receiving the requested records in light of internal safety concerns in the prison setting. As mentioned earlier, the notice of mail rejection gave Livingston the opportunity to forward the rejected mail to a location outside the institution. The Department's policy of offering to have rejected mail sent to another location indicates it is not using the mail policy for the illegitimate purpose of thwarting public disclosure, but for the legitimate purpose of ensuring the security of its institutions. We agree the Department may notdeny a public records request based on the requester's status as an inmate. However, the director's decision to bar Livingston's possession of the materials here was not based on Livingston's status and does not constitute a denial of his public records request. Rather, the decision was an exercise of the Department's discretionary authority to apply a mail policy designed to protect the institution, the inmates, department personnel, and visitors to the institution. CONCLUSION We find no conflict between RCW 72.09.530 and the public records act, chapter 42.17 RCW. Each statute serves a different legislative purpose. While the 12 SF-01416 PRR-2011-00450 Ne. 79608-4 a public records act is intended to provide broad access to public records to ensure government accountability, RCW 72.09.530 is intended to protect legitimate security concerns Within the state penal institutions. Here, the Department complied with the public records act when it mailed the requested documents to the address provided by Livingston. The Depart1nent's subsequent decision to bar I Livingston from receiving the documents pursuant to its mail policy did not violate Livingston's rights under the public records act. We affirm the Court of Appeals. i 3 3 13 SF-01417 PRR-2011-00450 No. 79608-4 WE CONCUR: 11+ SF-01418 PRR-2011 00450 Livingston v. DOC, No. 79608-4 Dissent by Johnson, J. No. 79608-4 .M. J. agency . . . shall make available . all public records, unless the record falls Within [an exemption in this chapter] or other statute which exempts or prohibits disclosure RCW The effect ofthe statute is that the public and each member ofthe public own the public records, even though a record may be in the custody of an agency. This law is clear. an agency holds a record, (2) the record is public, and (3) the record is not exempt, the agency "shall make [the record] available" to any member ofthe public requesting it. Id. Here, the Department of Corrections (Department) admits (1) it is an agency, (2) the record is public, and (3) therecord is not exempt. its only duty, then, is to make the record available to Michael Livingston, who properly requested it. The majority agrees with all of this. It then holds that the Department did make the record available when it mailed the record to itself; complying with the law even though the record was then Withheld from Livingston. SF-01419 PRR-2011 00450 Livingston v. DOC, No. 79608-4 The majority starts by holding: "[t]he public records act requires the department to release its records to the public." Majority at 6. This is the wrong starting point under the statute. First, the records are not they are recordsvof the public. The Department's duty is not to release; its duty is to make available. The distinction is crucial. If the law said "release," the majority would be more persuasive since "release" could mean place in the mail. But the law requires agencies to make records available, and I cannot agree that an agency makes a record available bymailing the record to itself and then withholding the record irom the person who requested it. The act itself precludes narrow construction such as the maj ority's definition of "make available." The act provides: "This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy." RCW 42.56.0341 Liberal construction of "make available" certainly does not include "withhold" The crux ofthe majority's holding is the separate law empowering correctionsofficials to withhold contraband from prisoners. RCW 72_.09.5 3 O. The majority holds that the public records act (chapter 42.56 RCW) does not conflict with this law. I cannot agree, The public records act requires the Department to make the record available to Livingston. 2 SF-01420 PRR-2011-00450 Livingston v. DOC, No. 79608-4 RCW The contraband law allows it to withhold the record from Livingston. RCW 72.09.53 0.1 There is an apparent conflict as applied by the Department here. Certainly a court must read statutes in harmony when possible. Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000). But we cannot disregard a broad law (especially an initiative ofthe people) like the public records act to make it subservient to a narrow law. The people adopting the public records act knew the provisions could conflict with other laws and specified the resolution: "In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern." RCW 42.17.920 Since making records available and withholding them are mutually incompatible, the laws conflict, and the public records act controls. On this point, the majority holds: "the Department has broad discretion to deny entry of any materials itdetermines may threaten legitimate penological interests, without exception for public records." I Actually, it only tells the secretary ofthe Department to write rules about contraband, but I assume arguendo the broadest reading for the Department-that it allows corrections officials' full discretion to decide what is contrabmd and to withhold it from a prisoner. 3 SF-01421 PRR-2011-00450 Livingston v. DOC, No. 79608-4 Majority at 6. This gets the law backward and disregards the above express command in RCW 42.l7.920. The public records act is a broad law requiring the State to prove exceptions, not the other way around. If the Department wanted to argue that the prisoner contraband law (RCW 72.09.5 30) is an exemption to the public records act, it could make that argument? But the Department freely admits the contraband law is not an exemption; it must make the record available to Livingston. RCW . The majority pays lip service to the fact that agencies must treat a prisoner like any other person requesting a public record? RCW 42.5 6.080. But it then holds, "the Department may prohibit the entry into an institution of materials otherwise subject to disclosure under the public records act." Majority at 7-8. That is to say, an agency may treat prisoners differently from other requesters, as prohibited by RCW 42.56.080. 2 It would lose, though. The public records act contains an exemption for "other statute[s] which exempt[] or prohibit[] disclosure of specific information or records." RCW 42.5 "The rule applies only to those exemptions explicitly identified in other statutes; Progressive Animal W?btire Soc ji v. Univ. of Wash., 1.25 Wn.2d 243, 262, 884 P.2d 592 (1994). The contraband statute does not even mention information or records, let alone exempt them Hom public disclosure. RCW 72.09.530. 3 Until or unless the act is amended, see Curt Woodward, Attorney General McKenna Unveils Ambitious Wish List, SEATTLE TIMES, .T an. 4, 2008, at Bl (detailing a proposal to send to the victims fund public records act judgments won by prisoners). 4 SF-01422 PRR-2011-00450 Livingston v. DOC, No. 79608-4 This conclusion also conflicts with our decision only three years ago in Prison Legal News v. 154 Wn.2d 628, 15 P.3d 316 (2005), where We held the Department had to give a prisoner the records of prison medical staf?4 In that decision, we applied the usual rules ofthe public records act, assuming the prisoner could have the records unless the Department proved an exemption. [oi at 635. We put the Department through the rigors ofthe act, the same as We would have done had the plaintiff not been a prisoner. That holding is impossible to reconcile with the majority today, holding, "the Department . has broad discretion to deciding whether [public] records may be allowed inside a correctional institution. The public records act does not lirnit the Department's'discretion in prohibiting entry of public records that it reasonably deems inappropriate in a prison setting." Majority at 9. Today's holding clearly conflicts with Prison Legal News. . The majority holds that an agency may withhold public records that fall into no exemption from disclosure. Since RCW 42.56.070(l) requires the opposite result, I respectfully dissent. 4 See supra note 3. 5 SF-01423 PRR-2011 00450 Livingston v. DOC, No. 79608~4 6 SF 01424 PRR 2011 00450 THE SUPREME COURT OF WASHINGTON 2 1 MANDATE MICHAEL B. LIVINGSTON, NO. 79608-4 Petitioner, NO. 32253-6-11 v. 3 Thurston County Superior Court RUBEN CEDENO and THOMAS D. 3 03~2~01372-0 Defendants, DEPARTMENT OF CORRECTIONS, 5 2 Erfi :rs '5353 co Respondent. <73 1 3 2?~Soa -1-uit 1| /56 1 cw #li THE STATE OF WASHINGTON TO: The Superior Court of the State 5 in and for Thurston County. ic The opinion ofthe Supreme Court ofthe State of Washington filed on July 3, 2008, became final inthe above entitled cause on July 23, 2008. This cause is mandated to the superior court from which the appeal was taken for further proceedings in accordance with the attached true copy ofthe opinion. V50/:za SF-01425 PRR-2011-00450 Page 2 79608-4 Pursuant to Rule of Appellate Procedure 14.3, costs are taxed as follows No costs bills having been timely filed, costs are deemed waived up 5% - rp 3 _k 65.* I ,pill i wrsa It cc: I-lon. Christine A. Pomeroy, Judge Betty Gould, Clerk Thurston County Superior Court Court of Appeals Division II Tracy N. LeRoy Carol A. Murphy Peter William Berney Daniel John Judge Sarah A. Dunne Duane Michael Swinton Scott A.W. Johnson Shelley Marie Hall Aviva Kamm Reporter of Decisions I have affixed the seal of the Supreme Court ofthe State ofWash1ngton and tiled this Mandate this day ofruly zoos gi 9 Clerk ofthe Supreme rt State of SF-01426 PRR-2011-00450 ti., M, i tiit" itigmi raattin tantra A STATE OF WASHINGTON WALLA WALLA COUNTY SUPERIOR COURT STEPHEN B. HARRIS, NO. O8-2-00378-8 Plaintiff ORDER PLATNTIFFS MOTION TO SHOW CAUSE AND v. DISMISSING COMPLAINT DEPARTMENT OF CORRECTIONS, Defendant. THIS MATTER having come on for a hearing 'on May 4, 2009, on Plaintiffs Motion for Order to Show Cause, Plaintiff Stephen Harris appearing pro se, and Defendant, appearing by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and PETER W. EERNEY, Assistant Attorney General, and the Court having considered the Plaintiffs Motion supported hy his affidavit, Defendant's Response supported by the declarations of Joni Aiyeku and Steve Eleenor, and having heard oral argument and considered the records and tiles herein, and being fully advised; NOW, THEREFORE, it is hereby ORDERED: 1. Plaintiffs Motion for Order to Show Cause is hereby DENIED. The court finds no violation of the Public Records Act, RCW 42.56 et seq. by the Defendant; 2. Plaintiffs action is dismissed with prejudice without award of penalties or attorney's fees or costs to either party; ORDER DENYING PLATNTIFFS A ATTORNEY GENERAL MOTION TO sHoW CAUSE AND DISMISSIN oiympia, WA 98504-OE 16 COMPLAINT NO. SF-01427 (3601 586-1445 PRR-2011-00450 The Clerk of the Court is directed to send a conformed eopy of this order to Plaintiff and Counsel for Defendant. DONE 53 A W, JOHN Presented y: ROBERT M. NICKENNLA Superies' Court Judge Attorney General A ff' A /My 9504 PETER W. BERNEY, BA #l57l9 DATE Assistant Attorney Genet" Attorney for Defendant Approved as to fonn; Notice of presentation waived: STEPHEN B. HARRIS DATE Plaintifi Pro Se QRDER DENYING 2 ATTORNEY GENERAL TD snow CAUSE AND PLAINTIFPS olympil WA 9350401 I6 COMPLAINT NO. 08-2-00378-8 SF-01428 (350) 536-1445 PRR-2011-00450 CERTIFICATE UF SERVICE I certify that I served a copy of proposed ORDER DENYING PLAINTIFFS MOTION TO SHOW CAUSE AND DISMISSING COMPLAINT on all parties or their counsel of record on the date below as follows: U.S. Mail, Postage Prepaid United Parcel Service, Next Day Air ABC/Legal Messenger State Campus Delivery Hand Delivered by: Facsimile TO: STEPHEN HARRIS 60l0 NORTH ATLANTIC #17 SPOKANE 99205 I certify under penalty of perjury of the laws of the State of Washington that the foregoing is true and correct. EXECUTED this -3 day of May, 2009, at Olympia, Washington. KATRINA TOAL ORDER DENYING 3 3 GENERAL off WASHINGTON TO SHOW CAUSE AND PO 40116 DISMISSING Olympia, COMPLAINT NO. 08-2~00378-8 5501429 (350) 5354445 PRR-2011-00450 i SEP 2 6 2006 UENERALS 0lfF?Cl? Hearing is set Date OCTOBER 27 2006 Time. 9.00 a.m. Judge/Calendar: RAULA CASEY EI EXPEDIT (rf filing within 5 court days of nearing) SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY LORENZO SANDOVAL NO. 04-2-00644-6 Plaintiff/Petitioner, NOTICE FOR FOR WANT OF PROSECUTION STATE CORRECTIONS ET AL Defendant/Respondent. 1. There has been no action ot record on this case for the past twelve (12) months. 2. Pursuant to Civil Rule Li1(b)(2), this case will be dismissed without prejudice by the Court tor vvant ot prosecution unless within thirty (30) days ofthe mailing ot this Notice an application is _made to the Court in Writing or by appearing in person, and good cause is shown why it should be continued as a pending case. 3. The court hearing on this matter will be held before the Judge PAULA CASEY on Friday, OCTOBER 27, 2006, at 9:00 a.m. at Thurston County Superior Court, Building 2, 2000 Lakeridge Drive SW, Olympia, Washington. 4. This Notice was mailed or delivered through a messenger service to the attorneys and/or parties listed below on SEPTEMBER 26, 2006. DATED: SEPTEMBER 26, 2006 BETTY J. COULD, COUNTY CLERK By: 1 Terry Donnelly, Deputy Cl rk Attorneys of Record: LORENZO SANDOVAL, PRO SE PETER VV. BERNEY #263632 ATTORNEY AT LAVV STAFFORD CREEK CORRECTIONS CENTER PO BOX 40116 191 CONSTANTINE VVAY OLYMPIA 96504-0116 ABERDEEN WA 96520 SF-01430 NOTICE FOR DISIVIISSAL - IL Casey and 7/23/02 Washington Courts - Search Case Records Page 1 of 2 aasso aasaa . i a a ea .Courts Home Search Case Records Search sire Map eService center Home Summary Data Reports i Request a Custom Report 2 Resources Links I Get Help Superior Court Case Summary Court: Thurston Superior Case Number: 04-2-00644-6 Sub Docket Date - 04 16-2004 1 04-16-2004 2 04 16-2004 3 04-16-2004 04-16-2004 4 04-16-2004 5 04-16-2004 6 04-16-2004 - 04-16-2004 7 04-16-2004 8 04-16-2004 9 04-16-2004 10 04-27-2004 11 07-09-2004 11 07-09-2004 12 11-12-2004 13 11-29-2004 14 09-26-2006 Docket Code Docket Description Misc Info ADIVIO1 CICS NTAS NOTE CIVEP - CRT EXWACT DCLRIVI WV LTR NTAPR ATD0001 RSP CM DWP ACTION Case Information Cover Sheet Non Fee Notice Of Assignment Status Conference 07-09- Complaint Certification Prison Account Order To Proceed In Forma Pauperis Ex-pa rte Action With Order Declaration Of Mailing Declaration Of Mailing Waiver Service Of Summons Letter Fr Sandoval To Clerk Hearing Cancelled: Court's Request To Ja Wendel Hearing Cancelled: Court's Request Casey Cc Herron Notice Of Appearance Berney, Peter William Response Respondent's To Show Cause Mot For Dismiss 10-27- Fr Of Pros 2006l\/i2 SF-01431 About Dockets You are viewing the case docket or case summary. Each Court level uses different terminology for this information, but for all court levels, it is a list of activities or documents related to the case. District and municipal court dockets tend to include many case details, while superior court dockets lim themseives to official documents and orders related to the case. If you are viewing a district municipal, or appellate court docket, you may be able to see future court appearances or calendar dates if there are any. Since superior courts generally calender their caseloads on local systems, this search tool cannot diplay superior court caiendering information. 9 Contact Information Thurston Superior 2000 Lakeridge Dr SW, 2 Olympia, WA 98502 Map Directions 360-786-5560[Phone] 360-754-4060[Fax] Visit Website Disclaimer This information is provided for use as reference material and is nmol; the official cour record. The officiai court record is maintainec by the court of record. 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To verify the information, the user should personaliy consult the "official" case records. 8/8/2007 Washington Courts - Search Case Records Page 2 of 2 Clerks Dismissal 15 10-27-2006 RESHRG Uncontested JDG0002 Resolution Hearing Judge Paula Casey 15 10-27-2006 RESHRG Uncontested Resolution Hearing Cc Parascondola Cr A Webber 16 10-27-2006 CLOD Cierk's Order Of Dismissal Courts I Organizations I News I Opinions I Rules I Forms I Directory I Library Back to Top I Privacy and Disclaimer Notices F-01432 8/8/2007 Lff1>>i>>? ii STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT .D. ENQUIST, NO. O5-2-00276-7 Petitioner, ORDER DENYIN MOTION FOR ORDER TO SHOW v. CAUSE DEPARTMENT OF CORRECTIONS, et al., Res ondent. THIS MATTER having come on for hearing on the motion of Petitioner, J.D. Enquist, appearing pro se, and Respondent, Department of Corrections (DOC), appearing by and through its attorneys, ROB MCKENNA, Attorney General, and PETER W. BERNEY, Assistant Attorney General, and the Court having considered and heard oral argument, considered the memoranda ofthe parties and the Declarations of Meghan Muenchow, Eldon Vail and Katrina Toal, and considered the records and tiles herein, and being fully advised; now therefore, IT IS HEREBY ORDERED that Petitioner's motion for order to show cause is denied. Respondent had complied with the requirements of the state Public Disclosure Act, RCW 42.l7.25O, et seq., when it assembled the documents requested by Petitioner and ORDER DENYING 3 1 ATTORNEY GENERAL or WASHINGTON MOTION FOR ORDER TO SHOW Criminal Justice Division PO 40| i6 CAUSE (No. 05-2-00276-7) if, (360) 586-i-$45 PRR-2011-00450 AL 0R5?i?\! as i in me Presse Seve *Fi* r" . - -,Mic tn? if" charged a reasonable fee for coping and postage. Depamnent of Corrections Policy 280.510 is reasonable, given the security concerns of prisons and it does not violate the Public Disclosure Act as held in Sappentielcl v. Dept. of Corrections, 127 Wn. App. 83, 110 Pad sos (2005). DATED this Uviday of December, 2005. mg! 3 RICHARD ST OP Superior Court Judge Presented by: ROB MCKENNA Attorney General PETER W. BERNEY, SBA #15719 DATE Assistant Attorney Gene 1 Approved as to form Notice of Pr sentment Waived . 2 /li L. [gf J. . DATE I;et` ion Pro Se mf/ ORDER DENYING 2 OFWASHINGTON MOTION Poll ORDER TO sHoW CAUSE (NO. 05-2-00276-7) SF 01434 PRR-2011-00450 IN THE COURT OF APPEALS OF THE STATE WASHINGTON Appellant, Cr; 5; iif-Eff V. No. 34273-1-II Q22 (JI Q7 Qi DEPARTMENT OF RULING DISMIS SING APPEAL T52 CORRECTIONS, ET AL, Respondent. THIS MATTER came on for hearing ofthe clerk' motion to dismiss on the ground of abandonment, no filing fee or ord er of 1nd1gency having been mitted. Appellant has not responded to the Clerk's motion, and it appears that the appeal was a en for delay 'and should be dismissed for want of prosecution. RAP l8.9( Accordingly, 1t IS ORDERED that this appeal is dismissed. DATED this /831% day of Q2 ,2o06. COURT COMMISSIONER J.D. Enquist #629515 eter William Berney I Attorney Generals Division McNeil Island Con* PO Box 40116 P.O. Box 881000 Olympia, WA, 98504-0116 Steilacoom, WA, 98388-1000 SF-01435 PRR-2011-00450 . I 2 i 1 2 ~i "y i. ft-#sit A 5 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II .D. ENQUIST, No. 34273-1-II Appellant, V. MANDATE DEPARTMENT OF CORRECTIONS, ET AL, Thurston County Cause No. Respondent. 05-2-00276-7 The State of Washington to: The Superior Court of the State of Washington in and for Yakima County This is to certify that the Court of Appeals ofthe State of Washington, Division 11 entered a Ruling Dismissing Appeal in the above entitled case on February 16, 2006. This ruling became the final decision terminating review of this court on March 21, 2006. Accordingly this cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the determination of that court. il . IN TESTIMONY WHEREOF, I have hereunto set my hand and aiixed the 3' seal of said Court at Tacoma, this March, 2006. I "wg, fi -1- 526 Cler the Court of A eals, 5715* .A i' State of Washington, J.D. Enquist Peter William Berney #629515 Attorney Generals Division Clallam Bay Corr PO Box 40116 1830 Eagle Crest Way Olympia, WA, 98504-0116 Clallam Bay, WA, 98326 SF-01436 PRR-2011-00450 ffm- "Riagg yr YR ERN a, levy; pl, I ?f Aus Z9 zona -513 gil? THOMAS R. SPOKANE COUNTY CLEF-IK IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SPOKANE COUNTY A 1 DEREK E. CRONQUIST, No. 02-2-05518-9 I Plaintiff, V. ORDER COMPELLING PUBLIC DISCLOSURE I WASHINGTON STATE DEPARTMENT OF CORRECTIONS, - Defendant. THIS MATTER having come on regularly before the Court upon a motion by the Plaintiff for an order compelling disclosure of public records, on the ground that Defendant cannot charge a fee for locating, compiling and disclosing public records; and the Court having considered the files, records, arguments of the parties, and being fully advised, NOW THEREFORE, - IT IS HEREBY ORDERED that Plaintiff's motion iS- granted; A I Defendants shall disclose all requested public records to Plaintiff; ORDER - 1 SF-01437 PRR-2011700450 1 Defendants shall pay Plaintiff a sanction of $25.00 per 2 day for a period of 90 days, totalling $2,250.00; 3 Defendants shall pay plaintiff costs in the amount of 4 $293.00: 1 1 5 Disclosure of requested public records shall be 6 accomplished within 90 days; payment of costs and sanctions 7 shall be made to Plaintiff within 30 days. 3 Dated this 2 day of August, 2003. 10 Jerome Jr: 11! Superior 4 12 13 Prese ted by: 14 erek Gronquist 15 pro se, Plaintiff 16 17 I jj-xapprove to( fo?E;W$ fa- #1 18 51% i nnette Cook 19 Assistant Attorney General ORDER - 2 SF-01438 PRR-2011-00450 DEREK E. ORONQUIST, A Plaintiff, V. WASHINGTON STATE DEPARTMENT 0F CORRECTIONS, Defendant. A The Honorable Jerome Q, Leveque JULIQZMW A THOMAS Fi. FALLQUEST SPOKANE COUNTY CLERK SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SPOKANE COUNTY D) No. 02-2-05518-9 ORDER DENYING MOTION T0 DISMISS, REQUIRING HAND SEARCH AND REASSESSING PENALTIES This matter came before the Court on May 25, 2007, pursuant to Defendant's Motion to Dismiss. The Court considered the files, records, evidence, arguments of the parties, and being fully advised: IT IS HEREBY ORDERED: 1. Defendant's motion to dismiss is denied; 2. Defendant shall conduct a hand search of and/or for grievance records responsive to Plaintiff's public disclosure request in existence prior to November 1, 2001; imp arch 1 .2007 . The 5 .00 day pena1t; previously awarded is I 4. A penalty of $100.00 a day is imposed from April 1, 2007, until the date that the Defendant completes a ORDER DENYING MOTION T0 DISMISS SF-01439 PRR-2011-00450 thorough and complete search of and/or for grievance records responsive to Plaintiff'S public disclosure request and any records found pursuant to said Search are disclosed to Plaintiff. Dated this day_of 2007. erome J. veque' Superior urt Jud Pres nt by: _e D_rek E. Gro st, pro se #9&3857 C- Clallam Bay Corrections Center 1830 Eagle Crest Way Clallam Bay, We 98326 Approved to form: ~z?a>>44 eter Berney, WSBA #15719 Assistant Attorney General Criminal Justice Division P.O. BOX 40116 Olympia, Wa 98504 ORDER DENYING MOTION T0 DISMISS - 2 SF-01440 PRR-2011-00450 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SPOKANE DEREK E. GRONQUIST, NO. 02-2-05518-9 Plaintiff, RELEASE AND SETTLMENT V. AGREEMENT DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, Defendant. This is a Release and Settlement Agreement for the above-referenced action. Based upon consideration and mutual promises, the Plaintiff, DEREK GRONQUIST, Plaintiff Pro Se, and the Defendant, DEPARTMENT OF CORRECTIONS, by and through its attorneys, ROBERT M. MCKENNA, Attorney General, and PETER BERNEY, Assistant Attorney General, agree to the following: . l. In consideration of the following provisions of the Release and Settlement Agreement, DEREK GRONQUIST, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and future claims, damages and causes of action of any nature arising out of public disclosure requests as described in Plaintiffs Complaint in this action, made pursuant to RCW 42.56 et seq., and which are the source of his claims against the Defendant. RELEASE AND SETTLEMENT 1 GENERAE AGREEMENT - 01 0- 02-2-05 5 13-9) SF-01441 A PRR-2011-00450 (360) 536-1445 2. This Agreement is the final, conclusive and complete release of all known, as well as all Lmlmovvn and unanticipated damages arising out of the incidents set forth in Plaintiffs Complaint for Damages. 3. This Agreement shall be effective when signed by all parties and/or their legal representatives. 4. The State shall pay directly to DEREK GRONQUIST, the sum of Seventy Nine Thousand Dollars and zero cents as full and complete settlement of this matter. This settlement sum includes costs, penalties and attomey fees, if any. The settlement amount of Seventy Nine Thousand Dollars and zero cents will be payable by check or Warrant to Plaintiff DEREK GRONQUIST. Plaintiff represents to Defendant that his mother, Barbara Parker, has been authorized by him to accept payment of the settlement amount from Defendant and that such acceptance satisfies all claims Plaintiff has against Defendant in this matter. 5. The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. A 6. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 7. The parties agree that neither party is to be considered a prevailing party in this action for any purpose, including, but not limited to, attorney fees. 8. The parties jointly agree that dismissal with prejudice of this action is an appropriate resolution in consideration for payment of the sum of Seventy Nine Thousand Dollars and zero cents and the other consideration provided for in this Agreement. The parties also agree to sign and file a stipulated motion for the entry of an order dismissing this action with prejudice. 9. The Plaintiff agrees and covenants not to sue the State of Washington or its agencies, employees and officials over the Public Record Act claims concluded by this Settlement Agreement. RELEASE AND SETTLEMENT 2 ATTORNEY GENERAL AGREEMENT Crimgigl SQISIOH (NO. 02-2-U55 8~9) Olympia, 98504-0116 PRR-2011-00450 (360)536~1445 10. The undersigned parties declare that the terms of this Release and Settlement Agreement are completely read, Wholly understood and voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against Defendant. it ig, DEREK GROE Que 1 DATE Plaintiff, Pro Se "xi" ii'i@ .W Vp5_ ii' _i,g PETER i EY, #15719 DA 1 Assistant Attorney Gener Attorney for Defendant i fu wi 0? KAT YGA DAT Risk anage Department of Co tions RELEASE AND SETTLEMENT 3 AGREEMENT ?ustigg (NO. 1 443 Olympia, 9850441116 PRR-2011-00450 (360) 586-1445 I RW aaraERe" r- IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON A IN AND FOR THE COUNTY OF SPOKANE DEREK E. No, 02-2-05518-9 I Plaintiff, ORDER or V. I DISMISSAL DEPARTMENT or CORRECTIONS or THE STATE or WASHINGTON, Defendant. THIS MATTER having come before this Court on the stipulation of the parties, and it appearing to theCourt that all matters in controversy herein between the Plaintiff, Derek Gronquist, Pro Se, and Defendant have been fully settled and compromised, and the Court having been advised in the premises, now, therefore, IT IS HEREBY ORDERED, that Plaintiff Derek Gronquist's claims against Defendant, in the above-referenced cause of action, are hereby dismissed with prejudice and without costs as agreed by the parties in ir Release and Settlement Agreement. I I DATED this day af oos. li~~ I PRICE Superior Court Judge STHJULATED QRDER QF i 1 ATTORNEY GENERAL OF WASHINGTON Criminal Justice Division DISMISSAL (NO. 02-2-05518-9) i PO BOX 40116 PRR-2011-00450 i (360) 5864445 Presented by: ROBERT M. MCKENNA Attorney General Pg??l? Bf r3~ 0? PETER Wf EERNEY, BA #15719 DATE Assistant Attorney General Attorney for Defendant 1; 6;;7 I - 3 75 ?lg/ EREK UIST #943 857 DATE Plaintiff, Pro Se STIPULATED QRUER 01: 2 ATTORNEY GENERAL or WASHINGTON Cr' t' DIEMISSAL (No, 02-2-05518-9) A A olympia, WA 98504-0116 5501445 (360) 586-1445 PRR-2011-00450 1, - ILED $l.lP?5ilUR CUUQT i #5 ERWDIIES 3 eann et - -gf UHeal_ingE%et 09 Pm :1 Date: November 1, 2009 Time: 11:00 AM i 63913 The Honorable Richard D. Hicks A _r i STATE OF WASHINGTON THURSTON COUNTY SUPERTOR COURT WASHINGTON STATE No. 0 f- DEPARTMENT OF gx 9- . and FINDINGS OF FACT 1 VVASHINGTON STATE OFFICE CONCLUSIONS OF LAW, AND OF THE ATTORNEY ORDER GRANTIN GENERAL, PERMANENT LNJUNCTION Petitioners, V. ALLAN PARQMELEE, ondent. - This matter is before the Court on Petitioners' Motion for Permanent Injunction. The Court has heard the argument oficounsel and Respondent Allan Pannelee, and considered the following pleadings evidence filed in support of and opposition to the motion: A 1 Petitionefs Motion for Permanent injunction 2. Declaration of Tim Lang, including attachments; I 3, Declaration of Steve DeMaTs, including attachments; 4- Declaration of Denise Vaughan, including attachments; 5 Declaration of Laura Mathieu, including attachments; FINDING OP FACT, CONCLUSIONS 1 Emf! A *Hifi 1101 11011126- OF LAW, AND ORDER GRANTING PERMANENT INJUNCTION A (PROPOSED) SF-01446 PRR-2011-00450 '1 -l =f EI. TJ I i 6. Declaration of1<.P. Bodnar, including attachments; 7. Declaration of Dan White, including attachments; 8. Declaration of Douglas Waddington, including attachments; 9. Declaration of Gerald Banner, including attachments; 10. Declaration of Tony Dunnington, including attachments; 11. Declaration of Scott Hanlcins, including attachments; 12. Declaration of Kenneth Nonarnaker, including attachments; 13. Declaration of Richard Morgan; 14. Response to Petitionefs Motion for Pennanent Injunction and_Request for Additional Time to Fully Respond after Discovery; I 15. Afiidavit/Declaration of Allan Parrnelee in Response to Petitioner's Motion for lnjunction; 16. Supplemental Declaration of Steven Demats; and 17. Reply in Support of Petitioner's Motion for Permanent Injunction. I. FINDINGS OF The Court has considered the evidence subrnitted and makes the following findings of fact: 1. Respondent Aman Parnielee is incarcerated a St.-as can-aonoaai facility following a 2004 conviction on two counts of Arson in the First Degree. The arsons involved the lirehonibing of automobiles belonging to Mr. Pai-n1elee's ex-wife's attorney, and an attorney who represented Mr. Parmelee's roon1mate's ex-girlniend. Following the conviction, the court entered an exceptional sentence. In justifying the exceptional sentence, the court found Mr. Pannelee's crimes were the result of sophisticated planning designed to intimidate attorneys OF FACT, CONCLUSIONS 2 Erma not dermfd. OF Law, AND onosa GRANTING mniwcnon fpnoposan) F-0 447 PRR-2011-00450 I I opposing M. Parmelee in litigation. The court also found Mr. Parmelee intended to fiustrate and impair the functioning of the justiize system and his actions were part of a continuing pattern for which he was unrepentant 0 2. In 1999, a jury convicted Mr. Parnielee of felony stalking. Mr. Pannelee's felony stalking conviction involved conduct intended to terrorize his ex-Wife, including circulating a flyer about her to inmates at the Federal Detention Center in SeaTac_ The flyer included the womarfs name, home address, age,- height weight, hair color, and a statement that she was "recently divorced ex-husband in jail for long time, likes exlcons, loves sex, Wants men to corne live with her, Will send money if requested with photo, likes you to talk dirty to herthe prison magazine." 3. While incarcerated, Mr. Parmelee repeatedly has threatened, harassed, and attempted to intimidate Department of Corrections (DOC) and Attorney General's Office (AGO) staff; and other public employees involved in his prosecution and incarcration. I 4. While incarcerated, Mr. Parmelee has made well over 1000 Public Records Act (PRA) requests to state and local lavvienforcement agencies involved in his prosecution and incarceration, including S49 requests to DOC and 36 requests to AGO- i 5. Mr. Par:melee's PRA requests to and AGO were made for the purpose of harassing and intimidating the agencies and -their employees, as evidenced by the following: a. In a September 8, 2008, letter to his brother, Mr. Parmelee stated he had 'i erked [the State] around" with PRA requests. He further proposed a business venture with his brother, the sole purpose of which was to profit from the FINDINGS or Pact, couctusions Emrr inform emi' nm damn or LAW, AND oaosa osnnrino PERMANENT INJUNCTION (pnopossn) SF-01448 PRR-2011-00450 submission of public records requests. Mr. Parmelee described the potential for obtaining PRA penalty awards to be "like selling real estate," except easier and more predictabl." He also emphasized the need, in light of anticipated legislative efforts to address inmate abuse of the PRA, to "set up a holding company though a hidden trust (to protecti the money from any greedy government creditors for ine recovery, etc.) outside the residence state in at least two layers, to issue or cover Pnblic Records Act requests, and reap the bountithl penalty awards so easy to get." I b. Mr. Parmelee"s requests often fpcus on public employees with whom he has interacted in some Way in the justice system, and the requests frequently seek sensitive personal information concerning these employees, such as dates of birth, race, height and Weight, and other identifying inforrnation. For instance, Mr. Parmelee has made 215 separate requests to DOC for the personnel files of 374 correctional officers, prison officials, and other DOC staff responsible for correctional facility operations. Additionally, Mr. Parmelee has requested copies of identification photographs of all employees of 8 of the stat-e's largest correctional facilities, as well as records identifying each employee by his or her full name, date of birth, gender, race, position, pay rate, and hire date. Mr. Parmelee also requested the personnel records: and identification photographs of assistant attorneys general assigned to defend Doc against claims brought by Mr. Pmnelee. c. Mr. Parmelee's pattern is to use PRA requests and the information he gains through them (and through ofher means) to threaten staff by communicating or suggesting his hiowledge of ltheir home addresses, family circumstances, or other personal information unrelated to their official duties. FINDINGS OF FACT, CONCLUSIONS 4 Mirfefi- OF LAW, AND ORDER PERMANENT CTI ON (PROPOSED) SF-01449 PRR-2011-00450 I i d. Mr. Parmelee has threatened to use stai identification photographs in defamatory flyers to be distributed in the communities surrounding at least two correctional facilities, the -Clallarn Bay Qorrections Center (CBCC), and the Washington State Penitentiary (W SP). The: draft flyers prepared by Mr. Parmelee labeled staff "sexual predators" or "homosexual predators." Mr. Parmelee targeted the staff members named in the flyers with PRA requests for then personnel records. i e. On numerous occasions, Mr. Pairmelee has threatened to obtain and post publicly the personal information of oicers and oaersnoc staff This has included threats to post staff identification photographs on the Internet with defamatory statements describing the depicted employees as sexual predators; threats to post personal information subh as social security numbers, vehicle licenses, and photographs and addressesf of employees' homes on the Internet; threats to issue press releases and other "public relations efforts" containing false and defamatory statements about staff Mr. Parrnelee has attempted to enlist third parties to make PRA requests on his behalf including by preparing request letters, explaining the potential for penalty awards under the PRA, and oiering $500 rewards to the first person to send him DOC staff photographs in electronic format. Mr. Parmelee also requested lists of DOC offenders; including those housed at the WSP and those who made PRA requests or filed lawsuits against "to create a mass mailing list of all prisoners to send them information about the state's Public Records Act g. In a letter to DOC's public records officer, Mr. Parmelee boasted that DOC was powerless to control his use of the PRA: will continue I Femmes or PACT, conclusions 5 E1-r= were me not -ie-ed. ,mn onnsa or LA PERMANENT INTUNCTION (raososaio) SF-01450 PRR-2011-00450 3$ '1 .5 .a I . _.um xan- I I I I sending PRA requests as allowed by the PRA statutes, DOC policy, and WAC 137- 08. No matter if a court orders a limit, as Fm sure it vvouldn't stand a chance on appeal. Then, I will seek to exceed the PLN check, of over half a million for PRA violations. So don't expect a reprieve." h. Mr. Parrnelee has sent handwritten notes to the staff members whose personnel records he requested with statements such as the following: "Because you insist on a pattern of conduct subjecfing you to being sued, today I submitted a public records act (RCW 4256) request for a copy of your personnel records, complaints made about you, as Well as your compensation and training records and other records going beck several years i. Mr. Parme1ee's threats to staff have included Statements suggesting his knowledge oi or ability to obtain, personal information such as home addresses. For example, on at least two occasions, Mr, Pannelee has yelled out a particular staff person's home address, by city and street, inthe presence of other offenders and the staff person. Mr. Parrnelee also has mailed materials to the unpublished home address of one DOC correctionaltofhcer. j. Mr. Parrnelee hs threatened to send sex offenders to staff homes, including in the middle ofthe night, to serve legal papers. k. In September 2008, DOC confiscated a letter from Mr. Parmelee to a private investigator requesting that the investigator arrange for level II and sex offenders to "Work on my projectsr" Mr, Parmelee provided the names of 23 DOC employees and explained that the sex offenders were to schedule service" at the employees' homes, "between rnidnight and 3 100 Also, Mr. Pannelee specified .that a recently released offender, whose address he previously provided to the investigator, be assigned to "handle the S.D. matter." Fnronves or Facr, 5 Error! emrmenfe nordeunem or LAW, Ano canes oaaNr1No n~1IuNc'r1oN (rnorosso) F-0 4 5 PRR-2011-00450 referred to a female correctional officer who had received threats of serious harrn nom the offender Mr. Pannelee intended to send toher home. 1. ln April 2009, while processing and scanning Mr. Parmelee's legal mail, DOC stai discovered personal infonnation of approximately 75 DOC included in the legal men. Investigatiion revealed ther Mr. Pee-melee possessed personal information concerning staff such- as home addresses, MapQuest maps identifying home locations, personal descriptions of staff and staff family members, and vehicle license plate numbers- i 6. Fnlilling Mr. Pannelee's DPRA requdsts to DOC and AGO would likely threaten correctional facility security the safety and security ,of correctional facility stafli AGO staff; and staff' families, for the following reasons: a. Mr. Patmelee's violent criminal offenses involved conduct intended to intimidate adversaries in litigation or others he perceived to have wronged him, and to the fimctioning ofthe icrinrinal justice system. b. Mr. Parmelee has threatened to harm DOC and AGO employees, including to born down a correctional officer's home and to "send someone out to [an Assistant Attorney General's] house to pay you a visit." c. Mr. Parmelee demanded moneyi from a corrections oflicer who filed an action seeking to prevent disclosure of her personal information to Mr. Parnrelee. In a letter to this oficer, Mr. Parrnelee requested payment of "$lG00 to call it even and agree to vacate the Clallam order . and he finther stated that by accepting this proposal, he would agree "to not seek or release information ahout you publically (sic) that may endanger you. i d. As detailed above, Mr. Parrnelee repeatedly has threatened to send sex offenders and others to employees' homes, including in the middle of the FINDINGS OF FACT, CONCLUSIONS 7 Emff defined- OP LAW, AND ORDER GRANTING PERMANENT INJUNCTION (PROPOSED) SF-01452 PRR-2011-00450 3 1235. of pugnight, and he has taken affinznative steps to arrange for such service, including retaining or attempting to retain a private investigator and obtaining horne address and other personal information concerning DOC staffii a e. Mr. Parnrelee has on many occasions stated his intent to post on the Internet and display elsewhere employee identification photographs, along with false and defamatory statements that the employees are sexual or homosexual predators. Fuliilling Mr. Parnrelee's PRA requests 'pill assist him in this regard and thereby subject DOC md AGO employees to harm. i f. Mr. Parnrelee's requests to DOC include 222 requests for correctional facilitysurveillance videotapes- He also has requested ire escape floor plans for correctional facilities and DOC's Headquarters building, and Intensive Management Unit (ll\/IU) construction and design rebords. g. Disclosure of surveillance videotapes would enable inmates to discern the surveillance capabilities of correctional facilities so as to assist an incarcerated oiender in avoiding detection when attempting criminal activity such as assaults against other inmates or staff; or exchanging contraband. Disclosure of iire escape floor plans and IMU construction or design records would assist an innrate in devising escape plans or other criminal activity. h. Disclosure of personal infonznation' concerning DOC and AGO staff to Mr. Parmelee would put the targeted employees and their families at risk of agnineaar nam staff was Mr. Parnhelee's PM requests have a reasonable basis to be concerned about their safeti given Mr. Pan;ne1ee's violent criminal history and demonstrated willingness and ability to carry out threats of harm. I FINDINGS or FACT, Eff-aff me-'rm dana os LW, AND PERMANENT INJUNCTION fssoroseo) SF-01453 PRR-2011-00450 7. Fulfilling Mr. Parmelee?s PRA requests to DOC and AGO may assist in criminal amusing criminal harassment? of noe and employees and their family members in violation of 9ra.46.020; attempts to influence public servants in the perfonnance of their duties, in violation of RCW 9A.76.l80; and avoidance of lawfully imposed _legal Enancial obligations, in Violation of RCW 9.94A.634. 8. Mr. Parrnelee has engaged in a pattern of intentional misuse of the PRA to harass and intimidate DOC and AGO employees; to seek information that, if disclosed, will threaten the safety and security of DOC correctional facilities and the safety and security of DOC and AGO employees and their families; and to manufacture claims for statutory penalties, claims he aggressively pursues with Threats of additional requests. - CONCLUSIONS OF LAW l. The Court has authority to consider Petitioners' Motion for Permanent lnjunction pursuant to RCW 42.56.620 (Substitute Senate Bill 5130, Chapter 10, Laws of 2009). 2. i The Department of Corrections and the Attorney General's Office are "agencies" as deiined under RCW 42.56. 3 RCW 42-56.620 authorizes the Court tb enjoin PRA requests made by a person serving a criminal sentence in a correctional facility if the Court Ends by a preponderance of the evidence that (1) the requests were rnade to harass or intimidate the agency or its employees; (2) fulilling the requests would likely threaten the security of correctional facilities; (3) illiliuillg the requests would likely threaten the safety or security of stafli inmates, farnily members of stai family mnrues or racr, concessions 9 may deans. or LAW, AND osnsa oruusrino Psruvrmsur iumucriou qpnorosan) SF-01454 PRR-2011-00450 members of other inmates, or any other person; ori (4) fulfilling the requests may assist criminal activity. . 4. Petitioners have shown by a preponderance of the evidence that Respondent Allan PBTIILSIQGDS PRA requests to DOO and AGO were made to harass and intimidate the two agencies and then employees targeted by the requests. 5. Petitioners have shown by a preponderance of the evidence that Respondent Allan Pannelee's PRA requests to DOC and AGO, if tidlled, would threaten the security of correctional facilities. A 6. Petitioners have shown by' a preponderance of the evidence that Respondent Allan Parrnelee's PRA requests to and AGO, if fulfilled, would threaten the safety of security of DOC and AGO employees and their families. 7. Petitioners hav shown by a preponderance of the evidence that Respondent Alien Parrnelee's PRA requests to DOC and AGO, if iilliilled, may assist activity. 8. Even though the court has found eachfof the four grounds for issuing an iniunction pursuant to RCW 42.5 6.620 been proven more likely than not to exist; in addition even if one were to be found not to meet this standard by a higher Com, the remaining ones steer individually would meet this standard. 4 9. Petitioners have shown by a preponderance of the evidence that an injunction barring Mr. Parrnelee from rnaking PRA requests to DOC and AGO, either directly or through an entity he owns or controls, including the "Conimittee for Accountability," is necessary to protect DOC and AGO and employees of the two agencies nom continued hinassment and intimidation; to protect against disclosure of information that would threaten correctional facility I Fntomos os mor, 10 Er-ef! Auwrw we - os Law, AND oaosa Gaanrmo - qpaopossng SF-01455 PRR-2011-00450 i security; to protect against disclosure of information that would threaten the safety and security of DOC and AGO employees and their fatmdies; and to protect against disclosure of information that may assist criminal i 10. Petitioners have shown by a preponderance of the evidence that an injunction barring Mr. Parrnelee from making requests to DOC and AGO, either directly or through an entity he owns or controls, including the Committee for Government Accountability, is necessary to prfotect limited state resources, to protect the important policy interests underlying 'the PRA, and to prevent Mr. I Parrnelee from misusing the PRA for financial gaLn.~ a IH. ORDER i IT IS HEREBY ORDERED: 1. Petitioners' Motion for Permanent lnjunction is GRANTED for a period of tive (5) years from the entry of this order at which time the defendant may request a hearing that itnbe lifted. Such a hearing the court may or may not grant, depending on what facts are established ati that time; with Mr. Parrnelee having the burden to show that 'more likely than not the injunction should he lifted and, second, that a new hearing be allonied for that purpose. If such heating is granted Mr. Parrnelee also has the burden to show that more likely than not the facts no longer support the continuance of an injunction; 2. Respondent Allan Parmelee is enjoined noni inspecting, copying, or receiving records not yet provided to him that are responsive to any and all PRA requests he has submitted to the Department of Corrections, the Attorney General's Office, or any other agency ofthe State of Washington. However, this does not prevent Mr. Pannelee, two times a year, at least six months apart by date or FACT, conctustons ll not den-a. or LAW, AND canes PERMANENT intonation . (rsorossny - SF-01456 PRR-2011-00450 of request, from inspecting the DOC tile pertaining to his own personal status, under the rules in eifect at the time of such request, that allow inmates to examine what DOC has Hled in the inmates personal records, allowing such review. Such a request, to review his own personal records, to the extent allowed by any other inmate, may also be made by Mr. iPar1nelee at any time upon a showing ofgood cause to the DOC. A 3. The Department of Corrections, the isttorney General's Oflice, or, any other Agency of the State of Washington, have no obligation under the PRA to further search for, preserve, or in any other Way process records responsive to Mr. Pannelee's PRA requests, including all requests submitted to the two agencies as ofthe date of this Order, except that the agencies shall preserve such records during the pendency of any appeal of this Order; 4. Respondent Allan Pannelee is enj oined from requesting, either directly or through an entity he owns or controls, including the Committee for Governnient Accountability, if such is shown tof be under his control, records pursuant to the PRA EFOII1 the Department of Corrections, the Attorney Genera.l's Office, or, any other Washington State agency fora period of live (5) years noni the filing of this Order. In interpreting this section 'his control' means in any part or manner even if such control is not exclusive but shared with others. Based on the facts in this case if Mr. Parrnelee or the for Government Accountability claims Mr. Parrnelee has no control whatsoever the burden of proof is on those claiming he is not involved to demonstrate that they are in fact independent of Mr. Parmelee. 5. Although the Court has enjoined Mr. Parrnelee from inspecting, copying, or receiving records responsive to all his pending requests, as set forth rinnrses or racr, CONCLUSIONS 12 Emi P- f~=Te==f _or LAW, AND osnan iniuncrion n>not>ossn} SF-01457 PRR-2011-00450 in paragraphs 2 and 3 above, the Comt does not decide the effect of this injunction on claims for statutory penalties andfor costs pending in other superior or appellate court actions between the parties, as that issue is not before this ef bees fue aamz rm 'r .rv ve Com) }0&Qgz$r$ QF wg FIR. 15 6. In light ofthe injunctive relief entered under RCW 42.56.620, Mr. Pa11nelee's countefclaixns for alleged PRA violations are dismissed as moot. 7. The Clerk is directed to send uncertitied copies of this Order to counsel for the Petitioners and to Mr. Pannelee. I DATED this 3 day of November, 2009. 1 Presented By: ROBERT 7 . Attorney General 1 do eo-1/Gkft EQ .s 774 S?r. Assaspant Attorzriy gederal i UF- I all 2 ounse or Petitioners WWA: 1-f fl/ Agreed as to form only: 5 tammy' rr vp? af# ELAN ELEE Respondent I FINDINGS OF FACT, CONCLUSIONS 13 Emff entry OF LAW, AND ORDER PERMANENT INIUN CTI ON (PROPOSED) F-0 4 5 8 PRR-2011-00450 A THE SUPREME CQURT RONALD R. CARPENTER STATE OF WASHINGTON TEMPLE QF SUPREME COURT CLERK Sw., BQX 40929 . A WA 98504-0929 A SUSAN CARLSON (360, DEPUTY CLERK CHIEF STAFF ATTORNEY e-mail: sUprerne@coUrts.wa.gov mg vvwW.courts.wa.gov April 14, 2010 . Allan Parmelee' 1-lon. Betty Gould, Clerk tt 793782 . Thurston County Superior Court Stafford Creek Corrections Center 2000 Lakeridge Drive SW, Building 2 l9l Constantine Way MS: 40979 Aberdeen, WA 98520 olympie, WA 98504-0979 9 Timothy Norman Lang li i Office of the Attorney General tif tfiFt:,lC PO Box 40116 Olympia, WA 98504-01 16 Re: Supreme Court No. 83902-6 - Washington State Department of Corrections, et al. V. Allan Parmelee Thurston County Superior Court No. 09-2~02079-2 Clerk, Counsel and l\/lr. Parmelee: On March 2, 2010, Department ll of this Court denied the Appellant?s motion for public expenditure. By letter dated l\/larch 3, 2010, the Appellant Was advised that the $280 filing fee must be paid to the Thurston County Clerk and proof of payment provided to this Court by not - later than April 5, 2010. As of this date, no proof of payment has been provided to this Court. Therefore, this matter, Supreme Court No. 83902~6, is dismissed for failure to pay the tiling fee. Ronald R. Carpen er Supreme Court Clerk . I Sincerely, I . andere A .l SF-014 - aw 1150 THE SUPREME Count OF WASHINGTON A A WASHINGTON STATE DEPARTMENT OE CORRECTIONS and WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL, I Thurston County superiort Court No. 09~2-02079-2 ALLAN PARMELEE, AppellantTI-IE STATE OF WASHINGTON The Superior Court ofthe State of Washington in and for Thurston' County. This is to certify that the Supreme Court Clerk ofthe State of Washington entered a ruling dismissing the appeal in the above entitled cause on April 14, 2010, and the matter is now final. Accordingly, this cause is mandated to the superior court from which this appeal Was I have affixed the seal ofthe Supreme Court ofthe State of Washin tiled this Mandate th j2,l5' dayof If ay 'l f' =>1-fit: - i tv?af qs gg, -I I - Rona enter f* WW Clerk of the Supreme Coui ui! State 0fWaSh111gt0n I cc: Hon. Betty Gould, Clerk Fi' Fw; vu Thurston County Superior Court 311' 5 Allan Parmelee Timothy Nornian Lang I - 'Reporter of Decisions I ig . t- I, .L sitllr .nun I 1-Q1 ,113 ., - FW- rf* If -fi 1 "wav a g. -I 1 5 auf 'Emi' fix ;'1i tum01460 I rmftesftiss I PRR-2011-00450 PM 2" A it suasmoe sou" MAY fl mauism' Gtekikxtisto Date: August 20 20 _Wx ft; 9:00 am oiv A BETH semi; ooze.; Judge: Paula_Casey A smilie of' sopmxos COURT R. MCKEEA No. os-2-oo3s6-5 Plaintiff, - - v. - ORDER GRANTING zfomiow TO STRIKE WASHINGTON STATE MOTION soo SUMMARY ot JUDGMENT AND UMIMELY coessomoms (Wooc), et al. Motions TO oompsr, AND Foe SANCTI oms AND Mofrlom oefendantw) . tio oismss. Foe WANT GF ~eRosECoT1oN These matters' came before time Court on the Defen?ent's Motiori forexi 1 or?er striking Plaintiffs untimely motion for summary judgment enci Pl'aintiff's two untimely motionsto compel aridfor sanctions- "Defenc3ant>> - also move?i for dismissal of this action for want of prosecution. _The Court orally rulecif granting motions. In reaching its ciecision, the 'Court Considered the oral argument of Plaintiff and Plaintiffs Response to orel argument of Counsel for Defenciazat, Defe1;c3ant;_s, . Defendants motions. The Court hereby find and GRE: 1. Plaintiffs Motion for sumary jucigment 2. Plaintiff 's Motion to Corqpel and for sanctions is STRICREN: 3. Plainti_EURf"s Second Motion to Co1npel~ and. for Sanctions is emo' 4. DefencElant's Motion to dismiss for prosecution is . 'fs ECB AND HOIICN DIQEESS HCR. M-mg, Haggis SF-01461 - PRR-2011-00450 -The Clerk df the Court is instructed to sen? Qncertified copies of this order to th? Plaintiff and Counsel the def?n?ant. DATED this ay of 2010.5 ES RABLE PAULA CASEY Thurston County Superior Co `udge 1 Presented effrey R. McKee, plainiiff pro se 2 SF-01462 PRR-2011-00450 THE SUPREME COURT OF WASHINGTON 5 ir# JEFFREY R. REER No. ~i gp 5 ra?fs i ff i No. 40939-9-II STATE OF WASHINGTON DEPARTMENT OF C0 Thurston County Superior Court I No. os-2410386-5 Respondent. Department II ofthe Court, composed of Chief Justice Madsen and Justices Alexander, Chambers, Fairhurst and Stephens, considered this matter at its September 7, 2010, Motion Calendar and unanimously agreed that the following order be entered. IT IS ORDERED: That the Appellant's Motion for Expenditure of Public Funds is denied. The Appellant's Motion to Stay Motion for Expenditure of Public Funds is denied. NJ . W1 DATED at Olympia, Washington, this Oli" day of September, Zitjlla . fi; VE wi I For the Court Twig ff' Je A I -444 . 3 CHIEF JUSTICE SF-01463 5q'3/ 57) PRR-2011-00450 -t if ll pqegszi 9; .3 Lzaxfe 1' i' ii C, Kp' 1; _:zz ti EXPEDITE A Lf, uzawae- we El No I-learin Set A .P lZlHemingisgSet igll Date: July 29, 2011 q, Tirn: ll :00 a.1n. gitggf 1 fs Honorable Paula: Casey .V j1_` is A STATE OF WASHINGTON A TRURSTON COUNTY SUPERIOR COURT MATTHEW O. SILVA, - No. 11-21005558 Plaintiff, ORDER GRANTING A MOTION FOR SUMMARY V. JUDGMENT AND DISMISSING COMPLAINT WITH PRETUDIOE ROB MCKENNA, Defendant. This matter came before the Court July 29, 2011, on Defendanfs Motion for Summary Judgment The Court heard argument of counsel and Mr. Silva, and considered the following pleadings: Defendant'S Motion for Summary Judgment; Declaration of K.P. Bodnarg Plaintiflf"siResponSe on Summary Judgment; and Defendant's Reply in Support of Summary The Court also considered the Oral motions of Mr. Silv time foiha change of venue and recusal. Being fullyadvised, the Court finds and concludes as follows: A A A (fwfr - l. Mr; Silva's motions of venue and recusal are denied. 2. This Public Records Act (PRA) matter involves a request submitted by plaintiff Matthevv Silva to the Attorney General's Office (AGO) for records relating to an employee's resignation and transfer to another state agency., The AGO received the request on Septemberfi, 2008, and completed its response to the request on October 23, 2008, When it _produced nine pages of records to Mr. Silva Without any olairn of ORDER GRAN TIN DEFENDANTS I ATTORNEY GENERAL QE WASPUNGTON MOTION FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT WITH Olympia, WA 98504-0116 PREJUDICE (PROPOSED) A <260> 586-1445 CAUSE No 1 SF-01464 A PRR-2011-00450 4 exemption and advised him the request was closed. After October 23, 2008, there was no further communication between the AGO and Mr. Silva concerning the request until this action arose in March of 2011. 3. l\/lr. Silva's Complaint is dated March 1, 2011. The Court accepted the Complaint for tiling on March 25, 2011, and on that same date "entered an order allowing Mr-_ Silva to 'proceed in this matter in forma pauperis. 5 4. Actions brought under the PRA must be brought Within one year of the date of an agency's "claim of exemption or last production of a record on a partial or installment basis." RCW ln Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010), Division I of the' Court of Appeals held that the one-year statute of limitations is "triggered by one of two occurrences: (1) the agency's claim of an exemption or (2) the agency's last production of a record on a partial or installment basis." Id at 5l3Q Consequently, under obirz, when the agency responds to a request in a single production, Without a claim of exemption, the one~year statute of limitations- does not apply. Ii at 514. I 5. a recent Division Il decision, the Court of Appeals referenced Tobin in reversing a PRA dismissal and remanding the case back to the superior court for further proceedings to determine the applicable statute of limitations. See McKee v. Department of Corrections, 160 Wn. App. 437, 446, 248 P.3d 115 (2011). The court in McKee concluded the plaintiff Eled the three complaints at issue in that case beyond the one-year limitation period of RCW "but Within a possible two year statute of limitations under chapter 4.16 Id. at 448. It is not clear Whether, in McKee, Division Il adopted Division I's intefpretation of RCW 42.565 50(6) announced in obin. A 6. The Court disagrees with_Division l's interpretation of RCW 42.56.550(6) in obin, because it does not make sense the Legislature Would create a shorter limitation period for actioiis involving requests responded' to in installmetnts compared with those produced in a single production. However, the Court need not decide Whether Tobin ORDER GRANTING 2 ATTORNEY QF MoTroN FOR suivniintv TUDGMENT AND DISMISSING COMPLAINT WITH Olympia, WA 98504-0116 PREIUDICE (PROPOSED) SF-01465 (360)586~1445 GAT-HIP. NF) PRR-2011-00450 and/or McKee control the application of RCW in this matter. This is because Mr. Silva bfeughf this action more than two years after the AGO produced records responsive to his request and notified him the request was closed. Accordingly, this action is time-barred under the two-year, catch-all limitation period set forth in RCW 4.l6.030.i RCW 14.16.130 states: "An action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued." Mr. Silva's action accrued on October 23, 2008, when the AGO produced records responsive to his request and notified him it consideredhis request concluded. 7. RCW 4.l6.ll5 relates to actions for civil penalties based on the commission of criminal offenses and, therefore, does not apply to this matter. Based on the above findings and conclusions, the Court hereby ORDERS: 1. D3efendant's Motion for Summary Judgment is Granted and Mr. Silva's Complaint is DTSMISSED with prejudice; A 0 ORDER GRANTIN DEFENDANTS 0 3 MorIoN Fon SUMMARY JUDGMENT PO Box 40116 AND DISMISSING COMPLAINT WITH olympia, WA 98504-0116 PREJUDICE 3901466 . CAUSE NO. ll-2-00555-8 1c1 r"d`er en ant. DATED this day of August, 2011. A 1, 1 A LE PAULA CA 1 A Thurston County Superior Judge Submitted by: ROBERT M. MOKENNA A A A Attorney General 1- TIMCLA se #21314 Sr. Assistant Attorney General Approved as to form only: MATTHEW SILVA A Plaintiff Pro Se ORDER 4 GENERAL QF WASHUNGTON MOTION FOR IUDGMENT AND COMPLAINT WITH Olympia, WA 98504-0116 PREJUDICE (PROPOSED) SF-01467 CAUSE NO. 11-2-00555-8 PRRQ01 M0450 iv: 3" A W- A 'aurtiauat-Q1a" 1 tlrluualu-= A EIEXPEDITE W. ?1?l10Haa1~i11gsSat tame as tau ui 611 . 1 atm' J. enum. GLW- Tune: 10:30 a.m. Honorable Christine Pomeroy STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT MATTHEW STLVA, NO. io-2-oovss-9 riatnaff, ORDER GRANTING DEFENDANTR MOTION POR v. A SUMMARY JUDGMENT A ROB MCKENNA, Defendant. This matter came before' the Court January 1-4, 2011, on Defendanfs Motion for _Summary Judgment. The Court has heard the argument of eounsel and Mt. Silva, and reviewed the following: Defendant's Motion for Summary Judgment; the Declaration of K.P. Bodnar; the Declaration of Nicole Walvatne; the Declaration of Doug Carr; the Declaration of Abram Clark; Plaintiffs Response on Summary Judgment, Cross-Motion and Request for CR 56(t`) Discovery Continuance, including attachments thereto; Reply in Support of Defendanfs Motion for Summary Judgment; Supplemental Declaration of Abram Clark; Defendanfs Response to Plaintiff' Cross- Motion for Summary Judgment; and Plaintiff' Reply Re Cross-Motion for Summary Judgment. Being fully advised, the Court finds and concludes as follows: ORDER GRANTING DEFENDANVS 1 eeunw. crwasrmierou MOTION POR IUDGMIENT 1 (PROPO SED) - NO. l0-2-00783-9 O]ympia, WA 93504..01]5 (360) 536-2445 F-0 468 PRR 2011 00450 l. In the Public Records Act reque_st at issue in this matter, Plaintiff Matthew Silva requested records from the Attorney General's Office (AGO) relating to "acts and omissions described in the DECLARATION OF DAVID HILL, tiled on Silva v. WDOC er al, 08-2-01803-0, Thurston County Superior Court." A 2. A In the declaration, Mr. I-Till, an inmate, states he saw' a man reviewing Mr. Silva's legal documents While working in the Stafford Creek Corrections Center property room in November or December of 2007. Mr. Silva alleges the man described by Mr. Hill Was an Assistant Attorney General (AAG). 3. The AGO denies! any AAG or other AGO employee visited the property room during th relevant time period and reviewed hh. Silva's legal materials While there. The AGO therefore. denies records exist that could be responsive to Mr. Silva's request. A 4. There is no admissible evidence to support Mr. Silvafs claim that an AAG or other AGO employee visited the Property room during November or December 2007 and reviewed his legal documents While there. - 5. As stated in his declaration, Mr. Hill did not have personal knowledge of the identity of the man he saw. Mr. Hil1's statements in the declaration about what anotherperson told him about the identity of the man he saw are hearsay and inadniissible to prove the man was an AAG or other AGO employee. Accordingly, the Court will not consider those statements. 6. This matter is ripe for summary judgment. There is no genuine issue of material fact to support Mr. Silva's claim that the AGO denied him ORDER GRANTING DEFENDANTS 2 ATTORNEY GENETEAL or XQVASI-ILNGTON Morioivroa JUDGMENT A (PROPOSED) - NO. 10-2-00788-9 Olympia, WA 98504-0116 (360) sas-1445 F-0 469 PRR-2011-00450 the opportunity to inspect or copy existing, identifiable records in violation of the Public Records Act. i Therefore, the Court hereby ORDERS: l. Defendanfs Motion is Plaintiff Matthew Silva's _complaint and this action are dismissed with prejudice pursuant to CR 56. 3. Defendant is awarded statutory attorney's fees of $200 pursuant to CR 54(d)( 1) and 4. The Clerk of the Court is instructed to send uncertified copies of this Order to Plaintiff and counsel for Defendant. DATED this 22? day ofFebruary, 2011. f' onora i1st1ne orneroy i Thurston County Supenor Co Judge Submitted by_: ROBERT M. MCKENNA Attorney General TIM LK NG, WSBA 321314 Sr. Attorney General Approved as to form only: Matthew Silva Plaintiff onosa ns1=sNnANr's . 3 ATTORIQHY QYWASPUNGTON -Morton Fon SUMMARY . (PROPOSED) - NU. lf)-2-00733-9 WA 93504.31 16 i (360) 5864445 SF-01470 PRR-2011-00450 THE SUPREME COURT OF WASHINGTON MATTHEW SILVA, No. 85318-7 Appellant, 0 V. No. 41936-O-II ROB MCKENWA, Thurston County Superior Court Respondent. I 8 mf; Lp. Department I ofthe Court, composed of Chief Justice Madsen and Justices C. Johnson, Chambers, Fairhurst, and Stephens, considered this matter at its June 7, 2011, Motion Calendar and unanimously agreed that the following order be entered. IT IS ORDERED: That the Appellant's Motion for Expenditure of Public Funds is denied. Aer" on DATED at Olympia, Washington this day of June, 2011. gg For the Court__ $CHIEF JUSTICE 3 SF-01471 PRR-2011-00450 (015/12. '5 FJLED susozuon comm ftofsw 'sn I TS 92:29 3 semi Souls :Isnt 4 6 5 7 STATE OF WASHINGTON COUNTY SUPERIOR COURT 8 MICHAEL MITCHELL, NO. os-2~ooS15-S 9 Plaintiff, ORDER 10 MOTION TO snow CAUSE V- ll DEPARTMENT OF CORRECTIONS, 2 - Defendant 13 14 THIS MATTER having come on for hearing on June 19, 2009, on Plaintiff's 15 Motion to Show Cause, Plaintiff Kevin Mitchell, telephonicelly appearing, pro se, 'and 16 Defendant, appearing by me Imugii in aeismeys, ROBERT NI. MCICENNH, Aoomsy 17 oensmi, and PETER W. BERNEY, Assisemi Reomsy Oessrai, andthe Com having 18 considered 'and heard oral argument, considered the Plaintiffs Motion, Defendanfs Response, and considered the records and files herein, and being fully advised; NOW, 1 0 QQ THEREFGRE, If is hefeby ORDEHED: I 21 1. PlEintiff's Motion is hereby DENIED. The cond finds no violation of the Public 22 Records Act, RCW 42.56 et seq.; 23 2. Plaintiff's action is dismissed with prejudice without award of penalties oi' 24' fees; I 25 I 3. The Clerk of the Court is directed to send a conformed copy of this order to 26, Planitiff and Counsel for Defendant; 2 C0 PY mari ed OPQDER AWOWEYCGEWML QR MOTION TO SHOW CAUSE TL NO. G8-24908154 9s5o=1~oI1S I (360)536-1445 SF-01472 PRR-2011-00450 A 1 ll 3 DQNE this day 09. I 3 ll 4 - HONQQ ANN IRS CH 5 Superior Court Judge li Presented by: ROBERT M. MCKENNA - 7 Attorney General 8 9 7 PETER W. BERNEY, BA #15719 DATE - 10 Assistant Attorney Genet 1 1 I Attorney for Defendant 12 Approved as to form; 13 Notic of presentation waived: 14 15 KEVIN DATE 16 P12-tintifiowen Q. QE ,Morton TO snow CAUSE NO. I5-4 oxympia, WA 9350443116 (asm SF-01473 PRR-2011-00450 1 CERTIFICATE OF SERVICE - 2 I certify that on the darts below I served a copy of the proposed GRDER DENYING 3 MOTIGN TO SHOW CAUSE on all parties or their eouuseldof record as 4 follows: 5 US Mail Postage Prepaid United Parcel Service, Nexi Day Air 6 A_BCfLegal Messenger State Campus Delivery 7 Hand delivered by staff TO: 9 KEVIN MICHAEL MITCHELL #380933 .STAFFORD CREEK CORRECTIONS CENTER 10 191 CONSTANTHNIE WAY ABERDEEN WA. 98520 I I ~fv~s EXECUTED EES 7 day ofJu;'1e, 2009, at Olympia, Washingsm I2 13 I KATRINA TOAL 14 Legal Assistant GRDER QENYMG 3 ATEGRNEY GENEIUJ. MOTION TG seow CAUSE NG. 08-2-008 1.524 oxympia, WA 93504-0115 (360) Sli-01474 PRR-2011-00450 l?ll?ED COURT Gifill 8= ll Slmli OF st Putt IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON I rr I KEVIN MICHAEL MITCI-IELL, No. 39874-5-II . Appellant, v. WASHINGTON STATE I PUBLISHED OPINION DEPARTMENT or CORRECTIONS, Respondent. I WORSWICK, .T -- Kevin Mitchell made a Public Records Act request to the Washington Department of Corrections (DOC) and asked for the requested records to be disclosedgelectronically. The DOC responded tliat electronically because 'redactions would be necessary to protect infomation that was exernpt from disclosure. Mitchell tiled suit claiming that the agency (1) improperly denied access to records Without providing an exemption statement, and (2) was required to disclose the records electronically. The trial court ruled in favor of the DOC on both clairns. We reverse and rernand to the trial court on Mitchell's irst claim, holding that the DOC violated the PRA by failing to provide an exemption' statement with its response denying' access to the records in part. We -ii-l 1 Ch. 42.56 RCW. I SF-01475 PRR-2011-00450 39874-5-ll afitinn on Mitchell's second claim, holding that the DOC was not required to disclose the records electronically. We award attorney fees on appeal to Mitchell for that portion attributable to the claim on which he prevailed. FACTS 1 On May 14, 2007, Mitchell, a prisoner in DOC, submitted a written request to the DOC asking for all data pertaining to him from two electronic databases. On .Tune 18, the DOC responded by letter that Mitchell would not be permitted to personally inspect the requested - records, but that he could appoint a personal representativeito do so. On July 1, Mitchell responded with a request that the DOC disclose the records electronically by e-mail. 0 On July 16, the DOC responded by letter that the requested records would "have redactions that are mandatory exempt nom disclosure, therefore would not meet the criteria 'to be 2 sent electronically." Clerl<'s Papers at 17. The DOC informed Mitchell that he could either pay for copies that would be sent to him, or he could have a third party inspect the records on his behalf. When Mitchell did not respond Within 30 days, the DOC administratively closed his On November 13, 2008, Mitchell tiled a motion for an order to show cause in Thurston County Superior Court, arguing that the DOC violated the PRA by denying access to records Without providing an exemption statement, and arguing that the DOC was required to disclose 2 The DOC records that Mitchell requested, which the DOC claimed include information that must be redacted, were stored in a computer database. To disclose these records electronically the DOC would have to print the electronically stored records, then redact the printed version, and inally scan the redacted hard copies ofthe records back into electronic format. 2 F-01476 PRR-2011-0045.0 39874-5-ll 5 the records electronically? The DOC responded that it had not denied Mitchell's request but, rather, had properly offered him the option to arrange for third-party inspection or to; pay for copiesfd' The trial court found that the DOC had not refused to disclose any information and that it Was not required to disclose records electronically, denying Mitchell's motion for anorder to show cause. . 5 5 A ANALYSIS Exemption Statement Mitchell first argues that the DOC violated the PRA by denying him access to part ofthe requested records without including a statement of the specific statutory exemptions and ca brief explanation of how the exemptions apply (exemption statement). We agree. Under the PRA, on the motion of a person who hasbeen denied an opportunity to inspect or copy a public record, the superior court may require an agency to show cause Why it has refused to allow inspection or copying. RCW The agency bears the burden to show that the refusal complies with a statutory exemption. RCW We conduct a de Mitchell also argued that the DOC failed to search for responsive records. But in failing to I brief this argument on appeal, Mitchell has abandoned it. Holder v. City of Vancouver, 136 Wn. Appl 104, 107, 147 P.3d 641 (2006). 5 3 1 The DOC also argued that its policy of denying prisoners the right to personally inspect certain records Was proper under the PRA. Division One of this court upheld this policy in Sappenfield v. Department ofCorrec1ions, 127 .Wn. App. 83, ll0_P.3d 808 (2005). We adopted inGronquist v. Department 0fCorrecz'i0ns, 159 Wn. App. 576, 586, 247 P.3d 436 (2011). ln a reply memorandum in the trial court, Mitchell expressly stated that he Was not seeking personal inspection and that he did not raise this issue. Mitchell briefly addresses this issue in his opening brief on appeal. But because Mitchell did not raise the issue below, We decline to consider it for the first time on appeal. RAP - A 5 RCW 42.56.550 was in 2011. Lawson 2011, ch. 275, 1. The amendment sees aa: aiect our analysis. 2 A 3 SF-01477 PRR-2011-00450 3 9874-5-ll novo review of agency actions taken or challenged under RCW 42.56.030 through RCW 42.56.520. RCW Where, as here, the record on a motion to show cause under the PRA consists only of aidavits, memoranda of law, and other documentary evidence, we stand in the same position as the trial court. 'Connor v. Dep 't ofSoc, Health Svcs., 143 Wn.2d 895, 904,25 P.3d 426 (2001) (quoting Progressive Animal Webizre Soc 5/ v, Univ. ofWash., 125 Wn.2d 243, 252, see me 592 (1994) (PA WS ro). "The PRA is a strongly worded mandate for broad disclosure of public records." Rental Haus. A'ss'n of Puget Sound V. City ofDe.s' Moines, 165 Wn.2d 525, 535, 199 P.3d 393 (2009). The PRA "shall be liberally construed and its exemptions narrowly construed" to promote this purpose ofpublic disclosure. RCW 42.56.030 The PRA provides, "Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizingme withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld." RCW 42.5 "Whenan agency claims an exemption for an entire recordyor portion of 0 one, it must inform the requestor of the statutory exemption and .provide a brief explanation of how the exemption applies to the record or portion withheld." Rental Haus. Ass 165 Wn.2d at 539 (quoting WAC This case requires us to interpret RCW 42.5 6 .21 0(3) to determine whether the DOC was requiredito include an exemption statement with its July 16 response. Our purpose when interpreting a statute is to determine and enforce the legislature's intent. Rental Haus. Ass '11, 165 Wn.2d at 536. Vwfhere the meaning of statutory language is plain on its face, we give effect to that plain meaning as an expression of legislative intent. Rental Haus. Ass _165 Wn.SF-01478 PRR-2011-00450 39874435-11 When detennining a statute's plain meaning, it is appropriate for courts to look to the context of the statute, including other provisions Within the same act. Dep of Ecology v. Campbell Gwinn LLC, 146 Wn.2d 1, 10-12, 43 P.3d 4 (2002). "In construing the PRA, We look at the Act in its entirety in order to enforce the lavv's overall purpose." Rental Hows. Assifz, 165 Wn.2d at 536. An agency "produces" a document hy making it available for inspection or copying. Sanders v. State, 169 Wni2d 827, 836, 240 P.3d 120 (2010). The DOO produced the requested records in its July 16 response, writing that Mitchell could either pay for copies ofthe documents or arrange for a third party to inspect the documents on his behalf. But the DOC also refused Mitchell access to part ofthe records in this response, stating that redactions of exempted 1 A information would he necessary; the DOC did not, however, recite the statutory provisions under which it claimed such exemption. - The DOC tirst asserts that it did not deny Mitchell' access to the records and thus the requirement of _an exemption statement was not triggered. This argument is contrary to the plain - 5 included in any response '?refusing, in Whole or in part, inspection of any public record." RCW Under the plain meaning ofthe Word, the July 16 letter vvas a "response" 1 The DOC offers no argument to the contrary. Because the July 16 letter Was a response, and because it refused access to part of the requested records, it triggered the exemption statement requirement under RCW 1 1 1 The DOC further asserts that an exemption statement is_not required until the records are physically produced, and thus that its July 16 response did not trigger the requirement of an 5 SF-0-1479 PRR-2011-00.450 39874-5-ll A exemptibn statement. 'llhis argument is also contrary to the plain language of RCW lt is 'impossible to read this subsection as applying only to the physical production of documents. Under the unambiguous Wording of RCW 42.56 .2l0(3), responses refusing A access in Whole or in part "shall" include exemption statement. This language plainly A requires agencies to include an exemption statement With any response that refuses access to public records. lt does not mandate that exemption statements be included only With physically produced documents. We hold, therefore, that the plain language of RCW 42.56.210(3) required DCC to provide an exemption statement with its July 16 response notifying Mitchell that some of the information he had requested Was exempt and needed to be redacted. - In addition to the plain language of RCW our holding is supported by RCW 42.56.520 As noted above, We look to other provisions Within the same act' to determine a sta1:ute's plain rnemg. Dep 'z'>>0fEcol0gy, 146 Wn.2d at 10-12. RCW 42.56.5206 provides how agencies must respond to PRA requests: A Within ive business days of receiving a public record request, an agency . . . must respond by either (1) providing the record; (2) providing an internet address and link. . .to the specific records requested . (3) acknowledging that the agency . . . has received the request and providing a reasonable estimate of the time the agency . . . will require to respond to the request; or (4) denying the public record request. Under this s_ection, it is clear that a "response" is not just a physical production of records. A "response" also includes a notification of hovv' much time the agency will need to respond, and a denial of public records. - A . . RCW 42.56.520 was amended in 2010 to add language allowing agencies to respond by providing an intemet IM to the requested records. LAWS OF 2010, ch. 69, 2. This amendment does not affect our analysis and We cite to the 'current version. 6 6 SF-01480 PRR-2011-00450 3 9374-5 -ll holding on this point is further bolstered by Rental Housing Association, which held that "[W]hen an agency claims an exemption for an entire record or portion of one," it must include an exemption statement. 165 Wn.2d at 539 (quoting WAC Rental Housing Association held that the plain language of RCW requires an exemption statement with a response refusing access. - Our holding _is also supported by PAWS 11; 125 Wn.2d 243. There,_the court held that "an agency's response to a requester must include specific means of identifying any individual records which are being Withheld in their entnety." PAWS H, 125 Wn.2d at 271. The court held that this information Was necessary to permit judicial review of the agency' PRA compliance. PA WS ll, 125 Wn.2d at 270. a Although PA WS Il did not address records Withheld in part, the same rationale applies. When an agency informs a requester that there will be "redactions" Without explaining their nature or justification, there is no basis for judicial review of said redactions. This invites an inefdcient process, Where requesters are forced to obtain physical production of documents to @1715 1" face ofthe plain language, our Supreme Court precedent, and the statutory requirement that we construe the PRA broadly to effect its purpose.7 Consequently, We hold that the PRA requires agencies to include an exemption statement with any response Withholding public records in Whole or in part. We hold that the DOC violated the PRA with its July 1_6 response by refusing acc_ess to the records in part without providing an exemption statement. . 7 RCW 42.56.o3o.. 2 1 . 7 SF-01481 PRR-2011-00450 39874-5-ll The remedy for an agency' failure to provide an exemption statement and brief explanation .is "consideration when awarding costs, fees, and penalties." Sanders, 169 Wn.2d at 848. As such, we reverse the trial court's denial of Mitchell's order to show cause and remand to the trial court to consider the DOC's failure to provide an excemption statement in rendering its decision awarding costs, fees, and penalties under the PRA. . Electronic Disclosure - Mitchell next argues that the DOC violated the PRA refusing to disclose the requested records' electronically. We disagree. Nothing in the PRA obligates an agency to disclose records electronically. Mitchell cites- no authority to the contrary. Rather, he cites WAC 44-14-05001 and WAC 44f14-07003, which are model rules promulgated by the Attomey General. These rules are not binding, but rather 1 provide useful guidance to agencies. Mechling v. Cizy ofMonroe, 152 Wn. App. 830, 849, 222 P.3d 808 (2009). WAC 44~14~0500l suggests that agencies should provide records in electronic format when requested in that format. lt fruther provides that agencies need not provide records i?ghfifahy Eli' 07003 provides guidance for when agenciesmay _charge a fee for electronic disclosure of records. A 4 ln Mechling, Division One of this court recognized that While agencies have no statutory duty to disclose records electronically under the PRA, they do have a statutory duty to provide "fullest assistance to inquirers." 152 Wn. App. at 849; see RCW 42.56 Q100. Mechling held that, under this duty and under the guidance of the Attorney General's model rules, a trial court may require an agency to disclose records electronically if it is reasonable and feasible to do so. 152 8 SF-01482 PRR-2011-00450 39874-5-ll Wn. App. at The court Therefore remanded to the trial court to determine Whether electronic disclosure was reasonable and feasible. l52 Wn. App. at But Mechling rejected the contention that an agency could be required to electronically disclose redacted e-mails that would need to be scanned back into electronic format after being redacted.' 152 Wa App. at s5o_ A A The situation here is analogous to the redacted e-mails in Mechling. The requested records are stored in a computer database and ostensibly include information that must be redacted. Requiring DOC to disclose these records electronically would force the agency to print the records, redact them, and then scan them back into electronic format. Following Mechling, We hold thatsuch duplication of effort is outside of the agency's obligation of "fullest assistance" under the PRA. We affirm the trial court's ruling that DOC is not required to disclose the requested records electronically. ATTORNEY FEES Mitchell seeks attorney fees on appeal. Under RCW any person prevailing in an action seeking the right to inspect or copy public records shall be awarded all costs, . including reasonable attorney fees. A party prevails under the PRA when he prevails on a claim that _the agency improperly failed to specify or 'explain the exemptions protecting records from disclosure. See Sanders, 169 Wn.2d at 848. Because Mitchell has prevailed on such a claim, he' is a prevailing party and We award him reasonable attorney fees and costs on appeal under RCW 9? SF-01483 PRR-2011-00450 39874-5-ll to the extent he can identify those portions of attorney fees and costs attributable to the exemption claim on which he has preVailed.8 i Affirrned in part, reversed in part, and remanded. i We concur: I i i Worsw1cl<,. ,414 Pen 8 Mitchell is not entitled to attorney fees and costs in pursuing his claim that DOC had to provide the requested records electronically, the claim ,on which he did not prevail. lO SF-01484 PRR-2011-00450 izesi 3/ifaeli eases 2 is STATE OF HERCE COUNTY SUPERIOR COURT SHAWN D. GREENHALGH, NO. 10-2~06108-3 i Plaintiff; STIPULATED ORDER OF DISMISSAL in V. -f DEPARTMENT OF CORRECTIONS, a Subdivision Of the State of Washington, Defendant. Pursuant to the settlement. agreement of the Parties, which has been tiled with the Court, it is hereby Ordered that this action is dismissed with prejudice and without costs Or fees to any party. This Court shall retain jurisdiction to enforce the terms Of the settlement agreement in this action. I A 5 i DATED day of ,2011. gn FEB 5 2 SUPERIOR COURT JUDGE - TIM LANG, WSBA #21314 DATE Sr. Assistant Attorney Gene -. Attorney for Defendant SHAWN D. GREENHALGI-1 DATE Plaintifi Pro Se STIPULATED OIUQER OF 1 QE msemcios Hem ISDH - - Olyi-npia,WA 9850443116 8901485 PRR-2011-00450 The Honorable Edmund Murphy Hearing Date: Hearing Time: Hearing Location: it STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT SHAWN D. GREENHALGH, NO. 10-2-06108-3 Plaintiff, RELEASE AND SETTLEMENT . AGREEMENT V. DEPARTMENT OF CORRECTIONS, A A a Subdivision of the State of Washington, - Defendant. This is a Release and Settlement Agreement for at above referenced action. Based upon mutual consideration and in their best interests, the parties to this action, Plaintiff SHAWN D. GREENHALGH, Pro Se, and the Defendant, appearing by and through its attonieys, ROBERT M. MCKENNA, Attorney General, and TIM LANG, Sr. Assistant Attorney General, agree to the following: l. In consideration of the follovving provisions of the Release and Settlement Agreement, Plaintiff SHAWN D. GREENHALGH, his heirs, assigns or other successors in interest, do hereby release and forever discharge the State of Washington, its officers, agents, employees and agencies and departments for any and all existing and future claims, damages and causes of action of any nature arising out of these incidents which are described in Plaintiffs Complaint in this action and which are the source of his claiins against the Defendant. A RELEASE AND SETTLEMENT Reference source not found. 3901486 Olympia, WA 93504-0116 2. This Agreement isthe final, conclusive, and complete release of liability for all known, as Well as. all unknown claims for recovery of any sort arising out ofthe incidents stated in the Complaint filed in this action. 3. This Agreement shall be effective when signed byall parties and/ or their legal representatives. . - 4. The State shall pay to SHAWN D. GREENHALGH, the sum of SEVEN THOUSAND AND NO CENTS ($7000.00) in full settlement of all claims asserted in the case listed above. This settlement sum includes costs, attorneys' fees, if any, per diem penalties, and any other amounts sought in the action. The settlement amount of $7000.00 Will be payable by check or Warrant to the Plaintiff, SHAWN D. GREENHALGH, DOC #70l558, Monroe Correctional Complex- WSR, Po Box 777, Monroe, WA 98272-0777. Thissettlement amount shallbe subject to mandatory deductions as provided by law. 5. The parties agree that this Release and Settlement Agreement is not an admission of liability or the violation of any constitutional or legal right, or that any claim or defense advanced by any party lacks merit. 6. This Agreement constitutes the final Written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. 7. The parties agree that neither party is to be considered a prevailing party in this action for purpose, including, but not limited to, attorneys' fees. 8. The parties jointly agree that dismissal 'With prejudice of this lawsuit is an appropriate resolution in consideration for payment to Plaintiff of the sum of SEVEN THOUSAND AND NO CENTS ($7000.00) and the other consideration contained in this agreement. i 9. The parties agree to execute' and filewith the Court a stipulated dismissal with prejudice and/or such other documents as may be necessary to effectuate thedismissal of this case with prejudice. . RELEASE AND A 2 WASHINGTON Reference source not found. 5501487 Olympia, WA 98504-0116 PRR-2011-00450 10. The Plaintiff agrees not to sue the State of Washington or its agencies, employees, and ofticials over the claims concluded by this settlement agreement. 11. The Defendant agrees to- process this settlement agreement for payment. 12. The Superior Court shall retain jurisdiction to enforce the terms of this settlement agreement. A 13. The undersigned declare that the terms of this Release and Settlement Agreement are completely read, Wholly understood, and _voluntarily accepted for the purpose of making a full and final compromise, adjustment and settlement of any and all claims brought by Plaintiff in this action against the Defendant. 14. The parties verify that they have read and understand this agreement, that they enter into this agreement lmowinglyi and voluntarily, and- .that this agreement represents the entire agreement of the parties in this case. - 2 Rl A 1 SHAWN D. REENHALGH 3 DATE A Plaintiffron DATE A Ris Manager Departme Corrections TIM LANG, WSBA #213 4 DATE Sr. Assistant Attorney eral Attorney for Defendant RELEASE AND SETTLEMENT 3 ATTORNEY GENERAL or WASHINGTON 1 Corrections Division Reference source PO Box 40116 not found. SF-01488 A Olympia' WA 985040116 PRR-2011-00450 (360) 586-1445 -i,:ffl 4- v-.riftzZUUT tm, gr). 5; .. I-ijt! . 2 21355, if 11721, tl if if . "f STATE OF WASHINGTON MASON COUNTY SUPERIOR COURT JEFFREY MCKEE, NO. 07-2-00 80-l Plaintiff, I ORDER ON MOTION v. TO CHANGE VENUE KEN MADISON, et al., Proposed Defendants. THIS MATTER having come on for telephonic hearing on November 26, 2007, on the motion of JEFFREY MCKEE, Plaintiff, pro se, for a change of venue, and Defendants, appearing by and through their attorneys, ROBERT M. MCKENNA, Attorney General, and PETER W. BERNEY, Assistant Attorney General, the Court having heard the oral argument of the parties, considered the memorandum of Plaintiff, and considered the records and files herein, and being fully advised; now therefore, IT IS HEREBY ORDERED that Plaintiff' Motion to Change Venue from Mason' County Superior Court to Thurston County Superior Court is granted. The Superior Court Clerk is directed to transfer this matter to the Thurston County Superior Court Clerk. ORDER ON MOTION TO 1 CHANGE VENUE PO Box 40116 NO. Ol WA 93504-ol I6 SF-01489 586-?445 PRR-2011-00450 DATED this day of 5 ,2oo7. term HONORABLE TONI A. SHELDON Superior Court Judge Presented by: ROBERT M. MCKENNA Attorney General ld /9 0 PETER W. RNEY, SBA #15719 DATE. Assistant Attorney Gene al Attorney for Defendants Approved as to form, presentation waived: 9 W-I '7 DATE aintiff, Pro Se ORDER ON TO 2 CHANGE VENUE PO Bus ljiol I6 07-2-U0 1 Olympia, 98504-01 I6 SF-01490 (360) 586-1445 PRR-2011-00450 El EXPEDITE A EEK No Hearing Set GL . Hearing is Set: - Detez' Time: Honorable Carol Mutphy STATE OF THURSTON SUPERLOR coomi JEFFREY MCKEE, No. Pxaimie; STIPULATION AND- A ORDER DISMISSAL (Proposed) 1 KEN. MADISON, et al, 't Defendants. - - STIBULATION IT Is -HEREBY STIPLILATED AND AGREED byend between Plaintiff; E. 'rhrouglq his Euemey NEQELAEL G. FBRANNAN and me Defendants through, their Euemeysf ROBERT 191. MCKENITIA, Attorttey General, aocl_ LANG, Sr. Aseistant Attorney Generel, that the parties to this .aotion seek diemissel of the Complaint, with prejudice, in accordance the Settlement as . Exhibit A, entered in the above-entitled action. - STIPU LATIONIAND oaoetpoe 1 - No.us-2-00333-s SF-01491 PRR-2011-00450 Penalties, costs and attorneys fees are .provided for in the Settlement Agreement ROBERT M. MCKENNA Attorne . eral LANG, WSBA #21 4 DA - - Sr. Assistant Attorney neral . NNAN DAT . A rney 'Plaintiff onnanf TI-IIS come before this Court on the stipulation of the parties, and it appearing te_ the Court that all matters in controversy herein between the McKee, _and the Defendants have been fully settled and comproinised, and 'die Court having been advised in the premises, now, therefore1-teaser that; Plaintiff Jeffrey R. _mangas claims against Defendants, in the above-referenced cause of action, are with 'prejudice on the condition that the parties comply ff/ -- I /if /fl I STIPULATION AND canes or 1 DISMISSAL, (Proposed) P9 40' if' SF-01492 PRR-2011-00450 with the .conditions and terms of tljne Settlement Agreement as "agreed by the parties in the 'Release ritcl Settlemei1tAgreem-ent. e_ DONE-this 2? day of bg ,2011. . CAROL A. MURP . Thurston. County Superier Court Judge Submitted by: - A RGBERT M. IVICKENNA Attorney General - -f . 3 . TIMLANG, WSBA #213 4 - DA E- Sr. Assistant Attomey eral . . EL G. BRANNAN DA .- Attorney fer Plaintif ., STIPUIQATICN AND ORDER OF . 3 . DISMISSAL (Proposed) -e P9 40| '5 Nb. os-2~ooa3s~s_ '5 F-U 493 PRR-2011-00450 - I SF-01494 PRR-2011-00450 I A SETTLEMZENT AGREEMENT RELEASE -. This Settlement Agreement and Release sets forth the parties' agreement to hilly and nnally settle the following actions; Jefyiey R. McKee v. Washington State Department of Corrections, Thurston County Superior Court Cause No. G9-2- Jejjfrey R. McKee v. Ken Madison et al, Thurston County Superior Court Cause and .fejjrey R. McKee v. Taylor, et. al, Cause No. (WD. Wash.) 1. A Settlement Amount: The settlement amount is Nine Thousand Five Hundred Dollars Malice agrees this isthe total amount will receive in settlement of the three actions. referenced above, andincludes any and all amounts claimed or that could beclaimed for penalties, costs, attorne-y?s fees, or damages in the three actions. The Department of Corrections shall pay this amountto Mr. 'McKee's attorney, Michael G. Brannan at 1333 N. Northlake Way, Suite E, Seattle, WA 98103. 7 I 1 2. Release: In exchange for payment ofthe settlement amount, hh. McKee, on behalf of himself and .his heirs,.assigns or other successors in interest, does hereby release and forever discharge the 'State of Washington, its officers, agents, employees, agencies, and departments for any and all existing and ,future claims, damages and causes of action of any nature arising out of the incidents described in the complaints nled in actions referenced above._f This Agreement is the final, conclusive, and complete release of liability for all known, as Well as all unlcnown claims for -recovery of- any sort arising out of the incidents at- issue in the complaints, Mr. McKee agrees and covenants not to sue_ the 'State of Washington, or its agencies, employees, and officials over the claims concluded by this settlement agreement. . 3 - 1 3. _No Admission of Liability: The parties agree that this Release and Settlement Agreement is not an admission of liability or that any claim or defense advanced by any party lacks merit. The 'parties further agreeneither party is to be considered a prevailing party in the three referenced actions, for any purpose, including, but .not limited to, attorney fees and costs. A 4. Stipulation and Order of Dismissal: The parties agree dismissal with prejudice ofthe three referenced actions is appropriate in light of the consideration provided herein, and that they 'Will sign and nie a stipulated motion for the entry of an order dismissing this action with prejudice. "l"iIi A- SF-C1495 A PRR-2011-004.50 S. Enforcement: The parties agree the courts in the three referenced actions shall retain jurisdiction to enforce the terms of this settlement agreement. . 6. Con1plete_Agreen1ent: This Agreement is the inal Written expression of all the terms of this Agreement and is a complete and exclusive statement. of these terms. 0 fp - 7. Knowing and Voluntary Acceptance: The' undersigned parties declare they have .read and understand the .terms of this Settlement Agreement' and Release, and have Volunta;rily~ accepted those terms for the purpose of rnalcing a full and ftnal compromise, achustment and settlement ofthe three referenced actionsFFREY R. MGKEE Plainti i8'/ G.. - AN. :oar 9 . Att rneY rPl?tiff' . . A . I i'milorLJ i ?'?f5l na - ron i DA Risk Manager Department' of"Corrections i SF-01496 PRR-2011-00450 if I I 1 Ez_ c:io1;11air QF Wfm51'1 1<;mr3 "f f;1'1'1z1s_P1@i_mif1Z 3 TQ a wx 3* 'r;vff;;m'1" QF if 1. 5 "ifhr: aa, c: 215.152 time ciismiss- the cuss: wifh 201 1. fi- Wm - fm' _l'ii1_i_11t i{T M, iiazzmmai .ff i\ ij ,rf mgff- fur (36Dj~- LAW lf! RM was): I TU- paiga' 1 _mf fax I sEa'rm?_ w.m xsTf;++a @8194 SF-01497 PRR-2011-00450 1_3 ZZ: '23 2,15 25 1_>Ev If 3 3 F_s13m Pia-intiff, 5 msM1 WASL 1 3 OF 3 3 B?causc sm_Sett lEUR_1=1_1e_nt ir1this -case .amd fha ?_`2m_1rI 'tm the cszasf; with the dis111i_ssG? Qi I gag sw" HA-EIQ. HIBAV f_ judge, E31_ape1?ica 1" Lu Pres-:mteci hy; I #3437 _A'itorr1a:y fm' Plaintiff Apguaricnved as to waived:- ORDBIFL - 1 m1 SEATTLE, -nm 9-fam nf am; SF-01498 PRR-2011-00450 A imgfi fag' Gexmemi . If gf/ij i rf); I G. S5i5Ta11t m'_Ucy 'fm' q3 @iG) 'ff .rl -,Jiri f, i WQM #33736 1 LI I..-A l' QRIJER CASE page 2 im Gem SF-01499 PRR-2011-00450 QENGTI -(scan a22>>a:= 3rs STATE OF WASHINGTON KING COUNTY SUPERIOR COURT CITIZENS OR SUSTAINABLE NO. 10-2-21751-7 SEA DEVELOPMENT, . Plaintifii SETTLEMENT AGREEMENT v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, Defendant. Defendant, State of Washington, Department of Ecology (Ecology), represented by Robert M. McKenna, Attorney General and Katharine G. Shirey, Assistant Attorney General, and Plaintiff, Citizens for Sustainable Development (CSD), represented by DeWelle Ellsworth hereby agree that this Settlement Agreement (Agreement) is a full and final settlement of the above-referenced law suit. I. BACKGROUND 1. Beginning on April 30, 2009, CSD submitted the 'following public records requests (Requests) to Ecology (as identified by. CSD in his First lnterrogatories and Request for Production of Documents; the times listed below do not always match the times Shown on Ecology's documents): 1. June 2, 2010 7:38 pm 2. May 28 2010 8:43 pm 3. May 27, 2010 9:48 pm 4. May 24, 2010 6:29 pm 5. May 19, 2010 3:01 pm 6. May 17, 2010 2:09 pm 7. May 17, 2010 4:39 pm 8. May 10, 2010 11:44 am 9. April 21, 2010 10:20 pm 10. April 20, 2010 5:29 pm AGREEMENT - 1 SF-01500 PRR-2011 -00450 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 586~6760 April 16, 2010 2:45 pm April 16,2010 2:32 April 15, 2010 9:15 pm February 5, 2010 12: 12 pm January 29, 2010 7:30 pm November 24, 2009 4:46 pm November 6, 2009 2:00 pm September 17, 2009 10:54 pm July 30, 2009 8:03 pm June 30, 2009 6:59 pm June 19, 2009 3:03 May 20, 2009 5:58 pm May 20, 2009 12:25 am May 19, 2009 12:21 pm May 14, 2009 12:03 pm May 11, 200910:21p1n May 8, 2009 5:25 am May 8, 2009 5:44 pm May 8, 2009 3:58 am May 6, 2009 12:17 pm May 6, 2009 10:01 pm May 6, 2009 12:56 am May 1, 20091:56 am 2. On June 18, 2010, CSD filed this law suit against Ecology, claiming Ecology violated the Public Records Act in responding to these Requests. 3. Ecology and CSD have agreed to resolve this law suit through the settlement outlined below. SETTLEMENT AGREEMENT The parties wish to avoid the time and cost of further litigation of this matter and therefore, Without admitting fault or liability, stipulate and agree as follows: A. SCOPE This Agreement constitutes the entire agreement between the parties to this law suit and settles all issues raised therein. SETTLEMENT AGREEMENT 2 ATTORNEY WASHINGTON Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 586-6750 F-0 50 PRR-2011-00450 iRESOLUTION OF LAW SUIT 1. Cash Payment . Ecology agrees to pay CSD's reasonable attorney's fees in the amount of $150,000. Within 14days after dismissal of this law suit, Ecology will provide Mr. Ellsworth with a certified checkin the amount of $75,000.00 Ecology will provide a second certified check in the amount of $75,000.00 between January 10, 2012 and January 20, 2012. In addition, Ecology agrees to pay a penalty under the Public Records Act of $93,000.00 This payment will be made within 14days after dismissal of this law suit. Ecology shall-send the payments to: DeWelle Ellsworth i Ellsworth Law Firm 701 Fifth Avenue, Suite 6550 Seattle, Washington 98104 2. Other Obligations a. Further Searches for Documents (1) As described in Appendix A to this Agreement, Ecology agrees to conduct reasonable, good-faith searches, compliant with the Public Records Act, to find any additional records responsive to CSD's Requests Noslisted in paragraph 1.1 above, and to provide those records to CSD. The parties acknowledge that the scope of documents requested in Appendix A is in some instances broader than the scope of documents responsive to the Requests at issue in this case. However, Ecology 'agrees to provide the documents as part of this Agreement in an effort to ensure that CSD obtains the documents it needs. CSD aclcnowledgesthat Appendix A encompasses many different types of documents and' will require searches by many staff members in many different Ecology programs, and that conducting the searches and providing the documents will take time. SETTLEMENT AGREEMENT 3 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 401 17 A Olympia, WA 98504-0117 FAX (360) 586-6760 SF-01 502 PRR-2011-00450 l\J .BLD (2) Because Ecology did not keep records of which records it has already provided to CSD and therefore has no way of ascertaining whether or not a given record has already been provided, it will provide all responsive records regardless of whether or not they may have been previously provided, EXCEPT that any records provided to CSD which Ecology did keep records of and which Ecology can confirm having provided need not be re-provided. A (3) Ecology agrees to make the provision of documents as required by this Agreement a priority. Ecology agrees to provide to CSD all documents found pursuant to its obligations in the preceding paragraph as quickly as possible, with the goal of providing all additional responsive documents within 90 days of the effective date of this Agreement. Ecology will provide documents in weekly installments, each Monday as documents are located and retrieved. lf CSD is -dissatisfied with Ecology's diligence in providing documents, CSD may file a lawsuit to enforce this Agreement, but only after invoking the dispute resolution process outlined in paragraph (9) below. (4) 1 Ecology may provide a direct hotlink to any responsive records that are available online rather than producing the documents themselves. Any such link shall be accompanied by the title, date, and, if the record is on Ecology's website, the length of the record. (5) Records that exist at Ecology in their native electronic format will be provided in their native electronic format along with their associatedmetadata. "Native format" means "The default (normal) format used by a specific software application in the creation or publication of a file." If any responsive electronic record does not exist in its native electronic format but does exist in some other electronic format, it will be provided in the latter format. Ecology will produce responsive email strings in either .pst format or .msg format, but not any other electronic format unless they cannot be produced in .pst or .msg format. If any responsive email strings are provided in .msg format by forwarding them as attachments to an email string, they will first be zipped into one or more files. SETTLEMENT AGREEMENT 4 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-0117 FAX (360) 586-6760 SF-01503 PRR-2011-00450 (6) Ecology will, at its discretion, either identify or scan and produce at no charge any responsive records that exist solely in paper or some other non-electronic format. Identification shall include: (A) identify the person (by name, title, and department) who originated or prepared the record; (B) state the date of the record if it is dated or the date when it was prepared; (C) describe the type of record; (D) if the record is a letter, email string, or other missive, identify the person(s) to whom was sent (by name, title, and department); summarize its contents; (F) state the subject line, if applicable; (G) identify the program or section from which it originated; (H) identify the format it exists in g. microfiche, etc.); (I) if the record exists only in paper format, describe the weight and dimensions of the paper on which it is printed; (J) state the number of its pages. CSD will review the identifications provided by Ecology, and have the option of requesting copies or scans of them. Ecology will provide copies or scans of documents requested within 21 days of any such request. Any records scanned and provided by Ecology will be scanned -one-by-one (as opposed to multiple records being scanned to a single file). For example, if a given record (existing only in paper format) is 15 pages long, it will be scamied and provided as a 15-page .pdf file, and the scan will not be combined with another record. Ecology agrees that if CSD requests copies or scans of records, the scanning/copying prices_ available to Ecology will be available to CSD under the Copy Services Contract with Office Max, Office Depot, etc.) and Ecology will Work in good faith with CSD to obtain the lowest prices possible. (7) Ecology and CSD agree to 'work cooperatively to ensure that the obligations under Section of this Agreement- are met. To that end, Ecology will designate an Ecology staff member who will be the primary point of contact, and who will Work with CSD to answer any questions CSD may have and to raise any questions that Ecology may have. To that end, also, Mr. Ellsworth Will be available by telephone to discuss requests and answer questions. AGREEMENT 5 ATTORNEY GENERAL or WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-01 17 FAX (360) 536-6760 SF-01504 PRR-2011-00450 (8) lf Ecology contends that any responsive record is exempt trom disclosure in Whole or in part, it shall comply with the PRA in identifying and describing each record and the basis for redacting/withholding it, e.g. it will identify the person who created it_and the person(s) who received it (by name, title, department, and agency), cite the statutory basis for withholding or redacting it, and provide an explanation of how the claimed exemption applies in a redaction/exemption log that complies with the PRA and allows CSD to make a threshold determination of whether the claimed exemption applies. CSD may contest Ecology exemptions and redactions in a law suit under the Public Records Act, but only after invoking the dispute resolution process outlined in paragraph (9) below. And CSD may contest the adequacy of Ecology's search for responsive records in a law suit to enforce this Agreement, but only after invoking the dispute resolution process outlined in paragraph (9) below. (9) In the event a dispute arises concerning the scope of a Request, whether or not a search was inadequate, Whether or not further documents should be provided, Public Records Act exemptions or redactions claimed by Ecology, or charges for providing documents, the Parties shall use the dispute resolution procedure set forth below. a. If CSD believes an Ecology search was inadequate and further documents should be provided, or contests any Ecology exemptions or redactions of documents, CSD will raise the concern to Ecology at the time it arises. CSD must raise such a concern no later than 30 days after 1'eceipt of the exemption log or of notice that a Search is complete and all documents have been provided in response to- a particular enumerated Request in Appendix A to this Agreement.. If no such notice is received from CSD, the Request will be deemed to have been satisfied. HOWEVER, if subsequent documents provided to CSD lead CSD to believe additional documentsexist that are responsive to requests previously deemed to have been satisfied, CSD may reopen the request by raising that issue with Ecology. All claims that an Ecology search was inadequate, that further documents should be provided, or that Ecology incorrectly exempted or redacted documents must be made no later than 30 days after CSD SETTLEMENT AGREEMENT 6 GENERAL OF WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-01 i7 FAX (360) 586-6760 SF-01 505 PRR-2011-00450 receives notification from Ecology that all searches covered in this Agreement have been made, and all documents provided. b. Within 5 days of receipt of notice from CSD's concerns, Ecology will set up a conference with CSD to discuss CSD's concerns and exchange information in an effort to resolve the dispute. The conference will include CSD, Ecology's primary point of contact, and at least one Ecology staff member with particular expertise in the subject area of the disputed materials. c. lf the' Parties are unable to resolve the dispute through the conference described above, Ecology's primary' point of Contact will immediately raise the_ issue to Ecology management. Ecology management Will, Within 5 days of notice of an unresolved dispute, set up another conference with CSD, the relevant Ecology subject matter stafi and Ecology counsel, to Work at resolving the disputed issues. A d. If the Parties are still unable to resolve the dispute, the Parties agree to enter into mediation with an outside third party mediator agreeable to both parties. Mediation to be completed within 30 days ofthe date the need for mediation arose. e. The Parties agree to only use the dispute resolution process in good faith.and agree to expedite, to the extent possible, the dispute resolution process Whenever it is used. (10) lf Ecology determines that records responsive to any of the Requests listed in section lI.B.2.a.(l) above have been destroyed since the submission of CSD's requests Ecology will identify the record in the manner' laid out in paragraph (6) above to the best of its ability. (ll) Ecology will interpret CSD's Requests in an expansive manner in order to retrieve all possibly _responsive records. If Ecology is uncertain about the scope of what CSD has requested, Ecology will ask for clarification, and CSD will provide clarification as necessary. Ecology will not unilaterally interpret CSD's requests in a restrictive manner when a more expansive interpretation would produce more records than a restrictive interpretation. SETTLEMENT AGREEMENT 7 ATTORNEY GENERAL os WASHINGTON Ecology Division PO BOX 401 17 Olympia, WA 98504-0117 FAX (360) S86-6760 SF-01506 PRR-2011-00450 (12) Any documents provided under this Agreement will not serve 'as the basis for further penalties or law suits under the Public Records Act. b. Dismissal of Law Suit Ecology and CSD agree to, on the effective date of this Agreement, file a stipulated motion asking the King County Superior Court to dismiss this case with prejudice based upon a full and final settlement having been reached. C. VENUE The Parties agree that the venue for any judicial action to enforce this Agreement shall be in King County Superior Court. D. EFFECTIVE DATE This Agreement shall become effective upon the date upon which it has been signed by both parties. E. SIGNATORIES AUTHORIZED The undersigned representatives for Ecology and CSD certify that they are fully authorized by the party Whom they represent to enter into the terms and conditions of this Agreement and to legally bind such party thereto. F. EXECUTIGN This document may be executed in counterparts and may be executed by facsimile, and each executed counterpart shall have the same force and effect as the original instrument. A SETTLEMENT AGREEBQENT 3 ATTORNEY GENERAL or WASHINGTON Ecology Division PO Box 40l I7 Olympia, WA 98504-0117 FAX (3 60) 586-6760 SF-01507 PRR-2011-00450 L40 -|STATE OF WASHINGTON CITIZENS FOR SUSTAINABLE DEPARTMENT OF ECOLOGY DEVELOPMENT E0/l/i/bg# Leo/ foam: ?2 fs/~ Polly Ze Lewis Roane Deputy Director President, Citizens for Sustainable Washington State Department of Development Ecology Dated: Q- 2-0' I Dated: 9 ff ROBERT M. MCKENNA ELLS WORTH LAW FIRM Atto ey General I A (OF - harine G. Shirey WSBA 5 736 DeWe1le Ellsworth 3rd WSBA 34727 Assistant Attorney General Attorney for Appellant Attorneys for Respondent (206) 622-3536 (360) 586-6769 Dated: 11 A Dated: 9 74 if SETTLEMENT AGREEMENT 9 Arronnsv GENEML or WASHINGTON SF-01508 PRR-2011-00450 Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 526-6760 Shields, Della (ATG) Overton, Lee (ATG), Rourke, Melissa (ATG), Kristie Carevlch (ATG), Fitz, Andy (ATG), Level, _ieitri (ATG), sitirey, Kay (ATG), Aritiereeri, ivy (ATG) From: Johnson, Nels (ATG) Sent: li/londay, February 14, 2011 2:46 PM To: Subject: FW: Double Decision PDF Here's the Double decision, for those who are interested. Nels Johnson Assistant Attorney General To save paper, please this e-mail only if necessary Eom: Shields,T)ella (ATG) Sent: Monday, February 14, 2011 11:46 AM To: Johnson, Nels (ATG) Subject: Double Decision PDF - mi- Double Declsion.pdf 1 SF-01509 PRR-2011-00450 Eff' rl" wg. _,ttf WW.. .MM STATE OF WASHINGTON YAKIMA COUNTY COURT DOUBLE H, LP., a Washington No. 'l0-2-00694-9 limited liability partnership, Plaintiff MEMORANDUM DECISION DEPARTMENT OF ECOLOGY, Defendant I. Case Background Double H, LP. (Double H) brought suit against Washington Department of Ecology (Ecology) seeking penalties, fees, and costs, for Ecology not adequately responding to two records requests. Double H's first request was made on August 7, 2009, and its second request was made on January 14, 2010. The first request asked for records concerning investigations by Ecology into activities of Double H, or related business entities. The second request was a "refresher request" for the same type of records, but which were created after August 0, 2009. The requests arise out of Ecology's investigation of alleged dumping by Double of hazardous waste reported to Ecology in March of 2009. Double vs Dept of Ecology Counts Memorandum Decision - Page 1 of 12 SF-01510 PRR-2011-00450 iirif rh??ur?arsriuied Fake Ecology responded to Double H's first records request by estimating a response date of September 10, 2009. Ecology produced some responsive records on September 24, 2009, September 30, 2009, and January 28, 2010. ln its exemption log, Ecology identified seventeen records that it withheld, in whole or in part, and identified the statutory basis for its claims that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld. Throughout the summer of 2010, Double obtained in discovery nine records that were responsive to the first records request but the existence of which had not previously been disclosed to the plaintiff. During this time, Double also obtained in discovery six records that it has previously disclosed to Double H, but which it has withheld from production, in whole or in part, based upon statutory- exemptions it no longer asserted. Ecology responded to Double H's refresher request of January 14, 2010 by estimating a response date of the week of February 18, 2010. Because Ecology did not timely respond, Double filed suit on l\/larch 11, 2010. Ecology produced some records responsive to Double H's second request on l\/larch 19, 2010 and l\/larch 23, 2010. Ecology identified 38 records that it withheld, in whole or in part, and identified the statutory basis for its claim that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld. Throughout the summer and fall of 2010, Double obtained in discovery twenty-seven records that were responsive to the refresher request but the existence of which had not previously been disclosed. During this time, Double also obtained in discovery twelve records that it had previously disclosed to Double H, but which it had withheld from production, in whole or in part, based upon the statutory exemptions it no longer asserted. On January 7, 2011, Ecology acknowledged the existence of additional records responsive to the first and second requests, the existence of which had Double vs Dept of Ecofogy Courts Memorandum Decision Page 2 of 12 SF-01511 PRR-2011-00450 har Bye?eieay?ftsf "an exhaustive" search was directed by defense counsel. This exhaustive search was directed by defense counsel after one or more previously undiscovered documents were discovered in the process of responding to a second refresher request - a request which is not at issue in this lawsuit. On January 12, 2011, Ecology produced these records, except those that it maintained were exempt. A true and accurate itemization of these records and the dates these records were produced appear in the parties' briefing. There is no issue of fact with regard to the identity of these documents and the dates produced. There is however an issue of how many "groups" these documents should be divided into, for purposes of determining an appropriate penalty. ln total, over 3,000 documents were produced by Ecology. The vast majority of these documents were produced prior to the filing of this suit on l\/larch 11, 2010, or soon afterward. At the summaryjudgment hearing, defense counsel represented that most of the numerous records which were discovered during the late 2010 exhaustive search included email strings (portions of which were earlier disclosed), redundant notes, and calendar entries. There were important documents, however, which were not timely disclosed: Ecology failed to disclose four draft Recommendations for Enforcement (RFE), the final RFE, and the Notice of Penalty. These documents were withheld for approximately a year prior to their production in September of 2010. Ecology withheld the draft RFE's under the deliberative process exemption, RCW 42.56.280, but later determined that the exemption was improper, and thereafter produced them. (The parties have not requested that this Court determine whether the draft RFE's were exempt, and no opinion is expressed in this regard). The final RFE and the Notice of Penalty should have been disclosed and produced, and there was no good faith reason for the delay in disclosing these two documents. Double l-l claims prejudice by the wrongful non-disclosure ofthe six documents discussed above. Double i-l vs Dept of Ecology Court's Memorandum Decision Page 3 of 12 SF-01512 PRR-2011-00450 Procedure of Case Ecology filed its motion for summaryjudgment, requesting that this Court review alleged exempt documents in camera to determine that they are exempt; and to determine, as a matter of law that there should be two groups of wrongfully withheld records, and that the penalty for wrongful withholding of these two groups should be the statutory minimum penalty of $5 per day. Double later filed its cross motion for summaryjudgment, requesting that this Court determine, as a matter of law that there should be twelve groups of documents, and that the penalty for wrongful withholding of these twelve groups should be the statutory maximum penalty of $100 per day. (Ecology's A later disclosures caused Double to expand the number of requested groups to 15). Double also objected to the process suggested by Ecology for determining whether the alleged exempt records are truly exempt. At the January 14, 2011 summaryjudgment hearing, the parties announced their agreement forthe Court to review the alleged exempt documents in camera, and to advise the parties of its findings with regard to the claimed exemptions. Also at the hearing, the parties acknowledged that determination of the number of groups and the appropriate per diem penalty required weighing inferences, and that summary judgment was therefore inappropriate. The parties then agreed to submit this case to this Court on the existing record for purposes of making findings, rather than having a testimonial hearing. See Brouil/et v. Cowles Publishing Co, 114 Vl/n.2d 788, 793, 791 P.2d 526 (1990). (Court deciding PDA dispute on sworn statements is not deciding case on summaryjudgment, and court reviews decision de novo). But see Sanders v. State, 169 \Nn.2d 827, 862-65 (2010) (A Court deciding PDA dispute on sworn statements is given discretion to determine the number of categories and the per diem penalties). Also at the January 14, 2011 summaryjudgment hearing, counsel for Double raised a concern about why Ecology had not required two other witnesses to undertake an exhaustive search of their records. This court ordered Double vs Dept of Ecology Courts Memorandum Decision 4 of 12 39 SF-01513 PRR-2011-00450 Ecology to require these-two additional witnesses to undertake an exhaustive search of their records and for Ecology to then file and serve affidavits concerning the results of these searches. Ecology complied, and in addition, had various other witnesses undertake an exhaustive search of their files. These affidavits were filed and sen/ed, together, on January 27, 2011. IV. in Camera Review of Records At the end of the hearing, Ecology submitted the withheld and redacted records to this Count for in camera review. This Court reviewed the records withheld, and concluded that the subject records were properly withheld, generally under a legal claim of attorney-client privilege or work product under RCW and RCW 42.56.29O, respectively. This Court also reviewed the records which were redacted, and concludes that the subject records were properly redacted, generally under a legal claim of attorney-client privilege, work product, or protecting the identity of a complainant under RCVV This court advised the parties of these conclusions in a telephonic status conference on February 4, 2011. This court requested Ecology to prepare findings, conclusions, and an order consistent with GR 15 so that the exempt records could be filed under seal. Also at this status conference, the court inquired of counsel for Double l-l whether Ecology's affidavits filed on January 27, 2011 presented issues which required argument and briefing. Counsel for Double stated that the affidavits did not present issues which required an additional hearing, but did request that the number of penalty days be increased. Double vs Dept of Ecology Court's Memorandum Decision Page 5 of 12 SF-01514 PRR-2011-00450 V. Findings of Fact Based upon a review ofthe entire record, this Court finds that Ecology did not act in bad faith. Rather, despite the mistakes made by Ecology, it exhibited a true desire to fully comply with the mandates of the PRA. This finding is based upon the comparative number of documents disclosed prior to the lawsuit, the relatively few documents withheld or not disclosed, and the professional tone of Ecology's email and correspondence. lt is clear to this Court that Ecology made mistakes, but in general it took its responsibilities under the PRA very seriously. The mistakes made by Ecology will cause an increase in the per diem penalty, as explained below. With respect to the four draft RFE's, the final RFE, and the Notice of Penalty - all of which were not even disclosed by Ecology -this Court finds that the non-disclosure was wrongful, warrants an increase in the per diem, but that Double was not harmed or misled by the wrongful non-disclosure of these documents. This is so because Double knew that it would likely be penalized for the alleged dumping of hazardous waste, and also knew that the penalty likely would be large, due to the extent of chemicals found by Ecology. The various other findings are contained in the analysis below. VI. Legal Analysis "Under the PDA, all state and local agencies must disclose any requested public record, unlessthe record falls within a specific exemption." Yousoufiari v. King County Executive, 152 \/Vn.2d, 421, 429, 98 P.3d 463 (2004) (Yousoudan "The PDA enables citizens to retain their sovereignty over their government and to demand full access to information relating to their governments activities." ld. "The provisions of the PDA are to be 'liberally construed' and its exemptions narrowly construed to promote this policy." ld. Toward this goal, RCW provides: Doubie vs Dept of Ecology Court's Memorandum Decision Page6of12 SF-01515 PRR-2011-00450 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 time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. ln addition, it shall be within the discretion of the Court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect of copy said public record. it/loreover, if the Court finds that the agency violated the PDA, the Court is required to assess a penalty; the determination of the $5 to $100 penalty range is discretionary, not whether to award a penalty. Yousoufian ll, at 432-33. Assessment of a penalty is a two-step process: the Court must first determine the number of days, and second, the Court must determine the appropriate per-diem. Yousoufian Ofdce of Ron Sims, 166 Wn.2d 444, 459 (2010) V). The existence or absence of agency bad faith is the principal factor which the trial court must consider. ld., at 460. A. Number of Days: Ecology suggests that the starting date for penalty purposes is not when the records were requested, but the date when the records should have been produced. Ecology argues that a person does not have a right to inspect a record immediately upon the request, but only as defined by RCW 42.56.520 This Court has not been directed to a case in which an appellate court has squarely addressed this issue, and does not find a case. Ecology's argument is persuasive. The number of days for the first requesttherefore commenced on September 10, 2009, which this Court finds was a reasonable estimated response date given by Ecology. See RCW The number of days for the first request ended on January 27, 2011, which was the 4 Double vs Dept of Ecology Courts Memorandum Decision Page 7 of 12 SF-01516 PRR-2011-00450 last date when responsive documents were produced. Thus, the number of days is 495. B. Appropriate Per-Diem: This Court must first determine how many "groups" there are for purposes of a penalty. A determination ofthe number of groups is required, because the PDA does not require a penalty per document, but rather, a per diem per group of documents not timely produced. Yousourian ll, 152 at 434-35. Care should be taken that a court not create artificial groups, which might encourage an abuse in the number of record requests, or an abuse ofthe number of subdivision of subjects contained within a records request. Potential abuse can be controlled by the trial court by its determining that "multiple requests are actually one single request based upon the subject matter and timing of the requests." at p. 436, fn 10. l-lere, the original and the refresher requests related to the same subject matter. For this reason, this Court finds that the requests relate to only one subject. Both parties cite previous appellate cases wherein trial courts divided the number of groups into subject matter and responsive dates. During the summary judgment hearing, Ecology admitted that such a division would create twelve groups. Ecology clarified in its argument that this Court has discretion to determine the number of groups, and although some earlier trial courts divided groups into responsive dates, both parties admitted that no appellate court had actually required such a division. This Court is reluctant to divide the groups into responsive dates. Such a division is artificial, and would actually encourage a governmental agency to withhold records for days, weeks, or months, until the agency is positive that all documents have been gathered. Here, Ecology continuously reviewed its records and produced them once it learned of their responsiveness to the earlier requests. Ecology should not be punished for its continuous review of its records and its piecemeal production once those records were determined to be Double I-i vs Dept of Ecology Ccurt's Memorandum Decision Page 8 of 12 SF-01517 PRR-2011-00450 responsive. For this reason, this Court finds that there should be one group, regardless ofthe number of responsive dates, for purposes of calculating a penalty. Next, this Court must determine a starting point to assess the per diem penalty. The Court is given broad discretion to choose a starting point between $5 and $100. Sanders v. State, 169 VVn.2d 827, at 862. This Court -- having noted above that Ecology's omissions were not committed in bad faith and that Ecology took its obligations under the PRA seriously -- will begin its analysis of the proper per diem penalty at $15. ln analyzing the factors, discussed below, this Court will determine the extent, if any, that such factors militate for a reduction or an increase of this beginning point. Yousourfan Vannounces 16 factors which courts must weigh in determining the appropriate per diem. ld., 168 at 467-68. Nine factors increase the per diem, and seven factors decrease the per diem. l\/iany ofthese factors are opposites of each other, and to avoid redundancy, this Court will analyze such factors together. Mitigating factors: 1. Lack of clarity: This factor will not mitigate the penalty because Double H's request was clear, although broad. 2. Agency helpfulness: The agency was generally helpful, but not to a degree that warrants mitigation below the beginning point of $1 5 per day. 3. The existence of agency systems to track the retrieve public Here, Ecology enacted rules and regulations to assist in answering a request for public records. Indeed, Ecology has its own department created for this purpose. This causes the penalty to be reduced by $2 per day. Double vs Dept of Ecology Court's Memorandum Decision Page 9 of 12 SF-01518 PRR-2011-00450 Aggravating factors: 2. 3. 4. 5. Lack of strict compliance: The agency did not strictly comply with the PRA. An example of this is Ecology not disclosing the draft RFE's, the final REE, and the Notice of Penalty. Another example is that Ecology failed to adequately explain the reasons for its asserted exemptions in the exemption logs. These mistakes cause the penalty to be increased by $5 per day. Agency dishonest: This factor does not exist in this case. This Court finds that the failure by Ecology to disclose the above- mentioned documents was sloppy but not dishonest. Public importance of issues: This is a private dispute. Economic loss: This Court finds that Double did not sustain economic loss attributable to Ecc|ogy's wrongful withholding and even non~disclosure of the limited number of documents in this I'T'lEliiGl'. Deterring future misconduct: This Court finds that this factor does not warrant an increase in the penalty. This is largely due to the finding that Ecology's mistakes were not due to gross negligence or bad faith. Duel factors: 1 . Prompt versus delayed response: Ecology admitted that it once lost tract of Double H's second records request. Ecology also failed to Double vs Dept of Ecology Court's Memorandum Decision Page 16 cf12 SF-01519 PRR-2011-00450 conduct its "exhaustive search" until December 2010. This factor warrants an increase in the per day penalty by The agency's good faith versus bad faith: This factor does not warrant an adjustment inthe per day penalty, as this factor was the central reason this Court chose the beginning point of $15 per day. Proper versus improper training: The evidence in this case was that Ecology provided some training to those conducting the underlying investigation ofthe alleged dumping by Double l-l. The evidence was also that the training was not sufficient. This factor warrants an increase inthe per day penalty by Reasonableness versus unreasonableness of the reasons given by the agency for the delay: The agency provided various reasonable explanations for the mistakes it made throughout this matter. The mistakes have increased the per day penalty. This Court does not find any reason to increase or decrease the per day penalty due to this factor. the number of days (495) by the per day penalty results a penalty of $13,365. Attorney fees and costs RCW authorizes "all costs, including reasonable attorney fees' to any person who prevails in a PRA case. Because Double l-l is receiving an award in its favor, it is the prevailing party. Ecology is directed to prepare and circulate proposed findings, conclusions and the judgment at least fourteen days prior to presentation. Double rs requested to submit its sworn statement and briefing relative to its Double l~l vs Dept of Ecology Court Memorandum Decision SF-01520 PRR-2011-00450 request for costs and re the presentation of findings, Double is directed to resp asonable attorney fees at least five working days prior to onclusions, and judgment. At that same time, ond to Ecology's proposed findings, conclusions, and ld, two days prior to presentation, respond to Double H's judgment. Ecology ou request for costs and reasonable attorney fees. Dated this day ot February, 2011 iff* Judge Robert Lawr nce-Berrey Double t-l vs Dept of Ecology Cou:t's Memorandum Decision Page 12 of12 SF-01521 PRR-2011-00450 2530 iw- 2 STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT HEART OF AMERICA NO. 10-2-01411-7 NORTHWEST, a non-proit 0 organizatioii, STIPULATION AND AGREED . oaosiz or DISIVIISSAL Plaintifi V. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, a state governmental agency, Defendant. I. INTRODUCTION On June 24, 2010, Heart of America Northwest (Heart of America) tiled suit against the Washington State Department of Ecology (Ecology) alleging violations" ofthe Public Records Act, Chapter 42.56 RCW. Heart of America Hled an Amended Complaint-on July 22, 2010. The parties have since negotiated a settlement ofthe caseQ ll.. STIPULATION In order to resolve this matter and avoid the risks and costs of protracted litigation, the parties themselves, by and through their attorneys of record, as witnessed bytheir signatures below, agree and stipulate as follows: 2 ATTORNEY GENERAL OF WASHINGTON STIPULATION AND AGREED ORDER A 1 Ecol Di Cl VISIOII or DISMISSAL Fog, ,om - Olympia, wA9sso4-our - . FAX (360) 586-6760 SF-01522 PRR-2011-00450 Heart of America and Ecology have entered into a Settlement Agreement, attached hereto as Exhibit A, which settles and resolves the claims described in the Amended Complaint tiled in this action; and 2. This lawsuit should be dismissed with prejudice. By their signatures below, the parties respectfully request that the Court enter an Order dismissing this case. AGREED ORDER 'The Court having reviewed the pleading and tiles in this matter, including the above reference stipulation, and having deemed itself fully informed and advised, finds that this case should be dismissed with prejudice as per the parties' stipulation; now, therefore, IT IS HEREBY ORDERED that: This case is dismissed with prejudice pursuant to Civil Rule 4l(a)(l DATED this day of October, 2010. CHRISTINE A. POMEROY Thurston County Superior Court Judge Presented by: ROBERT M. MCKENNA Attorney General H. LEE OVERTON, WSBA 38055 Assistant Attorney General Attorneys for State of Washington, Department of Ecology (seo) sse-cess ATTORNEY GENERAL OF WASHINGTON STIPULATION AND AGREED ORDER 2 Ecole Division OF DISMISSAL PO igx 40117 oiympia, WA 98504-0117 FAX (360) sas-6760 F-01 523 PRR-2011-00450 1 Approved as to Form Notice of Presentation Waivedz 2 HEART 01: AMERICA NORTHWEST 3 4 c1'~ 264' C7 GERALD PO LET, WSBA 13620 5 Attorneys for -(206) 382-1014 STIPULATION AND AGREED ORDER OF DISMISSAL 3 SF-01524 PRR-2011-00450 ATTORNEY GENERAL OF WASHINGTON Ecology Division 1>oB<>>x4o111 olympia, WA 98504-0117 FAX (360) sas-6760 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (Agreement) is made and entered into by and between the Washington State Department of Ecology, a state agency (Ecology), and Heart of America Northwest, a non-profit organization (Heart of America). Together, Heart of America and Ecology are referred to in this Agreement as the "parties," and in the singular as a "party" RECITALS A. WHEREAS Ecology is a state agency organized and existing under the laws of the State of Washington, headquartered in Thurston County, Washington. WHEREAS Heart ofA1neriea is a non-profit organization with its principal place ofbusiness in King County, Washington. C. WHEREAS on July 22, 2010, Heart of America tiled an amended complaint against Ecology in Thurston County Superior Court, Case Number NG. 10-2-01411-7, alleging that Ecology, in response to Heart of America's public records requests, violated the Public Records Act, Chapter 42.56 RCW D. WHEREAS this Agreement is executed in settlement of the Lawsuit, it is the intention ofthe parties to resolve fully, finally, and forever only the disputes and differences that exist between them that arise out ofthe claims asserted in the Lawsuit. NOW, THEREFORE, in consideration ofthe foregoing and the mutual covenants and consideration contained herein, the sufficiency of which is acknowledged, Heart of America and -Ecology agree as follows: AGREEMENT . 1. Ecelogy's Obligations. In consideration of entry into this Agreement and other obligations as set forth below, Ecology shall abide by the terms and conditions of this Agreement and: . Within thirty (30) days of the Eifeetive Date of this Agreement, Ecology shall pay to Heart of America seven thousand dollars in full Settlement of any claims for costs, attorneys' fees, and civil penalties pursuant to the Public Records Act, Chapter 42.56 RCW, that Heart of America may have made in this Lawsuit. This 1_aayrnent Shall be made payable to, and sent to, I-Ieazt Northwest, 1314 NE '56' Street #100, Seattle, Washington 98105. avi' b. Ecology shall issue the policy statement attached as Exhibit. B, for inclusion in Ecology's Nuclear Waste Program Policy Manual. . . Exhibit A SF-01525 PRR-2011-00450 c. Ecology shall tile the Stipulation and Agreed Order of Dismissal, including this attached Settlement Agreement, as soon as practicable but not later than ten (10) days atter the Edective Date of this Agreement. d. Ecology shall communicate to the U.S. Department of Energy (USDOE) and the U.S. Environmental Protection Agency (EPA) the desirability of having the revision of the Hanford Community Relations Plan (Public Involvement Plan) include provisions regarding availability of records marked improvements in indexing records for the Hanford Administrative Record, and extensions of comment periods for periods during Which relevant records are not made available to the public during the comment period, to parallel those to which Ecology is committing in the attached Policy for its own comment periods. 2. Heart ofAn1erica's Obligations. Heart of America shall consent to dismissal ot' the Lawsuit. - 3. Mutual Release. Except for the obligations created under this Ameernent, each of the parties, together with their directors, partners, omcers, employees, agents, attorneys, representatives, heirs, executors and assigns, hereby release and discharge the other, its directors, partners, oihc-ers, employees, agents, attorneys, representatives, heirs, executors and assigns, of and from all manners of action and actions, of whatever nature and kind, including administrative actions, suits, debts, claims, controversies, damages, demands and liabilities, in the present or in the future, known or unknown, whether liquidated or unliquidated, contingent or noncontingent, Whether in law or in equity, in contract or tort, which arise out of the Public Records Act claims asserted in the Lawsuit, and that exist as of the date of execution of this Agreement. 3. Voluntary Execution. in executing this Agreement, each party acknowledges that it has consulted with an attorney and that it has executed this Agreement after independent investigation, voluntarily and without fraud, duress or undue influence. 4. Entire Agreement. This Agreement contains the entire understanding and agreement among the parties and supersedes any prior agreements between them respecting the subject matter hereof There are no other representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement. No or amendment of any provision of this Agreement shall be effective unless made in Writing and duly signed by the parties bound by such modification or amendment. 5. Right, Power, and Authority. The parties warrant to each other that they have the right, power, and authority to execute and enter into this Agreement, and to perform their duties and obligations under this Agreement in accordance with its terms, conditions, and provisions. SF-01526 PRR-2011-00450 6. Effect. This Agreement shall be binding upon and inure to the benefit of each party to this Agreement, together with their affiliates, subsidiaries, otiicers, partners, directors, employees, heirs, executors, administrators, successors, and all persons now or hereaiter holding or having all or any part of the interest of a party hereto. Each party, by signature below, represents that it has the legal authority to execute this Agreement and to bind that party to this Agreement. Changes in the organizational form ofthe parties shall not affect the validity or enforceability of this Agreement. 7. Applicable Law. This Agreement shall be interpreted under the laws ofthe State of Washington with venue in Thurston County. . 8. Counterparts and Facsimile Transmission. This Agreement may he executed in counterparts, each of which shali be deemed an original, Facsimile transmissions of any signed original document, or transmission ofany signed facsimile document, shall be the same as delivery of an executed original. At the request of any ofthe parties, the parties shall confirm facsimile transmission signatures by signing and delivering an original document. 9. Construction and Interpretation of Agreement. The captions of the articles, sections and subsections herein are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this Agreement. As used in this Agreement and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine gender and vice versa. 10. Non-waiver. A waiver of any breach ot or failure to enforce, any ofthe terms or conditions of this Agreement shall not in any Way anect, limit, or waive a party's right to enforce compliance thereafter with each and every term and condition of this Agreement. 11. Effective Date. This Agreement shall become effective upon its execution by the Parties. 12. Time. Time is ofthe essence of this Agreement. 13. Good Faith. The Partiesshall carry out the provisions of this Agreement in good faith. . DATED this Mday of Oct., 2010. DATED this LQ day of Oct., 2010. Heart of erica Nopwest Washington Department of Ecology . By: 9 By: Cx. Name: Qc ce. i ame: A . i"iiDGE? Tina Caveat I ff, <'ireecJQg 'tina W\oe\fw CL Netra ff di SF-01527 PRR-2011-00450 ras? 'Be are "ie H- it cseaarmeur _ml -imma.-? 1-6-1.-: .- - -- -- - - nr" -Ejiu - - mf .gi ECOLOGY Stale of Washington A Subject: Dealingnwith National Security Sensitive Materials at the Hanford Site TO PROVIDE A PROCESS OR HANDLING, AND RESPONDING TO PUBLIC RECORDS REQUESTS POR, DOCUMENTS USED BY THE DEPARTMENT OF ECOLOGY OR ITS REGULATORY DECISION MAIQN THAT THE UNITED DEPARTMENT OF ENERGY (USDOE) HAS INDICATED MAY EE NATIONAL SECURITY SENSITIVE Procedure: . In the event a public record is requested, RCW 42.56.540 authorizes agencies to notify the person or entity to which the record pertains, so that the person or entity may seek court protection ofthe record. co ogy occasionally receives documents that USDOE has indicated (via "Official Use Only" or "Sensitive" labeling) be national security sensitive While Ecology treats these indications ofpotentlal national security may concern with utmost seriousness, they are not determinative of whether the documents thus marked would be exempt from disclosure under Washington lavv. Because USD OE's indication that a record may be nationa security sensitive does not guarantee that the documents will be exempt from disclosure under Washington law, Ecology adopts the following process; 1. Receipt of Records Marked or "Sensitive" a. A dedicated and secured records-containment system will be used to house documents containing information that USDOE has indicated (via "Official Use Only" or "Snsitive" labeling) may be national security sensitive. A dedicated and secured network drive may be used. li. Upon receipt of such records, Ecology staff will check that all "Official Use Only" or "Sensitive" designations cite the (Freedom Act) exemption which USDOE believes applies and identify the person makin such determination; and it will Worlc with USDOE to try to 'remedy any failure to provide such information. Ecology staifvvill also work with USDOE to minimize the amount of material designated "Official Use Only." Until disclosed pursuant to the procedure described below, Ecology's Public Disclosure Coordinator c. will allow access to information marked national security sensitive only to authorized staff; directed and approved by the Nuclear Waste Program Manager. Where only a part of a record is designated A tion "Ofticial Use Only"'tbe rest of the record will be made available for public inspection or pro uc if no other exemption applies. A system for keeping track of records marked "Official Use Only" will be used and Ecology staff will rely on this system to inform persons making public records requests of any documents to the ie uests that are designated "Otiicial Use Only Ecology staffwill also rely on it to responsive . inform persons seeking review during public comment periods of all documents that, but forthe "Official Use Only" designation, would be present in the public inspection tile. When informing ei sons tliat a particular record is designated "Official Use Only," Ecology staff will explain that this designation does not mean that the record is exempt from disclosure under the Public Records Act. d. 2. Process for Notification in Response to a Public Records Reign uesf a. In the event that Ecology receives a public records request to which a document that USDOE has indicated may be national security sensitive is responsive, Eco1ogy's Public Disclosure Coordinator 1 4 A Exhibit SF-01528 PRR-2011-00450 will notify the Washington Attorney General's Office and the USDOE Freedom of information Act Office of the request. in the event that the Public Records Act requires disclosure of a record that USDOE has indicated may be national security sensitive, Ecology will provide advance written notice to USDOE giving it ten (10) vvorking days to seek an injtunction pursuant to RCW 42.56.54O, prior to Ecology's disclosure of the record, Ecology will notify the requester that USDOE may request court action to prevent the docu1nent's disclosure, and is being given ten (IO) days to decide whether to do so. If Ecology ultimately decides to Witlihold the record (or part) on the grounds that it is exempt from disclosure under RCW 42.56.420 (security exemption), it will, in accordance with RCW so state and provide a brief explanation of how the elements ofthe security exemption apply to the record (or part) withheld. In such event, Ecology will ensure that the minimum amount of material is withheld. Process for Notification During Public Continent Periods During tire public comment period for an Ecology decision (but not for multi-party decisions pursuant to the Tri-Party Agreement), the Nuclear Waste Program Library becomes an official repository where the public may inspect, without making a public records request, the documents put out for public review and comment. To insure that the public is adequately informed of what documents, if any, have been withdrawn from the public inspection file, Ecology will provide a cover sheet listing all documents contained in it and ali documents that would be contained in it but "Official Use Only" marking. Persons who would like to inspect the missing documents may follow up with a public records . request. Extensions to Public Comment Periods If the materials requested under the Public Records Act are relevant and specific to an Ecology decision undergoing public comment pursuant to Department of Ecology regulatory processes a corresponding extension of up to ten (10) working days will be provided to the public comment period to provide adequate time for the public to evaluate the documents if an injunctive remedy is not pursued by USD OE. If USDOE files an action to prevent the docurnent's release, Ecology will inform the requestor of USDOE's as soon as is practically possible. In the event that USDOE seeks but fails to obtain injunctive reliei Ecology will, on a case-by-case basis, provide a further extension for public comment as appropriate, provided that the information USDOE sought to withhold from disclosure has relevance to EcoIogy's decision. For comment periods pursuant to Trl~Party Agreement (TPA) (USDOE, Ecoiogy and the Environmental Protection Agency requirements or other federal regulatory processes Ecology will, on a case-by-ease basis, request in writing that USDOE and EPA extend the comment period as appropriate. However, decisions on granting the extension are not the sole purview of Ecology and cannot be unilaterally required. Approved: 9 ff 5-r Polly Ze rn, puty Director Date Department of Ecology in Qo /o /ep ane A. edges, Program Manager te uclear Waste Program 2 SF-01529 PRR-2011-00450 MacDonald, Diana (ATG) From: Overton, Lee (ATG) Sent: Friday, October 08, 2010 4:25 To: Hedges, Jane Skinnarland, Ron (ECY) Cc: Fitz, Andy (ATG): Dunning, Michael (ATG) Subject: Signed re: Settlement Documents for Heart of America v. Ecology Attachments: Settlement Agreement Signed GP for 10-8-10.pdf; Stipulation Agreed Order Dismissal Signed for GP 10-8-10.pdf; Signature page Agreed Order signed GP 10-8-10.pdf From: Gerry Pollet Sent: Friday, October 08, 2010 4:16 PM To: Overton, Lee (ATG) Subject: Signed re: Settlement Documents for Heart of America v. Ecology Lee, Please find attached a signed copy ofthe Settlement Agreement and a signed copy ofthe Agreed Order; and, a copy just of the signed signature page of the Agreed Order (to make it easier for your Office). We are very pleased that we were able to work through a settlement with Ecology and you which will be a very positive policy for public records access forthose records which USDOE marks "Official Use Only." Our goal, which we communicated to the AG's Office from the outset was to change policy and ensure that the public's right to inspect or receive public records was not restricted by USDOE's demarcation of records when that designation was not appropriate. I want to thank you and Ecology's staff for the very positive contributions to the Policy language forwarded today, which make the Policy very easy to understand and follow. Gerry Pollet, Executive Director, Heart of America Northwest "The PubIic's Voice for Hanford Clean-Up" (206)382-1014 From: "Overton, Lee Sent: Friday, October 08, 2010 11:06 AM To: "Gerry Pollet" Subject: Settlement Documents for Heart of America v. Ecology Gerry, Here are the settlement documents. Below is a guide to Policy document revisions made to capture the distinction/problem/solution we discussed and agreed to on Tuesday. Polly and Jane are both in Lacey today, so it's at least possible that we can fairly easily get all signatures today and file this thing. Lee <<2.Exhibit A Settlement Agreement FlNAL.pdf>> Exhibit Ecology NWP Policy on OUO records handling FINAL 1 SF-01530 PRR-2011-00450 Revisions to the Policy document: 0 The beginning paragraph has a additional language, but no substantive change. Procedure: In the event a public record is requested, RCW 42.56.540 authorizes agencies to notify the person or entity to which the record pertains, so that the person or entity may seek court protection of the record. Ecology occasionally receives documents that USDOE has indicated (via "Official Use Only" or "Sensitive" labeling) may be national security sensitive. While Ecology treats these indications of potential national security concern with utmost seriousness, they are not determinative of whether the documents thus marked would be exempt from disclosure under Washington law. Because USDOE's indication that a record may be national security sensitive does not guarantee that the documents will be exempt from disclosure under Washington law, Ecology adopts the following process: 0 Changed the order of sentences in 1d to correspond with organization of next two sections, but nothing else. 0 I made a wording change for greater clarification in Za, making it more obvious that a request for an OUO doc may be either direct or indirect. That is, it may be either explicitly for an OUO document or it may be for something like "all documents related to permit where it turns out that an OUO document falls in that group of documents. In the event that Ecology receives a public records request to which a document that USDOE has indicated may be national security sensitive is responsive, Ecology's Public Disclosure Coordinator will notify the Washington Attorney General's Office and the USDOE Freedom of information Act Office of the request. In the event that the Public Records Act requires disclosure of a record that USDOE has indicated may be national security sensitive, Ecology will provide advance written notice to USDOE giving it ten (10) working days to seek an injunction pursuant to RCW 42.56.540, prior to Ecology's disclosure of the record. Ecology will notify the requester that USDOE may request court action to prevent the document's disclosure, and is being given ten (10) days to decide whether to do so. 0 Added the following section (Section 3- a. During the public comment period for an Ecology decision (but not for multi-party decisions pursuant to the Tri-Party Agreement), the Nuclear Waste Program Library becomes an official repository where the public may inspect, without making a public records request, the documents put out for public review and comment. b. To insure that the public is adequately informed of what documents, if any, have been withdrawn from the public inspection file, Ecology will provide a cover sheet listing all documents contained in it and all documents that would be contained it but for USDOE's "Official Use Only" marking. Persons who would like to inspect the missing documents may follow up with a public records request. Lee Overton Assistant Attorney General Ecology Division P.O. Box 40117 Olympia, Washington 98504-0117 Olympia Office (360) 2 SF-01531 PRR-2011-00450 Seattle Office (Th, Fr): (206) 389-3840 Email: Leeo1@atg.wa.gov 3 SF-01532 PRR-2011-00450 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (Agreement) is made and entered into by and between the Washington State Department of Ecology, a state agency (Ecology), and Heart of America Northwest, a non-profit organhation (Heart of America). Together, Heart of America and Ecology are referred to in this Agreement as the "parties," and in the singular as a "party." RECITALS A. WHEREAS Ecology is a state agency organized and existing under the laws ofthe State of Washington, headquartered in Thurston County, Washington. B. WHEREAS Heart of America is a non-profit organization with its principal place of business in King County, Washington. C. WHEREAS on July 22, 2010, Heart of America filed an amended complaint against Ecology in Thurston County Superior Court, Case Number NO. 10-2-01411-7, alleging that Ecology, in response to Heart of America's public records requests, violated the Public Records Act, Chapter 42.56 RCW (hereinafter, "Lawsuit" or "Compiair1t"). D. WHEREAS this Agreement is executed in settlement of the Lawsuit, it is the intention ofthe parties to resolve fully, tinally, and forever only the disputes and differences that exist between them that arise out ofthe claims asserted in the Lawsuit. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and consideration contained herein, the sufficiency of which is acknowledged, Heart of America and Ecology agree as follows: - AGREEMENT 1. Ecology's Obligations. In consideration of Plaintiffs entry into this Agreement and other obligations as set forth below, Ecology shall abide by the terms and conditions of this Agreement and: Within thirty (30) days of the Effective Date of this Agreement, Ecology shall pay to Heart of America seven thousand dollars in full settlement of any claims for -costs, attomeys' fees, and civil penalties pursuant to the Public Records Act, Chapter 42.56 RCW, that Heart of America may have made in this Lawsuit. This payment shall be made payable to, and sent to, Heart of America Northwest, 131-4 NE 56' Street #100, Seattle, Washington 98105. b. Ecology shall issue the policy statement attached as Exhibit B, for inclusion in Ecology's Nuclear Waste Program Policy Manual. SFA) 71.5.3.3 PRR-2011-00450 c. Ecology shall file the Stipulation and Agreed Order of Dismissal, including this attached Settlement Agreement, as soon as practicable but not later than ten (10) days after the Effective Date of this Agreement. d. Ecology shall communicate to the U.S. Department of Energy (USDOE) and the U.S. Environmental Protection Agency (EPA) the desirability of' having the revision of the Hanford Community Relations Plan (Public Involvement Plan) include provisions regarding availability of records marked improvements in indexing records for the Hanford Administrative Record, and extensions of comment periods for periods during which relevant records are not made available to the public during the comment period, to parallel those to which Ecology is committing in the attached Policy for its own comment periods. 2. Heart of America's Ubligations. Heart of America shall consent to dismissal of the Lawsuit. 3. A Mutual Release. Except for the obligations created under this Agreement, each of the parties, together with their directors, partners, officers, employees, agents, attorneys, representatives, heirs, executors and assigns, hereby release and discharge the other, its directors, partners, officers, employees, agents, attorneys, representatives, heirs, executors and assigns, of and 'from all- manners of' action and actions, of whatever nature and kind, including administrative actions, suits, debts, claims, controversies, damages, demands and liabilities, in the present or in the Ili.1tl.l1'EUR, known or unknown, whether liquidated or unliquidated, contingent or noncontingent, whether in law or in equity, in contract or tort, which arise out of the Public Records Act claims asserted in the Lawsuit, and that exist as of the date of execution of this Agreement. 3. Voluntary Execution. In executing this Agreement, each party acknowledges that it has consulted with an attorney and that it has executed this Agreement after independent investigation, voluntarily and without ti-aud, duress or undue influence. 4. Entire Agreement. This Agreement contains the entire understanding and agreement among the parties and supersedes any prior agreements between them respecting the subject matter hereotf There are no other representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement. No modification or amendment of any provision of this Agreement shall be effective unless made in writing and duly signed by the parties bound by such modification or amendment. 5 Right, Power, and Authority. The parties warrant to each other that they have the right, power, and authority to execute and enter into this Agreement, and to perform their duties and obligations under this Agreement in accordance with its terms, conditions, and provisions. A .SF-01534 PRR-2011-00450 6. Effect. This Agreement shall be binding upon and inure to the benefit of each party to this Agreement, together with their affiliates, subsidiaries, officers, partners, directors, employees, heirs, executors, administrators, successors, and all persons now or hereafter holding or having all or any part of the interest of a party hereto. Each party, by signature below, represents that it has the legal authority to execute this Agreement and to bind that party to this Agreement. Changes in the organizational form of the parties shall not affect the validity or enforceability of this Agreement. 7. Applicable Law. This Agreement shall be interpreted under the laws ofthe State of Washington with venue i_n Thurston County. 8. Counterparts and Facsimile Transmission. This Agreement may be executed in counterparts, each of which shall be deemed an original. Facsimile transmissions of any signed original document, or transmission of any signed facsimile document, shall be the same as delivery of an executed original. At the request of any ofthe parties, the parties shall confirm facsimile transmission signatures by signing and delivering an original document. 9. Construction and Interpretation of Agreement. The captions of the articles, sections and subsections herein are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this Agreement. As used in this Agreement and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine gender and vice versa. 10. Nou-Waiver. A Waiver of any breach of, or failure to enforce, any ofthe terms or conditions of this Agreement shall not in any way affect, limit, or waive a pa1?ty's right to enforce compliance thereafter with each and every tenn and condition of this Agreement. 11. Effective Date. This Agreement shall become effective upon its execution by the Parties. 12. Time. Time is ofthe essence of this Agreement. 13. Good Faith. The Parties shall carry out the provisions of this Agreement in good faith. #1 DATED this day of Oct., 2010. DATED day of Oct., 2010. Heart of erica Nowwest Washington Department of Ecology By: 1 By: Name: Gem. Ecfif of Name: Title: CICPUYIQB i fir iw Title: DW PRR-2011-00450 1 Approved as to Form Notice of Presentation Waived: 2 HEART OF NORTHWEST 3 4 c4- 52261 67 GERALD POLLET, WSBA 13620 5 Attorneys for Plaintiff (206) 382-1014 STIPULATION AND AGREED ORDER 3 ATTORNEY Wslon UF PO ?1401 17 olympia, WA 98504-0117 FAX (seo) sae-even E011 536 PRR-2011-00450 STATE OF WASHINGTON TI-IURSTON COUNTY SUPERIOR COURT HEART OF AMERICA NO. 10-2-01-411-7' NORTHWEST, a non-profit organization, STIPULATION AND AGREED ORDER OF DISMISSAL Plaintifii v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, a state governrnental agency, Defendant. I. INTRODUCTION On June 24, 2010, Heart of America Northwest (Heart of America) filed suit against the Washington State Department of Ecology (Ecology) alleging violations of the Public Records Act, Chapter 42.56 RCW. Heart of America filed an Amended Complaint on July 22, 2010. The parties have since negotiated a settlement ofthe case. II.. STIPULATION In order to resolve this matter and avoid the risks and costs of protracted litigation, the parties themselves, by and through their attorneys of record, as witnessed by their signatures below, agree and stipulate as follows: STIPULATION AND AGREED 1 ATFURNEY or DISMIS SAL A POE, Olympia, WA Qssoa-0117 Fax (360) 5 s645760 SF-01537 PRR-2011-00450 l. Heart of America and Ecology have entered into a Settlement Agreement, attached hereto as Exhibit A, which settles and resolves the claims described in the Amended Complaint tiled in this action; and 2. This lawsuit should he with prjudiss. By their signatures below, the parties respectfully request that the Court enter an Order dismissing this case. AGREED ORDER The Court having reviewed the pleading and tiles in this matter, including the above reference stipulation, and having deemed itself fully informed and advised, finds that this case should be dismissed with prejudice as per the parties' stipulation; now, therefore, IT IS HEREBY ORDERED that: This case is dismissed with prejudice pursuant to Civil Rule 4l(a)(l DATED this day of October, 2010. THOMAS Thurston County Superior Court Judge Presented by: ROBERT M. MCKENNA Attorney General H. LEE OVERTON, WSBA 38055 Assistant Attorney General Attorneys for State of Washington, Department of Ecology (360) 586-2663 STIPULATION AND AGREED ORDER 2 ATTORNEY OF DISMISSAL - -. Olympia, WA 93504-0117 FAX (360) 586-67-50 SF-01538 PRR-2011-00450 1 Approved as to Form Notice of Presentation Waived: 2 HEART OF AMERICA NORTHWEST 3 4 C301 3 26167 GERALD POLLET, WSBA 13620 5 Attorneys for Plaintiff (206) 382-1014 STIPULATION AND AGREED ORDER 3 ATTORNEY Ecol D1 UF DISMISSAL 1615311 4i?'T?3" Olympia, WA 98504-0117 FAX (360) 536-6160 SF-01539 1 PRR-2011-00450 MacDonald, Diana (ATG) From: Sent: To: Cc: Subject: All: Nels Johnson Assistant Attorney General Johnson, Nels (ATG) Monday, February 14, 2011 1:01 PM Sturdevant, Ted Seiler, Workman, David Zehm, Polly Fleskes, Carol Redfield-Wilder, Joye Dixon, Brian R. Tebb, G. Thomas 'Manning, Jay Johnson, Roger E. Althaus, John (ECY) VViIson, Mary Sue Dunning, Michael Barney, (ATG) Double Decision CLIENT PRIVILEGED COMMUNICATION To save paper please th1s ma1l only 1f necessary 1 SF 01540 PRR 2011 00450 Double Decision.pdf 2 SF-01541 PRR-2011-00450 Eff' rl" wg. _,ttf WW.. .MM STATE OF WASHINGTON YAKIMA COUNTY COURT DOUBLE H, LP., a Washington No. 'l0-2-00694-9 limited liability partnership, Plaintiff MEMORANDUM DECISION DEPARTMENT OF ECOLOGY, Defendant I. Case Background Double H, LP. (Double H) brought suit against Washington Department of Ecology (Ecology) seeking penalties, fees, and costs, for Ecology not adequately responding to two records requests. Double H's first request was made on August 7, 2009, and its second request was made on January 14, 2010. The first request asked for records concerning investigations by Ecology into activities of Double H, or related business entities. The second request was a "refresher request" for the same type of records, but which were created after August 0, 2009. The requests arise out of Ecology's investigation of alleged dumping by Double of hazardous waste reported to Ecology in March of 2009. Double vs Dept of Ecology Counts Memorandum Decision - Page 1 of 12 SF-01542 PRR-2011-00450 iirif rh??ur?arsriuied Fake Ecology responded to Double H's first records request by estimating a response date of September 10, 2009. Ecology produced some responsive records on September 24, 2009, September 30, 2009, and January 28, 2010. ln its exemption log, Ecology identified seventeen records that it withheld, in whole or in part, and identified the statutory basis for its claims that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld. Throughout the summer of 2010, Double obtained in discovery nine records that were responsive to the first records request but the existence of which had not previously been disclosed to the plaintiff. During this time, Double also obtained in discovery six records that it has previously disclosed to Double H, but which it has withheld from production, in whole or in part, based upon statutory- exemptions it no longer asserted. Ecology responded to Double H's refresher request of January 14, 2010 by estimating a response date of the week of February 18, 2010. Because Ecology did not timely respond, Double filed suit on l\/larch 11, 2010. Ecology produced some records responsive to Double H's second request on l\/larch 19, 2010 and l\/larch 23, 2010. Ecology identified 38 records that it withheld, in whole or in part, and identified the statutory basis for its claim that each record was subject to an exemption from production. Ecology did not explain how the exemptions applied to the respective records being withheld. Throughout the summer and fall of 2010, Double obtained in discovery twenty-seven records that were responsive to the refresher request but the existence of which had not previously been disclosed. During this time, Double also obtained in discovery twelve records that it had previously disclosed to Double H, but which it had withheld from production, in whole or in part, based upon the statutory exemptions it no longer asserted. On January 7, 2011, Ecology acknowledged the existence of additional records responsive to the first and second requests, the existence of which had Double vs Dept of Ecofogy Courts Memorandum Decision Page 2 of 12 SF-01543 PRR-2011-00450 har Bye?eieay?ftsf "an exhaustive" search was directed by defense counsel. This exhaustive search was directed by defense counsel after one or more previously undiscovered documents were discovered in the process of responding to a second refresher request - a request which is not at issue in this lawsuit. On January 12, 2011, Ecology produced these records, except those that it maintained were exempt. A true and accurate itemization of these records and the dates these records were produced appear in the parties' briefing. There is no issue of fact with regard to the identity of these documents and the dates produced. There is however an issue of how many "groups" these documents should be divided into, for purposes of determining an appropriate penalty. ln total, over 3,000 documents were produced by Ecology. The vast majority of these documents were produced prior to the filing of this suit on l\/larch 11, 2010, or soon afterward. At the summaryjudgment hearing, defense counsel represented that most of the numerous records which were discovered during the late 2010 exhaustive search included email strings (portions of which were earlier disclosed), redundant notes, and calendar entries. There were important documents, however, which were not timely disclosed: Ecology failed to disclose four draft Recommendations for Enforcement (RFE), the final RFE, and the Notice of Penalty. These documents were withheld for approximately a year prior to their production in September of 2010. Ecology withheld the draft RFE's under the deliberative process exemption, RCW 42.56.280, but later determined that the exemption was improper, and thereafter produced them. (The parties have not requested that this Court determine whether the draft RFE's were exempt, and no opinion is expressed in this regard). The final RFE and the Notice of Penalty should have been disclosed and produced, and there was no good faith reason for the delay in disclosing these two documents. Double l-l claims prejudice by the wrongful non-disclosure ofthe six documents discussed above. Double i-l vs Dept of Ecology Court's Memorandum Decision Page 3 of 12 SF-01544 PRR-2011-00450 Procedure of Case Ecology filed its motion for summaryjudgment, requesting that this Court review alleged exempt documents in camera to determine that they are exempt; and to determine, as a matter of law that there should be two groups of wrongfully withheld records, and that the penalty for wrongful withholding of these two groups should be the statutory minimum penalty of $5 per day. Double later filed its cross motion for summaryjudgment, requesting that this Court determine, as a matter of law that there should be twelve groups of documents, and that the penalty for wrongful withholding of these twelve groups should be the statutory maximum penalty of $100 per day. (Ecology's A later disclosures caused Double to expand the number of requested groups to 15). Double also objected to the process suggested by Ecology for determining whether the alleged exempt records are truly exempt. At the January 14, 2011 summaryjudgment hearing, the parties announced their agreement forthe Court to review the alleged exempt documents in camera, and to advise the parties of its findings with regard to the claimed exemptions. Also at the hearing, the parties acknowledged that determination of the number of groups and the appropriate per diem penalty required weighing inferences, and that summary judgment was therefore inappropriate. The parties then agreed to submit this case to this Court on the existing record for purposes of making findings, rather than having a testimonial hearing. See Brouil/et v. Cowles Publishing Co, 114 Vl/n.2d 788, 793, 791 P.2d 526 (1990). (Court deciding PDA dispute on sworn statements is not deciding case on summaryjudgment, and court reviews decision de novo). But see Sanders v. State, 169 \Nn.2d 827, 862-65 (2010) (A Court deciding PDA dispute on sworn statements is given discretion to determine the number of categories and the per diem penalties). Also at the January 14, 2011 summaryjudgment hearing, counsel for Double raised a concern about why Ecology had not required two other witnesses to undertake an exhaustive search of their records. This court ordered Double vs Dept of Ecology Courts Memorandum Decision 4 of 12 39 SF-01545 PRR-2011-00450 Ecology to require these-two additional witnesses to undertake an exhaustive search of their records and for Ecology to then file and serve affidavits concerning the results of these searches. Ecology complied, and in addition, had various other witnesses undertake an exhaustive search of their files. These affidavits were filed and sen/ed, together, on January 27, 2011. IV. in Camera Review of Records At the end of the hearing, Ecology submitted the withheld and redacted records to this Count for in camera review. This Court reviewed the records withheld, and concluded that the subject records were properly withheld, generally under a legal claim of attorney-client privilege or work product under RCW and RCW 42.56.29O, respectively. This Court also reviewed the records which were redacted, and concludes that the subject records were properly redacted, generally under a legal claim of attorney-client privilege, work product, or protecting the identity of a complainant under RCVV This court advised the parties of these conclusions in a telephonic status conference on February 4, 2011. This court requested Ecology to prepare findings, conclusions, and an order consistent with GR 15 so that the exempt records could be filed under seal. Also at this status conference, the court inquired of counsel for Double l-l whether Ecology's affidavits filed on January 27, 2011 presented issues which required argument and briefing. Counsel for Double stated that the affidavits did not present issues which required an additional hearing, but did request that the number of penalty days be increased. Double vs Dept of Ecology Court's Memorandum Decision Page 5 of 12 SF-01546 PRR-2011-00450 V. Findings of Fact Based upon a review ofthe entire record, this Court finds that Ecology did not act in bad faith. Rather, despite the mistakes made by Ecology, it exhibited a true desire to fully comply with the mandates of the PRA. This finding is based upon the comparative number of documents disclosed prior to the lawsuit, the relatively few documents withheld or not disclosed, and the professional tone of Ecology's email and correspondence. lt is clear to this Court that Ecology made mistakes, but in general it took its responsibilities under the PRA very seriously. The mistakes made by Ecology will cause an increase in the per diem penalty, as explained below. With respect to the four draft RFE's, the final RFE, and the Notice of Penalty - all of which were not even disclosed by Ecology -this Court finds that the non-disclosure was wrongful, warrants an increase in the per diem, but that Double was not harmed or misled by the wrongful non-disclosure of these documents. This is so because Double knew that it would likely be penalized for the alleged dumping of hazardous waste, and also knew that the penalty likely would be large, due to the extent of chemicals found by Ecology. The various other findings are contained in the analysis below. VI. Legal Analysis "Under the PDA, all state and local agencies must disclose any requested public record, unlessthe record falls within a specific exemption." Yousoufiari v. King County Executive, 152 \/Vn.2d, 421, 429, 98 P.3d 463 (2004) (Yousoudan "The PDA enables citizens to retain their sovereignty over their government and to demand full access to information relating to their governments activities." ld. "The provisions of the PDA are to be 'liberally construed' and its exemptions narrowly construed to promote this policy." ld. Toward this goal, RCW provides: Doubie vs Dept of Ecology Court's Memorandum Decision Page6of12 SF-01547 PRR-2011-00450 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 time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. ln addition, it shall be within the discretion of the Court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect of copy said public record. it/loreover, if the Court finds that the agency violated the PDA, the Court is required to assess a penalty; the determination of the $5 to $100 penalty range is discretionary, not whether to award a penalty. Yousoufian ll, at 432-33. Assessment of a penalty is a two-step process: the Court must first determine the number of days, and second, the Court must determine the appropriate per-diem. Yousoufian Ofdce of Ron Sims, 166 Wn.2d 444, 459 (2010) V). The existence or absence of agency bad faith is the principal factor which the trial court must consider. ld., at 460. A. Number of Days: Ecology suggests that the starting date for penalty purposes is not when the records were requested, but the date when the records should have been produced. Ecology argues that a person does not have a right to inspect a record immediately upon the request, but only as defined by RCW 42.56.520 This Court has not been directed to a case in which an appellate court has squarely addressed this issue, and does not find a case. Ecology's argument is persuasive. The number of days for the first requesttherefore commenced on September 10, 2009, which this Court finds was a reasonable estimated response date given by Ecology. See RCW The number of days for the first request ended on January 27, 2011, which was the 4 Double vs Dept of Ecology Courts Memorandum Decision Page 7 of 12 SF-01548 PRR-2011-00450 last date when responsive documents were produced. Thus, the number of days is 495. B. Appropriate Per-Diem: This Court must first determine how many "groups" there are for purposes of a penalty. A determination ofthe number of groups is required, because the PDA does not require a penalty per document, but rather, a per diem per group of documents not timely produced. Yousourian ll, 152 at 434-35. Care should be taken that a court not create artificial groups, which might encourage an abuse in the number of record requests, or an abuse ofthe number of subdivision of subjects contained within a records request. Potential abuse can be controlled by the trial court by its determining that "multiple requests are actually one single request based upon the subject matter and timing of the requests." at p. 436, fn 10. l-lere, the original and the refresher requests related to the same subject matter. For this reason, this Court finds that the requests relate to only one subject. Both parties cite previous appellate cases wherein trial courts divided the number of groups into subject matter and responsive dates. During the summary judgment hearing, Ecology admitted that such a division would create twelve groups. Ecology clarified in its argument that this Court has discretion to determine the number of groups, and although some earlier trial courts divided groups into responsive dates, both parties admitted that no appellate court had actually required such a division. This Court is reluctant to divide the groups into responsive dates. Such a division is artificial, and would actually encourage a governmental agency to withhold records for days, weeks, or months, until the agency is positive that all documents have been gathered. Here, Ecology continuously reviewed its records and produced them once it learned of their responsiveness to the earlier requests. Ecology should not be punished for its continuous review of its records and its piecemeal production once those records were determined to be Double I-i vs Dept of Ecology Ccurt's Memorandum Decision Page 8 of 12 SF-01549 PRR-2011-00450 responsive. For this reason, this Court finds that there should be one group, regardless ofthe number of responsive dates, for purposes of calculating a penalty. Next, this Court must determine a starting point to assess the per diem penalty. The Court is given broad discretion to choose a starting point between $5 and $100. Sanders v. State, 169 VVn.2d 827, at 862. This Court -- having noted above that Ecology's omissions were not committed in bad faith and that Ecology took its obligations under the PRA seriously -- will begin its analysis of the proper per diem penalty at $15. ln analyzing the factors, discussed below, this Court will determine the extent, if any, that such factors militate for a reduction or an increase of this beginning point. Yousourfan Vannounces 16 factors which courts must weigh in determining the appropriate per diem. ld., 168 at 467-68. Nine factors increase the per diem, and seven factors decrease the per diem. l\/iany ofthese factors are opposites of each other, and to avoid redundancy, this Court will analyze such factors together. Mitigating factors: 1. Lack of clarity: This factor will not mitigate the penalty because Double H's request was clear, although broad. 2. Agency helpfulness: The agency was generally helpful, but not to a degree that warrants mitigation below the beginning point of $1 5 per day. 3. The existence of agency systems to track the retrieve public Here, Ecology enacted rules and regulations to assist in answering a request for public records. Indeed, Ecology has its own department created for this purpose. This causes the penalty to be reduced by $2 per day. Double vs Dept of Ecology Court's Memorandum Decision Page 9 of 12 SF-01550 PRR-2011-00450 Aggravating factors: 2. 3. 4. 5. Lack of strict compliance: The agency did not strictly comply with the PRA. An example of this is Ecology not disclosing the draft RFE's, the final REE, and the Notice of Penalty. Another example is that Ecology failed to adequately explain the reasons for its asserted exemptions in the exemption logs. These mistakes cause the penalty to be increased by $5 per day. Agency dishonest: This factor does not exist in this case. This Court finds that the failure by Ecology to disclose the above- mentioned documents was sloppy but not dishonest. Public importance of issues: This is a private dispute. Economic loss: This Court finds that Double did not sustain economic loss attributable to Ecc|ogy's wrongful withholding and even non~disclosure of the limited number of documents in this I'T'lEliiGl'. Deterring future misconduct: This Court finds that this factor does not warrant an increase in the penalty. This is largely due to the finding that Ecology's mistakes were not due to gross negligence or bad faith. Duel factors: 1 . Prompt versus delayed response: Ecology admitted that it once lost tract of Double H's second records request. Ecology also failed to Double vs Dept of Ecology Court's Memorandum Decision Page 16 cf12 SF-01551 PRR-2011-00450 conduct its "exhaustive search" until December 2010. This factor warrants an increase in the per day penalty by The agency's good faith versus bad faith: This factor does not warrant an adjustment inthe per day penalty, as this factor was the central reason this Court chose the beginning point of $15 per day. Proper versus improper training: The evidence in this case was that Ecology provided some training to those conducting the underlying investigation ofthe alleged dumping by Double l-l. The evidence was also that the training was not sufficient. This factor warrants an increase inthe per day penalty by Reasonableness versus unreasonableness of the reasons given by the agency for the delay: The agency provided various reasonable explanations for the mistakes it made throughout this matter. The mistakes have increased the per day penalty. This Court does not find any reason to increase or decrease the per day penalty due to this factor. the number of days (495) by the per day penalty results a penalty of $13,365. Attorney fees and costs RCW authorizes "all costs, including reasonable attorney fees' to any person who prevails in a PRA case. Because Double l-l is receiving an award in its favor, it is the prevailing party. Ecology is directed to prepare and circulate proposed findings, conclusions and the judgment at least fourteen days prior to presentation. Double rs requested to submit its sworn statement and briefing relative to its Double l~l vs Dept of Ecology Court Memorandum Decision SF-01552 PRR-2011-00450 request for costs and re the presentation of findings, Double is directed to resp asonable attorney fees at least five working days prior to onclusions, and judgment. At that same time, ond to Ecology's proposed findings, conclusions, and ld, two days prior to presentation, respond to Double H's judgment. Ecology ou request for costs and reasonable attorney fees. Dated this day ot February, 2011 iff* Judge Robert Lawr nce-Berrey Double t-l vs Dept of Ecology Cou:t's Memorandum Decision Page 12 of12 SF-01553 PRR-2011-00450 MacDonald, Diana (ATG) From: Dunning, Michael (ATG) Sent: l\/londay, l\/larch 14,2011 12:13 To: Wilson, Mary Sue Johnson, Nels (ATG) Cc: Barney, Level, John (ATG) Subject: RE: Double Farms' Application for costs and fees in the PRA case l\/lichael Dunning Assistant Attorney General AGO Ecology Division 360.586.6741 michaeld@atg.vva.gov Please do not print unless necessary From: Wilson, Man/ Sue (ATG) Sent: Monday, l\/larch 14, 2011 11:56 AIVI To: Johnson, Nels Dunning, Michael (ATG) Cc: Barney, Level, John (ATG) Subject: RE: Double Farms' Application for costs and fees in the PRA case [1 e][2d] 1 SF-01554 PRR-2011-00450 From: Johnson, Nels (ATG) Sent: Monday, March 14, 2011 11:51 AM To: Dunning, Michael Wilson, Maly Sue (ATG) Cc: Barney, Level, John (ATG) Subject: Double Farms' Application for costs and fees in the PRA case I\/like, Mary Sue: [1@]l2Cl] Nels Johnson Assistant Attorney General To save paper, please print this e-mail only if necessary 2 SF-01555 PRR-2011-00450 HLED wasamerow MAY 0 0 2808 supeszoa cooar cn.Ea\< GARY oeeurv srarn or WASHINGTON KING COUNTY SUPERIOR COURT BENJAMIN s. SCHEOETER, NO. os-2-11973-4 SEA Plaintiff, STLPIJLATIONAND AGREED ORDER OP DISMISSAL V. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, - Defendant. I. INTRODUCTIDN On April 8, 2008, Benjamin S. Schroeter (Plaintiff) filed suit against the Washington State Department of* Ecology (Ecology) alleging violations of the Public Disclosure Act, RCW 42.56. Specifically, Plaintiff alleged that Ecology violated RCW 42.56.520 by failing to respond to P1air1ti;ft"s. public records requests. Since the suit was filed, the parties have negotiated a settlement of the case. 121. STIPULATION . In order to resolve this matter and avoid the risks and costs of protracted litigation, the 'w parties themselves and/or by and through their attorneys of record, as witnessed by their signatures below, agree and stipulate as follows: STIPULATION AND AGREED ORDER 1 Error! Autarext entry not OF DISMISSAQL SF-01556 PRR-2011-00450 1. Plaintiff and Ecology have entered into a Settlement, and Release Agreement, which is attached hereto as Exhibit A, that settles and resolves the claims desoribed in the Complaint filed in this action; and 2. This lawsuit should be dismissed with prejudice. - By their signatures below, the parties respectfully request that the Court enter an Order dismissing this ease. - AGREED ORDER The Court having reviewed the pleading and files in this matter, including the shove' reference stipulation, and having deeined itself fully informed and advised, finds that this case should be dismissed with prejudice as per the parties' stipulation; now, therefore, IT IS rmnser onoenen fast; This case is dismissed with prejudice pursuant to Civil Rule DATED this day of May, zoos. . /'lubf2EUR"l' King County Superior Court Judge 0 AGREED ORDER 2 Bree Aufofexf OF ioisivns sm. i SF-01557 PRR-2011-00450 . Presented by: ROBERT M. MCKENNA Attorney General /ll/lam) MAIA D. BELLON, WSBA 24777 Assistant Attorney General Attorneys for State of Washington, Department of Ecology (360) 586-6750 Approved as to Form Notice of Presentation Waivedz ISMHH ae LO PLLC RICHARD A. SMITH, WSBA was Attorneys for Plaintiff (206) STIPULATIONANDAGREED ORDER 5 Erwr! 1-of on 1>1sM;fssAL .. SF-01558 PRR-2011-00450 EXHIBIT A SF-01559 PRR-2011-00450 SETTLENIENT AND RELEASE AGREEMENT A SETTLEMENT AND RELEASE AGREEMENT (Agreement) is made and entered into by and between the Washington State Department of Ecology, a state agency (hereinafter Ecology), and Benjamin S. Schroeter (hereinafter Plaintiff). Together, Plaintiff and Ecology are referred to in this Agreement as the "parties", and in the singular as a "party." RECITALS A. WHEREAS Ecology is a state agency organized and existing under the laws of the State of Washington. B. WHEREAS Plaintiff is a resident of King County, Washington. C. WHEREAS on April 8, 2008, Plaintiff tiled a complaint against Ecology in King County Superior Court, Case Number 08-2-11973-4SEA, in which Plaintiff alleged that Ecology violated the Public Disclosure Act, RCW 42.56, by failing to respond to Plaintiffs public records requests (Complaint or Lawsuit). D. WHEREAS this Agreement is executed in settlement of the Lawsuit, it is the intention of the parties to resolve fully, finally, and forever only the disputes and differences that exist between thorn that arise out of the claims asserted in the Lawsuit. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and consideration contained herein, the sufficiency of which is acknowledged, Plaintiff and Ecology agree as follows: AGREENIENT 1. Ecology's Obligations. In consideration of Plaintiffs entry into this Agreement and other obligations as set forth below, Ecology shall abide by the terms and conditions of this Agreement and: a. Within thirty (30) days of the Effective Date of this Agreement, pay Plaintiff FOUR THOUSAND NINE HUNDRED AND FORTY SIX DOLLARS AND SEVENTY ONE CENTS in full settlement of the claims for costs, attorneys' fees, and civil penalties. that Plaintiff may have due to Eco1ogy's alleged violations of the Public Disclosure Act as described herein and in the Cornplaint. This payment shall be made payable and sent to Smith Lowney, PLLC, 2317 East John Street, Seattle, Washington 98112. . 4 B. File the Stipulation and Agreed Order of Dismissal, including this attached Settlement and Release Agreement, as soon as practicable but not later than ten (10) days after the Effective Date of this Agreement. SF-01560 PRR-2011-00450 2. Mutual Release. Except for the obligations created under this Agreement, each of the parties, together with their directors, partners, officers, employees, agents, attorneys, representatives, heirs, executors and assigns, hereby release and discharge the other, its directors, partners, officers, employees, agents, attorneys, representatives, heirs, executors and assigns, of and from all manners of action and actions, of whatever nature and kind, including administrative actions, suits, debts, claims, controversies, damages, demands and liabilities, in the present or in the future, known or unknown, Whether liquidated or unliquidated, contingent or noncontingent, whether in law or in equity, in contract or tort, which arise out of the Public Records Act claims asserted in the Complaint, and that exist as of the date of execution of this Agreement. 3. 'Voluntary Execution. In _executing this Agreement, each party acknowledges that it has consulted with an attorney and that it has executed this Agreement after independent investigation, voluntarily and without fraud, duress or undue influence. 14. Entire Agreement. This Agreement contains the entire understanding and agreement among the parties and supersedes any prior agreements between them respecting the subject matter hereof. There are no other representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement. No modification or amendment of any provision of this Agreement shall be effective unless made in writing and duly signed by the parties bound by such modification or amendment. 5. Right, Power, and Authority. The parties warrant to each other that they have the right, power, and authority to execute and enter into this Agreement, and to perform their duties and obligations under this Agreement in accordance with its terms, conditions, and provisions. 6. Effect. This Agreement shall be binding upon and inure to the benefit of each party to this Agreement, together with their affiliates, subsidiaries, officers, partners, directors, employees, heirs, executors, administrators, successors, and all persons now or hereafter holding or having all or any part of the interest of a party hereto. Each party, by signature below, represents that it has the legal authority to execute this Agreement and to bind that party to this Agreement. Changes in the organizational form of the parties shall not affect the validity or enforceability of this Agreement. 7. Applicable Law. This Agreement shall be interpreted under the laws of the State of Washington with venue in King or Thurston County. 8. Counterparts and Facsimile Transmission. This Agreement may be executed in counterparts, each shall be deemed an original. Facsimile transmissions of any signed original document, or transmission of any signed facsimile document, shall be the same as delivery of an executed original. At the request of any of the parties, the parties shall confirm facsimile transmission signatures by signing and delivering an original document. SF-01561 PRR-2011-00450 9. Construction and Interpretation of Agreement. The captions of the articles, sections and subsections herein are inserted solely for convenience and under no circumstances 'are they or any of them to be treated or construed as part of this Agreement. As used in this Agreement and as the context may require, the singular includes the plural and vice versa., and the masculine gender includes the feminine gender and vice versa. 10. Non-waiver. A waiver of any breach of, or failure to enforce, any of the terms or conditions of this Agreement shall not in any way affect, limit, or waive a party's right to enforce compliance thereafter with each and every term and condition of this Agreement. . T1 Rf- 7, Zac 11. Effective Date. The "Effective Date" of this Agreement is . This Agreement shall becomeeffective upon its execution by the Parties. 12. Time. Time is of the essence of this Agreement. - 13. Good Faith: The Parties shall carry out the provisions of this Agreement in good faith. 1 - i DATED this L%ay of May, zoos. DATED this day of May, zoos. Benjamin S. Schroeter Washington Department of Ecology By: Name: Name: Tale- Tiae~ SF-01562 PRR-2011-00450 SUPERIOR COURT OF WASHINGTON THURSTON COUNTY GERALD I-IEBERT, A NO. os-2-01444-1 Plaintifi Vs. OPINION PARTIAL IUDGNIENT TO ALL PARTIES ANI) RESERVING REMAINING ISSUES FOR WASHINGTON STATE OFFICE TRIAL Of INSURANCE Defendant. L- NEW WORLD LIFE INSURANCE COINIPANY, Intervener. MEMORANDUIVI OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page 1 of 28 Richard D. I-I Supesrior Court Judge Th ton County Sllperinr CC-urr Department Three 2000 Lalceridge Dr. SW WA 98502 (360) 786-S560 SF-01563 PRR 2011 00450 CHRONOLOGY1 Mr Hebert made a public record request, through his attorney Mr. Wing, to the Office of the Insurance Commissioner (OIC) on December 21, 2007. Specifically, he requested copy of all paper and electronic records to orc rare Ne. On January s, zoost, orc stated that it expected to make disclosure on or before January 18, 2008. On January 18, 2008, OIC disclosed 803 pages, but among these 163 pages had redactions. Hebert contacted OIC by a letter dated February 25, 2008, stating that OIC had not provided a privilege log explaining the redactiorrs The 'back story' to all this, as it is sometimes said, has little to do with the PRA. In 2006, Mr. Hebert, who also happened to be a sitting member of the Human Rights Commission (I-IRC) applied for life insurance with Farmers Insurance. He was turned down, at least in part, because he is l-lIV+. He then tiled a complaint with the HRC alleging discrimination. Since the complainant was a sitting member ofthe I-IRC they asked OIC to investigate the claim of discrimination. OIC made such an investigation and on initial inquiry to Farmers determined that they had not accumulated the necessary statistical data to trun down such an application but they also asked to meet with Farmers to discuss this. Over a period of Farmers eventually presented the necessary data as well as information on other applicants which had been turned down for life hrsurance. Distressed at OlC's 'turn around' irom their preliminary findings, and now seeing them as 'protecting instuance companies' instead of regulating them, Inade the PRA request about which this case deals. Otu' state law is clear that the reasons that motivate a public records request are not relevant (except under the new section, SSB 5130, chapter 357, Laws of 2009, dealing with certain mate requests). The review of this court's decision herein by a higher court should not miss the allegation that Hebert somehow co-opted or inveigled the I-IRC to advance his personal interest while he was a sitting member ofthe HRC and that according to certain declarations filed herein (for instance, Brown's declaration, of June 12, 2009, p. 4 1| 13) and OlC's Opening brieiQ p. 23 referring to the State Auditor investigating Hebert and the HRC as explained in their nr. 75, many ofthe results of the inter-agency requests were "secretly" passed through to him duririg OIC's investigation on behalf ofthe HRC. The reader of this prefatory note might have the irnpression that the court is partial to OIC and Farmers but such is not the case. OIC has shown very poor houselceeping, organization, and production of records in this case all of which has given some justification to the choler of Hebert. 2 Plaintiffs Complaint p.2; defendant's Answer 1] 4.1, p. 3. 3 Although this is more than five business days Horn the date ofthe request (See: RCW 42.56.520) the court can't tell with certainty from the tile and memorandums whether there was an earlier response or whether this is just being waived as de minimis in light ofthe larger timing questions. 1 OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page 2 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court Department Three 2000 I.-akeridge Dr. SW Olympia, WA. 98502 (350) 786-5560 SF-01564 PRR-2011-00450 as required by RCW 42.56.2l0(3.) and which is suggested in the Attomey General's model rules for the PRA, WAC On June 16, 2003, Hebert tiled his law suit. On July 14, 2008, OIC filed their Answer. On August 19, 20 08, Farmers moved to intervene. On August 26, 2008, Hebert filed an Amended Complaint. On August 29, 2008, the court allowed Farmers to intervene. OIC tiled an Answer to the Amended Complaint on September 15, 2003. The court entered its Case Scheduling Order (CSO) on September 26, 2008, setting trial for June 22, 2009. On January 22, 2009, Farmers filed their Answer to I-Iebert's Complaint. RCW 42.56.530 allows a record requestor who has been denied a record to request the Attorney General to give a written opinion on whether the record is exempt. None of the parties elected that clarifying procedure. RCW 42.56.550 allows any person who has been denied a record to bring a Show Cause procedure to allow inspection. This procedure would have been very helpful to the court and speeded up considerably this case. However, for reasons, that are not at all clear the parties by-passed that procedure and elected to just prosecute and defend a hill-blown law suit with all the extra work and attorney fees that entails, not to mention lengthen the time at risk tor any calculation of penalties. The court is at a loss to understand why these well-represented parties by-passed that simple 4 Though these model rules are helpful, as far as this court can they have not beenformafb adopted by any state agency, including the Attorney General's Office, though they have been published pursuant to RCW OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page of 28 Richard D. Hicks, Superior Court Judge Thurston County Supeiinr Court Department Three 2000 Lal-:eridge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01565 PRR-2011-00450 procedure. The show cause procedure would have made all matters much simpler, straightforward and cleans Discovery began but soon Hebert filed a Motion to Compel which was responded to by the others and the court ruled on March 27, 2009, entering an Order on that same date which said, in part, that OIC's March 20, 2009, privilege log would serve as its response to certain interrogatories. On April 10, 2009, Hebert moved to modify the CSO which was resisted by OIC and Farmers. On April 24, 2009, the parties entered into a stipulation, approved by the Court, to modify the CSO setting trial for August 24, 2009. On May 29, 2009, Farmers moved for a preliminary injunction and protective order alleging certain documents had been inadvertently disclosed by OIC that contained trade secrets of Farmers. On June 5, 2009, the court signed an Agreed Order, and approved the stipulation, that entered the protection order regarding the inadvertently disclosed material without prejudice and to be reviewed subsequent to the final rulings in the case. On Friday, June 12, 2009, the three parties tiled four separate motions for summary judgment and OIC filed certain documents under conhdential seal.6 The parties noted all these motions for July 10, 2009.7 5 Although one usually considers that the show cause procedure would be initiated bythe requestor who has been refused a record it, in fact, can be initiated by either patty; and this court has had such procedure initiated bythe government in certain inmates cases where the requestor had set off on the longer road as is being selected in our case. 6 The court does not appreciate Hehert's clumsy attempt to avoid the court's page and format limitations and suggests counsel review, How ro Write, Edit and Review Persuasive Briefs- Seven One Judge ana' Two Lawyers, Vol. 31, No. 3, Seattle University Law Review, Spring 2008, p. -417 and particularly p. 426 - 'sweat the details! It is worth noting that this court has a policy in order to efficiently control its own docket to only allow two summary judgment motions on any one Friday absent an emergency. One might keep in mind that this court sits in open court during most of most weeks and thus has little chamber time to prepare. However, TVFEMORANDUTVI OPINION ORDERING PUBLIC RECORDS BE DISCLOS-ED Page 4 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court Departrn ent Three 2000 Lakeritlge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01566 PRR-2011-00450 These filings came to the court's personal attention on the following Monday, June 15, 2009, and the court (without a judicial assistant) immediately drafted a letter to counsel, mailed June l6, 2009, setting out the procedure to be followed for an in camera review.S On June 29, 2009, Hebert, OIC and Farmers all filed Responses to each others surnmary judgment motions. On that same date OIC produced the redacted records, Bates numbered, as requested by the court on a CD together with a log on an Excel spreadsheet? All the parties have continued to reference their own exhibit lists and this becomes quite confusing and requires cumbersome cross-referencing to follow their arguments. The court will work off the June 29, 2009, in camera submissions and log which are Bates numberedfo On July 2, 2009, all parties filed Replies to each others' Responses and additional declarations. These were given to the court to review on July 6, 2009.11 Then, Thursday afternoon, just prior to the Friday morning argtunent, Hebert filed a new CI), formatted contrary to the court's instructions, and with a legend that was too confusing to follow or meaningfully use and his own 'Bates numbering system'. The court did the gate keeper for this, the court's judicial assistant, was in the middle ofa family emergency and temporarily left work and the county was unable or unwilling to provide any Inacloup. 8 This letter is attached as Appendix to this written opinion. Counsel are advised that 'something' similar to this appendix is being considered in Thurston County for adoption as a court rule nr all PRA cases in this venue. Binders ofthese hardcopies were first filed with the Clerk on June 12, 2009, which was what alerted the court to quantity of material that needed to be reviewed. 1? In this case the 'Bates' number is preceded by the initials OIC and then the chronological number. However, it appears that the dates on the CD refer to the year 2007 when the year in question is 200 S. "1 If a lawyer tiles a document late Friday (here Tliursday since Friday was a court holiday) afternoon it doesn't make its way to the judge unless someone matics the effort to bring it to the attention of the judicial assistant or the judge. 9 OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 5 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Departrnent Three 2000 Lakcridgo Dr. SW Olympia, WA 93502 (360) 786-5560 SF-01567 PRR-2011-00450 review this but could not print tt out" and it is not accepted by the court as it is both untimely and contrary to the court's instructions.l3 Argument was heard on Friday, July l0, 2009. PUBLIC RECORDS ACT In 1972, the people of Washington passed Initiative 276, originally in Chapter 42.17 RCW. 14 This is popularly called the Public Act (PDA). Among its provisions was t.he right, and method, by which members ofthe public could require that public records be disclosed. Since then, over and over, the Supreme Court has affirmed that the PDA "is a strongly worded mandate for broad disc1osure" to be construed in favor of disclosure, while any exemption claimed is to be narrowly construed, PA WS v. Lt WC, 125 W"n.2"d 243, 251 (1994).15 In 2005, chapter 274, Laws of 2005 the Legislature moved the public records sections out chapter 42.17 RCW, and established the new chapter 42.5 6 RCW, for disclosure of public records. This new act is now called the The Public Records Act (PRA). 12 More accurately it could only be printed in disconnected pieces that doubled the pages and would require them to be pasted back together. 13 This letter and the CD were give to the Thurston County Clerk to file. 14 Laws of 1973, ch. 1 (Initiative 276). This is the cite found in most reported cases. However, most of chapter 42.17 RCW that dealt with public records has now been as chapter 42.56 RCW as of July 1, 2006. 15 Citing re Hearst v. Hoppe, so wr1.2d 123, 122 (1923), and former new 42. .251, and .9211 MEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DIS CLOSED Page 6 of 28 Richard D- Hicks, Superior Court Judge Thurston County Superior Court Depamnent Three 2000 Lakcritlge Dr. SW Olympia., 98502 (350) 785-5560 SF-01568 PRR-2011-00450 TIMELY RESPONSE Hebert first argues that OIC did not timely respond to his request. The request was made on December 2l, 2007. OIC had to respond Within tive business days pursuant to RCW 42.56.520 Five business days would have been December 31, 2007. Based on these dates the agency's response was ive (5) business days late.16 This delay alone requires a sanction, Wood v. Lowe, 102 Wn. App. 872, 877 (2000). According to declaration which mentions the holiday season, Mark sent an email to Wing on January 8, 2008, indicating that they were collecting the records and expected disclosure on or before January 18, 2008. As shown above this initial response was more than five business days and Hebert notes this late response but doesn't present a clear argument regarding that initial time line, nor does he present an argument regarding the reasonableness of taking until January 18, 2008, to collect all the records. The court tinds that the agency request saying it needed to have until January 18th, 2008, to collect the records is reasonable. It is reasonable not only because there were over 800 records but because there were considerable redactions that the agency had to review. However, I-lebert does argue that even though 803 pages were collected by the stated time of January 18, 2008, and thus then available (although he apparently first had possession of them February 12, 2008), he then learned that they had either 13817 or 16313 pages that contained . 16 There are I8 days nom December 21, 2007 to January 8, 2008, but this counts two holidays and Weekends. The court counts pursuant to CR. 6. 17 Said to be the sum of redactions on the documents filed as Attachment to OlC's opening brief. OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 7 of 28 Richard D. 1-licks, Superior Court Judge Thurston County Superior Court artzn ep en ee 2000 Lakcridgc. Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01569 PRR-2011-00450 redactions. also argues that the redactions and any nondisclosed documents were not then adequately explained pursuant to the statutory Therefore, if one leaves aside the response that was more than five business days lte for all records, the otherwise starting point for time calculation is January 18, 2008, when the records were available even though Hebert did not obtain his hard copies until February 12, 2008 Presumably, he could have come to Olympia and picked up his records in person on January l8, 2008.20 Therefore, even though the initial response was untimely by five days, the 803 records identified for production on January is, zoos are alltimely.2'1 However, now it must be determined if there were any records not identified by that date and which should have been included. Second, Whether any of the records not produced, or, produced but in redacted form, were properly redacted or Withheld. However, prior to undertaking that analysis of the redactions and Withheld documents the court first turns to certain additional documents that were not initially produced but were either produced at a later date, or, the claimed exemption was dropped after first being invoked. After initially claiming an exemption for the Met Life underwriting manual OIC through a letter nom Brown to Wing conceded on June ll, 13 The calculation identified in' the February 25, 2008, letter from Wing to Mark. RCW 42_55.52o_ 2? The court can't tell nom the declarations why Hebert waited several Weeks to pick; up or have mailed his requ est. 21 Again the court has noted that the initial response was untimely by five (5) days but that the requested time to compile the records was reasonable and that self-imposed deadline by the agency was met by the agency- MIEMORANDUBI OPINION ORDERING PUBLIC RECORDS BE CLOSED Page 8 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Depairllnent Three 2000 Lalceridge Dr. SW Olympia, WA 98502 (360) 786-5560 F-01 570 PRR-2011-00450 2008, that any exemption had been waived." Therefore by OIC's admission the Met Life document was improperly withheld from January 18, 2008, until June ll, 2008. But what is the effect ofthe Brown request to Wing on June ll, 2008, asking whether Hebert still wanted OIC's hardcopy when the manual was available electronically on the internet? This is not a RCW 42.56.520 request for clarification as claimed by OIC. That statute reads in part: RCW 42.5 6.520 Prompt responses required. Additional time required to respond to a rguest may be based upon the need to clarig the intent of the rguest, to locate and assemble the information requested, to notify third persons or agencies affected by the reguest, or to determine whether any of the information reguested is exempt and that a denial should be made as to all or part of the request. In acknowledging receipt of a public record reguest that is unclear, an agency, the ofhce of the secretary' of the senate, or the office of the chief clerk of the house of representatives may ask the requestor to clarig what information the reguestor is seeking. If the requestor fails to clarify the request, the agency, the ofdce of the secretary of the senate, or the office of the chief clerk of the house of representatives need not respond to it [Emphasis supplied] This statute provides for additional time to respond if there is a need to clarify the intent, assemble the information, notify third parties or determine if an exemption applies. Brown's communication for did not involve any of these matters. The actual response had been completed months ago. ln addition Brown and OIC were never unclear what information the requestor was seeking. Their only inquiry was since the information was available from other sources did the requestor still want It turns out this manual was deely available on the internet. This 'waiver ofthe trade secret claim also led Brown to write Wing to ask if he still wanted OlC's hard copy of the manual since it was available elsewhere. OIC claims that this is a request for clarification pursuant to RCW 42.56.520 and since Wing never responded to Broun' inquiry that DIC was relieved from producing the manual. ZZ IVIEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page 9 of 28 Richard D. l-licks, Superior Court Judge Thurston County Superior Court Deparmnent Three 2000 Lakoridgc Dr. SW Olympia, WA 93502 (360) 786-5560 SF-01571 PRR-2011-00450 it. When Wing didn't respond OIC had to supply the manual and bill for its cost of reproduction. There Was never any lack of certainty regarding intent, location, assembly, notification, exemption, or exactly what Hebert was seeking. OIC had claimed an exemption for 145 days" and then abandoned the claimed exemption; the requestor never abandoned their request. However, Wing's failure to respond may go to mitigate the amount of any penalty hom June ll, 2008, until the manual is produced. Later in August 26, 2008, four additional pages were disclosed, plus two more records disclosed in March 20, 2009. Both of these appear to be inadvertent, not contrary to good faith, and therefore subject to the penalty for late disclosure but at the minimum penalty. Kleven v. Des Moines, I 1 Wa. App. 234, 297 (2002).24 The next issue is the scope of the original request by Hebert through Wing on December 21, 2007. That Written request read: "Under Washington's public disclosure laws, please produce to me a copy of all paper and elecitrorzic records pertaining to OIC tile No. L06-332 referenced above, including but not limited to: l. All records regarding any investigation conducted by the Washington Office of Insurance Commissioner 2. All records (including communications) obtained, produced, or created bythe 3 All records produced by Farmers New World Life insurance ("Farmers") to the 4. All documents produced by the Washington Human Rights Commission the [Emphasis in original] if* January is, sous Jane 1 1, secs. 24 In Kfevfn it was found that the trial court should not have found a public record violation when the city discovered a mislabeled tape that escaped its initial record survey but was immediately produced as soon as it was recognized. The records here were not mislabeled in any way nor rnisfiled nor was there any evidence that their location should not have been discovered in the norinal course of business, but it seems clear to the court that they were simply 'overlool-ted' without any intention to deceive so that is why the court would not absolve the agency of all responsibility as in Kfevin but assess the minimum penalty. MIEMORANDUIVI OPINION ORDERING PI IBLIC RECORDS BE DIS CLO SED Page 10 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Depamnent Three 2000 Lalreridge Dr. SW Olympia, WA 98502 (560) 786-5560 SF-01572 PRR-2011-00450 OIC argues that that they understood this request was to produce every record whether hardcopy or electronic that pertained to OIC tile No. L06-332 and that the language in the numbered paragraphs following the request, "including but not limited to"' means that those paragraphs are nested within and explanatory of Wanting the complete L06-332 file - not material outside that investigatory tile. This is a reasonable understanding of the request by OIC. However, it is not the only possible understanding as showin by the argument of Hcbert that the numbered paragraphs are understood by him to mean all other material outside of tile L06-332 and that deal with any investigation by OIC. But when one looks at that first numbered paragraph alone it shows clearly that the request is limited to tile L06-332 and certainly not all investigations done by OIC, but only the L06- 332 investigatory tile." Therefore the January 13, 2008 response is complete to the extent it covers all those documents, even if there are other documents, as We learn later, that deal with Hebert or the I-IRC investigation outside of L06-332. On April 8, 2008, Wing Wrote Mark at OIC a letter with a number of issues and at page ive it included a paragraph entitled "Additional Requests for Documents." Although Hebert now argues he has only made one request, OIC argues this is an expanded request and the court 25 If one reads the letter simply and literally it means only those matters nested Within the parameters set out in request which is then expanded to include everything in that tile. Hebert would now like it to read anghins beyond that tile that might involve Hebert or HRC. The obligation is on the requestor tO make a clear request. v. Seattle, 92 Wn. App. -403, 409 (1998), cited in Wood; supra, pp. 878- 879. What OIC understood is corroborated by the .Ianuary 3, 2008 email sent dom Mark to Wing attached as ExhibitB to IvIarl<'s declaration of June 12, 2009. OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page ll of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Three 2000 Lakeridge Dr. SW Olympia, 98502 (360) 786-5560 SF-01573 PRR-2011-00450 agrees with OIC on this point. However, OIC again did not respond within tive days to the additional ('expanded') request but sent an email on May 2, 2008, addressing several ofthe issues from the letter and then on June 16, 2008, sent the additional documents as requested in the expanded request. The statutes and case law don't seem to offer any guidance as to hovv to handle an ongoing request that is expanded in scope, This is particularly so when the parties are having ongoing negotiations regarding what is Wanted and what is going to be provided. Hebert does not seem to argue that the June 16, 2008 production is an unreasonable time to gather and redact the 138 new documents that arise out ofthe April 8, 2008, letter. Hebert does argue that the April 8, 2008, letter is not an expanded request but that there is only the original December 21, 2007, request, and therefore a June 16, 2008 response, IS either a late or unreasonably long time for production. The court rules that the June 16, 2008 production is a reasonable time in response to the April 8, 2008 request and that a rule of "reasonable time" is the test for an amendment of an existing request and that a nevv tive dav time limit is not required the way it would be if a completely new and unrelated request were to be made. Therefore the 138 documents provided at that time are timely. That still leaves the issue of Whether there are any improper redaotions Within those records and, secondly, Whether there were documents unlawfully Withheld from that request that would be responsive to it. The measuring date for those issues would be April 8, 2008. OPINION ORDERIIJG PUBLIC RECORDS BE DISCLOSED Page 12 of 28 Richard D, Hicks, Superior Court Judge Thurston County Superior Court artrnent Three SP 2000 Lakerldge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01574 PRR-2011-00450 Finally, there is the issue ofthe Met Life manual, discussed above which apparently still has not been produced and dates back to the original request of December 21, 2007, but with an adjustment of any penalty calculation based on Wing' failure to respond to the inquiry of Whether it was still being requested even though the court has found that this inquiry is not a statutory 'olarification' pursuant to RCW 42.56.520 Therefore after sorting through all the above dates and the great deal of irrelevant material all parties have tiled regarding the underlying issue and their respective motivations, the court finds the follovwi ng key dates against which the redactions and Withheld documents should be tested: 1 December 21, 2007 original request date. 2. January 18, 2008 original response with S03 documents with any redactions and not produced documents to be tested below. 3. April 8, 2003 expanded request. -4. June 16, 2008 . response to expanded request with 138 documents With any redactions and not produced documents to be tested below. 5 . August 26, 2008 four pages inadvertently omitted Bom original request but now provided. 6. March 20, 2009 two documents produced at .Tethafs deposition that were inadvertently omitted from the original requst. MEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page 13 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court De arh'ne11tT'h ree 2000 Lalceridge Dr. SW Olyuipia, WA 98502 (360) 786-5560 SF-01575 PRR-2011-00450 Finally, aside from the Met Life manual issue there is one more curious issue with which the court must proceed. It appears that some of the documents produced on January 18, 2008, are redacted in a certain Way and that either the same documents or, atleast, the same information produced in the June 16, 2008 production are redacted differently and for the most part, though not in every case, with fewer redactions - at least in scope.26 CLAINIED Several of the exemptions claimed by OIC and Farmers deal with third party information. RCW 42.56.5403 gives an agencv an 0 tion" to . notify third parties that information is being requested that includes information about them such as trade secrets or personal information. Here the only the third party OIC notified was Farmers. OIC and Fanrrers, who intervened, claim the follow bases for exempting the public records from being disclosed: I. RCW 48.02.120 through applying RCW 42.56.0701 1) Both OIC and Farmers advance this argument. RCW incorporates an exemption into the PRA if it is record exempt under some other statute: RCW 42.57.D70. Documents and indexes to be made public. (1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of *subsection (6) of this section, this 25 See: Brown's declaration of Jrure 12, 2009, p. 6, 'il 25. 27 SSE also WAC 23 This option obviously contains a great deal of tlexibility and is only over-ridden if some other stature or agreement specifically provides that notice is required. OPINION ORDERING PUFELTC RECORDS BE DISCLO SED Page 14 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court Department Three 2000 Lakcridge Dr. SW Olympia, WA 98502 (ssc) 'rss-5560 SF-01576 PRR-2011-00450 chapter, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing. [Emphases supplied] The first "other statute" that is claimed to apply is RCW 48.02.12U. This statute instructs: RCW 48.D2.120. Records. (3) Actuarial formulas, statistics, and assumptions submitted in support of a rate or form filing by an insurer, health care service contractor, or health maintenance organization or submitted to the commissioner upon his or her reguest shall be withheld from public inspection in order to preserve trade secrets or prevent unfair competition. [Emphases supplie-d.] OIC and Farmers argue that because OIC requested Farmers to submit this data during the investigation of I-Iebert's HRC complaint and because it contains actuarial statistics and assumptions that the documents should be exempt in their entirety in order to preserve either Farmers' trade secrets or to prevent unfair competition. It should be clear that this statute is broader than just the subject of what counts as a trade secret. The disjunctive "or" indicates clearly that there is the additional test of to "prevent unfair competition." They argue that the Supreme Court in PA WS v. UW 125 Wn.2"d 243, 263 (1995), made it clear that the Legislature's public policy is to protect the confidentiality of such business secrets. But it is also Worth noting that the Supreme Court also notes in PA WS, page 258, 11.6, that the Legislature has "never adopted an all-purpose or open-ended exemption" OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 15 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Three 2000 Lakcridgc Dr. SW Olympia, WA 93502 (360) 786-5560 SF-01577 PRR-2011-00450 What counts as a trade secret is first set out in statute, RCW RCW 19.1D8.U1D. DEfir1i1Ii0l15 ik SK ik (4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (tl) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Hebert responds that the burden to prove that a trade secret exists is on the one claiming it pursuant to Confederored Tribes v. Johnson, 135 Wn.2"d 73-fl, 749 (1998). I-le also argues the elements of proving a trade secret pursuant to RCW 19.1 are not proved. Finally, that even if some of the data is proved to be a trade secret only that data should be redaoted and the Whole document should not be Withheld. In order to resolve this issue the court needs to understand the scope of RCW 48.02.129 Does it exempt all documents, Whatever they contain, when those documents are requested by the commissioner from private persons, who otherwise would not have to submit them to the govermnent? On the other hand, does it only exempt documents requested by the commissioner to the extent that they are shown to contain trade secrets, or, would permit unfair competition by their disclosure to others? To be blunt, is there a blanket exemption or must th ey be redacted and then produced? NIEMORANDUM OPINION ORDERDJG PUBLIC RECORDS BE DISCLO SED Page 16 of 23 Richard D. 1-liclcs, Superior Court Judge Tlturstou County Superior Court Department Three 2000 nr. Sw Olympia, WA 98502 (360) T86-5560 SF-01578 PRR-2011-00450 The tirst question is the one posed in Drogonsfayer v. Gambling Commission, 139 Wu. App. 43 3, 444 (Div. 11, 2007). That question is are these special requests, as opposed to documents that generally have to be Eled Without a particular request but simply by operation of law, public records'?29 What counts as a public record is set out in RCW 42.5 6.0l0: RCW 42.56.01D. Definitions The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (2) "Public record" includes any Writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical Form or characteristics. Drogoizsloyer, citing to Oliver v. Harborview, 94 Wn.2"d 559, 565 (1980), sets out the elements as: "Public record" includes (1) any writing (2) containing information relating to the conduct of government or the performance of any governmental or proprietary function (3) prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Unlike Drogonsloyer Where what was at issue was the disclosure ofthe private tinancial reports ofthe businesses, resulting in a remand to make factual findings as to how the conunission used the statements, our case has a nexus more like Concerned Roifepayers v. PUD No. J, 133 Wn.2"d 95 0, 960-961 (1999), since the OIC was interested in using this information to determine the appropriateness of the actuarial rates being used to determine 29 This issue must also be addressed in relationship to the documents ofthe other I-llV+ applicants whose applications have been withheld relying on RCW 70.24.lO5. IVLEZMORANDUIVI ORQDERING PUBLIC RECORDS BE DISCLOSED Page I7 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Departrnent Three 2000 Lakeridge Dr. SW Oiyrripia, WA 98502 (360) 736-5560 SF-01579 PRR-2011-00450 if applications for insurance were properly being denied. The court finds that the records here are, (1) writings, (2) relating to conduct of government, i. e. the governrnent function of regulating the insurance industry, and (3) used and retained" by the agency. Here there is a nexus between these records and OIC's regulatory decision regarding Farmers' actuarial decisions, and thus they are public records. Are these public records subject to a blanket exemption pursuant to RCW 48.02.120'? This is always a question of Legislative intent. OIC argues that this statute creates a "presumption" that the submitted records are trade secrets." Although not articulated clearly, apparently the argument is that this 'presurnption' would shift the burden of proof. Ordinarily the burden to prove the existence ofa trade secret is on the one claiming the secret, Corzfenierczteo' Tribes v. Johnson, 135 Wn.2"d 734, 749 (1998), citing to Boeing v. Siermcirz, 108 Wn.2"d 38, 49 (l987). But When both the burden of production, and the burden of persuasion, is already on the one who claims a public record exemption based on the record's validity as a trade secret there is nothing further to shift. See generally: Teglamif. Evidence, Washington Practice, Vol. 5, ?30l. Presurnptions are not evidence. Once the requestor challenges that a public record is a trade secret then the agency OIC requested and retained these records and kept them in the file requested, L06-33 2, but somehow argues in their Reply brief that although they were requested and then kept in the tile that they were never 'used.' The court is somewhat at a loss to reconcile how an agency would request records, keep them in their investigatory file, but then hold out they never used them in any way. Further, there is no fact declaration that supports this. The cite in OiC's Reply brief, hi. 20, to Browrfs declaration oflune 12, 2009, at p. 6 does not state what his attorney argues it contains. 3] The court notes that there may be a class of records, or, a particular case which this statute would cover Where the record at issue was not a trade secret but should still be ei>te1npt"to prevent unfair competition." so OPINION ORDERING PUBLTC RECORDS BE DISCLOSED Page l8 of 28 Richard D. I-Iicls, Superior Court .Tudge Thurston County Superior Court Department Three 2000 Lakeridge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01580 PRR-2011-00450 must prove, no doubt with the assistance of the private party intervener in most cases, that indeed, the record contains trade secrets. Here Hebert concedes the data withheld may contain some limited trade secrets but that Erst they could be redacted and second, most of it does not qualify as a trade secret pursuant to RCW l9.108.0l0(4) because (1) it was not kept secret, (2) any possible secrecy was compromised by sending the information to I-IRC, (3) a website, even if proprietary (such as password protected) can not be a trade secret, (4) the data was available from other sources and therefore not novel, (5) Farmers relied on information of others and did not add anything of its own or arrange it in some novel fashion, and (6) this data has no independent economic value. Farmers and OIC claim that even if there is not a blanket exemption for material requested by the Commissioner that the data produced did qualify as trade secrets because manuals may be shown to have novelty and uniqueness under Woo v. Fireman 's Frmd, 137 Wn. App. 480, 488 (2007), but in Woo the court found at page 492 insufficient evidence of a trade secret of Fireman Fund's manuals (2) that standard mortality ratios are trade secrets even though they start with industry-wide tables which are then manipulated or subject to actuarial proprietary weighting and valuation which subjectivity, based in part on Farmers internal experience, is unknown to Farmers' competitors; (3) Farmers maximum-accepted mortality as a percentage above the standard mortality reveals Farmers risk tolerance and is unlcnown to competitors; and (4) Farmers underwriting methodology and manuals are trade secrets; (5) that the foregoing has independent economic OPINION PUBLIC RECORDS BE DISCLOSED Page 19 of 28 Richard D. Hicks, Superior Court Judge Thurston Superior Court Depmrnent Three 2000 Lakcridge Dr. SW Olympia, WA 93502 (360) T86-5560 SF-01581 PRR-2011-00450 Value pursuant to Ncwogroski v. Rucker, 137 Wn.2"d 427, 437 (1999), citing to Boeing v. Sferrnicin, 108 38, 52 (1987); and (6) Famers has made reasonable efforts to maintain the secrecy of this data including moving for an injunction when it learned that certain pieces were inadvertently disclosed. It must be obvious that the confluence of these arguments creates a material issue of fact as to Whether the public record at issue contains a trade secret and to what extent it can be redacted Without disclosing any aspect that truly is a trade secret. Farmers even argues in their Reply, p. 3, that the issue of 'trade secrets' needs to be weighed" in their context. The same is true for Whether any Waiver of an otherwise trade secret occurred. 2. RCW 42.56.050 and RCW 70.24.105 through applying RCW 42.56.070g11 Farmers and OIC claim public documents produced pursuant to RCW 70.24.105 are exempt. That statute reads: RCW 7D.24.1D5. Disclosure of HIV antibody test or testing or treatment of sexually transmitted diseases--Exchange of medical information (2) Nc person may disclose or be compelled to disclose the identity of any person upon whom an HIV antibody test is performed, or the results of such a This protection against disclosure of test subject, diagnosis, or treatment also applies to any information relating to diagnosis of or treatment for HIV Farmers (and presumably OIC) argues that the only documents entirely withheld were nine life insurance applications from 32 Court's emphasis. OPIEEGN ORDERING PUBLIC RECORDS BE DISCLOSED Page 20 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court Departtnent Three 2000 Lakeridge Dr. SW Olympia., WA 98502 (360) 736-5560 SF-01582 PRR-2011-00450 individuals and the accompanying paramedical examinations. They argue that such doctunents can only be produced upon a showing of good cause: s= (2) .. The following persons, however, may receive such information: vs =r A person allowed access to the record by a court order granted after application showing good cause therefor. In assessing good cause, the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. It is argued that I-lebert has not shown good cause. Again, the first issue is Whether these are public records or not. Again there is a three part test as set out in Dragonsiayer, supra., citing to Oliver, supra., and fonner RCYV 42. now RCW So, then, these records are (1) Writings, (2) relating to the conduct of government in regulating the insurance industry, and (3) were specifically requested and used by the OIC in vetting Farmers' actuarial position, and thus they are now public records. This court makes each of the findings here, that it made cmre33, regarding the RCW 48.02.120 records even though these are different records and a different statute is at play. I-Iovvever, there is a great deal of personal information which would be highly offensive to disclose. So, the information, once all individual identifiers have been redacted, may be released for several reasons, one of which is by showing good cause, which may or may not involve a public is This opinion pp. 17-18. MEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 21 of 28 Richard D. Hicks, Superior Court fudge Thurston County Superior Court Departnient Three 2000 Lakeridge Dr. SW Olympia, WA 98502 (360) 736-5560 SF-01583 PRR-2011-00450 record request." The public interest, that is, simply the existence of the PRA, Without more, does not necessarily outweigh the private interest of these personal medical records as argued by Farmers and OIC, and this court would agree if redactions were not possible. But, insofar as a blanket exemption is concerned, such does not exist in the PRA. Once properly redacted so that the private information can not be tied to a particular individual then the generic results - which might show that similarly situated people are being treated alike - should be subject to the strong mandate of the PRA. This means that such private records can not be hilly disclosed containing the personal identifiers but it also means that they can be redacted and should be then disclosed once all personal identifiers are removed." A parallel argument advanced by OIC in this regard is that RCW 42.56.050 exempts disclosure of highly offensive personal information that is not of legitimate concem to the general public. RCW A-2.56.U50. Invasion of privacy, when. A person's "right to privacy," "right of privacy," "p-rivacy," or "personal privacy," as these terms are used in this chapter, ls invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records. For instance there could be inter-agency or inter- governmental requests. 35 A secondary SOUICS, Public Records AcrDesicb0ok.' Washington is Public Disclosure and Open Public Laws, instructs at PRA does not have a blanket exemption shielding all 'medical information' from disclosure." 34 ORDERTNG PUBLIC RECORDS BE DISCLOSED Page 22 of 28 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Three 2000 Lakeridge Dr. SW Olympia, WA 98502 (360) 786--5560 SF-01584 PRR-2011-00450 This court agrees that if the i'i.1ll records vvere disclosed this exemption would make the disclosure improper. However, this statute does not protect the records from disclosure once a proper redaction has been made of all personal identifiers that once otherwise lcnovvn might very vvell be offensive to a reasonable person. The records need be redacted and then the generic residue produced Without identifying the identity attached to the personal information. 3. RCW 42.56.280. Preliminary drafts, notes, recommendations, intra-agency memorandums. OIC argues that under RCW 42.56.280 the preliminary draft recommendations by Sticlcler are exempt. That statute holds: RCW 42.56.2B0. Preliminary drafts, notes, recommendations, intra-agency mernorandums. Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action. They argue that under PA WS, supra., p. 25 6, this protects information which an active investigation or deliberation continues as part ofthe deliberative process. Although OIC had concluded its investigation by the time of Mr. Win's request it was their understanding that the HRC still had an open investigation and which remained open until early 2009, vvell after OIC had provided their log. They argue that disclosure could have put pressure on I-IRC and inhibit the tlovv of recommendations. However, PA WS also points out at p. 25 7, and this is made even more clear the recent case of West v. Port of Olympia, 146, Wn. App. 108, ll7 MEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 23 of 28 Richard D. I-licks, Superior Court Judge Thu.1'ston County Superior Court Depa.rtment Three 2000 Lakeridge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01585 PRR-2011-00450 (2008), that once the agency implements the policies or recommendations the records are no longer exempt under the deliberative process exemption. OIC argues that when they produced the log of documents Withheld that even if they had completed their ovvn deliberative process that the deliberative process of their sister agency, I-IRC, was still continuing so that these documents were being properly Withheld at least up until the time I-IRC had completed their processes. There are problems with this argument. OIC apparently does not even have a date of when I-IRC completed any investigation that they were doing - sometime in 2009, they Writeg? - but it seems certain that OIC had completed their ovvn investigation by the time the records were requested and that these records are not being claimed exempt by I-IRC, nor has HRC intervened in this lawsuit. Without the participation of HRC hovv can this court determine if there is a factual question as to the timing of this preliminary draft - which itself is not a direct inter-agency commtinicationw to determine if the deliberative process was complete at the time it was Withheld when all other disclosures Were made? Once OIC's deliberative process was completed this document was no longer exempt and should have been produced. Farmers argues in their Reply brief; p. l, that the applicability of exemptions must be determined on the date that the request is made citing to Dmgorzslayer, supra., but gives no page number for this principle and this is The declaration of attorney Charles Brown date .Tune 12, 2009, p.4, 17, indicates February 2009. ?7 The court understands that HRC did, apparently, either become aware or obtain a draft of this document. MEMORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLO SED Page 24 of 23 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Dep artment Three 2000 Laker-idge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01586 PRR-2011-00450 court can not find that holding in Drngonslayerds Nevertheless common sense makes this statement true in general." But the argument in OIC's Reply brief, pp. 8-9, that a requestor who already has access, or even possession of, records from another source is not entitled to additional copies is disingenuous and contrary to case law, Hearst v. Hoppe, 90 Wn.2"d 123, l32 (l978).4O Not surprisingly, OIC cites no authority for this proposition- CONCLUSION AND ORDER Although all three parties have moved for summary judgment leading one to believe that there are no material facts in dispute; nom the court's view there are certain matters that must await trial or agreement. The Court grants partial surmnary judgment as follows: l. To Hebert on the issue that the January 8, 2008, Response to his December 21, 2007, request was uve (5) days late and requires a sanction to be determined at a later 2. To OIC and Farmers that the January l8, 2008, production pursuant to the January estimate of time was reasonable and the 803 records then produced were timely (the redactions are a separate issue). 38 Dragonsfayer does contain a short discussion of prospective compared to retroactive application of statutes at pp. 448-449. 39 One can imagine an exempt record that loses its exemption after the request date but before production date which might be an exception to this general rule. do "The fact that the material may be available in other records is not a reason stated in the act for failure t0 disclose." Hearst supra., p. 132. The calculation of all sanctions and any attorney fees will require a later hearing though the Court in this opinion is setting out certain pararneters for those sanctions. NE-MORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 25 of 28 Richard D. Hicks, Superior Court Judge 'l`l1urston County Superior Court Dep Three 2000 Lalcsri-:ige Dr. SW Olympia, WA 98502 (350) 786-5560 SF-01587 PRR-2011-00450 3. To OIC and Farmers that the April 8, 2008, request was an expansion ofthe original request and not a new request and that the time to respond is tested by reasonableness and not five (5) days. 4. To OIC and Farmers that the Jtme l6, 2008, response to the April 8, 2008, expanded request involving 133 new records and many redactions was timely (with the redactions a separate is sue). 5. To Hebert that the production of two letters consisting of four pages on August 26, 2008, was untimely and thus subject to penalties but also inadvertent and subject to the minimum penalty. 6. To Hebert that the production of Jetha's two records at the deposition on Mary 9, 2009, was untimely, though inadvertent, and thus subject to sanctions but at the minimum penalty. 7. To Hebert on the issue that the Met Life underwriting manual was wrongfully withheld as a trade secret and thus failure to produce it is subject to sanctions and it is now ordered to be produced (at the reasonable cost). In this regard the sanction should be just and something more than the minimum for those days prior to June ll, 2008, when Brown waived any argument that it was a trade secret but at the same time asked if it was still requested in light of its free availability on the internet. Although the court does not find this is a clarification" within the meaning of 42.56.520, as explained above, nevertheless based on Wing's failure to respond the remaining sanction should be the minimum nom that I une date until production since it was always freely available and Wing never responded to 1- 42 This could only be such a within the broadest reading ofthe statute- and such a reading would allow an agency to stall requestors and double the requestors' need to repeat their requests. IVIEMORANDULI OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 26 of 28 Richard D. I-licks, Superior Court Judge Thurston County Superior Court Departruent Three 2000 Lalceridge Dr. SW Olympia, WA 98502 (360) 786-5560 SF-01588 PRR-2011-00450 a reasonable inquiry as to whether his client wanted the hardcopy at whatever the cost might be." 8. To Hebert that all the documents at issue herein are public records even though some of the documents should be redacted prior to production, including the otherwise private documents withheld pursuant to new 9. To Hebert that the draft review by Strickler on May 2, 2007, was wrongfully withheld, since the deliberative process for OIC had been completed when it was requested, and I-IRC never joined in this case nor claimed such exempt. The only issues remaining for trial are the redactions made in January and June 2008 that deal with trade secrets pursuant to RCW 19. 108.010, or, actuarial data, or, unfair competition pursuant to RCW 48.01 .l20. Because at a summary judgment the court can not weigh the credibility ofthe declarations the matter must he set for trial if the parties can not agree. If the court could weigh the facts it would find it highly likely that all the June redactions were proper exemptions on December 21, 2007, except the webpage footer in records OIC 1121-1125. It would also End that hfteen 43 During oral argument Mr. Wing stated that the reason he never responded is that the law suit had been filed and he could no longer speak directly with Brown even though Brown was an attorney for OIC he was not attomey of record in the case. However, Wing's response did not have to be made personally to Brown and Browrfs inquiry was on behalf of the agency not Brown personally. The court recognizes that OIC claims it never used these documents even though they requested them, and retained them in the L06-332 file but there is no factual declaration that they were just miscellauy or trivia or wrongfully requested or, in fact, that they were never used. Common sense tells us that these specifically requested records were in fact used to corroborate the fairness of the actions of Farmers in cases involving applicants. ME-MORANDUM OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 27 of 28 Richard D. i-liclrs, Superior Court Judge Thurston County Superior Court Departrnent Three 2000 Lakcridgc Dr. SW Olympia, WA 98502 (360) 786-S560 SF-01589 PRR-2011-00450 (15) ofthe January redactions were improperly claimed as exemptions as shown in Appendix attached to this opinion. The other issue for trial is Whether the actuarial statistical data that appears to be trade secrets, or, subject to RCW 43.02. 120, had been waived by Farmers at the time ofthe in December 21, 2007, or, at least before the January 18, 2008 initial production. 3. . Dated: .Tu1yLi 2009 1 r( Richard I Superior Court Judge MEMORANDUNI OPINION ORDERING PUBLIC RECORDS BE DISCLOSED Page 28 of 28 Richard D. Hicks, Superior Count Judge Thurston County Superior Court Three 2000 Lalceridge Dr. SW A 02 985 (360) 786-5560 SF-01590 PRR-2011-00450 Ente Superior Court of the State of Washington For Thurston County 31210- Paula A om- R.'raimr 2 Dc cu rcu'No I "dh Dy urge sri cpui'rrnai~zr 0. 5 Thlgimas McPhI$e, .?udga -1 Chris Wickham, Judge eparrmenr 0. Depaz'rmenrN .6 Richard D. Hicks, Judge ~"fT.f Anne NU- 3 Depnrrinenrfiv' Christine A, P0me|'0y_ 2000 Lakcridgc Drive SW Building No. Two Olympia WA. 98502 Carol Murphy, .4 Telephone (360) rss-5550 Fax (3503 754-4050 8 June 10, 2009 Ms. Martha DeLeon Ms. Virginia -Lee _Ramirez Office of the Attorney General Ryan Swanson Cleveland O. Box 40100 1201 Third Avenue, Suite 3400 Olympia, WA 98504-0100 Seattle, WA 98101-3034 Mr. Jesse Wing MacDonald Hoague Bayless 705 Second Avenue, Suite 1500 Seattle, WA 98104 RE: Herbert vs. Washington State Ofiice ofthe insurance Commissioner Thurston County Superior Court Case No. 08-2-01444-1 Dear Counsel: Cin June 16, 2000, plaintiff filed a PRA lawsuit. After the case was at issue with the petitioner, agency, and intervener seeking to prevent disclosure of their required submissions to the agency, a Case Schedule Order was entered. On April 24, 2009, the parties entered into a stipulation amending the court's Case Scheduling Order. Trial was re-set for August 24, 2009. On Friday, June 12, 2009, the agency moved for two separate partial summary judgments. On that same date petitioner and intenrener also moved for summary judgment. They noted the cross-motions for surnmaryjudgrnent for July 10, 2009. The parties apparently chose that date because they were advised by the court's judicial assistant that the following week the court was beginning its annual teave and would not return until shortly priorto trial. On Monday, June 15, 2009, the court learned of various binders filed as confidential information as well as being handed three 4" binders from the petitioner. For large submissions such as this the court has a procedure. Being a full time trial court with an active trial schedule the court has to be organized to tal-ce on a large PRA case such as this. Appfuorp? "iq Marti (360) 786-5560 - TDD (350) 754-2933 or (000) 737-7394 It is the policy of the Srqoerioi' Court ro en.s'uf'e that persons have aquni undfuii access to the judicfni sysrerrt. ?5 PRR-2011-00450 ff The parties are to follow the below protocol: Protocol for submission of public records for in camera inspection. - Duplicate records must be submitted. One set for filing under seal This is the official record for the case. It will be maintained by the clerlt under seal. One set forthe court -this is the working copy I will use for my work of inspection. Records shall be submitted in _pdf format on a CD. Each record shall begin on a new page. At the top of the first page of each record, in the upper right hand corner, the word "start" should appear, followed by the Bates numberior other identifier) unique to that record. At the bottom of the last page of each record, in the lower right hand corner, the word "end" should appear, followed by the Bates number. This requirement applies even if the record is only one page. - Records claimed entirely exempt should so state immediately below the Bates number entry at the top of the record. - Records redacted in part should be redacted with a shaded or colored overlay that will permit the judge to read the entire record and immediately understand which parts were withheld by redaction and which parts were produced. - The agency is requested but not required to state the code section that is the basis for claim of exemption justbelow the Bates number at the top of the record. - For large inspection projects, submission of the records may be divided into categories in separate documents; but individual records should be on separate pages, not in separate documents. An Excel spreadsheet should be submitted listing, in separate fields, the Bates number in the same order as the .pdf records, the code section or other identifier for the claim of exemption, and an empty, expandable field Where the courts decision can be entered. SF-01592 PRR-2011-00450 lf the court had been consulted prior to these submissions about the large in camera submission this protocol might have -been earlier provided. Obviously it may involve some duplication of work already completed, but not entirely. Nevertheless there is no other way for the court to entertain such an intensive case without this organization. Please comply as soon as possible. lt may be necessary to move the summaryjudgment to the date of trial. I will walt to hear from counsel insofar as any schedule changes. lf the `rotocol can be completed within a week or so then perhaps the summary judg nt date can go forward. Sincere! are rd o. 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(Ui: luaxa aq 0111; dd zz .mmon sn; I _5m__=_mEg Ogg m2 Emg? Ea: ag_W GHG WGS QGEQ N5 gg Ed mg__g_ 3 :cum Ed O5 EO GU mggaa 3 $5 "gm 3% 3 _aww 0 _dm _nmodamn O: U0 gm :od Mg _Eg Eaaww Ea mg GGOEAQ 5553* Ogg O5 Eg Nm Ego" Ag Emma JN gn 5 SFC gm mggag "Em mr; O5 Pain; ga MSE Wmgnuo _ga E02 gm Omlauv agH _Um_m_m F-01623 PRR-2011-00450 SETTLEM EINIT 1-IEBRRT v. 01C COUNTY SUPERIOR COURT CASE NO. 08-2-0144-1 The parties in this case, GERALD HEBERT, Plaintiff, the OFFICE UF THE INASURANCE. COMMISSIONER, Mike Kreidler Commissioner, (OIC), Defendant, and FARMERS NEW WORLD LIFE INSURANCE (Farmers), Intelvenor, desiring to settle this matter before Thurston County Superior Court, enter into this Settlement Agreement (Agreement), under the following terms and conditions: PLAIN TIFF AGREES: I To keep confidential all documents currently in his possession that are sub] ect to the and Order Regarding Farmers New Werke' Life .Morton For And Protective entered in this matter on June 5, 2009, according to the tenns of that order, which will _remain i.n effect. 2. To withdraw his Morton For Rumig Un Isnres' .By Surnmorry Jrirignzenr Bm* Nor Ruled Un Or Reserveo' For Dain!! By The Court, by August 7, 2009. 3. To accept payment of $105,000 as a settlement of all penalties, fees, costs, and claims associated with this action. 4. To enter into a Stipulated Dismissal with of this matter pursuant to the ternis of this Settlement Agreement, and not to appeal any ruling. 5. To retrain from contacting persons outside ofthe parties to this agreement for the purposes of volunteering information concerning the terms of this agreement. In the event Plaintiff or his representatives are contacted fo.r information .regarding this Agreement, Plaintiff agrees to notify the OIC that such a request for information has been received. DEFENDAN AGREES: 6. To withdraw the Office ()j`TIre (.'0rrzr1rissi0ne1' `s Request For Ami Mbrrorz. For Reoonsicferoriora., by August 7, 2009. 7. To provide the documents deemed "Not Exempt" in the Opinion Gf'nnr1`ng Partial Sumrrzorfv To All And Remcrirzmg Issues For Trial, entered in this matter on July 13, 2009, and Appendix to that Order, by August. 7, 2009. All possible identifying infomation and the results of any sexually transmitted disease tests will be redacted from the insurance application tiles that were ordered to be disclosed with redactions. 8. To provide versions ofthe documents revealing the redactions deemed "Not Exempt" in the Opinion. biucmmory Judgment To Arr' And Reservirzg SF-01624 PRR-2011-00450 Issues For Lfriczf entered in this matter on July 13, 2009, and Appendix to that Order, by August 7, 2009. 9. To provide by August 7, 2009, a version of Table 2 on page 7 (OIC 1069) of the document entitled "Evaluation of Information Provided By Farmers New World On HIV Mortality," prepared by Shirazali Jetha, actuary for the OIC, and dated August 8, 2007, in which the column labeled est," is 'unredacted. This document was identified in the papers submitted by the OIC as Document Number 8 (OIC 1063-1070). This material will not be subject to any protective order. 10. To implement a policy that requires all pages of all documents responsive to a public records request that contain redactions to be bates labeled when produced to a requestor. 1. To implement a policy that requires identical copies of responsive records that contam redactions to be grouped together and identically redacted when produced to a requestor 12. To deliver to counsel for the Plaintiff a check made payable to "MacDona1dHoagu.e and Bayless, In Trust for GERALD for the sum articulated in Paragraph 3 of this Agreement, by August 7, 2009. 13. To enter into a Stipulated Dismissal with prejudice of this matter, and not to appeal any ruling. AGREE-S: 14. To pennit the release of a version ofTable 2 on page 7 (OIC 1069) ofthe document entitled "Evaluation of Information Provided By Farmers New World On HIV Mortality," prepared by Shirazali Jetha, actuary for the OIC. and dated August 8, 2007, in which the column labled est," is unredacted. This material will not be subject to any protective order. l5. To enter into a Stipulated Dismissal with prejudice of this matter, and not to appeal any ruling. FURTHER, IT IS .HEREBY A.GRE.E.D: I6. This Agreement constitutes full and final settlement of all legal and equitable claims that Plaintiff has or may have had against the OIC, its officers, agents and employees that arise out of or relate to the circumstances Lmderlying and resulting from Thurston County Superior Court Case No. 08-2-0144-1, or the public records request suI::-mitted by Plaintiff to the OIC- on December l7, 2007. 17. This Agreement and the mutual obligations under this agreement do not constitute an admission by any party as to the validity of any claims or defenses of any other party. SF-01625 PRR-2011-00450 18. This Agreement shall become effective on the date of the final signature of the parties and/'or their authorized representatives and constitutes the full and entire agreement of the parties and resolution of all disputes that may exist between the parties. There are no Written or oral representations, understandings, promises, or agreements directly or indirectly related to this Agreement that are not incorporated herein in full. August 2009 Carol Sureau, WSBA 21909 Deputy for Legal Affairs Office of the lnsurance Commissioner Defendant August 2009 Gerald Hebert Plaintiff August ZU09 Brian Kreger, WSBA 10670 Vice President Farmers New World Life Insurance Company Intervenor SF-01626 PRR-2011-00450 13. This Agreement shall become effective on the date ofthe linal signature of the parties and/nr their authorized representatives and constitutes the full and entire agreement ofthe parties and resolution of all disputes that may exist between the parties. 'There are no written or oral representations, understandings, promises, or agreements directly or indirectly related to this Agreement that are not incorporated herein in full. ir; ,f August is; 2009 Carol Sureau, WSBA 21909 Deputy for Legal Affairs Office of the Insurance Commissioner Defendant August 2009 Gerald Hebert Plaintiff August 2009 Brian Kreger, WSBA 10670 'Vice President Famrers New World Life Insurance Company lntervencr SF-01627 PRR-2011-00450 4 1 AFJQ U3 O9 Rev Jerry Hebrari NWIEC 360 p.2 IS. Agreement shall become effective on the date of the H1181 signalure of the parties amifor their authorized representatives and constitutes the full arid entire agreemmit of ?116 parties and resolution of all disputes that may sexist between the panics. There are no wriifcen or oral ualderstariduhrgs, promises, or agreements directly :Jr indirectly related to this Agreement that are not incur-poratcd herein in full. Augusl_, 2009 Cam! Suzeau, WSBA ii 21909 Deputy for Legai Alfairs of the Insurance Commissioner Defendant s' 1 Rr' ugust "2 - Gerald Plaintiff August 2009 Brian Kreger, #25 10670 Vice: Fiumcrs Huw World Life Ir|s1.1ra.rice: Company Infzervenm: SF-01628 PRR-2011-00450 18. This Agreement shall become effective on the date ef the final signe'n1r-e ef the parties and/er their sutherieeti representatives and constitutes the and agree-menl ol`i.l1e panties and reselutien of all clisputes that may exist between the parties, There are ne written or oral representetiutts, uttderslumlings, prennses, er agreements direetly or in?ireetly related to this are not iltuetjeuralcd lterein in 1` ull. August 2009 Carol SLUERLI, WSBA 21909 Deputy for Legal Affairs ee efthe Cemmissioner AIQHE, zeos Gerald Hebert Plsintii ngust ?2 Brtan Kreger lit* 0670 Vice President New World Life Company lntervener SF-01629 PRR-2011-00450 'tees I I tif Z, . EXPEDITE If I IE I3 fig: I El Hearing is Set' - G9 PUB - Date: I 7 P3 19 Tirne: The Honorable Richard D. Hicks STATE OF VVASHINGTON THURSTON COUNTY SUPERIOR COURT GERALD HEBERT, Casa Na. Pfaimifi STIPULATED vs_ ORDER OF DISMISSAL STATE OI-I WASHINGTON, OFFICE Or rn INSURANCE COMMISSIONER, Defendant. I. STIPULATION The Parties to this matter, Plaintiff GERALD I-IEBERT, Defendant OFFICE OF THE INSURANCE COMMISSIONER, Mike Kreidler Cotntnissioner, and Intervenor FARMERS NEW WORLD LIFE INSURANCE COMPANY, by and through their attorneys of record, have settled all claims between thern, including Claims for penalties and costs, for fair and reasonable consideration enumerated in the Settlement Agreement dated August 3, 2009. Pursuant to that agreement the Parties, hereby withdraw all pending motions in this matter, and stipulate to dismissal of this action with prejudice. NO further Costs Or penalties are to be paid by any party. STIPLILATED QRDER Og: 1 AT FOIINLY GENERAL OF I 125 Wnsl|i|tglo11 Street SE P0 Box Olympia, W.-1. 98504-0100 . .2 [3-60) 664-9006 . -, I SF-01630 PRR-2011-00450 II. ORDER IT IS HEREBY ORDERED that this matter is DISMISSED prejudice. There will be no further award of costs or fees to any party related to this matter. yi Dated thisgday of August, 2009. A ff Honorable Presented by ROBERT M. MCKE ,Bl Attom Gener I A543577 Assistant Attorney General (360) 753-3168 Attorneys for Wasl11ngton_State Office of the Insurance Approved as to Form and Notice of Presentation Waived: via ties at LQ 0 sez at-ki at Jesse Wing WSBA #27751 Kathertne Oharnberlaln WSBA #40014 MacDonald I-loague &_Eayless Attorneys for Gerald Hebert 1521 1 Jer? Kindinger, WSBA #5231 Gul wer Swenson, WSBA 35974 Ryan, Swanson, Cleveland, Attorneys fo1'Far1ners New World Life Insurance Company STIPULATED QRDER OF DISMISSAL 2 GENERAL |225 Wasl1i|tgro11Src'c PO Box Olympia, WA 98504-0100 (360) 564-9006 SF-01631 PRR-2011-00450 II. ORDER IT IS HEREBY ORDERED that this matter is DISMISSED prejudice. Theire will be no further award of costs or fees te any party related io this 1Tl&ft61'. Dated this day of August, 2009. I-Ionowable Richard D. Hicks Presented by ROBERT M. MCKENNA Attorney General ?35770 Assistant Attorney General (360) 7538163 AUOIDSYS for Wash1ngton_State Office ofthe 111811131106 Approved as to Form and Notice of Presentation Waived: ur! 0 Jesse WSBA #27751 Kather hamberlaln BA #4 5 4 MacD ld Hoague I- I Airtel me for Gerald Hebert Jerrff Kindinger, WSBK #5231 Gul Swenson, WSBA 35974 Ryan, Swanson, Cleveland, Attorneys fo1'Fa1n'1e1's New World Llfe Insurance STIPULATED ORDER OF DISMISSAL 2 GENERAL WASIWGTON I 135 Wusl1inglo11 Street SE FO BON -120100 Ulynuzliu, WA 98501-I-0100 SF-01632 PRR-2011-00450 II. ORDER IT IS HEREBY ORDERED that this matter is DISMISSED with prejudice. There will be no further awardmof costs or fees to any party related to this matter. Dated this day of August, 2009. Honorable Richard D. Hicks Presented by ROBERT M. MCKENNA Attorney General ELEESN i Assistant Attorney General (360) 753-3168 Attorneys for Office of the Insurance Commissioner Approved as to Form and Notice of Presentation Waived: Jesse Wing WSBA #27751 ?iiamberiam WSBA #40014 MacDonald Hoague 8; l3a?/less Attorneys for Gerald Hebert Je to Wsea 5231 sta, Wsea 4 35974 Ryan, 4 anson, Cleveland Attorneys for Farmers New Wor1d>>L1fe Insurance Company STIPULATED URDER OF DISMISSAL 2 SF-01633 PRR-2011-00450 ATTORNEY GENERAL GF 1 L25 Washington Street SE PO Box 40l0D Olympia, WA 93504-GLGD (360) 664-9056 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON MIKE KREIDLER et aT Pet1t1oners DONALD ANDERSON et e1 SUPERIOR COURT NO 0 2 02091 1 Respondents VERBATIM REPORT OF PROCEEDINGS BE IT REMEMBERED that on September 4 2009 the above ent1tTed and numbered cause came on for hear1n>> before JUDGE Wm THOMAS MCPHEE Thurston County Super1or Court OTymp1e Wesn1ngton PameTe Jones Off1c1aT Court Reporter Cert1f1cate No 2154 Post Off1ce Box 11012 OTymp1a WA 98508 0112 (360)754 3355 x6484 ]onesp@co thurston (RULING OF THE COURT) 1 SF-01634 PRR-2011-00450 Attorney Genere1 Post Offwoe Box 40100 O1ymp1e WA 98504 For the Respondents DONALD ANDERSON Attorney at Law EISENHOWER CARLSON PLLC 1201 Pao1f1c Avenue Ste 1200 Tacoma WA 98402 A A A For the Pet1t1oners: MARIA 2 SF-01635 PRR-2011-00450 September 4 2009 0Iympia Washington MORNING SESSION Department 2 Hon Wm Thomas McPhee Presiding APPEARANCES For the Petitioners Marta DeLeon Assistant Attorney GeneraT For the Respondents DonaTd Anderson Attorney at Law PameTa Jones OfficiaT Reporter TH COURT CounseT I ready to deTiver my opinion on how we re going to proceed here without further argument I going to make one important decision today and then direct how we wiTT proceed in the future The PubTic Records Act one that is evoTving constantiy We have a reguIar Titany of reported appeTIate decisions that come from our court of appeaTs and from our supreme court defining the responsibiTity and the rights of government and citizens who support the government and one of the reasons I suspect that we have that reguTar progression of appeTTate cases is because it's taken awhiTe for state agencies and the courts to reaTTy get their minds around what the Pubiic Records Act is and what it means I can teTT you, however, that what wiTT make reaTTy big news is when we get an appeTTate decision that does not begin in every singTe first paragraph of decisions with the SF-01636 PRR-2011-00450 fo11ow1ng quote or very c1ose to The Pub11c Records Act TS a strong1y worded mandate for broad d1sc1osure of pub11c records The Act d1sc1osure provwswons must be 11bera11y construed and 1ts exceptwons narrow1y construed You see that twme after twme after twme 1H these reported appe11ate dec1s1ons and 1t TS because the r1ghts granted WH the Pub11c D1sc1osure Act wh1ch now 13 cod1f1ed as the Pub11c Records Act and wh1ch was an 1n1t1at1ve of the peop1e has taken some t1me to agency and what TS a pub11c record And progresswon of case 1aw has been a 1ock step march of 11bera1 1nterpretat1ons of th1s Act aff1rm1ng the r1ght of the peop1e to understand what how the1r government TS funct1on1ng that 1H m1nd I have v1ewed the def1n1t1ons that app1y here to determ1ne whether the persons who have used and have possessed at t1mes and have contro11ed at t1mes the records requested by the requester are encompassed w1th1n the def1n1t1on of agency contawned 1n RCW 42 56 010 because that the f1rst step 1H the ana1ys1s If so then we need to determ1ne the extent to wh1ch the records requested from these 1nd1v1dua1s are Dub11c records _i evo1ve to a c1ear understanding of what is a pub1ic 4 SF-01637 PRR-2011-00450 The request here TS made to the Offwce of Insurance Comm1ss1oner not to the wnsurance company and that approprwate The 1nsurance company 1tseTf wouTd have no respons1b1T1ty to respond under the PubT1c Records Act The wssue TS whether the 1nd1v1duaTs who have used or controTTed these documents are encompassed w1th1n the 0ff1ce of Insurance Comm1ss1oner as a pubT1c agency and I concTude that they are for of the reasons that Mr Anderson has Twsted TH h1s comparwson of a pr1vate from very pubT1c And under1y1ng of that TS the reason for those dwfferences and the reason for the d1fferences TS because the protect1ons here are protect1ons TH wh1ch the TeQ1sTature has determ1ned the DubT1c has a great 1nterest It may be s1mpTy because a number of the pubT1c have Tong term reTat1onsh1ps w1th these wnsurance compan1es 1nto the future and that 1nterest needs to be protected It may be a wwder pubT1c 1nterest the 1nterest of the pubT1c TH knowwng that the wnsurance companwes they deaT for Tong term reTat1onsh1ps 1nto the future are compan1es that they can reTy upon because of the overs1ght of the 0ff1ce of the Insurance 5 SF-01638 PRR-2011-00450 that pubIic interest that separates the work and the ro1es p1ayed by these pub1ic receivers from those of pr1vate recewvers IH pr1vate rece1versh1ps then what are we to make of the pubI1c wnterest that IS ref1ected 1n the Pub11c Records Act c1ear1y the courts of th1s state have construed as pub11c wnterest IH the work of government So wh11e It may be d1ff1cu1t for the QentIemen who have acted as rece1vers here to understand that under the Pub11c Records Act they are pub11c agencwes even though 1n thewr ro1e as empIoyees of the Offwce of Insurance Comm1ss1oner they have created a separat1on of the1r respons1b1I1t1es that separates how they dea1 w1th the company IH from how they dea1 w1th the1r other respons1b111t1es IH the Insurance 0ff1ce wh1Ie It may be d1ff1cu1t to understand that seem1ng1y contrad1ctory pos1t1on I beI1eve It warranted by the 1ntent1on and the Ianguage of the Pub11c Records Act Swnce the recewvers are state agencwes under the Pub11c Records Act the questwon then becomes wh1ch of the documents are pubI1c records and not aI1 wh1ch ones are not Here test a IH subpart (SF-01639 PRR-2011-00450 IH reIevant part v1ewed broadIy pubI1c records 1ncIudes any wr1t1ng conta1n1ng 1nformat1on reIat1ng to the performance of any governmentaI functwon used or retawned by any state agency I have aIready conc1uded that the recewvers faI1 w1th1n the def1n1t1on of state agency I concIude that because of the respons1b1I1t1es they have ar1s1ng out of the statute that creates th1s rece1versh1p system and then the quest1on becomes whether these are records that have been used or retawned by the comm1ss1oner or by the recewvers today because I don know But I ve got us down the f1rst major hurdIe of resoIut1on of th1s case Our next step needs to be to understand w1th what records the wnsurance comm1ss1oner must respond to th1s pubI1c records request now that the roIe of the rece1vers as an agency has been 1dent1f1ed And I go1ng to d1rect that th1s matter be addressed by counseI and by the court IH an expedwtwous manner and so we I1 set a scheduIe for that where I want to understand what has been requested what IS uncerta1n about the request what records the 0ff1ce of the Insurance Comm1ss1oner wouId concede are pubI1c records g1ven my ruI1ngs made today and And. of course. I'm not prepared to make that ru1ing SF-01640 PRR-2011-00450 wh1ch records they wou1d contend are not pubI1c records because they don meet the def1n1t1on IH subpart (2) of sectwon 010 We I1 set that matter for a hearwng The Iaw an agency to seek c1ar1f1cat1on and It a reasonabIe t1me to answer and that t1me IS not on the cIock as It were for v1oIat1ons of the PubI1c Records Act 1f the request for cIar1f1cat1on IS reasonabIe and 1f the t1me for respond1ng IS reasonabIe That espec1aIIy true for very Iarge requests as I understand to be I don know that wt IS necessary under the cwrcumstances then for th1s Court to wssue an 1n]unct1on or a stay because I beI1eve the Iaw prov1des for that where 1ssues have been 1dent1f1ed that a pubI1c agency must reasonabIy respond to 1ncIud1ng th1s cIar1f1cat1on IH my v1ew pubI1c records request IS not be1ng dec1ded ent1reIy today we ve made a b1g step but we need to undertake the next as qu1ck1y as poss1bIe when can the partwes next reasonab1y be expected to be back 1n court to address the wssue of what records encompassed by th1s request need to be responded to? MS DELEON I th1nk we wouId need to speak w1th our cI1ents before we couId Qwve you SF-01641 PRR-2011-00450 fa1r response to that quest1on Your Honor Do you m1nd 1f we do that now or wouId you I1ke us to propose dates to you Tater after the TH COURT We11 now means I ve got to take my noon recess here very qu1ck1y I can have staff wa1t1ng IH that respect so you can e1ther estabI1sh It th1s afternoon or you can estabI1sh It w1th Ms. WendeI Iater on I wouId I1ke to concIude th1s next step qu1ckIy before the end of September for the f1rst part of October I be away on vacat1on and so assumwng what aIready on my caIendars for the Fr1days that I return IH Iate October you can count the t1me 1n October as pretty hear1ng that 1dent1f1es where I make ruI1ngs 1dent1fy1ng what has been requested what IS expected and wh1ch records 1f any are not encompassed by the def1n1t1on of pub11c records then the part1es can move forward e1ther gather1ng thewr cIa1ms for exempt1on and prepar1ng exempt1on Iogs or preparwng a t1metab1e for productwon of those records durwng the month of October wh1Ie I away MS DELEON I th1nk probab1y best then Your Honor 1f we come back to Ms WendeI w1th much gone for court hearings, but if we have a court 9 SF-01642 PRR-2011-00450 appropr1ate dates after we ve had a chance to speak w1th our c11ent 1f that aQreeab1e MR ANDERSON I concede that the 1ast or next to 1ast Frwday 1D September wou1d be a reasonab1e twme to perform that Th1s 15 a comp1ex 1ssue COURT A11 F1 ht 11 p1an on that and the two of you work out wh1ch of the two dates wou1d be best appropr1ate DELEON Thank you And we 11 work on an order Your Honor TH COURT A11 F1 ht I haven wssued a pre11m1nary 1n]unct1on here and I haven done so because under the trad1t1ona1 Tyler P1pe ana1ys1s can say that the Off1ce of the Insurance Comm1ss1oner TS 11ke1y to succeed on these 1ssues What I can say TS that there are uncertawntwes that the Insurance Comm1ss1oner Off1ce 1S not proceed1ng unreasonab1y TH seekwng c1ar1f1cat1on both from the court and from the requester and swnce the request 15 very 1arge seekwng dwrectwon on how to prepare a t1metab1e for the productwon of any records adjudged to be pub11c records and not exempt c1ear1y w1th my ru11nQs today there w111 be some of those records that are pub11c records but THE . WeSF-01643 PRR-2011-00450 how many and ones remawn uncerta1n at po1nt MS DELEON Thank you Your Honor stand TH recess THE COURT: A11 right. COUHSE1, we wi 11 SF-01644 PRR-2011-00450 CERTIFICATE OF REPORTER STATE OF WASHINGTON COUNTY OF THURSTON I PAMELA JONES RMR 0ff1c1a1 Reporter of the Super1or Court of the State of TH and for the County of Thurston do hereby That I was authorwzed to and d1d stenograph1oa11y report the foregowng by CounseT to be 1ncTuded TH the transcr1pt and that the TS a true and comp1ete record of my stenoQraph1o notes Dated th1s the 15th day of September 2009 PAMELA JONES RMR Off1c1aT Court Reporter Cert1f1oate No 2154 he1d in the above-ent1t1ed matter, as designated 12 SF-01645 PRR-2011-00450 [fl EXPEDITE No Hearing Set IZII-Iearing is Set: Date: 9.f4f2oo9 gi Time: 9:00 AM _i The Honorable Judge McPhee SEP 1 2003 . WL- .f IZ -J I wil". 1.x TH URS T-SJ STATE OF WASHINGTON TITURSTON COUNTY SUPERIOR COURT MIKE KREIDLER, INSURANCE COMMISSIONER, and NO. 09-2-02091-1 Cas Cana NATIONAL INSURANCE pp; ii COMPANY, Liquidation, ORDER DENYING Petitioners, MOTION FOR PRELIMINARY AND PERIVIANENT INJUNCTIOIY AND V. TO SHORTEN TIME DONALD ANDERSON, and COLUMBIA STATE BANK, Res cndents. I. ORDER This matter came before the Court on the Office of the Insurance Commissioner Mike Kreidler, Insurance Commissioner, and Cascade National Insurance Company In Liquidation's ("Cascade's") Motion For Preliminary And Permanent injunction And To Shorten Time. This Court has considered the arguments of Counsel and the following papers tiled in this matter: l. Summons; 2. Complaint for Injunction and Declaratory Reliefl 3. Motion For Preliminary and Permanent Injunction, and to Shorten Time; 4. Declaration of Marshall McGinnis in Support of Motion For Preliminary and Permanent injunction, and to Shorten Time; onona DENYING MOTION 1 UF WASHINGPON Fon AND PERMANENT SE INIIL-FICTION AND TO SHORTEN TIME WA 98504-0100 [360] 664-9006 SF-01646 PRR-2011-00450 5. Declaration of James T. Odiorne For Motion For Preliminary and Permanent Injunction, and to Shorten Time; 6. Declaration of Eric Mark Motion For Preliminary and Pennanent lnjunction, and to Sborten Time; 7. Declaration of Marta Deleon Motion For Preliminary and Permanent Injunction, and to Shorten Time; S. [Proposed] Order Granting Pctitioncr's Motion for P1'eliniina1'y and Permanent injunction, and to Shorten Time; 9 Response to Motion for Preliminary And Permanent Injunction, and to Shorten Time; 10. Declaration of Donald Anderson; and 11 Petitioners' Reply To Response To Motion For Preliminary And Permanent lnjunction And To Shotten Tirne. Based on the foregoing, this Court finds: The OIC's efforts to clarify Mr. Anderson's June 23, 2009 public records request with Mr. Anderson and this Court have been reasonable. 2. Cascade's Receiver and Deputy Receiver fall within the definition of a state agency under the Public Records Act. 3_ Cascade is a private company and has no obligation to respond to a public records request. ORDER MOTION 2 OF WASHINGTON Fon PRELIMINARY ,ann PERMANENT SE AND TO SHORTEN TIME o1ympa,w'A 985011-UIUC) [360] 664-9006 SF-01647 PRR-2011-00450 4. Records used by Cascade's Receiver and Deputy Receiver in the perforrnance of their duties are public records if they fall under the following definition in RCW namely if they are records that pertain to the perfonfnance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." It is, therefore, ORDERED that: 1. The Petitioners' Motion For Preliminary And Permanent lnjunction and for a declaratory judgment order is denied. 2. The parties will return on September 25, 2009 to address, in light of this Court's ruling, the following issues: a) what has been requested, b) what is uncertain about the request, c) what records the Ofice of the Insurance Commissioner would concede are public records given the above ruling, and d) which records they contend are not public records because they d0n't Incct the definition found in RCW ORDERED this day of September, 2009. JUDGET MAS CPI-IEET Wm.. ROBERT M. MCKENNA Attornev General I O, -ATI-IER L. POLZ, WSBA MARTA DELEON, WSBA 79 Assistant Attorneys General Counsel to the Office ofthe Insurance Commissioner and Cascade National lnsurance Company in Liquidation Telephone: (360) 664-9006 oaosa osrrvoro Pisririonsas' MOTION 3 OF Fon PRELIMINARY AND PERMANENT FNIUNCTION AND TO SHORTEN TIME olympia wa 98504-uma (360) 664-9006 SF-01648 PRR-2011-00450 EISENI-IOWER CARLSON, PLLC Dei; LD . lc L. ANDERS (JN, WSBA #8 73 Attorneys for Respondents a?f ORDER MOTION 4 ATFURNEY UF FOR PRELIMINARY AND PERMANENT "5 SE INJUNCTION AND TO SHORTEN TIME Olympia, wa 93504-0100 (360) 664-9006 SF-01649 PRR-2011-00450 _'sl (1 DFJNAIDI ANTDFIZ lor Umnpiu, SF-01650 PRR-2011-00450 (363) EXPEDITE El No Hearing is Set Hearing is Set Date: Time: The Honorable Judge McPhee STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT KREIDLER, INSURANCE COMMISSIONER, and NO. 09-2-02091-I CASCADE NATIONAL INSURANCE COMPANY, in Liquidation, AGREEMENT FOR STIPULATED ORDER OF DISMIS SAL Petitioners, v. DONALD ANDERSON, and COLUMBIA STATE BANK, Res ondents. Come now Petitioners, Mike lireidler, Insurance Commissioner and statutory receiver of Cascade National Insurance Company in Liquidation ("Cascade") and Cascade, by and through its attomcys of record, Marta DeLeon and Heather Polz, and the Respondents, Donald Anderson and Columbia State Bank, by and through their attomey of record, Donald Anderson, and agree to a stipulated order of dismissal, with prejudice, of the above- referenced case subject to the following agreement between the parties. AGREEMENT The parties recognize that Respondents' original public records request, made on June' 23, 2009, was narrowed by the parties on September 22, 2009. Responsive documents were provided on October 12, 2009. Since October 12, 2009, Petitioners have made multiple inquiries as to whether additional documents would be requested. AGREEMENT FOR STIPULATED ORDER I H25 Washington Street SE OF olsiviissai P0 oiympia. 9ss04 0100 (sem 664-9006 SF-01651 PRR-2011-00450 The parties agree that the current public records request has been satisfied, Respondents agree that the Office of the Insurance Commissioner's response to the current public records request has been reasonable, and that no fees or penalties under the Public Records Act (the Act) are warranted as a result of the public records request that is the subject of this case. Respondents reserve the right, to make additional public records requests. The OIC Reserves the right to make any objections available under the Public Records Act, case law interpreting the Act, or other laws. The parties agree that this matter, and the dismissal thereof, has no bearing on future public records requests as may be made by Respondents except that the Office of the Insurance Commissioner explicitly agrees to comply with the Court's September 18, 2009 order, and oral ruling on September 4, 2009, subject to any changes in the Public Records Act, case law interpreting the Act, or other laws. ROBERT M. MCKENNA Attorney General if f' dr - 5 pp EAT HER PULZ, WSBA #30502 MARTA DELEON, WSBA #35779 Assistant Attorneys Genera] Counsel to the Office ofthe Insurance Commissioner and Cascade National lnsurancc Company in Liquidation EIS ENHOWER CARLSON, PLLC DONALD L. ANDER N, WSBA 373 Attomeys for Respondents Donald L. Anderson and Columbia State Bank AGREEMENT FOR STIPULATED ORDER. 2 AHORNEY GENERAL OF WASHINGTON H25 Washington Street SE OF DISMISSAL |10 Bo,?4g1g0 oiympia WA 9ssc4-moo (seo) 664 sons SF-01652 PRR-2011-00450 EXPEDITE "f-we 4'l= a fi' El No Heannff Set i Hearing iscSet: I DEC 1 Ewq Date: I Time: The Honorable Judge McPhee 5 - 7:--34 I STATE OF TI-IURSTON COUNTY SUPERIOR COURT MIKE KREIDLER, INSURANCE COMMISSIONER, and NO. U9-2-02091-I CASCADE NATIONAL INSURANCE COMPANY, in Liquidation, STIPULAT ION AND Petitioners, ORDER OF DISMISSAL WITH PREILTDICE V. DONALD ANDERSON, and COLUMBIA STATE BANK, Res ondents, I. STIPULATION The Parties to this matter, Petitioners MIKE KREIDLER, Insurance Commissioner, and CASCADE NATIONAL INSURANCE COMPANY in Liquidation, and Respondents DONALD ANDERSON and COLUMBIA STATE BANK, by and through their attomeys of record, have come to a fair and equitable resolution of the public records request that is the subject of this case and, thereby, stipulate to dismissal of this action with prejudice. No costs or penalties are to be paid by any party. The parties agree that this dismissal will not affect Respondents' right to make future public records requests. _ff AND ORDER OF 1 35 `|lI1 CID WITH PREJ UDICE 00 00,2 00,00 Olympia, WA (360) 664-9006 SF-01653 PRR-2011-00450 II. ORDER 2 IT IS IIEREBY ORDERED that this matter is DISMISSED with prejudice but without 3 prejudice as to Respondents' right to make future public records requests. There will be no 4 award of costs or fees to any party related to this matterPresented by: 9 ROBERT M. MCKENNA Attomey General 4| TH I MCPI-IEE 10 11" 9 11 rf!/aj THER PO i WSBA #30502 12 MARTA DELEON, WSBA #35779 Assistant Attomeys General 13 Counsel to the Ofiiee of the Insurance Commissioner and 14 Cascade National Insurance Company in Liquidation 15 Telephone: (360) 664-9006 15 17 EISENHOWER 3; CARLSON, PLLC is -iH_ 19 DONALD LANDERSO - -I Attomeys for Respondents 20 21 .212 23 24 25 I 26` STIPU LATION AND ORDER OF DISMISSAL WITH PREJUDICE 2 SF-01654 PRR-2011-00450 GENERAL OF I 115 Washington Stree1SE PO Box 40100 Olympia. 93504-0100 ?A5923 as EXPEDITE ,Mgt .Ana NO A El Hearing is Set Date: Time: Honorable Carol Murphy - A STATE OF WASHINGTON A THURSTON COUNTY SUPERIOR COURT DOUG MERINO, . NO. os-2-02043-3 A A Plaintiff, ORDER OF DISMISSAL vs._ I I STATE OF WASHINGTON, DEPARTMENT OF LABOR AND INDUSTRIES, AND IUDY SCHURKE, DIRECTOR, DEPT. OF LAB-UR INDUSTRIES, Defendants. . OE August 4, 2009 the Plaintiff tiled a Motion to dismiss/i ., ll A NOW, THEREFORE it is ORDERED that this appeal' is hereby SDISMISSED with prejudice and without award Ofuany costs Or fees to the parties. Dated this day Of 2009. ORDER OF DISMIS HONORABLE CAROL MURPHY 1 SF-01655 PRR-2011-00450 Presented by:' ROBERT M. MCKENNA Attorne eneral ,r LLER WSBA 40026 Assistant Attorney General Copy received, - - Approved as to fonnand notice of presentation waived E12 CHRISTOPHER W. B-AWN WSBA 13417 Attorney for Plaintiff ORDER OF DISMISSAL I 2 SF-01656 PRR-2011-00450 TCTUUBT Gif fililjlial I-'ri ,ffl ll ii l" fl-it BY ,ij ll IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON A DIVISION II KEN BRICKER No. 40064-2-ll Appellant and Cross-Respondent, V. I State of Washington, DEPARTMENT OF PUBLISHED OPINION LABOR AND INDUSTRIES, and Judy Schurke, Director, Dept. of Labor Industries, Respondents and Cross-Appellants. QUINN-BRINTNALL, J. - After the Department of Labor and Industries conceded that it had failed to respond in a timely manner to KenBricker'es public recordsrequest, the trial court imposed a per diem penalty of $90 for the untimely disclosure of 16 doctunents and a per diem penalty of $15 for the untimely disclosure of 3 additional documents, for a total penalty of $29,445. Bricker appeals the trial court's refusal to impose a per docmnent penalty in addition to the per diem penalty, and cross appeals the amount of the per diem penalty. Because the trial court's award did not constitute an abuse of discretion, We affirm. FACTS Donald Ulmer, an electrical inspector for inspected a house Bricker owned in July 2007. Bricker was a former contractor. After the inspection, Ulmer cited Trinity Construction for electrical violations related to bathroom fixtures. When Trinity informed Ulmer that Bricker SF-01657 PRR-2011-00450 No. 40064-2-II had done the work, Ulmer reissued the citations to Bricker. The citations alleged that Bricker failed to obtain or post Work permits, failed to request inspections, and covered or concealed installations prior to inspection. Bricker first called Ulmer to discuss the citations. In a certified letter dated October 1, 2007, he subsequently contested the citations and asked for information about them. Specifically, Bricker requested "a copy of ah permits issued and copies of inspections and correction requests by ah inspectors on that residence." Clerk's Papers (CP) at 81. Bricker's letter did not refer to the Public Records Act (PRA), ch. 42.56 RCW. Ulmer read the letter and put it in Bricker's file. He assumed that Bricker would receive the requested records through his appeal of the citations. Ulmer did not provide Bricker with any records nor did he forward Bricker's request to public records unit or his supervisor. Although L&l usually trains new employees on public records requirements, Ulmer had received no such training. Bricker allegedly made additional phone calls to Ulmer, Ulmer's supervisor, Dene Koons, and Koons's supervisor, Reuel Paradis, in unsuccessful attempts to get the information he had requested in his October letter. (These employees did not remember Bricker's phone calls.) Bricker appealed the citations, noting in his appeal letters that L&l had never responded to his requests for information. A In a further attempt to gain the requested information, Bricker hired an attorney and filed a lawsuit under the PRA on July 22, 2008. public records unit responded by providing to Bricker 16 responsive doctunents on August 8, 2008. On November 7, 2008, L&l provided 3 signed versions of documents produced on August 8. Bricker's pro se appeal of his citations was successful; the administrative law judge voided the citations after holding that no permit or inspection was required for his work. 2 SF-01658 PRR-2011-00450 No. 40064-2-Il After L&l conceded liability in Bricker's PRA action, the trial court held a penalty hearing. One employee testified that L&l issued the citations to Bricker in the mistaken belief that he was "covering" for Trinity, which already had received several citations. 2 Report of Proceedings (RP) at 252. employees insisted, however, that regardless of who did the Work, 1 they believed it warranted citations. ln an oral mling, the trial court explained that although it found no intentional noncompliance with public records requirements and no bad faith in L&l's actions, the key factor was the lack of governmental accountability. The court found no mitigating factors to excuse lack of compliance from October 1, 20071 to August 8, 2008, and stated that a penalty of $90 per day and per document was appropriate for the 16 documents Withheld during that time. The court imposed a penalty of $15 per day and per document for the 3 documents disclosed on November 7, 2008. After L&l submitted proposed findings of fact and conclusions of law and a judgment summary of $537,6l5, the trial court reconsidered its decision and, in a letter ruling, informed the partiesthat it would not impose a peridocument penalty; The it courttnoted that it had been greatly troubled by the amount of the earlier penalty, which had been based on its incorrect application of the "Yousoufian factors." CP at 258. The court explained that it would impose a per diem penalty only: - The purpose of imposing a penalty under the is to promote public access to public records; to encourage, and demand, governmental transparency. It is not, in this court's opinion, meant as compensation for damages. Ftuther, that purpose is best served by imposing a penalty at the high end of the possible range, as the court did in this case in part. Under the facts presented here, there is no 1 L&l did not argue that Bricker's October l, 2007 letter was not a PRA request. 3 SF-01659 PRR-2011-00450 No. 40064-2-ll appropriate purpose that would be served in imposing a per day per document penalty. CP at 259. The court attached a revised judgment summary of $29,445 as well as revised tindings of fact and conclusions of law, and it awarded Bricker attorney fees in an amount to be determined. A Bricker now appeals the trial court's refusal to impose a per document penalty, and cross appeals the trial court's decision to set the per diem penalty at $90.2 ANALYSIS PER DOCUMENT PENALTY We review a trial court's award of penalties under the PRA for an abuse of discretion. Yousoufian v. O]j'ice of Ron Sims, 168 Wn.2d 444, 458, 229 P.3d 735 (2010) (Yousouficm West v. Port of Olympia, 146 Wn. App. 108, 122, 192 P.3d 926 (2008), review denied, 165 Wn.2d 1050 (2009). Determining a PRA penalty involves two steps: (1) determining the number of days the party was denied access and (2) determining the appropriate per day penalty, depending on the agency's actions. Yousoufian V, 168 Wn.2d at 459. The applicable statutory provision 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. l, 2 does not challenge the $15-per~day penalty imposed for the three copies of signed documents provided November 7, 2008. 4 SF-01660 PRR-2011-00450 No. 40064-2-ll RCW The PRA does not otheivvise specify how to calculate a penalty. Yousouficm V, 168 Wn.2d at 459. The trial court eliminated its initial per record penalty after reviewing the relevant case law, which included Yousoufian v. O]j'ice of Ron Sims, 152 Wn.2d 421, 98 P.3d 463 (2004) (Yousotyian Il). Yousoujian ll dealt with the disclosure and penalty requirements set forth in the former Public Disclosure Act (PDA), ch. 42.17 RCW. 152 Wn.2d at 429-30. Former RCW 42.17.340(4) (1992) was the penalty statute then in effect and contained the same language now found in the PRA penalty statute, RCW In discussing whether the Act requires a per record penalty, the Yousoujian II court referred first to former RCW 42.17.340(4) and then to a definitional statute in the PDA, stating that used in this chapter, the singular shall take the plural and any gender, the other, as the context requires." 152 Wn.2d at 433 (alteration in original) (quoting RCW 42.l7.020). 1 The Supreme Court determined that the reference in former RCW 42.17.340(4) to requiring a penalty for each day the plaintiff was denied the right to inspect or copy "said public record" was ambiguous because, in conjunction with RCW 42.17.020, theireference toi"record" could be interpreted as singular or plural. Yousoufian 11, 152 Wn.2d at 434. Accordingly, it Was unclear Whether cotnts should assess penalties for every "record" requested or Whether they should assess penalties only for each request, regardless of the number of records sought. Yousoujian II, 152 Wn.2d at 434. The court held that the PDA's purpose of promoting access to public records was better served by increasing the penalty based on the public agency's 3 ln an amendment that took effect on July 22, 2011, the legislature struck the Words "not less than five dollars," thereby eliminating the $5 per day minimum penalty. LAWS OF 2011, ch. 273, 1. 5 SF-01661 PRR-2011-00450 No. 40064-2-II culpability rather than on the size of the plaintiffs request. Yousoufian II, 152 Wn.2d at 435. In Yousoujian II, the per document penalty could have added up to millions of dollars, and the court considered it Lmlikely that the legislature intended to authorize such a penalty Where the agency did not act in bad faith. 152 Wn.2d at 435-36. Consequently, the court held that the PDA did not require the assessment of per day penalties for each requested record. Yousoujian II, 152 Wn.2d at 436. A Bricker argues that this analysis does not control here because, as recodified, the PRA does not contain a definitional provision with the "singular shall take the plural" language. See RCW 42.56.010 responds that similar language is found in RCW l.12.050, which provides in part that "words importing the plural may be applied to the singular," and that the legislature intended this principle to apply to the PRA Without expressly including it therein. See Daly v. Chapman, 85 Wn.2d 780, 782, 539 P.2d 831 (1975) (legislature is presumed to be aware of its own prior enactments)_ Ftuthennore, recent PRA decisions have reconfinned that a trial court has discretion to reject a per record penalty Without reference to any ambiguity in RCW 7See77Sa7fzde7*s v. Stdte,"1769 Wn.2d 827, 864,240 P;3d 120 (2010) (upholdingtrial coru~t's discretion not to impose penalties for each wrongfully withheld doctunent individually); Soter" v. Cowles Pub'g Co., 162 Wn.2d 716, 751, 174 P.3d 60 (2007) (referring to penalty for each day the "records" were wrongfully withheld); West, 146 Wn. App. at 121 (noting Without objection that the trial court chose to impose a daily penalty rather than a per record penalty). Bricker asserts further that even if a per document penalty is not imposed, the trial court must group the doctunents and impose a per group penalty, as did the trial courts in Yousoufian and Sanders. In Yousoujan V, the trial court grouped the documents at issue into 10 records, based on time of production and subject matter, and the Court of Appeals upheld the resulting 6 SF-01662 PRR-2011-00450 No. 40064-2-II imposition of a "per group" penalty. 168 Wn.2d at 456-57. In Sanders, the trial court divided the documents into two records for penalty purposes, again based on subject matter, and the Supreme Court affirmed. l69 Wn.2d at 864. Here, contrary to Bricl>7717 - SF-01681 PRR-2011-00450 _This matter came on regularly before the Honorable Anne Hirsch, in open court on June 10th and nm, 2009. The Piaintith Ken Bricker, eppeefea by his counsel, Christopher W. Bavvn; the Defendants, Department or" Labor and Industries (Department), and Judy Schurke, Director of the Department of Labor and Industries, appeared by its counsel, Robert M. McKenna, Attorney General, per John S. Barnes, Assistant Attorney General. The court reviewed the records and tiles herein, including the Certified Appeal Board Record, and briefs submitted by counsel, and heard argument of Counsel. Therefore, being fully informed, the court makes the following: 1. FINDINGS or FACT l.1 Mr. Bricker sent a certified letter to the Department dated October l, 2007, requesting all permits, copies of inspections, and correction sheets by all inspectors on his residence. Mr. Ulmer ofthe Department received the letter and placed it in the Bricker tile he-peel' . I-l' 1_2 Mr. Ulmer had not received training on the public records act. Mr. Ulmer did not intentionally, or in bad faith, not comply with the Public Records Act because he did not know about it. The`Department personnel at the top ofthe chain did try to comply with all the procedural requirements of the act once they were aware of Bricker's request. - 1.3 The Department admits that it did not timely respond to M. Bricker's public records request. . 1.4 The Department responded to Mr. Bricl>timely and strict compliance with all the procedural requirements and exceptions. 7'2z. There- was no compliance until gn 3 008. The problem arose in Kennevviclt with Mr.Koons and Mr. Ulmer. -.- at top ofthe chain people were trying, 01106 i3hf>Y were aware of the lawsuit, to provide information and they were trying to comply strictly with the Public Records Act. Factor 4: Proper training and supervision of personnel; The evidence is 'undisputed the Mr. Ulmer received notraining, and that is despite the fact ofthe policy ofthe Department and it is a pretty detailed policy. Factor 5 The reasonableness of any explanation for noncompliance. Mr. Ulmer just said well the envelope was already open and I stuck rt in my tile. Franldy, even if Mr. Ulmer did not `l~mcW what to do with a public records request, he Pnorosnn FINDINGS or FACT AND - 3 coricrusrons or raw AND - Olympia WA 98504-012] (360}586-7707 F/tx: (360)535-1717 SF-01683 PRR-2011-00450 p-put the letter in a tile and did not respond to a request for a phone call. I-le niadeno attempt contact Mr. Bricker and at bottom that is what the problem was in this case. Factor 6: Helpfulness ofthe agency to the reguester. ln this case there was not any helpfulness, not until the casewent to litig ation; and even tlienthere was confusion. no 7 Factor 7: Existence of systems to track and retrieve public records. There was no testimony that really Went to that issue one way or the other, so-l-eesnaret maria .M-/Mfg Factor 8: Delayed response, especially in circumstances making time of the essence. l\/lr. 'Bricker had citations that he did not think he deserved and he tried to get the information so he could get the citations taken care of and if not that then to prepare for an administrative hearing. He never got his information until just before the hearing. Factor 9: Lack of strict compliance. wh," ?259 There Was not any compliance M. Ulmer .e-ti-eleiaagthe letter in his file and no.t..doi with it. dual Factor 10: Lack oi? proper training and supervision of personnel and response. This is addressed as to Mr. Ulmer in factor number 4. Mr. Koons was Mr. U1rner's supervisor. Mr. Koons was the person who wanted to make very sure Trinity was going to be held accountable, but the issue is that Mr. Bricker did not need to be the person the middlg Elf that. Mr. Koons ang Mr, Ulmer did not deal with Mr. Bricker because ey ignore 's re uest Factor 11: Unreasonabl ness of an ex lanation or noncom liance_ Calling the explanation lame is a start. Putting the request in a tile and sticking the file away does not make any sense . all Pl' - Factor 12: Ne li ent reckle wanton bad th or intentional noncom liance_ -Mr. Ulmer tentionally comply with the Public Records act I #qw about it. I am not finding that he exercised any bad faith. There were some signiticant problems in his office though with a combination of folks and that would include Mr. Koons, Mr. Paradis, and Mr. Ulmer. Factor 13: Dishonesgg. There is no finding of dishonesty in the communications to Mr. Bricker. Factor l4:. The potential for public harm, including economic loss or loss of govemmental accountability. This court was able to view first hand the demeanor of all of the vvitnesses as they explained their involvement in this case, except for Mr. Koons, who testified on the telephone. The key factor established in this case is a loss of governmental accountability. Bven during trial, the witnesses for the Department were unprepared, they had not reviewed their records, and said don't remember, 1 don't remember, don't remember." That could have been true. PROPOSED or Pacrauo 4~ CONCLUSIONS or LAW Ann Lal" 1 Olympia, WA 93504-0121 360 586-7707 Fax; (seo) 586-7717 SF-01684 PRR-2011-00450 lvdfal' nal' frafpy?lid (W 2.6 Nothing in the Public Records Act Qquires that the daily penalty be applied ag-ainst record withhelddeter future noncompliance it is appropriate to set the penalty at the high-range of the scale rather than the midpoint. A penalty of $90 per day is appropriate forthe period between October l, 2007, and August 8, 2008. Between August 9, 2008 and November 2008, a penalty of $15 per day is riate. aa aPProP a Li . 2.8 The penalty for noncompliance amounts to . The penalty is calculated as follows: 312 days (Oct. l, 2007 - August 8, 2008) $90/day= I . . 91 days (August 8, 2008 -Nov. 7, 2008) $15/day _jf [3 55-r _Based on the foregoing Findingsrof Fact and Conclusions of Law the Court enters I judgment as follows: Arn. 3.1 A Bricker is entitledto a penalty award Department of Labor and Industries for withholding of records pursuant to his October 1, 2007 public records request in the amount of I 3.2 Bricker is awarded, and the Department is ordered to pay attorney fees of F9 Hn, 3.3 Bricker is awarded interest from the date of entry of this judgment as provided by RCW -4.56.ll0. DATED "ans sl day of November, 0009. A JUDGE mason A GENERAL OF WASHINGTON FINDINGS or FACT AND 5 Labor Industries Division eonotusrons or LAW AND JUDGMENT - 1.0 Box _mm Olympia, WA 98504-0121 - (360)586-1107 FAX: (360) 586-7717 PRR-2011-00450 li IO U1 ON 00Presented by: A ROBERT M. MCKENNA Attorney General' WSBA #19657 Assistant Attorney General Copy received, - A Approved as to form and notice of presentation waived: CHRISTOPHER W. BA WSBA 13417 Attorney for Plaintiff PROPOSED Fmpmos oe FAc1iA1\to 5 ATTOMY waermieton CONCLUSIONS on LAW AND IUDGIWENT Olympia, WA 98504-0121 (360) sae-1701 SF-01686 PRR-2011-00450 FAX: (360) sae-vm QHEGQNAE.11 V15-I-1 5 55, tl wit, . SEP oi zona) ii 1 st2'r'r\f J. isciijisfgx 3 IN Tin: SUPERIOR COURT on THE IN AND FOR THE COUNTY OF THURSTON JAMES LORNE SANFORD, a married person, I - Plaintiff, NO. 08-2-01367-4 vs. A JUDY SCHURKE, Director, Depart- ment of Labor and Industries, and the STIPULATION AND ORDER DEPARTMENT OF LABOR AND OF DISMISSAL UPON AGREED INDUSTRIES, and the STATE OF RESOLUTION OF CAUSE OF WASHINGTON ACTION Defendant. STIPULATION THE PARTIES hereto, by and through their attorneys of record, with Michael Hanbey representing the PlaintiH` and John Barnes, Assistant Attorney General, representing the Defendants, hereby enter into a stipulation and agreement as follows: The Defendants shall tender to the Plaintiff; pursuant to RCW 4-256.550, the stun of Ten Thousand Dollars 10,000.00) as and for compensation for failure to fully comply with the requirements of Chapter 42.56 RCW and for attorney fees and costs incurred by the Plaintiff; and The Defendants shall cause the following documents with Bates Stamp Numbers 889 to 984 to he destroyed pursuant to prior administrative agreement of the parties; and Wm. Michael Hanbey, PS STIPULATION Aim OX ORDER ON DISMISSAL 1 Olympia, WA 98507 360-570-1636 Fax 360-570-1593 SF-01687 PRR-2011-00450 42.56 2) Defendants shall cause to be destroyed those pages in the custody ofthe defendants identified With Bates Stamps 889 to 984 and those with Bates Stamps between 574 and 746 which are subject to the administrative agreement ofthe parties; 3) Defendants acknowledge that a diligent search has been made and no file subject to public disclosure held by Steve Cant could be located; PROVIDED, if at a later date such tile or documents are located, the Defendants shall produce such file or documents to the Attorney for the Plaintif W-msn ten (io) days of their discovery and idemiscaaea; This matter shall be dismissed with prejudice on the 15th Day of August 2008 or as soon thereader as the Court may consider this matter. 1 Dated this j' Day of at zoos. Christine A. Pomeroy Christine A. Pomeroy, Judge Department 5 Presented by: Approved as to From, Notice of U, Presentation Waivedff' ff' i961/l/lftfafl Michael I-Ianbey, 7829 hn Barnes, AAG, 19657 Attorney for Plaintiff eAttorney for Defendants Wm. Michael Hanbey, PS at Law PO BOX 2575 ORDER UN DISMISSAL - 3 Olympia, WA 98507 360-570-1636 ax 360-570-1593 SF-01688 PRR-2011-00450 ECEEHVEQ SEP 4 2007 1 RECEIVED FOR FIUNG or THE ATTORNEY GENERAL COUNTY CLERK AL a HEALTH SERVICES Div SEP 1 2 ZUU7 DAVID W, PETERSON STATE OF WASHINGTON KITSAP COUNTY SUPERIOR COURT ERIC A.T. PUGH, 21 ma1`1?iEURd individual, NO. O7-2-00199-1 Plaintiff, STIPULATION AND ORDER v. OF VOLUNTARY DISMIS SAL DEPARTMENT OF SOCIAL and HEALTH SERVICES, an agency of the State of Washington, Defendant. - STIPULATION The parties, by and through their attorneys of record, and pursuant to CR 4l(a), hereby stipulate and agree that all of Plaintiff' claims in the above-captioned matter Shall be dismissed with prejudice and without any costs to either party. DATED this 47" day of september, 2007. ROBERT M. MCKENNA Attorney General H7 in/W' JOHN C. ANDREWS, WSBA #21387 SCOTT T. MIDDLETON, WSBA #37920 Attorney for Plaintiff Assistant Attorney General Attomeys for Defendant 1 ATTORNEY GENERAL OF WASHINGTON 7l4lCl I OF VOLUNTARY DISMISSAL Olympia, WA 93504-Ol 24 (360) 536-5565 SF-01689 PRR-2011-00450 ORDER - Based upon the foregoing stipulation, IT IS HEREBY ORDERED that all of Plaintiffs claims in the above-captioned matter are hereby DISMISSED WITH PREJUDICE and without any costs to either party. DATED this of September, 2007. LEILA MILLS COMMISSIONER Kitsap County Superior Court Presented by: ROBERT M. MCKENNA Attorney General SCOTT T. MIDDLETON, WSBA #37920 Assistant Attorney General Attorney for Defendant Approved for Entry; Notice of Presentation Waived: JOI-IN C. ANDREWS, WSBA #21387 Attorney for Plaintiff STIPULATIQN AND QRDER ATTORNEY GENERAL OF WASHINGTON 714| Cl I SW or VOLUNTARY DISMISSAL Olympia, WA 98504-0 |24 (360) 586-6565 SF-01690 PRR-2011-00450 11231 FAX 360 377 541 BCA 002/003 RECEIVED Fon #zum I KITSAP COUNTY CLERK 2 SEP 1 2 2007 3 AWD W- PETERSON 4 5 6 . STATE on WASHINGTON 7 COUNTY SUPERIOR comm# 3 ERIC Arr. PUGH, a mamad individual, No. 07-2-00199-1 9 Plaintiff; STIPULATION AND ORDER V. OF VOLUNTARY DISIVIIS SAL 10 DEPARTMENT OF SOCIAL and HEALTH 11 SERVICES, an agency ofthe State of Waaliington, 12 Defendant. 13 14 - STIPULATION 15 The parties, by and through their attorneys of record, and pursuant to CR 41(a), I6 hereby stipulate and agree that all of Plaintiffs claims in the above-captioned matter Shall be dismissed with prejudice and without any costs to either party. 17 - DATED this day ot`September, 2007. 1 8 - 19 ROBERT M. MCKENNA Attorney Genera] 20 21 JOHN . ANDR SBA #21387 SCOTT T. MIDDLETON, WSBA #37920 22 Atto for Plaintiff Assistant Attorney General Attorneys for Defendant 23 24 25 26 STIPULA-HON AND ORUER 1 ATTORNEY GENERAL OF WASHINGTON or vourwiuiay Sw Olympit, WA 93504-UI24 (360) $36-5565 F-01 691 PRR-2011-00450 11231 FAX -360 377 5434 BCA 003/003 1 ORDER - Based upon the foregoing stipulation, IT IS HEREBY ORDERED that all of 3 Plaintiff' claims in the above-captioned matter are hereby DISMISSED WITH DICE 2 4 and without any costs to either party. 5 DATED th` I day of September, 2007. 5 LE I LA MILLS 7 COMMISSIONBR 3 Kitsap County Superior Court 9 Presented by: 10 ROBERT M. MCKENNA Attorney General 11 I2 I 3 14 Assistant Attorney General SCOTT T. MIDDLETON, WSBA #37920 Attorney for Defendant 1 5 16 Approved for Entry; Notice of Presentation WaivedANDREW A #212-sv Att . for Plaintiff S-UPUL A1-ION AND QRDER 2 Atroswev GENERAL OF WASHINGTON OF SW Ol?mDi0. WA 93504-0124 (360) 585-6565 SF-01692 PRR-2011-00450 RECEIVE KIISAP FILING NTY CLERK 7 2 2007 STATE OF WASHINGTON KITSAP COUNTY SUPERIOR COURT ERIC AT. PUOH, A married individual, NO. 07-2-00199-1 Plaintifii DECLARATION OP FILING v. FACSIMILE SIGNATURE PAGE - GR I7 DEPARTMENT OF SOCIAL and HEALTH SERVICES, an agency of the State of I 5 . Washington, Defendant. Pursuant to the provisions of GR l-7, I declare as follows: l. I am the party who received the foregoing facsimile transmission for filing and certify that it is on bond paper. 2. My address is: Office of the Attorney General Social Health Services Division P.O. Box 40l24 Olympia, WA 98504-0124 3. My phone number is: (360) 586-6565. 4. The facsimile number where I received the document is: (360) 586-6657. 5. I have examined the foregoing document, determined that it consists of five pages, including this Declaration page, and that it is complete and legible. I certify under penalty Of perjury under the laws of the State of Washington that the above is true and correct. Dated: /77 IA 2007, at Tumwater, Washingtofw Signature( [54 ?45 Print Name: au `e L. Carley ij GR 17 DECLARATIQN ATIORNEY GENERAL OF WASHINGTON 714| Cleanwater Dr SW PO Box 40| 24 Olympia, WA 98504-OI24 (360) 586-6565 SF-01693 PRR-2011-00450 II. ORDER This matter having come before the Court on Stipulation of the parties, it is hereby ordered that Plaintiffs lawsuit is DISMISSED, with prejudice. Costs and fees shall be paid as provided in the settlement agreement DATED r1us_;5Hay of 2009. Com1r1issioner!.Tudge King County Superior Court Presented by: ROBERT M. MCKENNA ERIC WMM 5% Attorney Genera] MAR 2 5 ri A Gower oommregg scorr T. MIDDLETON, WSBA #37920 QNER Assistant Attorney General Attorneys for Defendant DARRELL L. OCHRAN, WSBA #22851 Attorney for Plaintiff STIPQLATIQN URDER QF 2 Arrommr GENERAL or 714 lea Bt-:ix SW Olympia, WA 93504-0124 (360) 586-5555 SF-01694 A - ese -- ia- . 1 certify to be true under penalty of perjury' - Q,,r Under the laws ofthe state that . .. copyott umentto.IMI "qui 3 Signed 1 4 SUPERIOR COURT or WASHINGTON - TN AND FOR TI-TURSTON COUNTY 0 VALERIE L. WITTW A No. 07-2-0l438~9l A Petitioner, A vs. A couRT=s STATE or WASHINGTON, DEPARTMENT oF PUBLIC RECURD ACT SOCIAL AND HEALTH SERVICES PENALTY - Respondent. This opinion addresses penalties for violation ofthe Public Records Act following this court' determination that the department's claim of exemption based on RCW 42.56.23 0(2) Was asserted improperly for most ofthe 243 e-mail strings examined by the court. Violation ofthe Public Records Act vvas declared by the court in an order entered on May 8, 2009, and production of the e-mail declared non-exempt occurred at that time.1 The issue addressednow is the penalty to be imposed for that violation. - - Dr. Witt also seeks determination that the department violated the failing to produce the 902 e-mails whose production was conditionally restrained by Lewis County Judge Brosey on August 9, 2007, and continued by _Judge Hunt on August 31, 2007. The violation alleged 1 The vast maj ority, but not all, ofthe 243 e-mail strings were found to be non-exempt. Throughout, we have used the number 243, although in factit is less than this number. THU COUNTY SUPERIOR COURT - 2000 Lalferidge Dr. S.W. Ophiion re Public Records Act Penalty - 1 i Fax: (360) 754-4060 F-0 'l 69 5 PRR-2011-00450 is the departrnent's failure to produce those eernails when Ms. Big Eagle failed to_post a required bond. I earlier concluded that the only violation of the PRA was the department's claim of exemption for the 243 e@mail strings; and I reaffirm that determination now. The department did not violate the PRA by failing to produce the 902 e-mails while they remained subject to the restraint order. Dr. Witt also asks the court to consider the department's lack of diligence in defending against Ms. Big Eagle's injunction action and the department's failure to produce those records in the absence of the bond when this court is assessing the penalty for violation related to the 243 e-mail strings. have done so, as developed below. . In addition, plaintiff apparently seeks ra determination that the department further violated the PRA by failing to produce the internet history, or log, requested as part of Dr. 'Witt's November 8, 2006 request, until July 2007. declineto enter findings of fact and conclusions of law affirming this last contention for two reasons: First, the issue of the internet log has not been raised before this court until' now. Second, I conclude that the CR 2A Stipulationz dated October 23, 2008, disposes of the issue. In that agreement, the parties stipulated: "The parties agree that this . Agreement shall constitute a full and final resolution of the issues identified above, aswell as any and all potential and possible claims arising therefrom." The agreement identified the issues settled as: "This is an Agreement to resolve outstanding issues arising from Ms. Witt's Petition to Enforce Public Records Request filed on July 20, 2007." As. noted in the agreement, the petition specifically identified the internet log ("internet site visitations") as an issue resolved by the agreement? A The process of determining an appropriate penalty for violation of the PRA is three steps: first is a determination of the number of records affected by the violation, second is a calculation of the number of days the record or records were wrongfully withheld, _and third is selection of a per diem penalty between $5 and $100. address each in turn. I A 2 So titled, but called an Agreement in the body ofthe document. 3 . . The violation ofthe PRA asserted regarding internet history is delay_ in producing that record, not that any portion of it was wrongfully withheld. If the CR 2A Stipulation did not exist, this claim of delay in producing the internet log could support payment of costs and fees or could be considered as an aggravating factor for penalties assessed for wrongfully withholding production of the e-mail record. It couldnot, however, support a claim for a second award of penalty independent of the award related to the _e-mail record. CQUNTY SUPERIOR COURT . 2000 Lakeridge Dr. S.W. CoLu't's Qpinion re Public_Records Act Penalty - 2 A - . Fax! (360) 754-4050 SF-01696 PRR-2011-00450 I findthat Dr. Witt's PRA request of November 8, 2006, requested documents_ from Ms. Big - Eagle's computer in three categories: Correspondence, internet history, and e-mails. The departmentfs response to the PRA request, dated November 15, 2006, confirms the department'S interpretation of Dr. Witt's request, and that interpretation has never been challenged. I find that the three categories of records were saved on Ms. Big Eagle's computer as of computer files stored in different parts (directories) of the computer hard drive. Of the three, only the e-mails remain at_issue. In the circumstance 'presented here the PRA and appellate cases addressing this issue permit a trial court discretion in determining whethereach e-mail (or e-mail string) is a separate public record or whether the e-mails as a group should be considered a single public record. The choice is goverhedby a number of .factors. Here I conclude for purposes of determining penalty that there is a single record comprised of all 243 e-mail strings. The conclusion is based on my findings regarding the following factors: I I 0 'All e-mails were from a single author to a single recipient. . 0 Although many of the e'-mails encompassed several subjects or were_ strings developed from initial e-mails coveringseveral subjects, those parts claimed exempt and challenged here all addressed a single general category of information - the personal relationship between author and recipientWithholding of the challengedtredactions was based on a single statutory exemption? I The court's basis for finding the claim of exemption wrongful was uniform across alle- mails wrongfully withl1eld.5 I I Based on these findings, li conclude that the department wrongfully withheld one public record encompassing all e-mails. - i Having concluded that one public record .was wrongfully withheld, I next address the number of days it was withheld, for purposes of assessing the penalty. find that it took There was thousands of additional redacticns based on different exemptions, but these were not challenged. 5 The basis can be characterized as a departure from the ibierino decision. The public interest is the amount of time and effort a public employee was devoting to a personal relationship embedded within apparently appropriate communication with another public employee. 4 i . THURSTON COUNTY sursnron counr 2000 Lakeridge Dr. S.W. - Courtis Opinion re Public Records Act Penalty 3 Fax: (350) 754-4060 SF-01697 I PRR-2011-00450 approximately two weeks to retrieve the_ e-mails stored on Ms.. Big Eagle's computer. Following that retrieval, I find that the department took a substantial period of time to review the e-mails for exemptions and to redact material exempt under the PRA. I find that given the nature of Ms. Big Eagle's job, the e-mails associated with her duties necessarily entailed significant parts exempt from production by a number of recognized exemptions in addition to RCW I find that many of the e-mails constituted e-mail strings with many levels of response that refer to earlier parts of the string. I find that all 4,680 e-mails produced by the department contained at least one claim of exemption fiom six different exemption statutes. In nearly every instance, the passage containing the claimed exemption was redacted, _andthe e-mail was produced as redacted. I-find that after Dr. Witt received the redacted e-mails and reviewed the claims of exemption, she challenged only the ?.230(2) claims of exemption, comprising 243 e-mails. The claims of A exemption for the other 4,437 e-mails comprising 90 percent of the total were not challenged. A penalty authorized by RCW 42.5 6.550(4) is triggered by a wrongful denial of the right to inspect or copy the requested public record.'A finding fixing the date when the wrongful denial occurred is important for two reasons. First, the calculation of the number of days towhich a per diem penalty applies is measured from the wrongful denial. As provided in RCW 42.56.510 and .5 50(2), an agency is permitted a reasonable time to respond to a PRA request. Thus it is that ?.55 0(4) provides a per diem penalty for each day thatthe right of inspection or copying was wrongfully denied, not each day that a request was pending. So to comply with the plain meaning of ?.550, a court must determinethe date when the denial occurred and calculate days of penalty fiom that date. At closing, counsel for Witt identified' 91 penalty days, but that figure is calculated back to the date- of the request, not the date of denial. The statute, does not identify the date of the request as the date for calculating the penalty, and no appellate decision has used that date. Two appellate decisions, I'otis_oufic'z1i I 'and Koenig v. City of Des Moines, have held . that a court may not reduce the /number of days required for the penalty assessment, and -both _decisions identified the date of denial as part of the equation. - THIms"roN COUNTY SUPERIOR COURT 2000 Lamiage or. sw. - - I Olympia, WA 98502 Court Opinion re Public Records Act Penalty 4 (360) 7095560 Fax: (360) 754-4060 - SF-01698 I I PRR-2011-00450 Dr. Witt argues here that the date when the improperly redacted records were produced for her was unreasonably "delayed, A court may consider that contention, but I conclude that the only consideration would be as an aggravating 'factor in fixing the amount of the_ per diem penalty, not increasing the number of days in the formulafor calculating the total penalty. Thus the second reason to fix the date of denial is to determine if that date was so unreasonably delayed that the per diem penalty should be increased, . . I find that the date of denialwas July 23, 2007. On that _date the department had completed its claim of exemptions and was prepared to produce non-exempt records. However, the department did not immediately communicate its decision to Dr. Witt because of the prospect of Ms.- Big Eagle's injunction action; nevertheless, the department's decision was made on or about July 23, 2007. There are 655 days between July 23, 2007, and May 8, 2009. I conclude that 655'days is the correct number to use in calculating the penalty_ provided in 50(4) i ousoufian II identifies the consideration a trial court- should undertake to determine an appropriate per diempenalty. There are four broad considerations - good faith/ bad~ faith, economic loss, intransigence, and deterrence -followed by I6 specific factors.6 have considered each and make finding on theiapplicable ones. The facts here are not so compelling that they require a finding of good faith, bad faith, or lack of either good or bad faith. A finding of bad faith is not necessary to impose a penalty, and a finding of good faith would not insulate the department from a penalty. Here the department's careful consideration ofthe privacy issue and the scope of the Tiberino decision suggests a good faith approach; but the delay in responding and the deference granted to Ms. Big Eagle suggests bad faith. Neither view is sufficient to support a finding. I 0 Economic loss to Dr. Witt is a relevant consideration urged by her counsel. However, the loss is tied to the settlement she made in her tort case and is highly speculative. Furthermore, the department' public records- officers all testified they did not know about Dr. Witt's tort case when responding to the PRA request. Dr. iwia responds to this contention only with skepticism, not . 6 The four broad considerations, discussed at greater length in Yousoufian II, are included in the 16 listed factors. THURSTON COUNTY SUPERIOR COURT . 2000 Lakeridge nr. sw. - - - Olympia, WA 98502 A Court Opinion re Public Records Act Penalty 5 (360) 7095560 Fax: (360) 754-4060 A SF-01699 PRR-2011-00450 impeaching evidence. Finally, consideration of economic loss in this case (if proved and if foreseeable) raises an important issue about therelationship between litigation discovery and PRA requests. It is clear that many litigators view the PRA as a less 'expensive altemative to discovery in litigation. Nevertheless, parties using the PRA as a substitutefor discovery should recognize that they are different tools created for different purposes. PRA penalty is not a tool for enforcing- litigation discovery transgressions. - i Deterrence is an additional goal to be considered here. The law does not contemplate an agency actively protecting the interest of an affected third person, eacept by either notifying that person pursuant to RCW by asserting an exemption available to the agency. Here the department went beyond simple notification to Ms. Big Eagle. The facts establish that this PRA request, receivednby the department on November 9, 2006,~iwas held for response until the_ department had completed the entirety of its review andthen permitted Ms. Big Eagle to complete her review on her schedule. More than nine months intervened, during which no records were produced for Dr. Witt. This PRA request could have and should have been the subject of an installment disclosure.-' All_ of the records were gathered in about two weeks; the delay in response' was occasioned by a very substantial exemption _and redaction process,one'that Judge Hicks found prima facie reasonable. Nevertheless, that process was very _linear. The e-mails were organized by date, and the subject matter_ in the e-mails tracked a dependency case (and personal relationship). that was also_ very linear. There is not smoking gun quality evidence showing a conspiracy between the department and Ms. Big Eagle, but the evidence does compel an inference that the department unreasonably delayed response in order to accommodate Ms. Big Eagle. In doing so it elevated the interest of its employee over the interest of a citizen. The PRA does not permit that. No statute or appellate decision specifically directs an agency in this regard, _so in determining an appropriate penalty, any enhancement for this failure is better treated as a deterrence rather than retribution. A 7 The record here does not include details of the department's installment response history in PRA cases. However, this court has considered such of volume cases involving state agencies that I can notice that by 2007 most state agencies, including the department, were responding to large volume PRA requests using installments. rHUnsroN SUPERIOR Count . 2000 Lakeridge Dr. S.W. - - - Olympia, WA 98502 Cotut Opinion re Public Records Act Penalty 6 (360) 7096560 - . . 1 rex; (seo) 7544060 PRR-2011-00450 Accordingly I have considered this an enhancement, but almodest enhancement designed to call attention to the agency's duty and make sure it will not happen again. I Cf the specific mitigation factors identified in Yousoujiczn II, numbers 4 and 5 are most applicable. The department clearly had adequately trained and supervised personnel responding. They enlisted supervisors and legal counsel in consideration of the Tiberino decision. Their' explanation of their claim for exemption was -reasonable_even if ultimately not convincing. There are few significant aggravating factors present in this case. Certainly, the time spent preparing the departmentfs response was considerable and should havebeen done by installments. .Butbalanced against this _Was the fact that 'there were 4,6 80. e-mails with one or more of six different exemptions in every elmail. Of those all but a small fraction were produced with I redactions; and ultimately only 423 were challenged and mostly .disallowed Iudge Hicks found the time toirespond prima facie reasonable, as at preliminary matter. Nothing in this record convinces me that the department's response was so unreasonable as to require a substantial aggravating enhancementDr. Witt contends that_ the departrnent's failure to actively contest Ms. Big Eagle's - restraining order and to actively monitor her compliance with the bonding requirement of that order is an aggravating factor compelling an enhanced pe_nalty. I disagree. I find that the department's 4 counsel appeared in court and resisted the restraint. I conclude that the depaitmenfs responsibility here is limited to that role. It is the obligation of the party seeking restraint protection to give notice to the requestor; it is not the responsibility of the agency. I find that Dr. Witt had notice ofthe - A I Lewis County action and appeared there by counsel. I conclude that a requestor with notice has the primary responsibility to monitor compliance by the protected party with bonding conditions in a restraint order. The PRA does not shift that responsibility to the agency. A Finally I considered the language of Yozisoujian II aggravation factor number (1), 'fa delayed response, especially in circumstancesmaking time of the essence". The argument that time was of the essence here is that Dr. Witt's decision to substitute the PRA process for litigation discovery TI-IURST ON COUNTY SUPERIOR COURT 2000 Lal-:ericlge Dr. S.W. Court's Opinion re Public Records Act Penalty - 7 Fax! (360) 754-4060 F-01 701 PRR-2011-00450 '1 prejudiced her prospects in litigatio_n and therefore warrants an enhanced penalty. I disagree. I conclude that this factor doesnot contemplate that result. i Considering the findings and conclusions discussed aboye, I conclude that a per diem penalty of $15 is reasonable and warranted. There is one public record, 655 days, and a $15 per diem penalty. The total penalty is $9,825. Dr. Witt is also entitled to recover her costs and attorney fees. I adjudge her 'to be the ,prevailing party and so assign her primary responsibility for preparation of concluding court documents. I will direct that court personnel calendar this matter - for presentation on May 20, 2011, on the regular Friday motion calendar. I Date: iApril 13, 2011 5' Thomas McPhee, Judge TI-IURSTON COUNTY SUPERIOR COURT I 2000 Lakeridge Dr. S.W. Court's Opinion re Public Records Act Penalty - 8 Fax: (360) 754-4060 SF-01702 PRR-2011-00450 STATE OF WASHINGTON KING COUNTY SUPERIOR COURT CITIZENS OR SUSTAINABLE NO. 10-2-21751-7 SEA DEVELOPMENT, . Plaintifii SETTLEMENT AGREEMENT v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, Defendant. Defendant, State of Washington, Department of Ecology (Ecology), represented by Robert M. McKenna, Attorney General and Katharine G. Shirey, Assistant Attorney General, and Plaintiff, Citizens for Sustainable Development (CSD), represented by DeWelle Ellsworth hereby agree that this Settlement Agreement (Agreement) is a full and final settlement of the above-referenced law suit. I. BACKGROUND 1. Beginning on April 30, 2009, CSD submitted the 'following public records requests (Requests) to Ecology (as identified by. CSD in his First lnterrogatories and Request for Production of Documents; the times listed below do not always match the times Shown on Ecology's documents): 1. June 2, 2010 7:38 pm 2. May 28 2010 8:43 pm 3. May 27, 2010 9:48 pm 4. May 24, 2010 6:29 pm 5. May 19, 2010 3:01 pm 6. May 17, 2010 2:09 pm 7. May 17, 2010 4:39 pm 8. May 10, 2010 11:44 am 9. April 21, 2010 10:20 pm 10. April 20, 2010 5:29 pm AGREEMENT - 1 SF-01703 PRR-2011 -00450 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 586~6760 April 16, 2010 2:45 pm April 16,2010 2:32 April 15, 2010 9:15 pm February 5, 2010 12: 12 pm January 29, 2010 7:30 pm November 24, 2009 4:46 pm November 6, 2009 2:00 pm September 17, 2009 10:54 pm July 30, 2009 8:03 pm June 30, 2009 6:59 pm June 19, 2009 3:03 May 20, 2009 5:58 pm May 20, 2009 12:25 am May 19, 2009 12:21 pm May 14, 2009 12:03 pm May 11, 200910:21p1n May 8, 2009 5:25 am May 8, 2009 5:44 pm May 8, 2009 3:58 am May 6, 2009 12:17 pm May 6, 2009 10:01 pm May 6, 2009 12:56 am May 1, 20091:56 am 2. On June 18, 2010, CSD filed this law suit against Ecology, claiming Ecology violated the Public Records Act in responding to these Requests. 3. Ecology and CSD have agreed to resolve this law suit through the settlement outlined below. SETTLEMENT AGREEMENT The parties wish to avoid the time and cost of further litigation of this matter and therefore, Without admitting fault or liability, stipulate and agree as follows: A. SCOPE This Agreement constitutes the entire agreement between the parties to this law suit and settles all issues raised therein. SETTLEMENT AGREEMENT 2 ATTORNEY WASHINGTON Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 586-6750 F-0 704 PRR-2011-00450 iRESOLUTION OF LAW SUIT 1. Cash Payment . Ecology agrees to pay CSD's reasonable attorney's fees in the amount of $150,000. Within 14days after dismissal of this law suit, Ecology will provide Mr. Ellsworth with a certified checkin the amount of $75,000.00 Ecology will provide a second certified check in the amount of $75,000.00 between January 10, 2012 and January 20, 2012. In addition, Ecology agrees to pay a penalty under the Public Records Act of $93,000.00 This payment will be made within 14days after dismissal of this law suit. Ecology shall-send the payments to: DeWelle Ellsworth i Ellsworth Law Firm 701 Fifth Avenue, Suite 6550 Seattle, Washington 98104 2. Other Obligations a. Further Searches for Documents (1) As described in Appendix A to this Agreement, Ecology agrees to conduct reasonable, good-faith searches, compliant with the Public Records Act, to find any additional records responsive to CSD's Requests Noslisted in paragraph 1.1 above, and to provide those records to CSD. The parties acknowledge that the scope of documents requested in Appendix A is in some instances broader than the scope of documents responsive to the Requests at issue in this case. However, Ecology 'agrees to provide the documents as part of this Agreement in an effort to ensure that CSD obtains the documents it needs. CSD aclcnowledgesthat Appendix A encompasses many different types of documents and' will require searches by many staff members in many different Ecology programs, and that conducting the searches and providing the documents will take time. SETTLEMENT AGREEMENT 3 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 401 17 A Olympia, WA 98504-0117 FAX (360) 586-6760 SF-01705 PRR-2011-00450 l\J .BLD (2) Because Ecology did not keep records of which records it has already provided to CSD and therefore has no way of ascertaining whether or not a given record has already been provided, it will provide all responsive records regardless of whether or not they may have been previously provided, EXCEPT that any records provided to CSD which Ecology did keep records of and which Ecology can confirm having provided need not be re-provided. A (3) Ecology agrees to make the provision of documents as required by this Agreement a priority. Ecology agrees to provide to CSD all documents found pursuant to its obligations in the preceding paragraph as quickly as possible, with the goal of providing all additional responsive documents within 90 days of the effective date of this Agreement. Ecology will provide documents in weekly installments, each Monday as documents are located and retrieved. lf CSD is -dissatisfied with Ecology's diligence in providing documents, CSD may file a lawsuit to enforce this Agreement, but only after invoking the dispute resolution process outlined in paragraph (9) below. (4) 1 Ecology may provide a direct hotlink to any responsive records that are available online rather than producing the documents themselves. Any such link shall be accompanied by the title, date, and, if the record is on Ecology's website, the length of the record. (5) Records that exist at Ecology in their native electronic format will be provided in their native electronic format along with their associatedmetadata. "Native format" means "The default (normal) format used by a specific software application in the creation or publication of a file." If any responsive electronic record does not exist in its native electronic format but does exist in some other electronic format, it will be provided in the latter format. Ecology will produce responsive email strings in either .pst format or .msg format, but not any other electronic format unless they cannot be produced in .pst or .msg format. If any responsive email strings are provided in .msg format by forwarding them as attachments to an email string, they will first be zipped into one or more files. SETTLEMENT AGREEMENT 4 ATTORNEY GENERAL OF WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-0117 FAX (360) 586-6760 SF-01706 PRR-2011-00450 (6) Ecology will, at its discretion, either identify or scan and produce at no charge any responsive records that exist solely in paper or some other non-electronic format. Identification shall include: (A) identify the person (by name, title, and department) who originated or prepared the record; (B) state the date of the record if it is dated or the date when it was prepared; (C) describe the type of record; (D) if the record is a letter, email string, or other missive, identify the person(s) to whom was sent (by name, title, and department); summarize its contents; (F) state the subject line, if applicable; (G) identify the program or section from which it originated; (H) identify the format it exists in g. microfiche, etc.); (I) if the record exists only in paper format, describe the weight and dimensions of the paper on which it is printed; (J) state the number of its pages. CSD will review the identifications provided by Ecology, and have the option of requesting copies or scans of them. Ecology will provide copies or scans of documents requested within 21 days of any such request. Any records scanned and provided by Ecology will be scanned -one-by-one (as opposed to multiple records being scanned to a single file). For example, if a given record (existing only in paper format) is 15 pages long, it will be scamied and provided as a 15-page .pdf file, and the scan will not be combined with another record. Ecology agrees that if CSD requests copies or scans of records, the scanning/copying prices_ available to Ecology will be available to CSD under the Copy Services Contract with Office Max, Office Depot, etc.) and Ecology will Work in good faith with CSD to obtain the lowest prices possible. (7) Ecology and CSD agree to 'work cooperatively to ensure that the obligations under Section of this Agreement- are met. To that end, Ecology will designate an Ecology staff member who will be the primary point of contact, and who will Work with CSD to answer any questions CSD may have and to raise any questions that Ecology may have. To that end, also, Mr. Ellsworth Will be available by telephone to discuss requests and answer questions. AGREEMENT 5 ATTORNEY GENERAL or WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-01 17 FAX (360) 536-6760 SF-01707 PRR-2011-00450 (8) lf Ecology contends that any responsive record is exempt trom disclosure in Whole or in part, it shall comply with the PRA in identifying and describing each record and the basis for redacting/withholding it, e.g. it will identify the person who created it_and the person(s) who received it (by name, title, department, and agency), cite the statutory basis for withholding or redacting it, and provide an explanation of how the claimed exemption applies in a redaction/exemption log that complies with the PRA and allows CSD to make a threshold determination of whether the claimed exemption applies. CSD may contest Ecology exemptions and redactions in a law suit under the Public Records Act, but only after invoking the dispute resolution process outlined in paragraph (9) below. And CSD may contest the adequacy of Ecology's search for responsive records in a law suit to enforce this Agreement, but only after invoking the dispute resolution process outlined in paragraph (9) below. (9) In the event a dispute arises concerning the scope of a Request, whether or not a search was inadequate, Whether or not further documents should be provided, Public Records Act exemptions or redactions claimed by Ecology, or charges for providing documents, the Parties shall use the dispute resolution procedure set forth below. a. If CSD believes an Ecology search was inadequate and further documents should be provided, or contests any Ecology exemptions or redactions of documents, CSD will raise the concern to Ecology at the time it arises. CSD must raise such a concern no later than 30 days after 1'eceipt of the exemption log or of notice that a Search is complete and all documents have been provided in response to- a particular enumerated Request in Appendix A to this Agreement.. If no such notice is received from CSD, the Request will be deemed to have been satisfied. HOWEVER, if subsequent documents provided to CSD lead CSD to believe additional documentsexist that are responsive to requests previously deemed to have been satisfied, CSD may reopen the request by raising that issue with Ecology. All claims that an Ecology search was inadequate, that further documents should be provided, or that Ecology incorrectly exempted or redacted documents must be made no later than 30 days after CSD SETTLEMENT AGREEMENT 6 GENERAL OF WASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-01 i7 FAX (360) 586-6760 SF-01708 PRR-2011-00450 receives notification from Ecology that all searches covered in this Agreement have been made, and all documents provided. b. Within 5 days of receipt of notice from CSD's concerns, Ecology will set up a conference with CSD to discuss CSD's concerns and exchange information in an effort to resolve the dispute. The conference will include CSD, Ecology's primary point of contact, and at least one Ecology staff member with particular expertise in the subject area of the disputed materials. c. lf the' Parties are unable to resolve the dispute through the conference described above, Ecology's primary' point of Contact will immediately raise the_ issue to Ecology management. Ecology management Will, Within 5 days of notice of an unresolved dispute, set up another conference with CSD, the relevant Ecology subject matter stafi and Ecology counsel, to Work at resolving the disputed issues. A d. If the Parties are still unable to resolve the dispute, the Parties agree to enter into mediation with an outside third party mediator agreeable to both parties. Mediation to be completed within 30 days ofthe date the need for mediation arose. e. The Parties agree to only use the dispute resolution process in good faith.and agree to expedite, to the extent possible, the dispute resolution process Whenever it is used. (10) lf Ecology determines that records responsive to any of the Requests listed in section lI.B.2.a.(l) above have been destroyed since the submission of CSD's requests Ecology will identify the record in the manner' laid out in paragraph (6) above to the best of its ability. (ll) Ecology will interpret CSD's Requests in an expansive manner in order to retrieve all possibly _responsive records. If Ecology is uncertain about the scope of what CSD has requested, Ecology will ask for clarification, and CSD will provide clarification as necessary. Ecology will not unilaterally interpret CSD's requests in a restrictive manner when a more expansive interpretation would produce more records than a restrictive interpretation. SETTLEMENT AGREEMENT 7 ATTORNEY GENERAL os WASHINGTON Ecology Division PO BOX 401 17 Olympia, WA 98504-0117 FAX (360) S86-6760 SF-01709 PRR-2011-00450 (12) Any documents provided under this Agreement will not serve 'as the basis for further penalties or law suits under the Public Records Act. b. Dismissal of Law Suit Ecology and CSD agree to, on the effective date of this Agreement, file a stipulated motion asking the King County Superior Court to dismiss this case with prejudice based upon a full and final settlement having been reached. C. VENUE The Parties agree that the venue for any judicial action to enforce this Agreement shall be in King County Superior Court. D. EFFECTIVE DATE This Agreement shall become effective upon the date upon which it has been signed by both parties. E. SIGNATORIES AUTHORIZED The undersigned representatives for Ecology and CSD certify that they are fully authorized by the party Whom they represent to enter into the terms and conditions of this Agreement and to legally bind such party thereto. F. EXECUTIGN This document may be executed in counterparts and may be executed by facsimile, and each executed counterpart shall have the same force and effect as the original instrument. A SETTLEMENT AGREEBQENT 3 ATTORNEY GENERAL or WASHINGTON Ecology Division PO Box 40l I7 Olympia, WA 98504-0117 FAX (3 60) 586-6760 SF-01710 PRR-2011-00450 L40 -|STATE OF WASHINGTON CITIZENS FOR SUSTAINABLE DEPARTMENT OF ECOLOGY DEVELOPMENT E0/l/i/bg# Leo/ foam: ?2 fs/~ Polly Ze Lewis Roane Deputy Director President, Citizens for Sustainable Washington State Department of Development Ecology Dated: Q- 2-0' I Dated: 9 ff ROBERT M. MCKENNA ELLS WORTH LAW FIRM Atto ey General I A (OF - harine G. Shirey WSBA 5 736 DeWe1le Ellsworth 3rd WSBA 34727 Assistant Attorney General Attorney for Appellant Attorneys for Respondent (206) 622-3536 (360) 586-6769 Dated: 11 A Dated: 9 74 if SETTLEMENT AGREEMENT 9 Arronnsv GENEML or WASHINGTON SF-01711 PRR-2011-00450 Ecology Division PO Box 401 17 Olympia, WA 98504-0117 FAX (360) 526-6760 in, JAN nm sunsainn count nsrn/ J. ootitn THE HONORABLE PAULA CASEY STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT STEPHEN GRAHAM, an NO. 09-02-02045-8 individual, STIPULATION AND Plaintifi ORDER OF DISMISSAL V. STATE OF WASHINGTON, DEPARTMENT OF FISH AND WILDLIFE, Defendant. Plaintiff Stephen Graham and the Defendant State of Washington, Department of Fish and Wildlife, acting by and through Robert M. McKenna, Attorney General, James R. Schwartz, Assistant Attorney General, and Jessica E. ogel, Assistant Attorney General, hereby stipulate to the following: l. That upon execution of this Stipulation and Order, Defendant State of Washington Department of Fish and Wildlife will waive the work product privilege and release the following records STIPULATION AND QRDER 01: 1 GENERAL or wAsH1No'roN 1125 if fi si isn DISWSSAL P53523 2310566 9350443100 (360) 753-6200 oo sF qa ;n SFi7n i oo 2o11-oo45o previously Withheld in response to Grahanfs request for public records, dated July 6, 2009: a) E-mail from Todd Vandivert to Paul Golden, cc to Ed Volz and James Brown, dated March l9, 2009, Subj ect: Page trial b) E-mail from Lori Preuss to Mike Cenci, cc to Paul Golden, Bruce Bjork, Todd Vandivert, and Ed Volz, dated March 20, 2009, Subject: Bear gallbladder case in Ferry County CONFIDENTIAL c) E-mail from Todd Vandivert to Paul Golden and Ed Volz, dated March '25, 2009, Subject: RE: Bear gallbladder case in Ferry County CONFIDENTIAL d) E-mail from Paul Golden to Todd Vandivert and Ed Volz, cc to Mike Cenci, dated March 25, 2009, Subject: RE: Bear gallbladder case in Ferry County CONFIDENTIAL e) E-mail from Lori Preuss to Todd Vandivert and Ed Volz, cc to Chris Anderson and James Erovyn, dated March 30, 2009, Subject: Page case -- Sandona says to go for it I) E-mail from Lori Preuss to Paul Golden, cc to Ed Volz and Todd Vandivert, dated March 30, 2009, Subject: RE: Page case -- Sandona says to go for it g) E-mail from Paul Golden to Lori Preuss, cc to Ed Volz and Todd Vandivert, dated March 30, 2009, Subject: RE: Page ease -- Sandona says to go for it h) Correspondence from Paul Golden to Ed Volz, dated March 23, 2009, Subject: Weekly Report STIPULATION AND ORDER or 2 GENERAL UF WASHINGTON DISMISSAL olympia, WA 98504-0100 (360) 753-6200 SF-01713 PRR-2011-00450 1@f$5 5Ei'3??5El5?l5 LAW UFC CIF GFQAHAEYI PAGE El 1 2. That the abox/e~entit1ed action shall be dismissed with prejudice 2 and Without costs or fees, this matter having been fully settled and 3 compromised between the Plaintiff and Defendant State of 4 Washington. 5 6 DATED this 5441 day ofxaauafy, 2010. 7 ROBERT M. MCKENNA PLAINTIFF 8 Attorney General ames R. sahwam, WSBA 1 68 stephen Graham, WSBA #25403 Assistant Attorney General Plaintiff 13 14 15 Jessi E. Fogel, SBA #36846 16 Assistant Attorney General 17 Attorneys for Defendant State of Washington STIPU LATION AND ORDER OF 3 ATTORNEY or WASHING low 1125 mn sa DISMISSAL ,sa1ss.se' Olympia, WA 98504-0100 (3601 753-6200 SF-01714 PRR-2011-00450 13:31 Lffalal UFC UF GRAHAM PAGE E11 1 2 THIS MATTER having come before the undersigned judge of the 3 above-entitled Court, based on the foregoing stipulation, now, therefore, 4 IT IS HEREBY ORDERED That the above action against the 5 Defendant State of Washington Department of Fish and Wildlife is 6 dismissed With prejudice and Without costs or attorney fees to any party, 7 DONE IN OPEN COURT this day of January, 2010, 3 canoi. Muaenv 9 10 Tl Thurston County Superior Court udcfe ll 12 Presented by: Approved as to Form and 13 Notice of Presentation Waived: 14 ROBERT M. MCKENNA PLAINTIFF 15 Attorney General /14211 18 ames R. Schwartz, WSBA 0168 Stephen Graham, WSBA #25403 A Assistant Attorney General Plaintiff 1 20 21 Di' Jessie E. Fogcl, BA #3 6846 Assistant Attorney General 23 Attorneys for Defendant 24 25 26 22 STIPULATION AND ORDER OF 4 oaNsRA1, or# w/vs: l|25 r' stem so oaympia, WA 98504-0| 00 (360) vsa~6200 SF-01715 PRR-2011-00450 SETTLEMENT AGREEMENT This Settlement ("Agree1nent"), effective the date ofthe last signature below, is entered into by (1) SAN JOSE STATE UNIVERSITY RESEARCH OUNDATION, a California non-profit corporation (2) H. GARY GREENE, an individual ("Greene"); (3) JAMES W. SLOCOMB, an individual ("Sloco1nb"); and (4) the State of Department of Fish and Wildlife 1- was l.l Slocomb submitted to WDFW a public records request, dated December ll, 2006, regarding certain high resolution multi-beam bathymetric data for San Juan County, which he believed was in the possession of WDFW. A copy of the request is attached as Exhibit A (the "Request"). WDP provided notice to Greene and the Foundation ofthe request. I 1.2 The Foundation and Greene tiled a complaint against the WDFW and Slocoinb, dated April 11, 2007, in King County Superior Court, Case No. 07-2-11793-8 SEA (the "LaWsuit"), alleging that the requested data was exempt from disclosure. 1.3 Greene, Sloconib, WDFW and the Foundation (the "Paities") have reached disp`i1te`b`etWeei'i tliiein arising out of the' Lavvsuiit, as expressly provided in this Agreement and the accompanying License Agreement described herein. i 2. Terms and Conditions NOW, THEREFORE, in consideration ofthe mutual promises set forth herein, the Parties hereby agree ?s follows: I ORIGINAL, SF-01716 PRR-2011-00450 2.1 WDFW, with the consent of'Greene and the Foundation, will provide a copy to Slocomb ofthe data in its possession that is responsive to the Request Data"). Slocomb will pay to WDF whatever standard duplication cost that WDP would charge to fill a public records request for this data, should WDFW so require. 2.2 Slocomb will accept the WDFW Data subject to the terms ofa license for use, attached as Exhibit ("License Slocomb agrees that his acceptance ofthe WDFW Data subject to the terms ofthe License Agreement satisfies the Request, as Well as subsequent requests, if any, for the same data. 2.3 The Parties stipulate to dismissal of the Lawsuit as provided in the stipulation attached as Exhibit C, with each party to bear its own fees, costs and expenses. 2.4. Each person signing below, if acting onlbehalf of an entity, warrants that he or she has authority to sign on behalf of his or her principal. 2.5. The Parties have participated in drafting this Agreement, and the Agreement shall not be interpreted for or against either party on the ground it was drafted by any one party. 2.6. This Agreement is made in Washington State and is governed by Washington law. Any dispute arising from this Agreement shall be brought in, and subject to exclusive venue and jurisdiction in, the Superior Court of the State ofwashington, County of King. I 2.7 Except as provided herein and in the accompanying License Agreement, the parties release one another and their respective officers, directors, employees, agents, reinsurers, parents, affiliates, successors, and attorneys from any claims that were brought in the Lawsuit. 2 SF-01717 PRR-2011-00450 2,8 This Agreenlent is a settlement of disputed claims and shall not have precedential value 01' be interpreted as a determination that the WDFW Data is either disclosable or exempt under the Public Records Act. DATED this day of 2009. SAN JOSE STATE UNIVERSITY RESEARCH FOUNDATION Its DATED this day of Qi ,2oo9. - 4 AT GTON DE TMENT os F151-1 AND By fi#/6 Kawai DATED this day of 2009. DATED this day of 2009. Its A 1` sVEURg/by 5:6 LW 3 SF-01718 PRR-2011-00450 2.8 This Agreement is a s@tt1e1nOnt of disputed. claims and shall not have p1'ecede11tia1 value or be interpreted as a detelminaflon that the WDFW Data is either disolosabla or exempt Public Records Act. DATED this 3 day of 2009. SAN JOSE TATE UNIVERSITY RESEARCH FOUNDATION By Jerri Carmo Its fficer DATED this day of 2009. STATE OF WASHINGTON DEPARTMENT OF E131-T AND WILDLIFE IE DATED This day of 2009. E. GARY GREENE, DATED this day of 2009. JAMES W. SLOCOMB 3 . SF-01719 PRR-2011-00450 25:32 4394259345 GREENE PQGE E4 2.8 This Agreement is Setilement of disputed elaime and she!! not have value or be interpreted as determination that the WDFW Data is either disolosable Or exempt under the Public Records Act. A DATED mis Say Sf 2009. SAN JOSE STATE UNIVERSITY . RESEARCH FOUNDATION Its DATED this day of .2oo9. STATE OF WASHINGTON DEPARTMENT OF FISH AND WILDLIFE Its DATED this day of raw -I N, fy- - ENE EE. DATED this day of ,2009 JAMES w. 3 SF-01720 PRR-2011-00450 ., 2.8 This Agreement is a settlement of disputed claims and shall not have precedential value or be interpreted as a detenniuation that the WDFW Data is either disclosable or exempt - tmder. the Public Records Act. this day of 0 2009. SANJOSE STATE UNIVERSITY RESEARCH FOUNDATION Its DATED this day of ,2oo9. 0 I A A Grow DE TMENT os FISH AND WILDLIFE By 655/9a<" Its A 1` DATED this day of 2009. H. GARY GREENE, DATED this day of M, All 5 co1\/Is 3 SF-01721 PRR-2011-00450 Il SF-01722 PRR-2011-00450 Request fer Public Electronic Records pursuant to 42.56 December 11, zoos Requestor Information; James W. Slocomb PO 651 Friday Harb or, WA 98250 I do not have a telephone: Records requested; The high resoiution multi-beam bathymetryafor San Juan County and the immediate surrounding area. The specific area requested is shown in the map attached as Attachment As 7 - Purpose for which the information is requested; The data will be used for GIS mapping related' to the Marine Stewardship Area project 'of the San Juan County Marine Resources Committee. Requested form of records; Theelectronic digitai form known as an grid" is the requested form; I believe this to be the same form used by WDFW sothere should be minimal, if any, conversion cost. Requested spatial resolution resolution oi' records; This request is specifically for the high resoiution digital form. High resolution means 'the maximum resolution' possessed hy WDFW. Method of Delivery; - hose are very large digitai data sets. I propose to provide to WDFW a very high capacity portable computer hard drive so that the requested records can simply be copied to the drive. The drive will be-a blank formatted drive when you get it and' you are expected to subject it to what ever computer security checks are deemed necessary by your computer system administrator. This drive will be made available at a time and piace of your choosing. Costs; . This request hasbeen designed to minimize cost and administration overhead. Any charges necessary can be paid bypersonal check, check, money order, or credit card. Please let me know which is fi- preferable. Thank you for your attention to this matter. - James W. Slocomb C:\Documents and Settings\turcocmt\Locai SF-01723 PRR-2011-00450 Attach ment A af B~athyme'try San Juan County and Immediate Surrounding Area ja 'H?nui "_Th -vm .iyifl ..-.3 1 if," guy;-` I- 'gill 1953Iii:-n_f _.vin _gl ,gg 1 -14-"-FF -3, 313| 3-'gg _:Egg :Era ig/,4.-: _.:fa-yi'-E -'xr r?n'g'E" fini 'rlia-g - - i 1 1 ;_nLrLi d"_3 FRVQ 11:Uv 'Que 5 fig. fl-ft' _#if 5 . -Ii" . _ifilyiig .p .2 x. FL _gy iff? ti# 5 - 35| (lr -\JIf.51\u, *l . ,gr if Tic'flf I-if (I -_fr pngki. 551 Ji; .ljw gg'55 ?dL= ,iff .-if ~??1lfi'l?il3-3 5% --41:1 - 'fi 1* *ig- 2f .Lau pi' 4-_gy K. Pay"Www ff' mpg? $1 EM9}ff;>e1s_ted Bathymetry San Juan Gounty and Immediate Surrounding Area *fir - il sm, 1 zlfqi rl 's fr" -f f?fri' it 11155 1 .f $5.17gr" _rf _.'if T+_Lrm 3* -Ju" xi if: Ta' $45 fwlils 1 -Qw _#iw ~f *vw 1 Nkmia_,fr fm. .M il, H, . `frb I--3, - rf . _'ff _,nf Law' - - 1 ai' -vff _clfl _ga 19wwf, 2* - (1-Ha" 55 - 1n~iQLi; Hgh,-*gay _,ff . 5 ,fjix 5_1 ig. 1 wif; \1f' 5 $15 *ff5'A" 9-11_:am 2 wif* ?ma IFJ"iffy Qhiefi ?.aux 1 wi? ai; ?5f 4% litng-' 4 1; wrt;-_.5-.fi . *lan _r ,r A ga* wif Eff-fa Iraq 1 "gf . if 5 .tJiE3'3Li# kaygl" Iggyhgg?f- fe le 1 mf 'gi Aff# QL vw \-555, Jx?ar Jr? ,r e_ 2 ui?) hmfin n' Fri'1.3-il' 'ig +42-'rf . "Fri 'l sl,"i' 1? I lg gm.: lg iz" 'au 2.1? 1 2, U2 52 qjg? [i I ni# wif_'il ig 'fi 'f 1F`m' "nn A I 1 1' 'girkgi -n--Il-I 1' Il 5 Lagenq Area OF Interest -.. - county Boundary - . and Settings\turcocmt\Locnl SF-01734 PRR-2011-00450 I-H IT SF-01735 PRR-2011-00450 Honorable Steve Gonzalez IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SAN JOSE STATE UNIVERSITY RESEARCH FOUNDATION, a non- No. SEA profit corporation; and H. GARY GREENE, an individual, STIPULATION AND Plaintiffs, ORDER OF DISMISSAL OF CLAIMS V. STATE OF and JAMES W. SLOCOMB, an individual, Defendants. Plaintiffs San Jose State University Research Foundation and H. Gary Greene ("Plaintiffs") and Defendants State of Washington and James W. Slocornb, ("Defendants"), collectively the "Settling Parties," stipulate that all claims by Plaintiffs against Defendants shall be dismissed with prejudice, each party to bear it's own attorneys' fees and costs. STIPULATION AND ORDER OF DISMISSAL OF CLAIMS I SUITE 2900 SEATTLE, WASHINGTON 93104-1 :ss TELEPHONE: (206) 623 -7580 FACSIMILE: (206) 623-7G22 SF-01736 PRR-2011-00450 A DATED this 10th day of December, 2009. GATES LLP Matthew J. Segal, 29'/97 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Phone: (206) 623-7580 Fax: (206) 623-7022 Attorneys for Plaintiffs ATTORNEY GENERAL OF Matthew R. Kernutt (fm P.o. Box 40100 ll25 Washington Street SE Olympia, WA 98504-6200 Phone: (3 60) 664-2962 Fax: (360) 586-3454 Attorneys for State of Washington Dept. of Fish 85 Wildlife LAW Omcas OF DONALD EATON, By gwgagg 5 an -. Donald Eaton 3l0 Spring Street . PO Box 460 Friday Harbor, WA 98250-8056 Phone: (360) 378-2181 Fax: (360) 378-3962 Attorney for Defendant STIPULATION AND ORDER OF DISMISSAL OF CLAIMS - 2 GATES LLP 925 FOURTH AVENUE 1Taz900 saA'1'rLE, WASHINGTON 9sa04-1150 (205) an-1500 PAcsiM1Le= (200) 0130022 SF-01737 PRR-2011-00450 . 10th day of Deczembcar, 2009. 2 1 3 GATES LLB GENERAL OIF 4 ew J, Se . was/an 191 925 Aveh es, Suite 291' P.O. Box 40100 5 Seattle, WA 981 4 1125 Washington SB Phone: (206) 62 Olympia, WA 98504-6200 5 Fax: (206) 623-<7 22 Phnneu (360) 664-2962 Attorneys for Pla ntiffs Fax: (360) 585-3454 Aitorneys far State of 'Waehihgfon Dept. of Fish Wi1d1?i'e 3 8 9 ILS, 9 10 one. - atpw . I Spring Streb 11 PO Box. 460 Fric1a'yHH1'bor, . A. DS250-8 56 12 Phuiwl (350) 378 2181 Fm (360 378-3162 13 Attorney br M. dent Slum LLP STPULATION A ORDER OF - DISMISSAL OF AIMS - 2 ss