Derek E. Gronquist, Appellant V. Dept. Of Corrections, State Of Wa, Respondent (Majority)

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f. ILE'D - u ?{ Or APPrALS 0 " l lot 2013 OCT 29 P I " 9: 46 S TA BY o A1JEPE A opt y, IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II No. 42774 -5 - II DEREK E. GRONQUIST, consolidated with) Appellant, V. STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, No. 43500 -4 -II DEREK E. GRONQUIST, Appellant, PART PUBLISHED OPINION V. STATE OF WASHINGTON, DEPARTMENT OF CORRECTIONS, HUNT, J. Derek E. Gronquist appeals several superior court orders and findings 1 entered limiting in his Public Records Act (PRA) lawsuit. He argues that the superior court erred in ( 1) the penalty period of the Department of Corrections ( DOC)' s PRA violation and awarding a penalty amount that was too small; and ( 2) concluding that the surveillance video 1 Chapter 42. 56 RCW. No. 42774 -5 -II (consolidated with No. 43500 -4 -II) recordings he requested on August 5, 2007, were exempt from disclosure under the PRA. We hold that RCW 42. 56. 565( 1) bars an award of PRA penalties to Gronquist because ( 1) he was serving a criminal sentence in a correctional facility when he made his PRA request to DOC; ( 2) the superior court found no bad faith in DOC' s inadvertent omission of one page from the documents it produced in response to his PRA request; and ( 3) no final judgment had yet been entered in his PRA action at the time the legislature enacted this prohibition in 2011. We further hold that the prison surveillance video recordings that Gronquist requested were exempt from disclosure under RCW 42. 56. 240( 1). Accordingly, 2 we affirm. FACTS I. PRA REQUESTS To DOC A. July 30, 2007 Request On July 24, 2007, DOC inmate Derek E. Gronquist sent a PRA request to DOC seeking: 1. inmate identification badges /cards from undocumented alien All [ DOC] workers employed by DOC' s Class II Industriesp] [....]; 2. All records demonstrating the payment of any wages, gratuities, or other forms of payment to undocumented alien workers employed by the DOC[ ....]; All records revealing internal DOC communications and /or deliberations concerning the use of undocumented alien workers in DOC' s Industries program. 3. Clerk' s Papers ( CP) at 252 -53. Gronquist clarified that "` undocumented alien worker "' meant any person who is not a [ U] nited [ S] tates citizen and who does not possess a current and valid work 2 permit or similar document authorizing such person to be employed in the [ U] nited Because DOC did not cross -appeal the superior court' s award of a PRA penalty to Gronquist, the propriety of this award is not before us in the instant appeal. 3 Neither Gronquist' s request nor the record explains what " DOC' s Class II Industries program" encompasses. 2 No. 42774- 5- 11 ( consolidated with No. 43500 -4 -II) S] tates." CP 253. DOC received this request on July 30. The next day, DOC responded that at it had no records to disclose in response to Gronquist' s request because DOC' s Class II Industries program did not identify offenders by citizenship and citizenship was not a part of its employment process. B. August 9, 2007 Request On August 9, DOC received from Gronquist a second, unrelated PRA request to DOC dated August 5, stating: I am requesting the following records concerning an assault and /or extortion attempt that happened to me at the Clallam Bay Correction[ s] Center on June 17, 2007: 1. All documents created in response to, or because of, this incident; 4. The surv[ e] illance video of C -unit from 6: 00 a.m. to 2: 00 p.m. of June 17, 2007; 5. The surv[ e] illance video of the chow hall used for C -unit inmates on and for the [ b] reakfast meal on June 17, 2007; 9. The complete [ i]nternal [ i]nvestigations file. CP at 215 - 16. In response to this request, on October 26, DOC staff ( 1) mailed Gronquist 96 pages of documents, from which 1 page was inadvertently missing; and ( 2) claimed that the surveillance video recordings were 42. 56. 420( 2) ( 2005), providing a brief exempt from explanation PRA for this disclosure under claimed exemption. former RCW On November 2, the Stafford Creek Corrections Center intercepted this mail and withheld 39 pages of documents and 11 photographs in accordance with DOC' 4 s mail rejection policy. 4 The record on appeal neither includes nor explains DOC' s mail rejection policy. 3 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) Eventually DOC released these intercepted documents to Gronquist during the discovery in process the 96 an unrelated case. pages it had Gronquist did not alert DOC about the single missing page from provided. When DOC later learned about the missing page through Gronquist' s lawsuit, it located and supplied it to him. H. JUDICIAL REVIEW On June 12, 2009, Gronquist filed a motion for judicial review under the PRA, asking the superior court should not be to require DOC to " show compelled and sanctions cause" why " disclosure of requested public records imposed" for DOC' s alleged PRA violations. CP at 429. On July 27, Gronquist filed a complaint in superior court, claiming DOC had violated the PRA in 1) failing to conduct an adequate search for records involving " undocumented alien workers "; 2) withholding surveillance video recordings; and ( 3) improperly withholding one page from the internal investigation report. CP at 321. Gronquist also alleged that Stafford Creek' s screening and withholding of 39 pages and 11 photographs of his PRA documents violated the free speech clause of the Washington Constitution, article I, section 5. A. December 18, 2009 PRA Order, Findings, and Penalty On December 18, 2009, the superior court ruled that ( 1) DOC had violated the PRA by inadvertently withholding one page of the documents it had provided in response to Gronquist' s August 9, 2007 PRA request; ( 2) DOC' s omission had not been in bad faith; ( 3) Gronquist had failed to request identifiable records when he requested information about undocumented alien workers ( because " records in the form requested M did not exist "); and ( 4) DOC properly withheld No. 42774 -5 -II (consolidated with No. 43500 -4 -II) video surveillance tapes from disclosure under RCW 42. 56. 240( 1). 5 I CP at 125. For inadvertently having withheld 1 page, the superior court ordered DOC to pay a PRA penalty of 15 per day for 24 days, for a total of $ 260 to Gronquist. Arguing fraud, Gronquist later moved to vacate the superior court' s December 18 order. The superior court denied this motion. B. Motion To Dismiss; January 3, 2011 Order On October 8, 2010, DOC moved to dismiss Gronquist' s PRA action under CR 12( b)( 6). DOC argued the superior court had resolved all of Gronquist' s PRA claims in its that ( 1) December 18, 2009 show cause order; and ( 2) the superior court should dismiss Gronquist' s remaining art. 1, § 5 claim as matter a of law because ( a) violations of the Washington Constitution are not independently actionable torts, and (b) Gronquist had no protected interest in receiving uncensored mail in prison. On January 3, 2011, the superior court granted the motion in part and dismissed all of Gronquist' s PRA claims except his claim for injunctive relief from DOC' s withholding reasons." a portion of his incoming mail " without legitimate peneological [ sic] I CP at 98 -99. C. Motion To Amend; February 27, 2012 Order On January 31, 2012, Gronquist moved for leave to file a second amended complaint, restating his previously resolved and dismissed PRA claims, but adding an allegation that DOC had 5 violated the PRA The legislature ch. 190 § 7; ch. by failing amended to conduct an adequate search RCW 42. 56. 240 in 2010, 2012, 183 § 1; LAWS of 2012, ch. 88 § l; LAWS and of for records. On February 27, the 2013. LAWS of 2013, 2010, ch. 266 § 2; ch. ch. 315 § 2; 182 § 5. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. E No. 42774 -5 - II (consolidated with No. 43500 -4 -1I) court ( superior remaining I, § 5 art. 1) denied Gronquist' s motion as untimely; and ( 2) dismissed Gronquist' s sole I, § 5 claim with prejudice because he had stated in his memorandum that his art. 6 claim was , moot. ,, Gronquist order; ( appeals Suppl. CP at 477. the superior court' s ( 1) December 18, 2009 findings and penalty 2) January 3, 2011 order granting in part and denying in part DOC' s motion to dismiss; and ( 3) February 27, 2012 order denying Gronquist' s motion for leave to amend his complaint and dismissing his remaining claims. ANALYSIS I. RCW 42. 56. 565( 1) : ABSENCE OF BAD FAITH BARS PRA PENALTY FOR PRISONER Gronquist challenges the amount of the superior court' s December 18, 2009 penalties. He argues that the superior court lacked authority to reduce the penalty period for DOC' s inadvertent late disclosure of 1 page of the 96 pages of documents it had provided in response to his PRA request. We hold that RCW 42. 56. 565( 1) defeats this argument because ( 1) DOC did provide him the missing page when it became aware of its inadvertent earlier omission from the 96 pages it had timely provided in response to his second PRA request; ( 2) the superior court expressly found that DOC had not acted in bad faith in having inadvertently omitted this page; 6 See Gronquist' s memorandum in support of this motion. See also Gronquist' s related motion, in which he stated that because he had since received the records that were the basis of his art. I, 5 claim, injunctive relief was no longer necessary. 7 DOC does not cross -appeal the trial court' s imposition of PRA penalties, including the amount. It challenges only Gronquist' s assertion that the trial court erred in calculating penalties that were too low, or, in the alternative, that Gronquist' s claim is moot in light of RCW 42. 56. 565( 1). Col No. 42774 -5 -II (consolidated with No. 43500 -4 -II) and ( 3) RCW 42. 56. 565( 1) prohibits an award of any PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith.$ The question of whether the PRA authorizes a trial court to reduce the penalty period is a question of law, which we review 436, 98 P. 3d 463 ( 2004). intent. 9 de novo. Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, We look to a statute' s plain language to give effect to legislative Lacey Nursing Ctr., Inc. v. Dep' t of Revenue, 128 Wn.2d 40, 53, 905 P. 2d 338 ( 1995). When faced with an unambiguous statute, we derive the legislature' s intent from the plain language alone. Waste Mgmt. of Seattle, Inc. v. Util. & Transp. Comm' n, 123 Wn.2d 621, 629, 869 P. 2d 1034 ( 1994). RCW 42. 56. 565( 1) provides: 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 badfaith in denying the person the opportunity to inspect or copy a public record. 8 Although neither party argues that RCW 42. 56. 565( 1) generally prohibits prisoners' receipt of any PRA penalties ( see discussion later in this Analysis), we may affirm the superior court on any ground the record supports. State v. Costich, 152 Wn.2d 463, 477, 98 P. 3d 795 ( 2004). 9 The legislature' s 2005 recodification of the Public Disclosure Act,. chapter 42. 17 RCW, as the Public Records Act, language chapter on which our 42. 56 RCW, LAWS of 2005, Supreme Court relied ch. 274, § 1, did not alter the pertinent in Yousoufian. See former RCW 42. 17; RCW 42. 56. Accordingly, we refer to the PDA by its current title, the PRA. 7 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) Emphasis 10 added). The legislature further specified that the above subsection ( 1) " applies to all actions brought under RCW 42. 56. 550 in which final judgment has not been entered as of the effective date of this section [ July 22, 2011]." LAWS of 2011, ch. 300, § 2 ( emphasis added). Generally, a " final judgment" is a judgment that ends all litigation, including appellate review, leaving Lumber Co. Catlin v. v. nothing for the court to do but to Quinault Indian Nation, 79 Wn. App. the judgment. Anderson & Middleton 221, 225, 901 P. 2d 1060 ( 1995) ( citing United States, 324 U. S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 ( 1945)), Wn.2d 862, 929 P. 2d 379 ( 1996). reference execute to a " aff d, 130 But the legislature did not specify whether its statutory final judgment" in the comment to RCW 42. 56. 565( 1) encompasses this broad concept of complete and final adjudication of an issue, including exhaustion of appellate review. See In re Skylstad, 160 Wn.2d 944, 948 -49, 162 P. 3d 413 ( 2007) ( judgment becomes final " when all litigation This Washington on the interpreting RCW 10. 30. 090 in criminal context). merits ends," broad cases interpretation addressing of " final judgment" RCW 42. 56. 565. Parmelee, 175 Wn.2d 476, 481 n. 5, is consistent with several recent See Franklin County Sheriff' s Office v. 285 P. 3d 67 ( 2012) ( contemplating the superior court' s application of RCW 42. 56. 565 on remand, notwithstanding its being enacted after the plaintiff sought App. interlocutory review), cent. denied, 133 S. Ct. 2037 ( 2013); DeLong v. Parmelee, 164 Wn. 781, 786 -87, 267 P. 3d 410 ( 2011) ( applying RCW 42. 56. 565( 1) on appeal to bar an inmate' s recovery of PRA penalties, notwithstanding its being enacted after the original trial), to See Burt v. Washington State Department of Corrections, 168 Wn.2d 828, 837 n.9, 231 P. 3d 191 ( 2010) ( noting that legislature' s enacting of RCW 42. 56. 565 would " greatly curtail abusive prisoner requests for public records "). N. No. 42774 -5 -II (consolidated with No. 43500 -4 -II) review denied, 173 Wn.2d 1027 ( 2012). We apply this generally accepted broad definition of final judgment" here. In 2011, while Gronquist' s PRA claims were awaiting appellate review, our legislature promulgated comment; criminal RCW 42. 56. 565( 1), thus, no " sentence. accompanied final judgment" has yet by been a " final judgment" limitation in the related entered in his action. Gronquist is serving a And the superior court found no bad faith in DOC' s inadvertently omitting one page from the documents it provided in response to Gronquist' s second PRA request. Thus, RCW 42. 56. 565( 1) applies to bar his claim for PRA penalties. Holding that because Gronquist is not statutorily entitled to any amount of PRA penalties, we do not further consider his argument that the penalty amounts the superior court awarded him were too small. DOC did not cross appeal this award, thus, we must leave the superior court' s PRA penalty intact. II. SURVEILLANCE VIDEO RECORDINGS; STATUTORY EXEMPTION Gronquist next argues that the superior court erred in concluding that the surveillance video recordings he requested on August 9, 2007, were exempt from disclosure. Again, we disagree. We liberally construe the PRA in favor of disclosure and narrowly construe its exemptions. RCW 42. 56. 030. request unless an The PRA requires agencies to disclose any public record upon enumerated exemption P. 3d 120 ( 2010); RCW 42. 56. 070( 1). specific exemption applies. applies. Sanders v. State, 169 Wn.2d 827, 836, 240 The burden of proof is on the agency to establish that a Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702, 715, 261 P. 3d 119 ( 2011). 0 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) Gronquist' s August 9, 2007 PRA request sought " surveillance video of C -unit from 6: 00 a. m. to 2: 00 p. m. inmates on and of June 17, 2007" for the [ b] reakfast and " surveillance video of the chow hall used for C -unit meal on June 17, 2007." CP at 215 - 16. In its response to Gronquist' s show cause motion, DOC argued that the surveillance video recordings were exempt under RCW 42. 56. 240, which provides: The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter: Specific intelligence information and specific investigative records 1) 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. CP at 191. To demonstrate how nondisclosure of these surveillance videos is " essential to effective law enforcement, " Prisons. Morgan 11 the DOC supplied the declaration of Richard Morgan, DOC' s Director of explained that DOC' tools for maintaining the security s surveillance system is ( 1) "[ o] ne of the most important 12 and orderly operation of prisons," and ( 2) " an essential element of effective control of a population that is 100 [ percent] criminal in its composition and is accustomed to evading detection and exploiting the absence of authority, monitoring, and accountability" 13 as follows: 11 RCW 42. 56.240( 1). 12 CP at 290. 13 CP at 290. 10 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) Since the resources are not available to accomplish 100 [ percent] surveillance at all times, it is mission critical that offenders and their cohorts not. know the capabilities and the limitations of DOC' s surveillance capabilities. It is a significant advantage to have offenders uncertain as to what is being monitored, what is recorded, and what is in the field of view. Offenders will often blind use " spots" ( to surveillance) locations that have infrequent staff presence and no electronic commit incidents reconstructing incident location is of acts and interviewing often chosen and violence due to purveying offenders, a perceived In contraband. it has been found that lack of surveillance. In my expert opinion, surveillance, real or imagined, is a powerful deterrent to assaults and other problematic behaviors by offenders. CP at Morgan 290 -91. concluded, " Providing offenders access to recordings of DOC surveillance videos would allow them to accurately determine which areas are weak or devoid in DOC' s ability to capture identities in the aftermath of an incident or crime." CP at 291. The record contains no controverting evidence. 14 Under RCW 42. 56. 240( 1), have compiled the "[ s] pecific intelligence information and specific investigative records" that the requester seeks. essential DOC is to Secondly, the agency must show that the " nondisclosure" of the information is law effective not a an investigative, law enforcement, or penology agency must law enforcement." enforcement agency. RCW 42. 56. 240( 1). Gronquist does not contend that And, as Morgan explained, providing inmates with 14 Gronquist cites Prison Legal News, Inc. V. Department of Corrections, 154 Wn.2d 628, 643, to argue that DOC' s claiming exemption of disclosure of prison video surveillance recordings is contrary to our general instruction to construe PRA exemptions 115 P. 3d 316 ( 2005), narrowly. Prison Legal News, however, does not control here. In Prison Legal News, DOC attempted to withhold identifying information in public records related to medical misconduct investigations in Washington prisons. 154 Wn.2d at 632. Examining the " specific investigative records" exemption of former RCW 42. 17. 310( 1)( d) ( 2003), now codified as RCW 42. 56. 240( 1), our Supreme Court held that DOC failed to meet its burden in proving that the redactions were essential DOC has to law enforcement. "' Prison Legal News at 639. Here, as we note above, its burden in showing that nondisclosure is " essential to effective law effective sustained enforcement." 11 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) access to recordings of DOC' s surveillance videos would allow prisoners to exploit weaknesses in DOC' s provided by video enforcement, "' 42. 56. 240( 1). 2011), As Division One surveillance system. review surveillance of our court has held, " Intelligence information falls squarely within the core definitions of `law systems ... thereby exempting surveillance video recordings from disclosure under RCW Fischer v. Wash. State Dep' t of Corr., denied, 172 Wn.2d 1001 ( 2011). 160 Wn. App. 722, 727 -28, 254 P. 3d 824 We hold, therefore, that the superior court did not err in concluding that the surveillance video recordings Gronquist sought were exempt from the PRA' s otherwise broad disclosure requirements. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Gronquist further argues that the superior court erred in ( 1) denying his motion to vacate the December 18, 2009 not seek' and ( 4) identifiable dismissing show cause order; ( public records; ( his free 2) concluding that his July 30, 2007 PRA request did 3) denying his motion to amend his complaint as untimely; speech claim. Gronquist also argues that DOC failed to conduct an objectively reasonable search for records in response to his July 30, 2007 PRA request and that RCW 72. 09. 530 is unconstitutionally overbroad. Holding that the superior court did not err and refusing to consider unpreserved arguments Gronquist raises for the first time on appeal, we affirm. III. MOTION TO VACATE Gronquist contends that the superior court abused its discretion in denying his motion to vacate the December 18, 2009 show cause order, which 12 decision, he argues, " was based upon the No. 42774 -5 -II (consolidated with No. 43500 -4 -II) categorically exempt original) ( quoting the that the conclusion untenable surveillance CP previous `[ from disclosure." 11). at video o] rder in that video recordings are correct, was Second Amend. Br. of Appellant at 51 ( alteration in We have just held that the trial court did not err in concluding that recordings were exempt under RCW 42. 56. 240( 1). Because Gronquist fails to articulate any other reason why the superior court' s decision was in error, we do not further address this claim. IV. REQUEST FOR NONEXISTENT " UNDOCUMENTED ALIEN LABOR" RECORDS A. Unidentifiable Records Request Gronquist next argues that the superior court erred in its December 18, 200915 order when it concluded that badges /cards from not seek " his July 30, 2007 PRA request for "[ undocumented alien workers employed identifiable" public records. Second Am. Br. of a] by ll [ DOC] DOC' Appellant s at inmate identification Class II Industries " 16 did 22, 28. We disagree. The PRA requires agencies_to. respond to requests for only " identifiable public records." RCW 42. 56. 080; see also Hangartner v. City of Seattle, 151 Wn.2d 439, 447 -48, 90 P. 3d 26 2004). A party seeking public records under the PRA must, " at a minimum, provide notice that the request is made pursuant to the [ PRA] and identify the documents with reasonable clarity to allow Wn. 15 the agency to locate them." App. 872, 878, 10 P. 3d 494 ( 2000)). " The Second Amended Br. 2007" Hangartner, 151 Wn.2d at 447 ( citing Wood v. Lowe, 102 order. of Appellant The [ PRA] does not require agencies to research or at 28 refers to the superior court' s " December 18, We believe this to be a scrivener' s error and reference should be to the court' s December 18, 2009 order. CP at 252. 13 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) explain public Okanogan 92 Wn. records, 100 Wn. County, App. Moreover, an Wash: State but only to 403, those no records accessible 7, 12, 994 P. 2d 857 ( 2000) ( 409, 960 P. 2d 447 ( 1998), agency has Dep' t App. make duty to review App. public." Smith v. citing Bonamy v. City of Seattle, denied, 137 Wn.2d create or produce records of Natural Res., 163 Wn. to the that 1012 ( 1999)). are nonexistent. West v. 235, 242., 258 P. 3d 78 ( 2011), review denied, 173 Wn.2d 1020 ( 2012). Gronquist argues that because DOC for " identifiable There is no undocumented alien workers" 17 . public records. support for this 330. 700 states that DOC " will identify the superior court erred in finding that Gronquist' s offenders who are citizens of other nations," request Policy in DOC' s Class II Industries program did not seek Second Am. Br. of Appellant at 24, 26 -27 ( quoting CP at 425). claim in law or in the record. Michael Holthe, Clallam Bay Corrections Center' s Public Disclosure Coordinator, declared that after receiving Gronquist' s July 30, 2007 request, he had inquired with the Class II Industries program manager, who explained that Class II Industries did not identify offenders by citizenship and that such 17 Contrary to Gronquist' s assertion, DOC' s identification of offenders by citizenship does not suggest that DOC' s Class II Industries program similarly identifies its workers by their citizenship. erred Moreover, there is nothing further in the record to suggest that the superior court in concluding that " records in the form requested added). 14 did not exist." CP at 125 ( emphasis No. 42774 -5 -II (consolidated with No. 43500 -4 -II) classification was not part of ruling that there court' s its were no employment process. identifiable records 18 Thus, the record supports the superior matching Gronquist' s request. We hold, therefore, that the superior court did not err in ruling that Gronquist' s request had been for nonexistent, or unidentifiable, records. B. Objectively Reasonable Search for Records In a related argument, Gronquist contends for the first time on appeal that DOC failed to conduct an Br. of objectively Appellant at reasonable search for " undocumented alien labor" records. Second Am. Because Gronquist failed to raise this issue below, we do not address it 29. on appeal. An argument neither pleaded nor argued to the trial court cannot be raised for the first time on appeal." Sneed v. review Sourakli Barna, 80 Wn. any claim of v. Kyriakos, Inc., 144 Wn. App. error App. 501, 509, 182 P. 3d 985 ( 2008) ( citing , 843, 847, 912 P. 2d 1035 ( 1996)). which was not raised in the trial Furthermore, we " may refuse to court." RAP 2. 5( a). Because Gronquist failed to raise this alleged error below, we decline to review it for the first time on appeal. 18 Gronquist argues extensively that, because DOC has access to a variety of information about its inmates, including citizenship, it could have compared each of its Class II Industries workers against its other records to provide Gronquist his requested information. As we have already explained, the PRA does not require any agency to create documents in response to PRA requests. request See Smith, 100 Wn. for information App. at 12 ( " An important distinction must be drawn between a about public records and a request for the records themselves. "); West, 163 Wn. App. at 242 ( Agency has no duty to create or produce a record that is nonexistent). 15 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) V. MOTION TO AMEND COMPLAINT Gronquist next argues that the superior court erred in denying as untimely his request for leave to amend his complaint to add a new PRA claim. Again, we disagree. We review for abuse of discretion a trial court' s ruling on a motion to amend the complaint. Caruso v. Local Union No. 690 ofInt' l Bhd. of Teamsters, 100 Wn.2d 343, 351, 670 P. 2d 240 ( 1983). based State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 on untenable grounds or reasons. P. 2d 775 ( 1971). to A trial court abuses its discretion if its decision is manifestly unreasonable or To amend a pleading after the opposing party has responded, the party seeking amend must obtain court must grant ground 1982); for leave court' s leave freely " when justice leave to denying see also the trial Wilson v. or the opposing party' so requires." CR 15( a). s consent. CR 15( a). A trial But undue delay is a proper Elliott v. Barnes, 32 Wn. App. 88, 92, 645 P. 2d 1136 amend. Horsley, 137 Wn.2d 500, 507, 974 P. 2d 316 ( 1999) ( request to amend on eve of trial supported denial of leave to amend). Here, Gronquist requested leave from the superior court to file a second amended complaint on January 31, 2012, more than two and a half years after he filed his first amended complaint and DOC filed its answer, and more than one year after the superior court dismissed his remaining PRA claims. Moreover, Gronquist has neither designated any record nor identified in his brief any reason to show why the superior court erred in ruling that his motion to amend was untimely. See RAP 10. 3( a)( 6) ( Appellant must provide argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record). " insufficient to merit Such `[ judicial p] assing treatment of an issue or lack of reasoned argument is consideration. "' West v. Thurston County, 168 Wn. App. 162, 187, 16 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) 275 P. 3d 1200 ( 2012) ( in alteration original) ( quoting Holland v. City of Tacoma, 90 Wn. App. Thus, we do not further consider this unsupported argument. 533, 538, 954 P. 2d 290 ( 1998)). VI. ART I, § 5 CLAIMS Gronquist next argues that Stafford Creek' s seizure of some of the PRA documents DOC had him to mailed his freedom violated speech of contrary to article I, section 5 of the He also argues for the first time on appeal that RCW 72. 09. 530 is Washington Constitution. unconstitutionally overbroad. These claims fail. A. Mail Room Seizure Claim Abandoned It is v. a Normandy long -standing that rule Park, 137 Wn. abandoned issues will not be 151, P. 3d 1038 ( 2007); RAP 2. 5( App. 665, 688, Green addressed on appeal." 19 In his a). memorandum in support of his motion requesting leave to amend his complaint, Gronquist notified the superior court that bringing since his original complaint alleging his art. I, § 5 challenge, DOC had " produced the previously censored records at issue" and that the production of 19 these See records rendered also Peck his art. I, § 5 20 claim " moot. " Suppl. CP Davies, 154 Wash. 559, 563, 283 P. 173 ( 1929); v. Wash. 591, 597, 244 P. 998 ( 1926); Buckeye 51, 85 P. 1077 ( 1906); Soderberg P. 2d 1355 ( 1974); Stratton v. Buggy Co. v. at 476, 477. The record Gregory v. Peabody, 138 Montana Stables, Inc., 43 Wash. 49, Moore Adver., Inc. v. Kent U.S. Bulk Carriers, Inc., Corp., 11 Wn. App. 721, 737, 524 3 Wn. App. 790, 793 - 94, 478 P. 2d 253 1970). 20 Gronquist free argues that ( 1) speech challenges, ( DOC' Reply s motion Br. of to 2) the dismiss, Appellant that Gronquist' at his first superior court and ( 10 - 11. amended complaint raised 3) he both " facial" and " as applied" dismissed the " facial" challenge in response to abandoned only his " as applied" challenge as " moot." But after a careful review of the record on appeal, we conclude s characterization of his first amended complaint is inaccurate: Gronquist alleged that DOC' s censorship of public records " violate[ d] the Free Speech Clause of Article I, Section 5 of the Washington State Constitution." CP at 324. Contrary to his assertions on appeal, his first amended complaint did not raise two separate free speech challenges. 17 No. 42774 -5 -II (consolidated with No. 43500 -4 -II) shows that the superior court relied on Gronquist' s assertion that his claim was " moot" when it dismissed his art. 5 challenge and denied Gronquist' s motion requesting leave to amend his I, § complaint to add a new PRA claim that DOC failed " to locate, identify, and allow inspection of records relating to ... staff involvement in the assault of Mr. Gronquist." Suppl. CP at 477. Thus, there was no reason for the superior court to consider this claim further; similarly, there is no justiciable issue for us to address in this appeal. Holding that Gronquist abandoned his free speech challenge below, we do not further consider Gronquist' s " facial" challenge on appeal. B. RCW 72. 09. 530 Constitutionality Claim Moot Gronquist also argues for the first time on appeal that that RCW 72. 09. 530, which prohibits an inmate' s " receipt or possession of overbroad. unconstitutionally anything that is determined to be contraband," is Even assuming, without deciding, that Gronquist can raise this argument in his reply brief, we disagree that he is articulating a " manifest constitutional error that may be raised for the first time on appeal" under RAP 2. 5( a)( 3), 21 especially in light of the mootness of this claim. Reply Br. of Appellant at 12 ( citing RAP 2. 5( a)( 3)). As a general rule, Moreover, Gronquist' not that an " error" courts appellate will not address " moot questions or Norman v. Chelan County Pub. Hosp. Dist. No. 1, 100 Wn.2d 633, 635, abstract propositions." 21 Washington s argumentthat was " manifest" RCW 72. 09. 530 is unconstitutionally is overbroad in any proceeding below; rather, it is a challenge to the the statute itself and not an error committed by the superior court. See State constitutionality v. Grimes, 165 Wn. App. 172, 187, 267 P. 3d 454 ( 2011), review denied, 175 Wn.2d 1010 ( 2012) of for RAP 2. 5( a)( 3) to specifically identified and identifiable apply, an appellant must constitutional right, and ( 2) consequences" show the in the trial below). error both that ( 1) is " manifest," the error implicates a in that it had " practical Merely challenging the constitutionality of the statute does not permit Gronquist to avail himself of RAP 2. 5( a)( 3)' s exception to the general rule precluding review of issues not preserved below. wc No. 42774 -5 -II (consolidated with No. 43500 - -II) 4 673 P. 2d 189 ( 1983) ( quoting Sorenson 1972)). An appeal is moot where it v. Bellingham, 80 Wn.2d 547, 558, 496 P. 2d 512 presents " purely 22 academic " questions and where "` the court cannot provide the basic relief originally sought, or can no longer provide effective relief."' IBF, LLC omitted) ( v. Heuft, 141 Wn. App. 624, 630 -31, 174 P. 3d 95 ( 2007) ( internal quotation marks quoting Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 622, 45 P. 3d 627 ( 2002)). Because Gronquist has since received the records that Stafford Creek seized in the mail room, we cannot afford him any relief. Thus this issue is moot, and we need not further address it. We affirm. A majority of the panel having determined that this part of the opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Hunt, J. lviaxa, J. 22 City of Sequim marks omitted) ( v. Malkasian, 157 Wn.2d 251, 258, 138 P. 3d 943 ( 2006) ( internal quotation quoting State v. Turner, 98 Wn.2d 731, 733, 658 P. 2d 658 ( 1983)). 19

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