Juan Zabala v. Okanogan County ( 2018 )

FILED
OCTOBER 2, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
JUAN ZABALA, ) No. 34961-6-111
)
Appellant, ) ORDER DENYING MOTION
) FOR RECONSIDERATION
V. ) AND WITHDRAWING THE
) OPINION FILED APRIL 3, 2018
OKANOGAN COUNTY, )
)
Respondent. )
THE COURT has considered appellant's motion for reconsideration and the
answer thereto, and is of the opinion the motion should be denied. Therefore,
I
IT IS ORDERED, the motion for reconsideration of this court's decision of April
3, 2018, is hereby denied.
IT IS FURTHER ORDERED, the court's opinion filed April 3, 2018 is hereby
withdrawn and a new opinion will be filed this day.
PANEL: Judges Fearing, Korsmo, Pennell
FOR THE COURT:
ROBERT LAWRENcE:S Y, ch'f Judg
FILED
OCTOBER 2, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JUAN ZABALA, )
) No. 34961-6-III
Appellant, )
)
v. )
)
OKANOGAN COUNTY, ) PUBLISHED IN PART OPINION
)
Respondent. )
FEARING, J. — Juan Zabala sues Okanogan County for violations of the Public
Records Act, chapter 42.56 RCW. He contends the county failed to produce phone
conversation recordings of jail inmates and records relating to the recordings. He further
argues that, even if this reviewing court holds the records to be exempt from disclosure,
Okanogan County violated the Public Records Act by failing to identify and list the
records withheld from production. We readily conclude that RCW 70.48.100 shields
disclosure of the requested records, but we must also determine the obligation held by
Okanogan County when answering Zabala’s demand for public records. We also hold
that Okanogan County did not violate the Public Records Act when responding to
Zabala’s requests for records.
No. 34961-6-III
Zabala v. Okanogan County
FACTS
Juan Zabala sent five requests for public records to Okanogan County. On March
24, 2016, Juan Zabala sent a request to the Okanogan County Sheriff’s Office that
sought:
any and all records related to recorded and/or monitored jail phone
calls that were used in the prosecution of any crime by any of the Okanogan
County Prosecutor’s Offices.
Clerk’s Papers (CP) at 127. Zabala limited this request to phone calls originating from
Okanogan, Chelan, and Douglas Counties’ adult correctional facilities.
On March 31, 2016, Juan Zabala sent a second request to the Okanogan County
Sheriff’s Office that did not contain any limitations, but instead demanded:
any and all records related to recordings of inmate phone calls from
any [a]dult [c]orrectional [f]acility. This request includes but is not limited
to all voicemail, e[-]mail, audio, notes, reports, transcripts, arguments,
motions, briefs, memos, letters and any other record related to the same.
CP at 128. Celeste Pugsley, the Okanogan County jail public records officer, timely
responded to both requests, asserting that Zabala did not request identifiable records that
could be reasonably located. Pugsley wrote, in part, to Zabala:
However, your new request for any and all records related to
recorded and/or monitored jail phone calls that were used in the prosecution
of any crime by any of the Okanogan County Prosecutors Offices is so
broad that the request is not for an identifiable record that agency staff can
reasonably locate.
CP at 46. In Pugsley’s declaration in support of Okanogan County’s later motion to
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dismiss, she further declared that the jail did not possess the records requested and that
Pugsley would need to obtain that information from the prosecutor’s office.
On April 5, 2016, Juan Zabala submitted a third and fourth request, with the fourth
request sent four minutes after the third request. Both requests repeated the identical
wording used in Zabala’s first two requests, but this time Zabala directed the requests to
the Okanogan County Prosecuting Attorney’s Office. Okanogan County Deputy
Prosecuting Attorney Albert Lin replied to both requests in one e-mail on April 6. Lin
stated that Zabala’s requests did not identify records that could be reasonably located.
Juan Zabala’s counsel submitted a fifth request to the Okanogan County
Prosecuting Attorney’s office on June 3, 2016. The request again sought recorded phone
calls placed by adult inmates in Okanogan, Chelan, or Douglas County. Counsel also
demanded transcripts or summaries made of any such recordings and asked for:
any records prepared by any employee of the Okanogan Prosecuting
Attorney’s Office that were later filed with any court or provided to any
defense attorney that explicitly or implicitly mention such a phone call.
CP at 134. Counsel clarified, through an example, that an amended information adding a
count of tampering with a witness, intimidating a witness, or violation of a no-contact
order when the factual basis for the charge arose from such a phone call would be a
responsive record. The request narrowed the scope of records sought to those created
within the past three years and to only those records actually used in the context of
criminal prosecution.
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Shauna Field, the office administrator for the Okanogan County Prosecuting
Attorney’s Office, attempted to locate records requested by Juan Zabala’s counsel. In a
declaration in support of Okanogan County’s later motion to dismiss, Field described the
search she conducted. Using the date range of three years and the types of crimes
suggested in the fifth request, Field, through use of Justware, her office’s electronic case
management software, located three hundred and sixty-eight files. According to Field,
each case handled by the prosecutor’s office utilizes various types of investigative
materials. Field further explained that the prosecutor’s office does not have a way to
track the specific types of investigation materials, whether found in an electronic file or a
physical file, used in each case. Justware’s search capabilities are limited to case
numbers, names and personal identifiers, involved agencies, statute of a crime, and date.
The software system cannot identify, however, which of those case files referenced jail
phone calls. The user of the software may view the evidence content of a case, such as
police reports, audios, and videos, only after first accessing each case.
The Okanogan County Prosecuting Attorney’s Office handles up to two thousand
criminal cases per year, with each individual case involving various types of investigative
records and recordings. The office does not have the ability to track the specific types of
these records, nor does the office store the records in any manner other than its physical
case files and electronic case management system, Justware.
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According to Shauna Field, Juan Zabala’s April 5, 2016 request would require the
Okanogan County Prosecuting Attorney’s Office to individually examine hundreds, if not
thousands, of physical criminal case files in order to determine if and when the office
utilized any inmate phone calls in prosecutions. Even if the office responded to the
narrower June 3, 2016 response, the office would need to review at least three hundred
and sixty-eight physical files, and no documents responding to the request might be
found. Such a task would require the hiring of additional staff and/or the payment of
overtime hours. In order to reasonably locate records from the prosecuting attorney’s
criminal case files, the office needs the names and case numbers of prosecutions.
According to Field, none of Juan Zabala’s public records requests identified records that
can be reasonably located by the prosecutor’s office.
The Okanogan County Prosecuting Attorney’s Office responded to Juan Zabala’s
counsel’s request, the fifth request, on June 4, 2016, claiming: (1) the request did not
identify records that could be reasonably located, (2) the attorney work product
exemption applied to some of the records sought, and (3) RCW 42.56.070 and RCW
9.73.095(3)(b) exempt disclosure of recorded conversations from correctional facilities.
On June 29, 2016, Juan Zabala’s counsel sent a letter to the Okanogan County
Prosecuting Attorney’s Office citing disagreement with the deputy prosecutor’s response.
Counsel stated that he failed to understand how his original request lacked particularity
and offered to remove the narrowed scope of only “those records that were actually used
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in the context of a criminal prosecution.” CP at 80. The deputy prosecuting attorney
responded on July 5, 2016, by again stating that defense counsel’s requests “still do not
identify records that can be reasonably located.” CP at 84. The deputy prosecuting
attorney clarified that in order to identify records that could be located, specific case
names or numbers would be needed.
PROCEDURE
Juan Zabala filed this lawsuit against Okanogan County. Okanogan County, with
supporting declarations, filed a motion to dismiss. The trial court granted the motion.
The trial court ruled that Zabala’s requests were not public records requests and the
requests did not identify records that can be reasonably located.
LAW AND ANALYSIS
On appeal, Juan Zabala asserts two principal arguments. First, Okanogan County
violated the Public Records Act by failing to produce the records relating to phone call
recordings of jail inmates and the recordings themselves. Second, even assuming the
records to be exempt, the county violated Public Records Act procedures by failing to list
and identify the records it withheld from production and tie an exemption to each record.
Okanogan County responds by arguing the Public Records Act does not control this
dispute because two statutes, RCW 9.73.095(3) and RCW 70.48.100, remove jail
recordings from the purview of the Public Records Act. Therefore, the county contends
that, because of RCW 70.48.100, Zabala’s requested records were exempt from
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production, and it did not need to follow Public Records Act procedures concerning
identifying exempt documents. The county also faults Zabala’s request as not seeking
identifiable records and as being burdensome.
Jail Inmate Phone Call Recordings
We first address whether Okanogan County properly withheld disclosure of the
jail inmate phone recordings and records related to the recordings. We later address what
response the county needed to provide Juan Zabala when denying his request for records.
The Public Records Act provides that public records shall be available for
inspection and copying, and agencies shall, on request for identifiable public records,
make them promptly available to any person. RCW 42.56.080. Some records are exempt
from production, however. RCW 42.56.070(1) declares in part:
Each agency, in accordance with published rules, shall make
available for public inspection and copying all public records, unless the
record falls within the specific exemptions of subsection (8) [renumbered
from (6) per the Laws of 2017, ch. 304, § 1(1)] of this section, this chapter,
or other statute which exempts or prohibits disclosure of specific
information or records.
(Emphasis added.) Thus, the act lists three categories of exemptions: (1) exemptions
found in RCW 42.56.070, (2) exemptions found elsewhere within the Public Records
Act, and (3) exemptions created by “other statute.” An “other statute” need not expressly
address the Public Records Act, but it must expressly prohibit or exempt the release of
records. John Doe A v. Washington State Patrol, 185 Wash. 2d 363, 372, 374 P.3d 63
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(2016). This appeal deals only with the “other statute” exemption.
The Public Records Act does not allow withholding of records in their entirety.
Progressive Animal Welfare Society v. University of Washington, 125 Wash. 2d 243, 261,
884 P.2d 592 (1994). Instead, agencies must parse individual records and must withhold
only those portions that come under a specific exemption. Progressive Animal Welfare
Society v. University of Washington, 125 Wash. 2d at 261. Portions of records that do not
come under a specific exemption must be disclosed. RCW 42.17.310(2); Progressive
Animal Welfare Society v. University of Washington, 125 Wash. 2d at 261. An exception to
this redaction requirement exists. Progressive Animal Welfare Society v. University of
Washington, 125 Wash. 2d at 261. If another statute (1) does not conflict with the act, and
(2) either exempts or prohibits disclosure of specific public records in their entirety, then
(3) the information may be withheld in its entirety notwithstanding the redaction
requirement. Progressive Animal Welfare Society v. University of Washington, 125
Wash. 2d at 262.
Okanogan County contends two “other” statutes shield inmate jail recordings and
documents related to the recordings from disclosure in their entirety: RCW 9.73.095(3)
and RCW 70.48.100(2). We address each statute separately.
RCW 9.73.095(3) declares:
The department of corrections shall adhere to the following
procedures and restrictions when intercepting, recording, or divulging any
telephone calls from an offender or resident of a state correctional facility
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Zabala v. Okanogan County
as provided for by this section. The department shall also adhere to the
following procedures and restrictions when intercepting, recording, or
divulging any monitored nontelephonic conversations in offender living
units, cells, rooms, dormitories, and common spaces where offenders may
be present:
(a) Unless otherwise provided for in this section, after intercepting or
recording any conversation, only the superintendent and his or her designee
shall have access to that recording.
(b) The contents of any intercepted and recorded conversation shall
be divulged only as is necessary to safeguard the orderly operation of the
correctional facility, in response to a court order, or in the prosecution or
investigation of any crime.
(c) All conversations that are recorded under this section, unless
being used in the ongoing investigation or prosecution of a crime, or as is
necessary to assure the orderly operation of the correctional facility, shall
be destroyed one year after the intercepting and recording.
(Emphasis added.) Note that RCW 9.73.095(3) extends protection to inmate recordings
only when recorded by the Department of Corrections. The statute does not cover
recordings inside a county jail. We may not add words when the legislature has chosen
not to include them. Lake v. Woodcreek Homeowners Association, 169 Wash. 2d 516, 526,
243 P.3d 1283 (2010). Thus, we rule that RCW 9.73.095(3) does not exempt recordings
requested by Juan Zabala.
The second statute, on which Okanogan County relies, RCW 70.48.100(2)
extends to county jails. Subsection two of the statute bespeaks, in part:
Except as provided in subsection (3) of this section, the records of a
person confined in jail shall be held in confidence and shall be made
available only to criminal justice agencies as defined in RCW 43.43.705;
or
(a) For use in inspections made pursuant to RCW 70.48.070;
(b) In jail certification proceedings;
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(c) For use in court proceedings upon the written order of the court
in which the proceedings are conducted;
(d) To the Washington association of sheriffs and police chiefs;
(e) To the Washington institute for public policy, research and data
analysis division of the department of social and health services, higher
education institutions of Washington state, Washington state health care
authority, state auditor’s office, caseload forecast council, office of
financial management, or the successor entities of these organizations, for
the purpose of research in the public interest. Data disclosed for research
purposes must comply with relevant state and federal statutes;
(f) To federal, state, or local agencies to determine eligibility for
services such as medical, mental health, chemical dependency treatment, or
veterans’ services, and to allow for the provision of treatment to inmates
during their stay or after release. Records disclosed for eligibility
determination or treatment services must be held in confidence by the
receiving agency, and the receiving agency must comply with all relevant
state and federal statutes regarding the privacy of the disclosed records; or
(g) Upon the written permission of the person.
(Emphasis added.) We quote the entire statute in appendix 1. None of the exceptions in
the statute apply to thwart application of the exemption to Juan Zabala’s public records
request.
The only decision applying RCW 70.48.100 is Cowles Publishing Co. v. Spokane
Police Department, 139 Wash. 2d 472, 987 P.2d 620 (1999). A local newspaper sought the
booking photograph of an arrestee. The state high court affirmed the police department’s
claim of exemption under the statute. The exemption applied despite the arrestee no
longer being in jail and despite the jail sharing the photograph with the police
department.
Juan Zabala sent Okanogan County officials five requests. Although some of the
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later requests repeated, but narrowed, earlier requests, we do not read the later requests to
void the earlier broader requests. When synthesized, the five requests sought from the
Okanogan County Sheriff’s Office and prosecuting attorney any and all records, created
in the last three years, related to monitored or recorded phone calls of inmates in the
Chelan County jail, Douglas County jail, or Okanogan County jail, including voice mail,
e-mail, audio, notes, reports, transcripts, arguments, pleadings, motions, briefs, memos,
and letters.
RCW 70.48.100(2) shields “records of a person confined in jail.” Read broadly,
the statute protects any government records of a jail inmate, including the inmate’s
housing permit applications processed by a city planning department. Nevertheless, we
limit the breadth of the statute to records prepared as a result of the inmate being in jail.
We note that the statute does not limit the exemption to records only in the
possession of the jail. As confirmed by the state Supreme Court in Cowles Publishing
Co. v. Spokane Police Department, 139 Wash. 2d 472 (1999), the exemption extends to the
jail records despite the jail forwarding the records to another government agency. Thus,
we hold that the exemption extends to all recordings and documents related to the
recordings, even when in possession of the Okanogan County Prosecuting Attorney’s
Office. Since the exemption does not disappear when an agency other than the jail
creates the records concerning the inmate, the exemption further extends to records
created by the Okanogan County prosecuting attorney concerning the jail inmate, which
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would include all records surrounding the telephone recordings. Thus, we hold that
RCW 70.48.100 exempts all records sought by Juan Zabala from the two Okanogan
County offices.
We speculate that the prosecuting attorney likely played some of the inmate
telephone recordings or filed with the court clerk records surrounding the recordings.
The public has a right to access court records. WASH. CONST. art. I, § 10; Dreiling v.
Jain, 151 Wash. 2d 900, 908, 93 P.3d 861 (2004). This public right, however, does not
change our analysis under the Public Records Act. Juan Zabala has not sought access to
court clerk records.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opinions.
Reasonably Identifiable Records
Our holding that Okanogan County properly denied production of Juan Zabala’s
requested records does not end review of Zabala’s appeal. Zabala contends that, even if
the county could withhold requested documents, the county violated the Public Records
Act by failing to create an exemption log. Zabala contends that the county breached
RCW 42.56.210(3) and RCW 42.56.520(4) by failing to identify each withheld document
or recording and attaching an explanation for the exemption to each withheld record.
In response, Okanogan County urges, in part, that RCW 70.48.100 removes jail
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records from the purview of the Public Records Act such that the county held no
obligation to follow the act’s rules regarding responding to a public records request. The
county also contends that, even if the Public Records Act provisions control its reply, it
properly responded that Juan Zabala did not seek reasonably identifiable records.
Because we can resolve this case on other grounds, we do not address Okanogan
County’s interesting contention that it need not fulfill the Public Records Act’s dictates
regarding asserting an exemption.
RCW 42.56.080 reads, in part:
(1) A public records request must be for identifiable records. A
request for all or substantially all records prepared, owned, used, or retained
by an agency is not a valid request for identifiable records under this
chapter, provided that a request for all records regarding a particular topic
or containing a particular keyword or name shall not be considered a
request for all of an agency’s records.
(2) . . . Agencies shall not deny a request for identifiable public
records solely on the basis that the request is overbroad..
(Emphasis added.) In reviewing whether Juan Zabala asked for identifiable public
records, we isolate the many requests by Zabala and his counsel as subsumed into the
following two categories:
1. recorded phone calls placed by adult inmates in Okanogan
County, Chelan County, or Douglas County.
2. any and all records created in the last three years related to
recordings of inmate phone calls from any adult correctional facility.
The first category of recorded phone calls seeks readily identifiable records. We
do not know if the Okanogan County Prosecuting Attorney’s Office possesses electronic
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recordings of phone calls, physical recordings of calls, or both. Locating the records may
consume significant time, but the prosecuting attorney’s office should be able to peruse
each physical or electronic file and find each recording. Administrative inconvenience or
difficulty does not excuse strict compliance with the Public Records Act. Benton County
v. Zink, 191 Wash. App. 269, 280, 361 P.3d 801 (2015).
The more difficult question concerns the second category of requests—all records
relating to the recordings. Often the requestor seeks a readily identifiable record because
the requestor employs a title for the document such as the 1988 study by BioEngineers on
the Impact of Glue Sniffing. Unfortunately, Juan Zabala seeks a broad category of
records and the Okanogan County Prosecuting Attorney’s Office records will not include
a heading that reads: this record relates to a jail inmate recording.
Record requestors are not required to supply the exact name of the record, but
requests must be for identifiable records or a class of records. Fisher Broadcasting-
Seattle TV LLC v. City of Seattle, 180 Wash. 2d 515, 522, 326 P.3d 688 (2014). We
conclude that, because of the use of words “any,” “all,” and “related to” and because the
requested records hold confidential attorney notes, Juan Zabala does not seek identifiable
records. In so concluding, we traverse the competing values of government transparency
and accommodating an agency in performing its many duties other than locating and
accessing records.
Initially we address Okanogan County’s contention concerning the inability to
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perform a computer search for the requested records. The Okanogan County Prosecuting
Attorney’s Office emphasizes its inability to identify, by a search query under its
computer software program, those files in which lies a jail inmate recording. We assume
this impossibility extends to pleadings, memoranda, or other records inside files that
reference recordings.
RCW 42.56.080(1) permits requests for all records regarding a particular topic or
containing a particular keyword or name. The statute’s reference to a keyword implies
that the government agency will often employ an electronic search of its files.
A few Washington decisions and many foreign and federal decisions address
whether a government entity performed a reasonable search when employing keyword
searches of electronic records. Nevertheless, only one Washington decision tangentially
relates to the question of whether records must be capable of being found when searched
by key words on a computer software program in order to be “reasonably identifiable.”
In Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 180 Wash. 2d 515 (2014), the
television station requested copies of police officer patrol car video and audio recordings.
The department’s information technology expert concluded that the department could not
query its software system to generate a report that would provide a list of retained videos.
The department therefore responded to the requestor that: “Without this capability we are
unable to respond to your request.” Fisher Broadcasting-Seattle TV LLC v. City of
Seattle, 180 Wash. 2d at 520. Without any analysis, the court concluded that the city had
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the capability to produce the list, so, to the extent that its ability to produce the videos
was contingent on its ability to produce the list, its response violated the Public Records
Act. The court did not indicate whether the city police department needed to extensively
hand comb each file and drawer and cabinet and isolate each requested video or audio
recording.
We conclude that the inability to perform a key word search in computer files does
not excuse a government entity’s response to a public records request. Nevertheless, we
also conclude that the inability to perform a key word search for electronic records can be
considered in determining whether the records sought are identifiable.
Juan Zabala seeks “any and all” records related to jail inmate recordings. We
discern difficulty in a government agency responding to a request seeking “all” records
relating to a broad subject. RCW 42.56.080(1) expressly declares a request for “all” or
“substantially all” records as an invalid request. Juan Zabala, however, limits his request
to all records related to a particular subject.
The state public disclosure act closely parallels the federal Freedom of
Information Act, 5 U.S.C. § 552, and thus judicial interpretations of the federal act assist
in construing our own. Servais v. Port of Bellingham, 127 Wash. 2d 820, 835, 904 P.2d
1124 (1995). RCW 42.56.080’s requirement of “identifiable” records echoes the federal
requisite that the request “reasonably describes” the records sought. 5 U.S.C.
§ 552(a)(3)(A). Under federal law, the requestor satisfies the requirement if a
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professional employee of the agency familiar with the subject matter can locate the
records with a reasonable amount of effort. Marks v. United States, Department of
Justice, 578 F.2d 261, 263 (9th Cir. 1978); Freedom Watch, Inc. v. Central Intelligence
Agency, 895 F. Supp. 2d 221, 228 (D.D.C. 2012). While no specific formula for a
reasonable description of a record can be established, the requirement will generally be
satisfied if the requestor gives the name, subject matter, location, and years at issue, of
the requested records. 26 C.F.R. § 601.702(c)(4)(i)(A) (IRS regulation). The linchpin
inquiry is whether “the agency is able to determine precisely what records are being
requested.” Tax Analysts v. Internal Revenue Service, 326 U.S. App. D.C., 117 F.3d 607,
610 (1997) (quoting Yeager v. Drug Enforcement Agency, 220 U.S. App. D.C. 1, 678
F.2d 315, 326 (1982).
Broad, sweeping requests lacking specificity are not sufficient. American
Federation of Government Employees Local 2782 v. United States Department of
Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986), aff’d, 907 F.2d 203 (1990). An
agency need not respond to a request that is so broad as to impose an unreasonable
burden on the agency, such as one that requires the agency to locate, review, redact, and
arrange for inspection a vast quantity of material. Service Women’s Action Network v.
Department of Defense, 888 F. Supp. 2d 282, 290-91 (D. Conn. 2012). The rationale for
this rule is that the Freedom of Information Act was not intended to reduce government
agencies to full-time investigators on behalf of requestors. Dale v. Internal Revenue
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Service, 238 F. Supp. 2d 99, 104 (D.D.C. 2002).
In National Security Counselors v. Central Intelligence Agency, 960 F. Supp. 2d
101 (D.D.C. 2013), an organization sought a copy of “all CIA records pertaining to the
IBM supercomputer Watson.” National Security Counselors v. Central Intelligence
Agency, 960 F. Supp. 2d at 161. The court upheld the agency’s refusal to produce the
records as not reasonably describing the records sought. The search would require an all-
encompassing search of all agency records.
In addition to Juan Zabala’s second request seeking all records on a particular
subject, the request seeks records “related” to jail inmate recordings. The word “related”
holds inherent ambiguity. We assume that the request extends to records with any
relationship to the recordings regardless of how direct or indirect the relationship might
be. Nevertheless, one searching for the records likely would be unable to discern when a
particular document indirectly relates to a recording and may even encounter some
difficulty in determining if a record directly relates to a recording.
We return to some federal law cases and principles. A request for all documents
“relating to” a subject is usually subject to criticism as overbroad since life, like law, is a
seamless web and all documents relate to all others in some remote fashion.
Massachusetts Department of Public Welfare v. United States Department of Health &
Human Services, 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). An agency should not be
required to sift and analyze records to determine what records are covered under the
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request. National Security Counselors v. Central Intelligence Agency, 960 F. Supp. 2d at
158 (D.D.C. 2013). The agency should not be left to perform a subjective analysis as to
the records requested. National Security Counselors v. Central Intelligence Agency, 960
F. Supp. 2d at 158. The Freedom of Information Act was not intended to commandeer
agency employees into research assistants. National Security Counselors v. Central
Intelligence Agency, 960 F. Supp. 2d at 160 n.28.
Juan Zabala has not provided a precise request. Instead he has submitted a broad
and sweeping request for records that would entail the employment of guesswork to
fulfill and would compel prosecuting attorney’s office staff to serve as his research
assistants.
Juan Zabala seeks records in the Okanogan County Prosecuting Attorney’s Office.
Some of those records will likely contain legal impressions and strategies of an attorney
prosecuting a crime. The prosecuting attorney’s office has legitimately objected to
disclosing records in part based on the attorney work product exemption. Under
RCW 42.56.290, an agency need not disclose “[r]ecords that are relevant to a controversy
to which an agency is a party but which records would not be available to another party
under the rules of pretrial discovery for causes pending in the superior courts.” This
exemption includes communications containing attorney work product. Block v. City of
Gold Bar, 189 Wash. App. 262, 279-80, 355 P.3d 266 (2015).
In State ex rel. Strothers v. Keenon, 2016-Ohio-405, 59 N.E.3d 556 (Ct. App.), an
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Ohio resident sought from a board of education all staff personnel records. The court
noted that, before producing the records, the board would need to excise confidential
information regarding each employee from the employee file. This process would place
“quite a burden” on the board. State ex rel. Strothers v. Keenon, 59 N.E.3d at 562. The
court thereby declared the request overly broad and as failing to identify the requested
records with reasonable clarity. A response by the board would unreasonably interfere
with the board’s other duties.
In Irons v. Schuyler, 151 U.S. App. D.C. 23, 465 F.2d 608 (1972), a citizen sought
from the Commissioner of Patents of the United States, under the Freedom of
Information Act, “all unpublished manuscript decisions of the Patent Office, together
with such indices as are available.” The commissioner responded that the blanket request
for all unpublished manuscript decisions did not comply with the requisite of a request
for “identifiable records.” The associate solicitor of the Patent Office filed an affidavit
that declared that the Patent Office maintained more than 3,500,000 files of patents,
approximately 100,000 files of patent interferences, approximately 180,000 pending
patent applications, and over a million abandoned patent applications, any of which may
contain one or more manuscript decisions. The trial court agreed with the Patent Office
that the citizen failed to present a reasonable request for specific material. The trial court
suggested that the citizen narrow his request to identifiable opinions in part because the
request was not specific enough to decide if any particular decision or decisions could be
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Zabala v. Okanogan County
made available since some of the requested information might need to be kept
confidential.
Identification of Exempt Records
Juan Zabala requests that we remand to the trial court with instructions that
Okanogan County be ordered to disclose all exempt responsive records. We assume that
Zabala does not ask that the entire recordings or the pages relating to the records be
produced with the appropriate redactions. Redacting confidential information from the
recordings would leave nothing. In reading other sentences in Zabala’s request, we
discern that Zabala asks that the county provide a specific means to identify each record
withheld in its entirety. The disclosure would include the type of record, its date and
number of pages, and, unless otherwise protected, the author and recipient, or if
protected, other means of sufficiently identifying particular records without disclosing
protected content. In turn, the county would, in writing, articulate a specific applicable
exemption and provide a brief explanation of how the exemption applies to the record
withheld.
As already ruled, one of Juan Zabala’s categories of requested records seeks
records not reasonably identifiable. Because those records cannot be identified,
Okanogan County holds no obligation to identify the records and provide the additional
information sought by Zabala. As to jail inmate phone recordings, Okanogan County has
properly notified Zabala of the exemption available for the recordings. Still, Okanogan
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No. 34961-6-III
Zabala v. Okanogan County
County has not identified what recordings exist.
We question what purpose is served for the Okanogan County Prosecuting
Attorney’s Office to peruse hundreds, if not thousands, of its files, identify files that
contain jail inmate recordings, and then prepare and send an exemption log to Juan
Zabala when such a task would require the hiring of additional staff or the payment of
overtime hours. We wonder why the prosecuting attorney’s office should engage in this
task when Juan Zabala is not entitled to any portion of the recordings requested.
The controlling statute, RCW 42.56.520, declares:
Prompt responses required.
(1) Responses to requests for public records shall be made promptly
by agencies. . . . Within five business days of receiving a public record
request, an agency . . . must respond in one of the ways provided in this
subsection (1):
(a) Providing the record;
....
(e) Denying the public record request.
(2) Additional time required to respond to a request may be based
upon the need to clarify the intent of the request, to locate and assemble the
information requested, to notify third persons or agencies affected by the
request, or to determine whether any of the information requested is exempt
and that a denial should be made as to all or part of the request.
....
(4) Denials of requests must be accompanied by a written statement
of the specific reasons therefor.
RCW 42.56.070 also states, in part: “in each case, the justification for the deletion shall
be fully explained in writing.”
Some principles favor requiring Okanogan County to identify each jail inmate
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No. 34961-6-III
Zabala v. Okanogan County
recording as to the name of the inmate, the location of the jail, and the date of the
recording. The Supreme Court has emphasized the need for particularity in the
identification of records withheld and exemptions claimed. City of Lakewood v. Koenig,
182 Wash. 2d 87, 94, 343 P.3d 335 (2014). Therefore, in order to ensure compliance with
the statute and to create an adequate record for a reviewing court, an agency’s response to
a requestor must include specific means of identifying any individual records which are
being withheld in their entirety. City of Lakewood v. Koenig, 182 Wash. 2d at 94. This
requirement ensures compliance with the statute and provides an adequate record on
review. City of Lakewood v. Koenig, 182 Wash. 2d at 94. Also, administrative
inconvenience does not relieve an agency of its duty to comply with the Public Records
Act. Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 130, 580 P.2d 246 (1978).
Our state Supreme Court has denounced the “silent withholding” of information in
response to a Public Records Act request. Progressive Animal Welfare Society v.
University of Washington, 125 Wash. 2d at 270 (1994). Silent withholding would allow an
agency to retain a record or portion without providing the required link to a specific
exemption and without providing the required explanation of how the exemption applies
to the specific record withheld. Progressive Animal Welfare Society v. University of
Washington, 125 Wash. 2d at 270. Without a specific identification of each individual
record withheld in its entirety, the reviewing court’s ability to conduct the statutorily
required de novo review is vitiated. Progressive Animal Welfare Society v. University of
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No. 34961-6-III
Zabala v. Okanogan County
Washington, 125 Wash. 2d at 270. In Rental Housing Association of Puget Sound v. City of
Des Moines, 165 Wash. 2d 525, 539-40, 199 P.3d 393 (2009), the Supreme Court held that
the city’s reply letter did not adequately describe individually the withheld records by
stating the type of record withheld, date, number of pages, and author and recipient or
explain which individual exemption applied to which individual record rather than
generally asserting the controversy and deliberative process exemptions as to all withheld
documents.
Still other principles suggest Okanogan County should be excused from
identifying each inmate recording withheld from production. Courts have never required
repetitive, detailed explanations for each piece of withheld information. Judicial Watch,
Inc. v. Food & Drug Administration, 371 U.S. App. D.C. 187, 449 F.3d 141, 147 (2006).
The agency may not be required to justify its refusal on a document-by-document basis.
Murray v. New Hampshire Division of State Police, Special Investigation Unit, 154 N.H.
579, 913 A.2d 737, 741 (2006). The agency need only provide the court with sufficient
information for it to understand the basic reasoning behind the claimed exemption.
Morley v. Central Intelligence Agency, 378 U.S. App. D.C. 411, 508 F.3d 1108, 1123
(2007). The level of detail necessary for a requestor to determine whether an exemption
is properly invoked will depend on both the nature of the exemption and the nature of the
document or information. City of Lakewood v. Koenig, 182 Wash. 2d at 95 (2014). The
Washington Legislature does not wish excessive interference with other essential
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No. 34961-6-III
Zabala v. Okanogan County
functions of the agency with a public records request. RCW 42.56.100.
To provide an exemption log for Juan Zabala, Okanogan County would, in
essence, be providing a list of information as to which jail inmates jails recorded phone
calls. Juan Zabala’s Public Records Act simply becomes a request for information not
for records. An agency need not mine data from distinct systems and create a new
document. Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 180 Wash. 2d at 523
(2014).
Since none of the recordings must be disclosed, Okanogan County would in part
be performing a futile task. In general, the government need not undertake a futile act.
State v. Hernandez, 192 Wash. App. 673, 687-88, 368 P.3d 500, review denied, 186 Wash. 2d
1006, 380 P.3d 452 (2016); Robinson v. Employment Security Department, 84 Wash. App.
774, 779, 930 P.2d 926 (1996). Okanogan County has provided the court a sufficient
response to enable the court to determine whether an exemption applies.
Under the unique circumstances of this appeal, we rule that Okanogan County
complied with the Public Records Act when declining to provide an exhaustive list of
cases in which it holds a jail inmate phone call recording.
Attorney Fees
Both parties request attorney fees be awarded on appeal. Pursuant to RCW
42.56.550(4), any person who prevails against an agency in seeking the right to inspect or
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No. 34961-6-III
Zabala v. Okanogan County
copy a public record is entitled to reasonable attorney fees. Since Juan Zabala does not
prevail against Okanogan County, we deny his request for attorney fees.
Okanogan County asserts three bases for requesting reasonable attorney fees and
costs: RAP 14.2, RAP 18.1, and RAP 18.9. RAP 18.1 allows an award of reasonable
attorney fees and costs if another rule or statute authorizes the award. RCW 42.56.550(4)
authorizes an award only to a person prevailing against the government agency.
Okanogan County cites no other statutory basis for a grant of fees.
The county argues that RAP 18.9 gives authority for an award of attorney fees
since Juan Zabala filed a frivolous appeal. An appeal is frivolous if there are no
debatable issues on which reasonable minds might differ and it is so totally devoid of
merit that there was no reasonable possibility of reversal. Fay v. Northwest Airlines Inc.,
115 Wash. 2d 194, 200-01, 796 P.2d 412 (1990). We do not consider Juan Zabala’s appeal
frivolous. Only one case addresses the applicability of RCW 70.48.100 and that decision
involves records of a different nature. No court has addressed whether records sent by a
jail to a prosecuting attorney and used in court proceedings retains a shield from Public
Records Act’s disclosure. More importantly, this appeal addresses unique questions
regarding the extent to which an agency must supply information when claiming an
exemption.
Okanogan County asks for an award of fees pursuant to RAP 14.2 for being the
substantially prevailing party on review. “Attorney fees under RAP 14.2 are statutory
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No. 34961-6-III
Zabala v. Okanogan County
attorney fees and costs are limited to costs on review." Hudson v. Hapner, 170 Wash. 2d
22, 35, 239 P.3d 579 (2010). We award Okanogan County the statutory attorney fees
allowed by RAP 14.2.
CONCLUSION
We affirm the trial court's dismissal of Juan Zabala's Public Records Act suit.
Fearing, J.
WE CONCUR:
K&t/ Pennell, A.CJ.
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Appendix 1
RCW 70.48.100
(1) A department of corrections or chief law enforcement officer responsible for
the operation of a jail shall maintain a jail register, open to the public, into which shall be
entered in a timely basis:
(a) The name of each person confined in the jail with the hour, date and cause of
the confinement; and
(b) The hour, date and manner of each person's discharge.
(2) Except as provided in subsection (3) of this section, the records of a person
confined in jail shall be held in confidence and shall be made available only to criminal
justice agencies as defined in RCW 43.43.705; or
(a) For use in inspections made pursuant to RCW 70.48.070;
(b) In jail certification proceedings;
(c) For use in court proceedings upon the written order of the court in which the
proceedings are conducted;
(d) To the Washington association of sheriffs and police chiefs;
(e) To the Washington institute for public policy, research and data analysis
division of the department of social and health services, higher education institutions of
Washington state, Washington state health care authority, state auditor's office, caseload
forecast council, office of financial management, or the successor entities of these
organizations, for the purpose of research in the public interest. Data disclosed for
research purposes must comply with relevant state and federal statutes;
(f) To federal, state, or local agencies to determine eligibility for services such as
medical, mental health, chemical dependency treatment, or veterans' services, and to
allow for the provision of treatment to inmates during their stay or after release. Records
disclosed for eligibility determination or treatment services must be held in confidence by
the receiving agency, and the receiving agency must comply with all relevant state and
federal statutes regarding the privacy of the disclosed records; or
(g) Upon the written permission of the person.
(3)(a) Law enforcement may use booking photographs of a person arrested or
confined in a local or state penal institution to assist them in conducting investigations of
crimes.
(b) Photographs and information concerning a person convicted of a sex offense as
defined in RCW 9.94A.030 may be disseminated as provided in RCW 4.24.550,
9A.44.130, 9A.44.140, 10.01.200, 43.43.540, 43.43.745, 46.20.187, 70.48.740,
72.09.330, and section 401, chapter 3, Laws of 1990.
(4) Any jail that provides inmate records in accordance with subsection (2) of this
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No. 34961-6-III
Zabala v. Okanogan County
section is not responsible for any unlawful secondary dissemination of the provided
inmate records.
29