Benton County v. Donna Zink

FILED
NOVEMBER 10,2015
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
BENTON COUNTY, a political ) No. 32912-7-III
subdivision of the State of Washington, )
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
DONNAZINK, )
)
Appellant. )
LAWRENCE-BERREY, J. - Donna Zink threatened suit against Benton County for
its decisions not to make electronic copies of paper records responsive to her public
records request, and to charge her the outside vendor's cost to make such electronic
copies. Benton County filed a declaratory action against Ms. Zink and moved for
summary judgment, seeking confirmation that its decisions were lawful under the Public
Records Act (PRA), chapter 42.56 RCW. The trial court granted Benton County's
summary judgment motion and entered a declaratory judgment Ms. Zink appeals. We
affirm the trial court's order and declaratory judgment.
No. 32912-7-III
Benton County v. Zink
FACTS
In August 2013, Ms. Zink e-mailed a PRA request to the Benton County
prosecutor's office "to review and/or copy all SSOSA [special sex offender sentencing
alternative] forms as well as all victim impact statements filed and maintained anywhere
in Benton County." Clerk's Papers (CP) at 180. Over time, Ms. Zink's request was
narrowed to records relating to convicted sex offenders and, in April 2014, she withdrew
her request for any future victim impact statements. Benton County estimates that Ms.
Zink's request will not be fulfilled until 2023.
This dispute stems from Ms. Zink's persistence on receiving all responsive
documents from Benton County in electronic format. Under Benton County Code
5.14.100, if an electronic record "necessitates redaction due to an exemption, the County
is under no obligation to provide the record electronically." CP at 115. Further, Benton
County Code 5.14.l20(c) provides "[a]ny request for more than twenty-five (25) pages of
documents ... may be sent by the County to a private copy shop for copying, in which
case the fee shall be the actual charge imposed for copying." CP at 118.
Shortly after making the request, Ms. Zink inquired into the cost of receiving the
records in electronic format. Benton County responded:
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We do not have the resources to copy all the original records (which will
involve potentially thousands), redact them, and then scan them back into
electronic form for you. The MitcheWll court and Mechling[2] court make
clear such duplication of effort is outside the county's obligations under the
PRA.
CP at 97. However, Benton County offered to accommodate Ms. Zink by having an
outside vendor create electronic copies of the records for 25 cents per page. The 25 cents
per page cost was the lowest of three outside vendor quotes. Under this method, the
scanned-in electronic copies would be created on the outside vendor's server.
After discovering that some of the redacted paper copies of records she was
receiving were also held in electronic format, Ms. Zink made it clear that she was
requesting all records in electronic format and failure to provide the records in electronic
format was "a violation of the PRA." CP at 79. By the time of the trial court proceedings
resulting in this appeal, Benton County had produced 91 records encompassing 561
pages. Of the 91 records, 66 were held by the Benton County prosecutor's office in paper
format and 25 were held in electronic format. Moreover, 19 of the 25 electronic records
required redaction of information exempt under the PRA.
I Mitchell v. Dep't ofCorr. , 164 Wn. App. 597,277 P.3d 670 (2011).
2 Mechling v. City ofMonroe, 152 Wn. App. 830,222 P.3d 808 (2009).
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In responding to Ms. Zink's request, the Benton County prosecutor's office has
redacted the applicable 19 electronic records by hand and provided Ms. Zink with paper
copies. The employee tasked with responding to Ms. Zink's request does not have access
to software allowing electronic redaction, and would therefore have to "print the original
electronic document, physically redact it and then scan the paper document and save it
onto the County's server" in order to provide Ms. Zink with electronic copies. CP at 121.
Benton County believes this "would result in the creation of data about that electronic
document and consume storage space on the server." CP at 128. The electronic records
that do not need redaction have been provided to Ms. Zink in electronic format.
In November and December 2013, Ms. Zink e-mailed Benton County multiple
times demanding, with thinly-veiled litigation threats, electronic copies ofthe records.
Benton County reiterated its outside vendor offer to Ms. Zink. In early January 2014, Ms.
Zink e-mailed Benton County, "either send me the records as requested or wait until
we go to court and find out if Benton County has the right to refuse to provide the
requested records in electronic format as requested." CP at 89 (bold in original). In
late January 2014, rather than wait for potential per diem penalties to accumulate, Benton
County filed a declaratory action seeking a court determination of its obligations under
thePRA.
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Benton County's declaratory action sought a judicial determination that:
(a) the Public Records Act does not mandate that a public agency create an
electronic public record if it does not possess the public record in electronic
form; (b) the Public Records Act does not mandate that a public agency
create a second electronic record with respect to an electronic record it
possesses but which must be redacted under the terms of the Public Records
Act; and (c) if a public agency chooses to or is obligated to create an
electronic record, the Public Records Act allows the agency to hire a third
party vendor to create an electronic record from a public record that the
agency does not possess electronically and/or from an electronic record that
must be redacted and to charge the requestor the actual cost of creating an
electronic record.
CP at 1. In her original answer, Ms. Zink sought PRA penalties against Benton County,
but dropped that language in her second revised answer after she failed to pay the
counterclaim filing fee. She subsequently told Benton County that she will "just file a
motion for penalties if! win." CP at 162.
Benton County moved for summary judgment. Ms. Zink responded with a lack of
standing argument in a combined memorandum in opposition to summary judgment and a
motion to dismiss Benton County's declaratory action. In October 2014, the trial court
denied Ms. Zink's motion to dismiss, granted Benton County's motion for summary
judgment, and entered a declaratory judgment in favor of Benton County.
The trial court determined that there was no genuine issue of material fact as to the
following:
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Benton County v. Zink
1. There is an existing dispute between the parties regarding the
County's authority and obligations under Washington's Public Records Act
(PRA), and such dispute is not hypothetical and can be determined by a
declaratory judgment issued by this Court.
2. A justiciable controversy exists, and this Court's jurisdiction
under RCW 7.24 has properly been invoked.
3. No other parties are necessary or indispensable parties to this
action.
4. There are no disputed facts material to the issue of whether
Benton County is authorized under the PRA to have scanning services
performed by a third party and charge Ms. Zink the actual reasonable cost
thereof.
5. Benton County obtained quotes from three vendors as to the cost
of scanning services, and a charge of 25 cents per page was the lowest
quoted and is reasonable.
6. The Public Records Officer for the Benton County Prosecutor's
Office does not have software on her computer to enable her to
electronically redact any of the documents responsive to her request.
7. To provide Ms. Zink with electronic versions of responsive
documents that it possesses in paper form only or that it possesses in
electronic form that must be redacted, the Prosecutor's Public Records
Officer would need to create additional public records.
CP at 217-18.
Consequently, the trial court entered the following declaratory judgment in favor
of Benton County:
1. Washington's Public Records Act (PRA), chapter 42.56 RCW,
allows Benton County to hire a third party vendor to create electronic
records from records it possesses only in paper form and from its electronic
records that must be redacted and to charge Ms. Zink twenty-five cents per
page or the actual cost, whichever is less, to have such electronic records
created if she requests responsive documents be provided in electronic
form.
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Benton County v. Zink
2. The PRA does not require that Benton County create or pay
someone to create additional records that the County possesses in paper
form only; and
3. The PRA does not require that Benton County create or pay
someone to create additional electronic records from records that the
County possesses in electronic form, but that it appropriately redacts under
the terms of the PRA.
CP at 220-21. Ms. Zink timely appealed the order granting Benton County's motion for
summary judgment, the order denying her motion to dismiss, and the declaratory
judgment itself.
ANALYSIS
1. Whether Benton County has standing to seek a declaratory judgment
Under the Uniform Declaratory Judgments Act, chapter 7.24 RCW (UDJA), "[a]
person ... whose rights, status or other legal relations are affected by a statute ... may
have determined any question of construction or validity ... and obtain a declaration of
rights, status or other legal relations thereunder." RCW 7.24.020. The UDJA "is to be
liberally construed and administered." RCW 7.24.120. In order to decide an action for
declaratory relief, a justiciable controversy must be present. To-Ro Trade Shows v.
Collins, 144 Wash. 2d 403, 410-11,27 PJd 1149 (2001). Because the trial court determined
that Benton County had standing as a matter of law, we view the evidence bearing on this
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issue in the light most favorable to Ms. Zink and the conclusions of law de novo.
See id. at 410 (this court applies "the customary principles of appellate review").
In order to have ajusticiable controversy under the UDJA, the following elements are
required:
"( 1) ... an actual, present and existing dispute, or the mature seeds of one,
as distinguished from a possible, dormant, hypothetical, speculative, or
moot disagreement, (2) between parties have genuine and opposing
interests, (3) which involves interests that must be direct and substantial,
rather than potential, theoretical, abstract or academic, and (4) a judicial
determination of which will be final and conclusive."
Id. at 411 (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wash. 2d 811, 815, 514 P.2d
137 (1973)). "Inherent in these four requirements are the traditional limiting doctrines of
standing, mootness, and ripeness, as well as the federal case-or-controversy requirement."
Id. Specifically, the "direct, substantial interest" element "encompasses the doctrine of
standing." Id. at 414.
Under the UDJA standing requirement, a party must (1) be within the zone of
interests protected or regulated by a statute, and (2) have suffered an injury in fact.
Nelson v. Appleway Chevrolet. Inc., 160 Wash. 2d 173, 186, 157 P.3d 847 (2007); To-Ro
Trade Shows, 144 Wash. 2d at 414 (quoting Seattle Sch. Dist. No.1 v. State, 90 Wash. 2d 476,
493-94,585 P.2d 71 (1978)). To put it most succinctly, "[t]he doctrine of standing
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requires that a claimant must have a personal stake in the outcome of a case in order to
bring suit." Kleven v. City ofDes Moines, 111 Wash. App. 284, 290, 44 P.3d 887 (2002).
A stand alone statute is not needed under the UDJA so long as '" the interest
sought to be protected ... is arguably within the zone of interests to be protected or
regulated by the statute.'" To-Ro Trade Shows, 144 Wash. 2d at 414 (emphasis added)
(internal quotation marks omitted) (quoting Seattle Sch. Dist., 90 Wash. 2d at 493); see
Nelson, 160 Wash. 2d at 187 ("Of course, no additional private right of action is necessary
for parties to seek a declaratory judgment whenever their rights are affected by a
statute."). If the party's interests are affected or impacted by a statute, the party is within
the zone of interests. See Nelson, 160 Wash. 2d at 187.
An important aim of the PRA is for each agency to provide "full public access to
public records." RCW 42.56.100. This aim is accomplished by adoption and
enforcement of reasonable rules, including rules to "prevent excessive interference with
other essential functions of the agency." Id. The PRA thus recognizes that agencies
should have limited protections when carrying out their duties, and are therefore within
the zone of interests protected by the PRA. See also RCW 42.56.060 (disclaimer of
agency liability for good faith release of public records).
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Standing under the UDJA also requires injury in fact. Nelson, 160 Wash. 2d at 186.
Washington courts have held that additional financial and administrative burdens imposed
on an agency constitute sufficient injury. See Whatcom County v. State, 99 Wn. App.
237,241,993 P.2d 273 (2000) (county had standing to seek declaration that the State was
obligated to defend a civil rights action because "if the State [did] not defend and
indemnify ... the County [would] be forced to do so"). Seeking a declaratory judgment
under the PRA, '" spares the agency the uncertainty and cost of delay, including the per
diem penalties for wrongful withholding.'" Soter v. Cowles Publ 'g Co., 162 Wash. 2d 716,
751, 174 P.3d 60 (2007) (quoting Soter v. Cowles Publ'g Co., 131 Wn. App. 882,907,
130 P.3d 840 (2006), aff'd, 162 Wash. 2d 716).
Here, Benton County has standing to seek a declaratory judgment. Benton County
is within the zone of interests regulated by the PRA. Further, Benton County has a
personal stake in the outcome and has suffered an injury for declaratory judgment
purposes based on Ms. Zink's explicit threats to sue Benton County. Allowing Benton
County to seek a declaratory judgment that it has complied with the PRA '" spares the
agency the uncertainty and cost of delay, including the per diem penalties for wrongful
withholding.'" Soter, 162 Wash. 2d at 751 (quoting Soter, 131 Wash. App. at 907). We hold
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that the trial court properly denied Ms. Zink's argument that Benton County lacked
standing to bring its action.
2. Whether the declaratory judgment properly determined the parties' rights
The PRA is a '" strongly worded mandate for broad disclosure of public records.' "
Soter, 162 Wash. 2d at 731 (quoting Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 127,580 P.2d
246 (1978)). "The primary purpose of the PRA is to provide broad access to public
records to ensure government accountability." City 0/ Lakewood v. Koenig, 182 Wn.2d
87,93,343 P.3d 335 (2014); RCW 42.56.030 (the PRA must be "liberally construed and
its exemptions narrowly construed" to ensure that the public's interest is protected).
Consistent with RCW 42.56.100, agencies must adopt rules that "provide for the fullest
assistance to inquirers," but still "prevent excessive interference with other essential
functions of the agency." However, "administrative inconvenience or difficulty does not
excuse strict compliance with the [PRA]." Zink v. City 0/ Mesa, 140 Wash. App. 328, 337,
166 P.3d 738 (2007).
This court reviews the legality of agency actions under the PRA de novo.
RCW 42.56.550(3); Mitchell v. Dep't o/Corr., 164 Wn. App. 597,602,277 P.3d 670
(2011). "While agencies have some discretion in establishing procedures for making
public information available, the provision for de novo review confirms that courts owe
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no deference to agency interpretations of the [PRA]." Zink, 140 Wash. App. at 335. When
interpreting the PRA, this court'" look[ s] at the act in its entirety in order to enforce the
law's overall purpose.'" Mitchell, 164 Wash. App. at 603 (quoting Rental Hous. Ass 'n of
Puget Sound v. City ofDes Moines, 165 Wn.2d 525,536, 199 P.3d 393 (2009)); see
Mechling v. City ofMonroe, 152 Wn. App. 830,845,222 P.3d 808 (2009) ([T]his court
avoids any "unlikely, absurd, or strained result.").
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter oflaw. CR 56(c). An appellate
court "may affirm summary judgment on any grounds supported by the record." Blue
Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wash. App. 449, 453, 266 P.3d 881 (2011).
Ms. Zink argues that she presented genuine issues of material fact when she filed
various discovery responses from the County. Specifically, the filed responses show that
Benton County has the manpower and equipment to scan redacted paper copies and
indeed has done so in the past. Ms. Zink however has not established that Benton County
has done so in situations similar to her records request, where redacted paper copies
potentially total several thousand pages.
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a. There is no requirement to create a new record by scanning hard
paper copies into electronic format
"Nothing in the PRA obligates an agency to disclose records electronically."
Mitchell, 164 Wash. App. at 606; accord Mechling, 152 Wash. App. at 849. Under the PRA
"[a]n agency has no duty to create or produce a record that is nonexistent." Sperr v. City
o/Spokane, 123 Wash. App. 132, 136-37,96 P.3d 1012 (2004). "Whether a particular
public records request asks an agency to produce or create a record will likely often turn
on the specific facts of the case and thus may not always be resolved at summary
judgment." Fisher Broad.-Seattle TV LLC v. City o/Seattle, 180 Wash. 2d 515, 524, 326
P.3d 688 (2014).
In this situation, scanning a redacted paper copy of a record into electronic format
on an agency's server creates a new public record. In Mechling, the court expressly
rejected the argument that "as to properly redacted e-mails ... the City has an obligation
to scan the e-mailsto create portable document format (PDF) or tagged image file format
(TIFF) files." Mechling, 152 Wash. App. at 850. In the same vein, the court in Mitchell
reasoned:
The requested records are stored in a computer database and ostensibly
include information that must be redacted. Requiring [the agency] to
disclose these records electronically would force the agency to print the
records, redact them, and then scan them back into electronic format. ...
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[W]e hold that such duplication of effort is outside of the agency's
obligation of "fullest assistance"[3] [to inquirers] under the PRA.
Mitchell, 164 Wash. App. at 607. Under both Mechling and Mitchell, an agency is not
required to create new public records by scanning properly redacted paper copies of
records into an agency's server.
The trial court was presented with unrefuted evidence that scanning in redacted
paper copies of electronic records in order to make electronic copies for Ms. Zink "would
result in the creation of data about that electronic document and consume storage space
on the server." CP at 128. Use of the outside vendor for scanning avoids creating a new
public record on Benton County's server. Benton County is under no obligation to create
new electronic records for Ms. Zink just because Ms. Zink believes it is more convenient
for her and all other PRA requestors.
b. Benton County may assess Ms. Zink the charge ofthe outside vendor
for converting paper copies into electronic format
Since the PRA allows a requestor to either inspect the records or request copies, a
requestor may elect merely to inspect the records rather than bear the cost of copies.
RCW 42.56.120. "A reasonable charge may be imposed for providing copies of public
records[,] which charges shall not exceed the amount necessary to reimburse the agency
3 See RCW 42.56.100.
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... for its actual costs directly incident to such copying." RCW 42.56.120 (emphasis
added). The Attorney General's model rule states, "[a]n agency can send the 'project to a
commercial copying center and bill the requestor for the amount charged by the vendor."
WAC 44-14-0700 1(5).
Ms. Zink chose to receive copies of the records as opposed to inspect the records
in person. Benton County was under no obligation to create electronic records for Ms.
Zink, but decided to accommodate her by having an outside vendor create the electronic
copies on its own server for 25 cents per page. This was the actual cost Benton County
incurred based on the lowest of three quotes from outside vendors. The PRA allows
Benton County to charge Ms. Zink the actual costs it incurs for such a service.
Affirm.
Lawrence-Berrey, J.
WE CONCUR:
Siddoway, C.J.
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