Clarence J. Faulkner v. Washington Dept. of Corrections ( 2016 )

FILED
FEBRUARY 16,2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CLARENCE J. FAULKNER, )
) No. 33180-6-III
Appellant, )
)
v. )
)
WASHINGTON DEPARTMENT OF ) UNPUBLISHED OPINION
CORRECTIONS, )
)
Respondent. )
FEARING, J. - State prisoner Clarence Faulkner seeks penalties, attorney fees, and
costs from the Washington State Department of Corrections (DOC) for untimely delivery
of records sought in a public disclosure request. We affirm the trial court's denial of any
recovery. A prisoner must prove bad faith in a Public Records Act claim for a monetary
award. We agree with the trial court that DOC was not unreasonably dilatory and did not
act in bad faith when surrendering the records.
No. 33180-6-111
Faulkner v. DOC
FACTS
On May 9, 2013, DOC transferred prisoner Clarence Faulkner from Coyote Ridge
Corrections Center in Connell to the Monroe Correctional Complex in Monroe. DOC
policy requires that, when an offender transfers between Washington correctional
facilities, DOC will pay to ship only two boxes of the offender's personal property. The
prisoner may ship additional boxes at his or her own expense. Excess boxes remain in
the sending facility until the offender pays for shipping by a common carrier. Pursuant to
the policy, Federal Express conveyed seven boxes from the Coyote Ridge Corrections
Center to the Monroe Corrections Center on behalf of Faulkner, and Faulkner obtained a
copy of the FedEx invoice for this transfer through a public records request directed to
DOC.
On December 9,2013, DOC transferred Clarence Faulkner again between two
prisons, this time from the Monroe Correctional Complex to the Stafford Creek
Corrections Center in Aberdeen. On February 12,2014, Faulkner arranged to ship to the
Stafford Creek Corrections Center two out of four boxes containing his additional
personal property beyond the two boxes sent at DOC expense. The first two of
Faulkner's additional boxes arrived on February 13,2014. On March 12, Faulkner
arranged to ship the last of his two boxes, which arrived on March 14. Faulkner paid
$85.33 to ship all four boxes. He prepaid $45.00 and later remitted $10.37, $9.96, $9.45,
and $10.55.
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Faulkner v. DOC
In a letter dated March 23, 2014, Clarence Faulkner submitted the public records
request to DOC that is the subject of this case. The request listed four categories of
records, but only the first category is at issue in this appeal. The first category demanded:
I am requesting the following records from DOC's Monroe
Correctional Complex. The records are most likely available from the
MCC [Monroe Correctional Complex] Business Office (Ms. Karen
Looney) where the payables are batched for payment.
1. A copy of the FedEx Invoice for the following shipments: FedEx
System # 684667 Acct.# 1253-5111-5.
Box I-Shipped 12FEB14 PO: FAULKNER PKG # 005437
70178154 17 LB.
Box 2-Shipped 12FEB14 PO: FAULKNER PKG # 005437
70178161 20 LB.
Box 3-Shipped 13MARI4 PO: FAULKNER PKG # 005437
70179106 13 LB.
Box 4-Shipped 13MAR14 PO: FAULKNER PKG # 005437
7017???? ?? LB.
Note: Box #4 is 1 of2 and should closely follow #3 on the invoice.
As soon as I can uncover the exact PKG ID# for No.4 I will provide it to
you.
REASON FOR REQUEST: Reconcile my prepayments against the
actual charges and verity return of over-payments.
Clerk's Papers (CP) at 76. (emphasis added). With his records request, Faulkner included
the FedEx invoice he received for his earlier shipment of seven boxes so that DOC would
be reminded of the physiognomy of a FedEx invoice.
On April 2, 2014, Jamie Gerken, DOC public disclosure manager, acknowfedged
receipt of Clarence Faulkner's record request. On April 17, Gerken, bye-mail, asked the
Monroe Corrections Complex for copies of the F edEx invoices for the packages listed by
Clarence Faulkner. Gerken's request instructed: "Please contact me as soon as possible if
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No. 33l80-6-III
Faulkner v. DOC
I should direct my request for records to others within DOC or if you encounter any
problems or issues that may prevent you from meeting the [May 9] deadline." CP at 82.
On May 2, Dianna Polson, administrative assistant at the Monroe Corrections Complex,
responded to Gerken: "Responsive documents are attached." CP at 82.
On May 29, 2014, DOC notified Clarence Faulkner that DOC would surrender
forty-one pages responsive to his public records request upon payment of $10.44. On
June 18, DOC sent Faulkner the forty-one pages. Nevertheless, only two of the pages
responded to the first category of Faulkner's request, and the pages constituted DOC
property forms, not FedEx invoices. In a letter dated June 20, Faulkner appealed his
records request within DOC because the delivered documents did not include the FedEx
invoices.
In response to Clarence Faulkner's appeal, DOC headquarters entreated Monroe
Corrections Complex to search again for the FedEx invoices. Headquarters also provided
a sample invoice. On July 28, 2014, Susan Biller, with the Monroe Corrections
Complex, replied:
I've gotten some additional information and documents from the
mailroom. We have a FedEx machine in the mailroom that they create
shipping labels from, they were able to input the tracking number from the
Property disposition forms that we provided for the original public
disclosure request. They then were able to print the attached documents,
receipts showing the boxes were shipped and received. We do not have any
documents that look like the example you provided.
I've reviewed the original public disclosure request and nowhere in
there does he request packing shipping/tracking information, he asks for
invoices which we do not have.
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No. 33l80-6-III
Faulkner v. DOC
CP at 108. On July 28, DOC admitted to Faulkner that the two pages provided to him
were not responsive and claimed that DOC lacked records responsive to the first category
in his request.
On August 8, 2014, Clarence Faulkner sent a second letter that again appealed the
unresponsive delivery of records to category one of his March 23 public record disclosure
request. On August 13, Sheri Izatt, a DOC public disclosure coordinator, discovered that
DOC's headquarters business office housed invoices and would likely possess the
requested FedEx invoices. DOC headquarters produced the invoices to Izatt on August
15.
PROCEDURE
On August 18, 2014, Clarence Faulkner sued DOC for violating the Public
Records Act, chapter 42.56 RCW. On August 19, DOC sent a letter to Faulkner
confirming that, after a third search, it had discovered invoices responsive to category
one of his records request. On September 25, DOC provided Faulkner with three pages
of requested FedEx invoices. The billing statements showed FedEx charged DOC $6.25,
$6.46, $6.15, and $6.49 for shipping Faulkner's boxes.
DOC filed a motion to dismiss Clarence Faulkner's suit. In response to the
motion, the trial court dismissed Faulkner's claims with prejudice. In a letter opinion, the
trial court found:
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No. 33180-6-111
Faulkner v. DOC
1.) The circumstances of the case involve a situation where D.O.C.
legitimately looked for the items sought by Mr. Faulkner, but without
success. However, once Mr. Faulkner clarified his request and gave more
details, the items were located and provided to him,
2.) In any event, D.O.C. did not act in bad faith.
CP at 221.
LAW AND ANALYSIS
We review public agency actions challenged under the Public Records Act de
novo. RCW 42.56.550(3); Cornu-Labat v. Hosp. Dist. No.2, 177 Wn.2d 221, 229, 298
P.3d 741 (2013). A trial court may dismiss a Public Records Act claim based solely on
affidavits. See 0 'Neill v. City ofShoreline, 170 Wn.2d 138, 153, 240 P.3d 1149 (2010).
An appellate court stands in the same position as the trial court when the trial court record
consists entirely of documentary evidence and affidavits. Cornu-Labat, 177 .Wn.2d at
229. The reviewing court is not bound by the trial court's factual findings. Cornu-Labat,
177 Wn.2d at 229. In this appeal, we review the entire record, including affidavits,
before resolving Clarence Faulkner's claim. We agree with the trial court that DOC is
not guilty of bad faith.
Clarence Faulkner contends that DOC failed to adequately search and produce
records after he provided a detailed request and appealed two unresponsive answers.
DOC responds that its search for records was reasonable in light of Faulkner's request for
documents limiting the location for the search. His request read, in part: "I am requesting
the following records from DOC's Monroe Correctional Complex." CP at 76. We agree
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No. 33180-6-III
Faulkner v. DOC
with DOC. DOC might have, but has not, argued that it has no obligation to search
beyond one of its institutions when the public records request seeks records only from the
one institution.
The Public Records Act is a "strongly worded mandate for broad disclosure of
public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127,580 P.2d 246 (1978).
Agencies must promptly disclose any requested public record unless it falls within a
specific, enumerated exemption. RCW 42.56.070(1). An agency is not required to
produce a document that does not exist. Sperr v. City ofSpokane, 123 Wn. App. 132,
133,96 P.3d 1012 (2004). To determine whether an agency search in response to a
public records request was adequate "the focus of the inquiry is not whether responsive
documents do in fact exist, but whether the search itself was adequate." Neigh. Alliance
ofSpokane County v. Spokane County, 172 Wn.2d 702, 719-20, 261 P.3d 119 (2011).
Adequacy of a search is judged by a standard of reasonableness, that is, the search
must be reasonably calculated to uncover all relevant documents. Neigh. Alliance v.
Spokane County, 172 Wn.2d at 720. Agencies must make more than a perfunctory search
and must follow obvious leads as they are uncovered. Neigh. Alliance, 172 Wn.2d at
720. If there are additional sources for the information requested, the search should not
be limited to one or more places. Neigh. Alliance, 172 Wn.2d at 720. Nevertheless, an
agency need not search every possible place a record may conceivably be stored, only
where it is reasonably likely to be found. Neigh. Alliance, 172 Wn.2d at 720.
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No. 33180-6-II1
Faulkner v. DOC
DOC's first search and production of records were reasonable in light of Clarence
Faulkner's request. Faulkner emphasizes his request's use of the term "invoices" and the
specific package tracking numbers. Nevertheless, the request stated that he sought the
records from DOC's Monroe Correctional Complex. DOC reasonably restricted the
scope of its search to the Monroe Correctional Complex when Faulkner limited the scope
of his request to that facility. To repeat, an agency need not search every possible place a
record may conceivably be stored. Neigh. Alliance v. Spokane County, 172 Wn.2d at 720(2011). DOC delivered documents held at the Monroe facility closest in nature to
Faulkner's request for FedEx invoices. When Faulkner appealed, DOC agreed that the
surrendered papers were unresponsive and replied that the Monroe Correctional Complex
lacked any records blanketed by Faulkner's request.
After Clarence Faulkner appealed DOC's first production of records, DOC
pursued the FedEx invoices from multiple employees of the Monroe Correctional
Complex, including Dianna Polson, Susan Biller, Karen Looney, and workers in the
mailroom. None found the invoices. DOC's search in the mailroom and entreaty for the
papers from multiple personnel was more than perfunctory and constituted a reasonable
search after the appeal. DOC again reasonably concluded that the Monroe facility lacked
the shipping invoices.
Since Clarence Faulkner directed his request to the Monroe facility, DOC
performed above the standard of care by eventually searching DOC headquarters. When
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No. 33180-6-III
Faulkner v. DOC
DOC located the invoices at the headquarters' business office, DOC promptly notified
Faulkner of the discovery and punctually surrendered copies.
In 2011, the Washington Legislature, in response to escalating public records
requests from jail inmates, amended the Public Records Act to deny relief to an inmate
unless he or she proves bad faith. The amendment, codified at RCW 42.56.565(1), reads:
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.
Whether an agency acted in bad faith under the Public Records Act presents a
mixed question of law and fact, in that it requires the application of legal precepts, the
definition of "bad faith" to factual circumstances, and the details of the alleged Public
Records Act violation. Faulkner v. Dep 'f o/Corr., 183 Wn. App. 93, 101-02,332 P.3d
1136 (2014), review denied, 182 Wn.2d 1004 (2015). An offender does not establish bad
faith by an agency simply for making a mistake in a record search. Francis v. Dep 'f 0/
Corr., 178 Wn. App. 42, 63, 313 P.3d 457 (2013), review denied, 180 Wn.2d 1016(2014). In one decision, this court considered DOC's conduct in spending no more than
fifteen minutes considering a request and failing to search the usual record storage
locations to constitute bad faith. Francis v. Dep 'f o/Corr., 178 Wn. App. at 42. The
efforts of DOC in responding to Clarence Faulkner'S invoice request widely diverges
from its conduct in Francis.
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No. 33180-6-III
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CONCLUSION
Because DOC did not engage in bad faith, we affirm the trial court and deny
Clarence Faulkner any recovery.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
7;~ag>eJ=
Siddoway, C.J.
Lawrence-Berrey, J.
j
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