Shawn D Francis, Appellant V Department Of Corrections, Respondent (Majority and Order)
Annotate this Case
Download PDF
FILr--
OF
0
APPEALS
DIVISJO, Jlf
2014 JAN 22
IN THE COURT OF APPEALS OF THE STATE OF W.
AM 9. 16
SKIG7
GY
DIVISION II
No. 42712 -5 -II
SHAWN D. FRANCIS,
ORDER DENYING MOTIONS
Appellant/ Cross- Respondent,
FOR RECONSIDERATION AND
GRANTING MOTION FOR
V.
CLARIFICATION AND
AMENDMENT OF OPINION
WASHINGTON STATE DEPARTMENT OF
CORRECTIONS,
ss-
This
on
matter was
heard in
oral argument on
May
14, 2013. A published opinion was filed
Both parties have filed a motion for reconsideration. The State also
November 19, 2013.
filed a motion for clarification. After our review, it is hereby
ORDERED that the motions for reconsideration filed by Appellant /Cross -Respondent
Shawn D. Francis and Respondent /Cross -Appellant Washington State Department of Corrections
are hereby denied; it is further
ORDERED that the Respondent /Cross -Appellant' s motion for clarification is granted,
and the published opinion is amended as follows:
Page 17, line 17,
after
the
word " reasonable,"
the following footnote shall be added:
This is not to say that the failure to conduct a reasonable search or the failure to
follow
policies
in
a search
by
themselves necessarily
constitutes
bad faith.
We
hold below that, among other potential circumstances, bad faith is present under
RCW 42. 56. 565( 1) if the agency fails to conduct a search that is both reasonable
and
consistent
among
others,
with
the
its
policies.
circumstances
In determining reasonableness, we examine,
discussed in Part V
of
this
opinion.
No. 42712 -5 -II
IT IS SO ORDERED.
DATED this
day
2014.
of ,
BJf. RGEN,.
w
tL ED
COURT OF APPEALS
DIVISION 11
2013 N V 19 AM 8: 37
IN THE COURT OF APPEALS OF THE STATE OF W
S
DIVISION II
T
AS
OY
UEP
Y
No. 42712 - -II
5
SHAWN D. FRANCIS,
PUBLISHED OPINION
Appellant/ Cross- Respondent,
V.
WASHINGTON STATE DEPARTMENT OF
CORRECTIONS,
BioRcmm J. — Shawn D. Francis, an inmate in the custody of the Washington State
Department of Corrections (Department), sued the Department after he discovered that it had
failed to provide documents responsive to a Public Records Act (PRA)l request he had made
while incarcerated at the McNeil Island Corrections Center. The superior court granted summary
judgment in Francis' s favor on the issue of liability after the Department admitted that it had
failed to provide documents responsive to the request. The court awarded Francis a monetary
penalty near the low end of the statutory range, based on a determination that the Department
acted in bad faith, but denied Francis' s costs.
Francis timely appeals the penalty amount and denial of costs, arguing that the trial court
abused
its discretion in awarding
a
penalty
at
the low
end of
the statutory
range.
2 The
Ch. 42. 56 RCW.
2 Francis also argued in his opening brief that he was entitled to attorney fees and that the
Department' s cross -appeal was untimely. In his reply brief, Francis properly concedes that ( 1) in
light of our decision in West v. Thurston County, 169 Wn. App. 862, 282 P. 3 d 1150 (2012), he is
not entitled to attorney fees, and (2) because November 11, 2011 was Veteran' s Day, the
Department' s
cross appeal was
timely filed.
ETON
No. 42712 -5 -II
Department cross -appeals the trial court' s penalty award, arguing that the court erroneously
interpreted the bad faith requirement of RCW 42.56. 565 and that the court' s findings did not
support its determination that the Department acted in bad faith.
Because the factors considered by the trial court are relevant to bad faith, and the trial
court' s findings support both the bad faith determination and the penalty amount, we affirm the
trial court' s summary judgment and award of the penalty to Francis. Because the PRA' s cost -
shifting provision is mandatory, we reverse the trial court' s denial of Francis' s request for costs
and remand for an award of the reasonable costs Francis incurred in litigating his claim, both in
the trial court and on appeal.
FACTS AND PROCEDURAL HISTORY
On June 19, 2009, Francis sent a letter to Brett Lorentson, a public disclosure specialist
with the Department, requesting
any and all documents related to any reason and /or justification for the reason
why inmates at [ McNeil] are not allowed to retain fans and hot pots in their cells,
as well as any policy that may be in place to substantiate such restrictions on these
items.
Clerk' s Papers ( CP)
at
11.
3
Lorentson sent Francis a letter promising to identify and gather
responsive records and respond on or before July 30, 2009.
On July 10 Lorentson provided Francis with 15 pages of documents via e-mail, stating
that "[ s] ince all
documents
3
responsive records
consisted of
have been
provided,
this
request
the Department' s policy 440. 000 with
is
closed."
attachments.
CP
at
115.
The
According to this
Francis alleged below that the McNeil staff who denied him the use of these items, which he
had previously purchased through the Department, cited a policy that they refused to produce
and that Francis could not find in the prison library.
10
No. 42712 -5 -11
policy, inmates at McNeil and other minimum- or medium -security facilities were permitted a
fan
and, " as authorized
by facility,"
a
hot
pot.
CP
at
31 - 32.
None of the documents provided
related to any prohibition against fans or hot pots.
In November 2009, however, another inmate showed Francis documents concerning
McNeil' s policy prohibiting fans and hot pots. Francis subsequently filed suit in Pierce County
Superior Court, alleging a violation of the PRA and requesting statutory penalties. Over the
course of the litigation, the Department provided Francis with additional documents, both
through Lorentson and in response to Francis' s discovery requests. On February 28, 2011,
Francis received a copy of the policy in effect at the time of his request.
On June 7, 2011, Francis moved for summary judgment. The Department conceded that
it had violated the PRA, but disputed the penalty amount Francis had proposed. The trial court
granted Francis' s motion for summary judgment as to liability, reserving judgment as to the
penalty amount until a later hearing.
Prior to the hearing on the penalty amount, a new law took effect prohibiting awards of
PRA penalties based on record requests made by incarcerated persons, unless the court finds
that the agency
2011,
ch.
acted
300, §§
in bad faith." Former RCW 42. 56. 565 ( 2009),
amended by LAWS of
1, 2. The trial court ruled that this restriction applied to Francis' s case, found
bad faith by the Department, and awarded Francis a penalty. In doing so, the court applied the
aggravating and mitigating factors articulated by our Supreme Court for setting the amount of
PRA penalties in Yousoufian V, 168 Wn.2d 444, 466 -68, 229 P. 3d 735 ( 2010).
In particular, the trial court relied on a " Public Disclosure Routing Slip" that Francis
obtained through discovery. An official at McNeil had signed the routing slip form, which
3
No. 42712 -5 -II
states, "
I verify that I have conducted a thorough staff search and I report that I do not have any
responsive
documents in
regards
to this
request."
Br. of Appellant at Ex. A. The form allows
the preparer to check boxes indicating which of 17 record storage locations were searched, but
no boxes were checked on Francis' s form. Besides signing the form, the preparer wrote only the
number " 15" in a blank space, indicating that all staff at McNeil spent no more than 15 minutes
searching for the documents. Br. of Appellant at Ex. A.
Although the trial court found no agency dishonesty, recklessness, or intentional
noncompliance, it found that a number of aggravating factors, including the Department' s
negligence or gross negligence," supported a
determination of bad,faith. Report of Proceedings
RP) at 8. However, because the trial court also found a number of mitigating factors present, it
imposed a penalty near the low end of the statutory range, adopting the Department' s
*
recommendation. The court also denied Francis' s request for costs.
Francis timely appeals, asserting that the trial court abused its discretion in awarding a
penalty at the low end of the scale despite finding bad faith and in denying Francis costs. The
Department cross -appeals, arguing that the trial court erred in finding bad faith.
ANALYSIS
The Department raises arguments in its cross -appeal that, if correct, preclude any penalty
award to Francis. We therefore first address the Department' s cross- appeal, then turn to the
issues raised inTrancis' s appeal.
0
No. 42712 -5 -II
I. THE DEPARTMENT' S CROSS APPEAL
The Department contends that under RCW 42.56. 565( 1) a determination of bad faith
requires that the agency have committed some intentional, wrongful act. The Department also
asserts that the trial court erred because it erroneously applied the aggravating and mitigating
factors articulated'by our Supreme Court in Yousoufaan V, 168 Wn.2d at 466 -68, which factors
were
designed for the
sole purpose of
determining
the
amount of penalties under
the PRA,"
not
for the purpose of finding bad faith sufficient to entitle an incarcerated person an award of
penalties under
the PRA. Br. of Resp' t
at
12 ( emphasis
omitted).
We hold that under the rules
of statutory construction and the case law ( 1) a determination ofbad faith under RCW
42.56. 565( 1) does not require commission of some intentional, wrongful act, and (2) the trial
court' s determination that the Department acted in bad faith was correct without regard to the
Yousoufian V factors. We therefore affirm the trial court' s bad faith determination and its award
of a penalty.
II. STANDARD OF REVIEW
The Department does not challenge the trial court' s grant of summary judgment on the
issue of whether a PRA violation occurred. We thus limit our review to the trial court' s award of
a
statutory penalty
and
the underlying bad faith determination. RAP 2. 4( a).
Whether an agency
acted in bad faith under the PRA presents a mixed question of law and fact, in that it requires the
application of
the PRA
legal
violation).
precepts ( the
definition
of "
bad
faith ") to factual circumstances ( the details of
See Pasco Police Ofcers' Ass' n v. City ofPasco, 132 Wn.2d 450, 469, 938
P. 2d 827 ( 1997) ( noting that "[ w]hether
a party has failed to negotiate in good faith, although
5
No. 42712 -5 -II
involving
a substantial
factual
component,
is
a
mixed question of law and
fact. "); Tapper v.
Emp' t Sec. Dept, 122 Wn.2d 397, 402 -03, 858 P.2d 494 ( 1993).
Where an appellant does not assign error to a trial court' s factual findings, we consider
those findings verities.. Yousoufian V, 168 Wn.2d at 450 (citing Davis v. Dep' t ofLabor &
Indus., 94 Wn.2d 119, 123, 615 P. 2d 1279 ( 1980)).
Here, the Department assigns error only to
the trial court' s determination that the agency acted in bad faith, not to any of the underlying
findings on which the court below based that determination. Thus, we accept as true the facts on
which the trial court relied in finding bad faith, but we review de novo the trial court' s
conclusion that those facts establish bad faith.
Finally, when findings of fact are not clearly articulated and distinguished from
conclusions of law, we exercise discretion in determining what facts the trial court actually
found. Tapper, 122 Wn:2d at 406 ( citing Kunkel v. Meridian Oil, Inc., 114 Wn.2d 896, 903, 792
P. 2d 1254 ( 1990)).
To supplement a trial court' s written findings of fact, we may look to
consistent language in the trial court' s oral opinion. Tyler v. Grange Ins. Ass' n, 3 Wn. App. 167,
171, 473 P. 2d 193 ( 1970) (
citing Vacca v. Steer, Inc., 73 Wn.2d 892, 441 P.2d 523 ( 1968)).
III. THE BAD FAITH REQUIREMENT FOR PRA AWARDS To INCARCERATED PERSONS
RCW 42. 56. 565( 1) mandates that
a] court shall not award penalties under RCW 42. 56. 550( 4) to a person who was
serving a criminal sentence in a state, local, or privately operated correctional
facility on the date the request for public records was made, unless the court finds
that the agency acted in bad faith in denying the person the opportunity to inspect
or copy a public record.
n
No. 42712 -5 -II
The PRA does
not
include' a definition
of "bad
faith," and we know of no court that has yet
interpreted the meaning of the bad faith requirement in the context of penalty awards based on
PRA requests by incarcerated persons.
The trial court' s written order states only that it "determined bad faith by applying the
sixteen
Yousoufzan V mitigating
and
aggravating factors to the facts
of this case."
CP at 188 -89.
The court' s oral ruling, however, makes clear that it looked at those factors only as " guidance in
determining
what
bad faith actually is." RP at 4. The trial court found a number of facts that
tend to support a finding of bad faith, specifically ( 1) delayed response by the agency; (2) lack of
strict compliance with
4) "
PRA
procedural requirements; (
negligence or gross negligence ";
3) lack of proper training and supervision;
and ( 5) sufficient clarity in Francis' s request. RP at 5 - 8.
The court also described the McNeil records request routing slip as " almost a rubber stamp
situation where you put in 15 minutes, don' t tell anybody what you looked at or looked for and
then send the routing slip
recklessness or
on."
intentional
RP at 6. Despite these findings, the trial court explicitly found no
noncompliance," no "
intentional
hiding
or misrepresentation," and
no " deceit" on the part of the Department: RP at 6, 7, 9.
In support of its argument that a determination of "bad faith" under RCW 42.56. 565( 1)
requires an intentional, wrongful act, the Department directs our attention to three sources of
authority: (
penalties; (
1) precedents discussing bad faith as a factor in determining the amount of PRA
2) Washington cases discussing bad faith in other contexts; and ( 3) federal cases
discussing bad faith
in the
context of the
Federal Freedom
consider each in turn.
7
of
Information Act (FOIA). We
No. 42712 -5 -II
PRA Cases Addressing Bad Faith
a.
The Department asserts that precedents addressing PRA penalty amounts hold that an
agency acts in bad faith only when it knows that it has responsive records but intentionally fails
to disclose them, citing Yousoufian
60 P. 3d 667 ( 2003),
King County
v.
v.
King County Exec. ( Yousoufian
rev.'d on other grounds,
Sheehan, 114 Wn.
App. 325,
1),
114 Wn. App. 836, 853,
152 Wn.2d 421, 98 P. 3d 463 ( 2004) ( Yousoufian II);
356 57, 57 P. 3d 307 ( 2002). These precedents do
not support the Department' s assertion.
Although it distinguished cases where " the government agency knew it had responsive
records
that
have been disclosed, but purposely failed to disclose them," the Yousoufian I
should
court explicitly agreed with the trial court that King County' s response to Yousoufian' s request
was " not a good
faith
Yousoufian I, 114 Wn. App. at 853. It then reversed the award
effort."
and remanded with instructions to determine an appropriate penalty above the statutory
minimum, stating that the minimum penalty " should be reserved for instances of less egregious
agency conduct, such as those instances in which the agency has acted in goodfaith."
Yousoufian 1, 114 Wn.
reading
at
least
of
the
case,
shown a
App.
at
854 ( emphasis
the Yousoufian
lack
I
added)..
court considered
Thus, contrary to the Department' s
the
County to
have
acted
in " bad faith,"
or
4
of good
faith, even though it found no intentional misconduct. Sheehan,
114 Wn. App. at 356 -57, held that the Couniy' s refusal to disclose the full names of all its police
officers violated the PRA, but did not involve bad faith. In finding an absence of bad faith, the
court noted the County' s motivation to protect the safety and privacy of its officers and that its
4 Whether a lack of good faith equates to bad faith presents an interesting question, one which we
need not consider
here.
No. 42712 -5 -II
arguments were " not so
farfetched
as
to
constitute
bad faith."
Sheehan, 114 Wn. App. at 356 -57.
The court also contrasted the facts of its case with those in American Civil Liberties Union v.
Blaine School District No. 503, 95 Wn. App. 106, 111 -15, 975 P.2d 536 ( 1999), where " it was
clear that the agency did not act in good faith" because the school district' s refusal to disclose the
requested records was motivated by a desire " to avoid the cost and inconvenience of complying."
Sheehan, 114 Wn. App. at 356 ( citing Blaine Sch. Dist. No. 503, 95 Wn. App. at 111 -15).
Sheehan' s citation to Blaine does not imply' a ruling that only the intentional refusal to
disclose known responsive records can constitute bad faith. Rather, Blaine simply strengthened
Sheehan' s holding by showing that the obvious bad faith in Blaine was not in play in Sheehan.
In fact, Sheehan' s reliance on the motivation of the County and the plausibility of its arguments
directly shows its view that bad faith may be present, even though the intentional wrongdoing of
Blaine is not. Thus, Sheehan tends to undermine the Department' s argument rather than support
it.
Other Washington Cases Addressing Bad Faith
b.
The Department next cites cases involving equitable awards of attorney fees and a case
involving a will contest to support its position that a finding of bad faith here should require
proof of an intentional, wrongful act. A court may make an equitable fee award based on
s] ubstantive
frivolous
bad faith,"
claim, counterclaim, or
of Port Angeles, 96 Wn.
contesting
fulfill
the Department points out, only when "a party intentionally brings a
a will
some
defense
918,
App. .
with
improper
motive."
131 ( 1999).
929, 982 P. 2d *
Rogerson Hiller Corp. v. Port
Similarly, we have held that
in bad faith involves "` actual or constructive fraud' or a ` neglect or refusal to
duty ... not prompted by an honest mistake as to one' s rights or duties, but by some
Ge
No. 42712 -5 -H
interested
1999) (
or sinister motive. "'
In re Estate ofMumby, 97 Wn. App. 385, 394, 982 P. 2d 1219
quoting Bentzen v. Demmons, 68 Wn. App. 339, 349 n.8, 842 P.2d 1015 ( 1993)).
The Department' s argument from these cases has a number of flaws. First, it omits
certain portions of these precedents that tend to erode its argument: Notably, the Department
omits reference to the discussion of other types of bad faith in Rogerson. See Rogerson, 96 Wn.
App. at 928. In the equitable fee award context, procedural bad faith may also involve " obstinate
conduct that necessitates legal action to enforce a clearly valid claim or right" or " vexatious
conduct
during the
Transp.,
152 Wn.
litigation."
App.
that the Department
Union Elevator &
Warehouse Co., Inc. v. State ex rel. Dep' t of
199, 211, 215 P. 3d 257 ( 2009). Here, the trial court' s findings suggest
engaged
in " obstinate
conduct,"
specifically, refusing to conduct a
reasonable search despite a legitimate request, which required Francis to sue to obtain the
records.
Second, under the characterization of bad faith set out above.from Mumby, the will
contest case the Department cites, the trial court' s findings here appear to support its
determination that the Department acted in bad faith. That is, the trial court' s findings support
the inference that the Department neglected to fulfill its duty to conduct a reasonable search
because of its own interest in avoiding expense and inconvenience. See Mumby, 97 Wn. App. at
394.
Finally, Washington precedent allows a broader conception of bad faith in other contexts,
recognizing
a
distinction between " intentional
ofJames, 79 Wn.
App.
misconduct" and "
436, 441, 903 P. 2d 470 ( 1995) (
bad faith." See In re Marriage
noting that "the trial court must first
make a specific finding that the parent has acted in bad faith or committed intentional
10
No. 42712 -5 -II
misconduct ") (emphasis added).
Furthermore, over a century ago, our Supreme Court, in
interpreting a statute governing the certification of a statement of facts on appeal, recognized that
gross negligence could rise to the level of bad faith:
The statement should be stricken in the first instance only where it is manifest that
the party proposing it has been guilty of badfaith or such gross negligence as will
amount to badfaith: [ t]he remedy should not be invoked where there has been an
attempt in good faith to comply with the statute.
State
v.
Steiner, Sl Wash. 239, 240 -41, 98 Pao. 609 ( 1908) (
emphasis added).
Francis directs our attention to the discussion of bad faith that appears in Black's Law
Dictionary, excerpted from a comment to the Restatement (Second) of Contracts. The comment
illustrates the difficulties that defining bad faith poses, but establishes that, at least in a
contractual relationship, demonstrating bad faith does not require evidence of an intentional,
wrongful act:
Good faith
performance.
Subterfuges and evasions violate the obligation of good
faith in performance even though the actor believes his conduct to be justified.
But the obligation goes further: badfaith may be overt or may consist ofinaction,
and fair dealing may require more than honesty. A complete catalogue of types of
following types... have been recognized in
evasion of the spirit of the bargain, lack. of diligence and
slacking off,willful rendering of imperfect performance, [ etc.].
bad faith is impossible, but the
judicial decisions:
RESTATEMENT.( SECOND) OF CONTRACTS § 205
BLACK' S LAW DICTIONARY 159 ( 9th
ed.
cmt._
d
2009)).
( emphasis
added) (
quoted in part in
Thus, at least where a party owes some duty
analogous to a contractual obligation, negligence or gross negligence suffices to support a
finding of bad faith. The cumulative message of these precedents is that in multiple areas
outside of the PRA, bad faith does not require a showing of intentional wrongful conduct.
11
No. 42712 -5 -II
FOIA Cases Addressing Bad Faith
C.
Finally, the Department invites us to look to federal FOIA cases in interpreting the bad
faith
provision
in RCW 42. 56. 565( 1).
The Department argues that, under FOIA, an agency' s
delay in providing records does not indicate an absence of good faith and that subsequent
production does not prove that an agency' s initial search was unreasonable or conducted in bad
faith. For several reasons, this argument does not persuade.
Most importantly, Washington courts do not consider FOIA cases in interpreting PRA
provisions that do not correspond to analogous FOIA provisions. Kleven v. City ofD. Moines,
es
111 Wn.
App.
284, 291, 44 P. 3d 887 ( 2002). For example, our Supreme Court declined to
consider FOIA cases in assessing attorney fee awards under the PRA because FOIA' s attorney
fee provision is discretionary while the PRA' s provision is mandatory. Amren v. City ofKalama,
131 Wn.2d 25, 35, 929 P. 2d 389 ( 1997). Unlike the PRA, the FOIA does not have a bad faith
requirement for awarding penalties to incarcerated requestors: in fact; FOIA does not have a
statutory penalty provision. Neighborhood Alliance v. Spokane County, 172 Wn.2d 702, 717,
261 Pad 119 ( 2011).
Thus FOIA cases have no bearing on the meaning of bad faith in this
appeal.
Were we to consider FOIA cases relevant to the analysis, however, the cases cited in its
brief do not support the Department' s argument. First, the Department points out that federal
courts presume agencies act in good faith until evidence of bad faith overcomes the presumption.
Br. of Resp' t at 14 ( citing United States Dep' t ofState v. Ray, 502 U.S. 164, 179, 112 S. Ct. 541,
116 L. Ed. 2d 526 ( 1991)).
While correct, the assertion does not affect the present appeal
because the trial court clearly placed the burden of establishing bad faith on Francis.
12
No. 42712 -5 -II
The Department further relies on a FOIA case to assert that " delay in the production of
documents, even after the litigation commenced, ` cannot be said to indicate an absence of good
faith. "'
1978)).
Br. of Resp' t at 14 ( quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 355
The brief selectively quotes the authority, however, in away that obscures the intended
meaning. The opinion actually holds that " the [ agency' s] delay alone cannot be said to indicate
an absence of good
faith." Goland, 607 F. 2d
at
355 ( emphasis
added).
In no manner does this
prohibit basing a finding of bad faith on delay, along with other evidence. To the contrary,
Goland' s holding treats delay as a proper consideration in assessing bad faith.
Similarly, the fact that subsequent production of responsive documents does notprove
the initial search unreasonable or in bad faith does not establish that subsequent production has
no bearing at all on whether an agency performed a good -faith search. Thus, to the extent FOIA
precedents have any relevance here, they indicate that the Department' s delay in disclosing
plainly responsive documents in its possession supports the trial court' s determination of bad
faith.
Contrary to the Department' s assertions, the discussions of bad faith in cases considering
the amount of PRA penalties, in cases from other areas of Washington law, and in federal FOIA
cases, do not establish that a finding of bad faith under RCW 42. 56. 565( 1) requires evidence of
an intentional, wrongful act. If anything, these cases suggest that actions short of intentional
wrongdoing in performing a record search may establish bad faith.
13
No. 42712 -5 -II
IV. STATUTORY INTERPRETATION OF THE PRA' s BAD FAITH REQUIREMENT
In the absence of a statutory definition or controlling case law, we turn to principles of
statutory
construction
to determine the
contours of
bad faith in RCW 42. 56. 565( 1).
In
interpreting a statute, we try to determine and give effect to the legislature' s intent. State v.
Budik, 173 Wn.2d 727, 733, 272 P. 3d 816 ( 2012) ( citing
P.3d 354 ( 2010)).
provision at
issue,
provisions, and
State v. Ervin, 169 Wn.2d 815, 820, 239
First, we consider the statute' s plain meaning by looking at the text of the
as well as "`
the statutory
the context of the statute in which that provision is found, related
scheme as a whole. "'
Ervin, 169 Wn.2d at 820 ( quoting State v.
Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005)). If a provision nonetheless remains
susceptible to two or more reasonable interpretations, it is ambiguous; and we then consider
the legislative history of the statute and the circumstances surrounding its enactment to
determine legislative intent. "'
Budik, 173 Wn.2d at 733 ( quoting Rest. Dev., Inc. v. Cananwill,
Inc., 150 Wn.2d 674, 682, 80 P. 3d 598 ( 2003)).
As our discussion above demonstrates, the plain meaning of the words used by the
legislature does not tell us whether a court must find an intentional, wrongful act on the part of
the agency in
order
to find bad
faith
under
RCW 42. 56. 565( 1).
We must therefore look
elsewhere to ascertain the legislative intent.
At first glance, the intent of the legislature that imposed the bad faith requirement for
PRA
awards
to incarcerated
requestors might seem clear
from the title of the bill: " AN ACT
Relating to making requests by or on behalf of an inmate under the public records act ineligible
for
penalties."
LAWS OF 2011, ch. 300, SUBSTITUTE S. B. 5025, 62nd Leg:, Reg. Sess. ( Wash.
14
No. 42712 -5 -II
Yet the fact that the law nonetheless provides for penalties on a finding of bad faith
2011).
shows that it did not make inmates ineligible for penalties under all circumstances.
The legislative history illuminates the reason for this approach. As originally introduced,
the bill precluded all penalty awards based on requests from or on behalf of incarcerated persons.
S. B. 5025, 62nd
Leg., Reg. Sess. ( Wash. 2011). Public testimony on the bill, however, included
concerns that the " bill would effectively end all public records requests by prisoners because an
agency
will
face
Wash. 2011).
bad faith
no penalties. for not
complying."
S. B. REP. on SB 5025, 62nd Leg., Reg. Sess.
The bill that ultimately passed reflected these concerns by allowing penalties for
actions
by
agencies.
SUBSTITUTE S. B. 5025, 62nd
Leg., Reg. Sess., ch. 300 ( Wash.
Thus, the legislature plainly intended to afford prisoners an effective records search,
2011).
while insulating agencies from penalties as long as they did not act in bad faith.
In construing the PRA, we must " look at the Act in its entirety in order to enforce the
law' s
overall purpose"
Rental Hous. Ass' n ofPuget Sound v. City ofDes Moines, 165 Wn.2d
525, 536, 199 P. 3d 393 ( 2009).
We must consider, then, the legislative intent behind the PRA
penalty scheme and the Act as a whole.
Our Supreme Court has described the PRA
disclosure
of public records. "'
stron.gly worded mandate for broad
Yakima County v. Yakima Herald-Republic, 170 Wn,2d 775, 791,
246 P. 3d 768 ( 2011) ( quoting Soter
2007)) ( internal
as a "`
v.
Cowles Publ' g Co., 162 Wn.2d 716, 731, 174 P.3d 60
quotations omitted). "
The purpose of the PRA is to ` ensure the sovereignty of
the people and the accountability of the governmental agencies that serve them' by providing full
access
to information concerning the
Attorney' s
Guild
v.
Kitsap County,
conduct of government."
Kitsap County Prosecuting
156 Wn. App. 110, 118, 231 P. 3d 219 ( 2010) ( quoting Amren
15
No. 42712 -5 -II
v.
City
of Kalama, 131 Wn.2d 25, 31, 929 P. 2d 389 ( 1997)).
The purpose of the penalty scheme
is to " discourage improper denial of access to public records and [ promote] adherence to the
goals and procedures" ofthe statute. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 140, 580 P.2d 246
1978).
The PRA " shall be liberally construed and its exemptions narrowly construed to
promote this public policy" and to protect the public interest. RCW 42.56. 030; City ofFederal
Vijay v. Koenig, 167 Wn.2d 341, 344 -45, 217 P. 3d 1172 ( 2009).
The strict interpretation of the bad faith requirement urged by the Department runs
contrary to these policies and to the intent of the legislature that added the bad faith exception to
the proposed ban on penalty awards to incarcerated requestors. As many scholars and jurists
have observed, it is notoriously difficult to prove agency intent, particularly from inside a prison
cell. See, e. g., Farmer v. Brennan, 511 U.S. 825, 841, 114 S. Ct. 1970, 128 L. Ed. 2d 811 ( 1994)
noting in the Eighth Amendment context that " considerable conceptual difficulty would attend
any
search
for the
subjective state of mind of a governmental
Necessary Suffering?:
Cruel
and
entity "); BRITTANY GLIDDEN,
Weighing Government and Prisoner Interests in Determining What Is
Unusual, 49 AM. CRim. L. REv. 1815, 1835 -37 ( 2012) ( discussing
various sources).
Were we to accept the Department' s interpretation, agencies could safely,respond to record -
requests from incarcerated persons with cursory or superficial searches, knowing that inmates
would find it difficult to determine whether recordsvere overlooked and all but impossible to
produce admissible evidence of wrongful intent. This runs directly counter to the legislative
intent to provide prisoners a reasonable and effective records search, discussed above.
Furthermore, such a narrow reading is not necessary to prevent abuse of the PRA by
incarcerated persons. Where an agency has proper procedures in place, it may avoid penalties
16
No. 42712 -5 -II
under the PRA by simply following them in a reasonable manner. In addition, the PRA already
allows agencies to obtain expedited injunctions against attempts by prisoners to abuse it. RCW
42. 56. 565( 2).
Finally, we must liberally construe the PRA to effect its purposes. The PRA provides
that
t]he people of this state do not yield their sovereignty to the agencies that serve
The people, in delegating authority, do not give their public servants the
them.
right to decide what is good for the people to know and what is not good for them
to know. The people insist on remaining informed so that they may maintain
control over the instruments that they have created. This chapter shall be liberally
construed and its exemptions narrowly construed to promote this public policy
and to assure that the public interest will be fully protected.
RCW 42. 56. 030.
The legislative
history
of
RCW 42.56. 565( 1),
its statutory context, and the purposes .of
the PRA and this particular provision require a broader reading of the term " bad faith" than the
Department proposes. To be more consistent with these sources of authority, we hold that.failure
to conduct a reasonable search for requested records also supports a finding of "bad faith" for
purposes of awarding PRA penalties to incarcerated requestors. This standard does not make an
agency liable for penalties to incarcerated persons simply for making a mistake in a record
search or for following a legal position that was subsequently reversed. In addition to other
species of bad faith, an agency will be liable, though, if it fails to carry out a record search
consistently with its proper policies and within the broad canopy of reasonableness.
17
No. 42712 -5 -II
V. THE DEPARTMENT' S BAD FAITH IN RESPONDING To FRANCIS' S PRA REQUEST
The Department argues that the trial court erred by applying the aggravating and
mitigating factors our Supreme Court articulated in Yousoufian V to the question of bad faith.
The Department notes that the Yousoufian V court laid out those factors for the " sole purpose of
determining the amount" of PRA penalties, and that many of the factors " encompass concepts
well
beyond the historical definition
We may
aff=
of `
bad
faith. "'
Br. of Resp' t at 12.
the trial court on any grounds supported by the record. In re Marriage of
Rideout, 150 Wn.2d 337, 358, 77 P. 3d 1174 ( 2003).
Because the record in this appeal clearly
discloses a cursory search and delayed disclosure well short of even a generous reading of what
is reasonable under the PRA, we do not decide whether the Yousoufian V factors apply to the
determination of bad faith in this context.
In support of its conclusion that the Department acted in bad faith, the trial court
specifically found ( 1) a delayed response by the Department, even after Francis filed suit; (2)
lack
of compliance with
supervision; ( 4)
"
PRA
procedural requirements; (
negligence or gross negligence ";
3) lack of proper training and
and ( 5) sufficient clarity in Francis' s request.
RP at 5 -8. All of these are logically relevant to the reasonableness of the Department' s actions
and its bad faith.'
The evidence before the trial court showed that McNeil staff spent no more than 15
minutes considering Francis' s request and did not check any of the usual record storage
locations. Absent any countervailing evidence showing justification, this evidence shows that
See State v. Ortiz, 119 Wn2d 294, 302, 831 P. 2d 1060 ( 1992) on relevance of compliance with
procedures to question of good faith.
18
No. 42712 -5 -I1
the Department
ultimately
did not
produced
act
in
good
faith.6
Furthermore, the title of one of the documents
by the Department, " Personal Property for
Offenders,"
by itself establishes
the document' s likely relevance to Francis' s request, which was reasonable and specific.
Nonetheless, the Department instead sent Francis documents plainly not responsive to his
request.
7 Furthermore, the Department did not produce the relevant policy until eight months
after Francis filed suit. On these facts, the court below did not err in finding bad faith.
The trial court' s unchallenged findings of fact are verities on appeal and, alternatively,
are based on substantial evidence in the record. These findings support the conclusion that the
Department acted in bad faith. We therefore affirm the trial court' s ruling that Francis is entitled
to a penalty award based on this bad faith.
VI. FRANCIS' S APPEAL
Francis argues that the trial court erred in awarding a penalty near the bottom of the
statutory range and in denying his request for costs. Because the PRA grants considerable
discretion to trial courts in setting penalty awards, the court below properly considered the
relevant factors set forth by our Supreme Court, and the amount is reasonable under the
circumstances, we affirm the trial court' s penalty award. Because the PRA cost -shifting
provision is mandatory, however, we remand with instructions to award Francis the reasonable
costs he incurred in litigating this matter.
6 We do not hold that 15 minutes or any other specific length of a records search conclusively
shows an absence of good faith.
7 Francis had requested documents concerning the prohibition against fans and hot pots, but the
Department initially provided a copy of a policy permitting the disputed items.
19
No. 42712 -5 -II
a.
The Trial Court' s Discretion To Set the Penaltv Amount
We review a trial court' s determination of PRA penalty amounts for abuse of discretion.
Yousoufian V, 168 Wn.2d at 458. Under this standard, we will reverse only if the trial court' s
decision is manifestly
unreasonable or
based
on untenable grounds or reasons." -
Yousoufian V,
168 Wn.2d at 458 ( citing Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006)).
A court acts on untenable grounds if the record does not support its factual findings, and it acts
for untenable reasons if it uses " an incorrect standard, or the facts do not meet the requirements,
of the correct standard."
State
v.
Rundquist, 79 Wn.
App.
786, 793, 905 P. 2d 922 ( 1995). A trial
court' s decision is manifestly unreasonable ifthe court, despite applying the correct legal
standard to the supported facts, adopts a view that no reasonable person would take."
Yousoufian V, 168 Wn.2d
at
458 -59 ( quoting Mayer, 156 Wn.2d
at
684) ( internal quotation
marks omitted).
While " bad faith is the principal factor" a trial court must consider in setting PRA
awards,
A. simple emphasis on the presence or absence of the agency' s bad faith does little
more than to suggest what the two poles are on the penalty range and is
inadequate to guide the trial court' s discretion in locating violations that call for a
penalty somewhere in the middle of the [ statutory] range.
Yousoufian V, 168 Wn.2d at 460, 461 n.7 ( quoting Yousoufian v. Office ofRon Sims, 137 Wn.
App. 69,
internal
78 -79, 151 P. 3d 243 ( 2007)) ( Yousoufian III) (
quotation marks omitted).
Trial
courts must also consider the importance of the information to the public at large, whether the
violation caused foreseeable economic loss to the requestor, and deterrence of future agency
misconduct. Yousoufian V, 168 Wn.2d at 461 -63.
20
No. 42712 -5 -II
Here, the trial court expressly considered all 16 Yousoufian V factors, including the
Department' s degree of culpability, the public importance and time sensitivity of the matter, any
economic loss to Francis, and the amount necessary to deter future violations. The trial court
found ( 1) "
no recklessness or intentional noncompliance" on the part of the Department; (2) that
the matter was not especially time sensitive or of great public importance, but of interest to only
a restricted class of
incarcerated
persons; (
3) that Francis sustained no actual personal economic
loss; and ( 4) that " the penalty amount is sufficient to put [the Department] on notice that this
kind
of
delay
is
not acceptable."
RP at 5, 7, 9. Although near the bottom of the range, the
penalty imposed was more than the statutory minimum.
Because it applied the correct legal standard, the trial court did not act for untenable
reasons. Because evidence before it supported the findings of facts, and the findings properly
supported the penalty determination, the court did not act on untenable grounds. With the
court' s findings and the evidence to supportthem, a reasonable person could conclude that a
4,495 penalty satisfies the requirements ofthe PRA and is consistent with the Yousoufian V
factors. We hold that the trial court did not amuse its discretion, and we affirm the penalty
amount.
b.
The Trial Court' s Refusal To Award Francis Costs
We review PRA cost awards under the same abuse of discretion standard discussed
above. Kitsap County Prosecuting Attorney' s Guild, 156 Wn. App. at 120. The PRA contains a
broadly worded, mandatory cost -shifting provision:
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 ...
incurred in connection with such legal action.
21
No. 42712 -5 -II
RCW 42. 56. 550( 4) (
A parry prevails if " records should have been
the
emphasis added).
immediately disclosed
Spokane Research &
on request."
Def.Fund v. City ofSpokane, 155
Wn.2d 89, 103, 117 P. 3d 1117 ( 2005).
Here, neither party disputes that the Department should have disclosed the records to
Francis, but the trial court still denied Francis' s request for costs. The trial court explained its
reasoning only
not
going to include
on a
be
by stating, " I should add a footnote that, based on the award that I' m giving, I' m
costs
prevailing party' s
within
in that."
right
the discretion
of
to
the
RP at 11. However, the amount of the penalty has no bearing
costs.
court
See RCW 42. 56. 550( 4) ( " In addition [ to all costs], it shall
to
award such person"
statutory
penalties.) ( emphasis
added).
The Department directs our attention to a case where we held that a trial court did not
abuse its discretion in limiting an inmate' s costs to clerk' s fees and postage because the trial
court found that the inmate had used the PRA " as a vehicle [ for] personal profit through false,
inaccurate, [ and] inflated
Policy,
court
153 Wn.
App.
costs."
Br. of Resp' t at 20 ( citing Mitchell v. Wash. State Inst. ofPub.
803, 830, 225 P. 3d 280 ( 2009)). That case is inapposite because the trial
here expressly found Francis' s
request "
legitimate," did not discuss the reasonableness of
any specific amounts, and denied Francis' s request entirely rather than merely limiting it.
The Department also argues that Francis is not entitled to costs because he did not submit
a cost bill to the trial court. According to CR 54( d),
i]f the party to whom costs are awarded does not file a cost bill or an affidavit
detailing disbursements within 10 days after the entry of the judgment, the clerk
shall tax costs and disbursements pursuant to CR 78( e).
22
No. 42712 -5 -II
CR 78( e),
in turn, only allows limited types of costs if "the party to whom costs are awarded"
fails to file a cost bill within the same 10 -day period. As just noted, the trial court did not award
to Francis.
Therefore, neither of these provisions applies to him at this point. Further, we
have held that "[
a] bsent clear language to the contrary, we will not mechanically apply CR 78( e)
costs
to deprive a litigant of costs to
Francis
was entitled
to
which
he is justly
entitled."
an award of costs under
Mitchell, 153 Wn. App. at 823.
RCW 42. 56. 550( 4), and he was under no
duty to file a cost bill when the court denied him costs. We therefore reverse the denial of costs
and remand with instructions to award Francis his reasonable costs incurred in litigating this
matter.
C.
Costs on Appeal
Francis also requests costs on appeal. A PRA penalty award in the trial court supports an
award of costs or attorney fees on appeal. See Yousoufian V, 168 Wn.2d at 470. Francis has
complied with the procedural requirements of RAP 18. 1 and prevails on his claim that he was
entitled to costs below. We therefore award Francis the reasonable costs he incurred in this
appeal.
VII. SUMMARY OF HOLDINGS
We affirm the trial court' s rulings on summary judgment that the Department acted in
bad faith and that Francis is entitled to a penalty award under the PRA. We hold that the trial
court did not abuse its discretion in setting the amount of the penalty award and uphold that
amount. We reverse the trial court' s denial of costs to Francis and remand with instructions to
award him reasonable costs incurred in litigating this matter. Finally, we award Francis the
23
No. 42712 -5 -II
reasonable costs he incurred in this appeal.
A
A
d",
B7 tGEN,
concur:
r
P. J.
t
AR, I
24
y
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.