Department of Corrections v. Jeffrey R. McKee

FILED
JULY 11, 2017
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
DEPARTMENT OF CORRECTIONS, ) No. 34436-3-111
)
Petitioner, )
)
V. ) PUBLISHED OPINION
)
JEFFREY R. MCKEE, )
)
Respondent. )
LAWRENCE-BERREY, A.CJ. - In 2009, the legislature enacted RCW 42.56.565 to
address abusive requests for public records by persons serving criminal sentences. This
statute authorizes courts to enjoin such persons from inspecting or copying nonexempt
public records if the court finds that one of four situations applies. See RCW
42.56.565(2)(c)(i)-(iv). At issue in this case is the situation where "[t]he request was
made to harass or intimidate the agency or its employees." RCW 42.56.565(2)(c)(i).
Jeffrey McKee is an inmate in the custody of the Washington State Department of
Corrections (the Department). Since 2006, he has submitted at least 336 requests to the
Department under the Public Records Act (PRA), chapter 42.56 RCW, including 61
requests between December 2014 and February 2016. The Department sought a
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preliminary injunction under RCW 42.56.565 to enjoin Mr. McKee from filing further
requests. It argued RCW 42.56.565(2)(c)(i) applies when an inmate makes prolific
records requests for the purpose of suing the agency and profiting financially. ,The trial
court disagreed and interpreted this provision as being limited to situations in which
inmates seek the private information of agency employees to harass those employees.
The trial court therefore generally denied the Department's request for an injunction.
We consider the plain meaning ofRCW 42.56.565(2)(c)(i), factors contained in
RCW 42.56.565(3) and the legislative history of the statute. These considerations lead us
to hold that an inmate's request or requests for public records may be enjoined under
RCW 42.56.565(2)(c)(i) if the request or requests are burdensome and made for financial
gain. Because the facts set forth by the Department permit the trial court to enter a
preliminary injunction under this standard, we reverse the trial court and remand for
further proceedings consistent with this opinion.
FACTS
In 2005, Mr. McKee was convicted in King County of two counts of first degree
rape while armed with a firearm. State v. McKee, 141 Wash. App. 22, 25, 167 P.3d 575
(2007). In July 2005, he entered the Department's custody. In March 2006, he was
transferred to a privately operated prison in Arizona. While in the Arizona prison, Mr.
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McKee was cellmates with a man named Matthew Silva. At some point, Mr. McKee was
transferred back to Coyote Ridge Corrections Center in Washington.
Mr. McKee began sending public records requests to the Department. By 2009, he
had submitted at least 85 requests. In late 2008 and early 2009, he made five separate
requests for the records relating to the Department's contract with the private Arizona
prison, four of which he sent on the same day. One month later, he again sent multiple
requests on the same day.
In 2011, Mr. McKee submitted 60 records requests to the Department. In 2012, he
submitted 79. In 2013, he submitted 51. One day, he submitted three separate requests
seeking "every public records request received" by the Department for three different
months. Clerk's Papers (CP) at 938, 940, 942. He also requested records relating to the
women he had raped at gunpoint. See McKee, 141 Wash. App. at 28-29. He also requested
records related to any investigation of his former Arizona cellmate, Mr. Silva.
Mr. McKee began filing lawsuits against the Department related to his PRA
requests. He filed lawsuits in Franklin County, Spokane County, Thurston County, and in
federal court. Mr. McKee employed his sister's company, Paralegal Services of
Washington, to facilitate his lawsuits and_PRA activity. This company would serve
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papers, type and forward correspondence, and send payments on Mr. McKee's behalf
related to the cost of copying documents.
In one of his lawsuits, Mr. McKee alleged the Department violated the PRA by
denying his "request to view his inmate Central File." CP at 852. He attached a
Department form to his complaint called a "CLASSIFICATION HEARING
NOTICE/APPEARANCE WAIVER," which advised that he had a right to view his
offender file. CP at 855.
In 2011, the Department settled three of these lawsuits with Mr. McKee for
$9,500. But by 2013, Mr. McKee was the plaintiff in 12 active PRA lawsuits against the
Department. In November 2013, the Department and Mr. McKee entered into another
settlement agreement. As part of the agreement, the Department agreed to pay Mr.
McKee $80,000. In exchange, Mr. McKee agreed to dismiss the 12 pending lawsuits,
withdraw his outstanding PRA requests, not request any records created prior to the
agreement, and refrain from submitting any other requests for one year. Mr. McKee also
agreed to not submit requests through third parties during this one-year period.
Around this time, Mr. McKee's former cellmate, Mr. Silva, had been released
from prison and was living in Shoreline, Washington. In December 2013, shortly after
entering into the settlement agreement, Mr. McKee attempted to mail two letters to Mr.
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Silva's address in Shoreline. Mailroom staff at the prison screened these letters and
brought them to the Department's attention. 1
In the first letter, Mr. McKee proposed the idea of having a recently released
former inmate file PRA requests, so there would be "no bad faith requirement when we
file suit." CP at 1005. He also proposed having this person request inmate news media,
as "News Media are some of the higher PRA payouts," which would lead to "profit." CP
at 1005. He also stated he would try to get the prison to issue him infractions and put him
in segregation, "which will create more PRA suits." CP at 1005. He suggested
contacting other individuals to "pitch the idea of us litigating PRA suits through them."
CP at 1005. He also suggested starting a paralegal company so inmates could charge
money for copies. The company would also conduct legal research, as the prison did not
allow sufficient access to the library for PRA cases.
Mr. McKee further stated he "just did a PRA suit for this guy over his central file
records." CP at 1006. He discussed discovery practices and negotiation tactics to
generate larger settlement offers. For example, he said he would request a discovery
conference and tell the Department he intended to depose witnesses, which usually
prompted a settlement offer. He then gave instructions to request prison telephone logs
1
We note that Mr. McKee denies he wrote these two letters.
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and stated that, "You should make some quick cash on this PRA case." CP at 1006. He
also gave instructions to request inmate central files, stating the Department would
"withhold your FBI/WSP Rap Sheets which you are entitled to. That is what Chester won
$100,000 for and Adams won $25,000.00 for." CP at 1006.
The second letter was similar to the first. Mr. McKee stated he had an "exhalent
[sic] case" involving prison telephone logs. CP at 114 7. He described how he had
requested the records relating to the Department's contract with the private Arizona
prison, and then "settled for $20,000.00 within 3 months." CP at 1147. He gave
instructions to make these requests "[t]hen sue them under the PRA. It should bring you
some quick cash." CP at 1147.
During the one-year period following the settlement agreement, Mr. McKee
encouraged others to submit PRA requests and also encouraged them to sue the
Department over those requests. He instructed his sister how to request the prison
telephone logs. When her request was denied, he instructed her how to appeal, and told
her the proper language to use. He also instructed her to file a lawsuit, which she did.
Mr. McKee also assisted other individuals with requests and lawsuits relating to
the prison telephone logs. In early 2014, the Department received PRA requests from at
least seven different Coyote Ridge inmates relating to the telephone logs. Multiple
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inmates filed lawsuits. The complaints, interrogatories, and requests for production in
these lawsuits were identical to filings in Mr. McKee's lawsuits.
In a deposition, one of these inmates acknowledged that Mr. McKee told him
about the prison telephone logs, and also told him he could make a PRA request and file a
lawsuit. He further acknowledged Mr. McKee helped him submit the request, and also
drafted and typed the complaint. He agreed to pay Mr. McKee if his lawsuit was
successful.
One of Mr. McKee's former cellmates, Karl Tobey, started a paralegal company
after he was released from prison. The inmates would use this company to copy
documents for their lawsuits. The inmates would then file cost bills to recoup these
expenses, seeking amounts between $378 and $1,911.
In November 2014, the one-year period in which Mr. McKee could not submit
PRA requests expired. Around this time, he requested to inspect his central file and also
requested all records in his offender file "persuant [sic] to the classification
notice/appearance waiver." CP at 844. The Department asked him to clarify his request.
He never responded to the Department and filed a lawsuit. The trial court found the
Department did not violate the PRA and this court affirmed. See McKee v. Wash. State
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Dep't o/Corr., No. 33876-2-III (Wash. Ct. App. Aug. 16, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/338762_unp.pdf.
On December 1, 2014, the Department received two requests from Mr. McKee.
He sought all telephone logs from his inmate account since 2011. He also sought his risk
assessments, which were at issue in another inmate's PRA lawsuit against the
Department.
On December 5, the Department received four more requests from Mr. McKee.
Between December 2014 and December 2015, he submitted 54 requests, many of which
he submitted in batches on the same day. In one request, he sought "all communications
between [the Department] and its employees to or from the Washington State Legislature
and/or its agents or employees regarding prison inmates and the Public Records Act
between 2005 and 2015." CP at 959. Department staff spent over 18 hours on this
request. In another request, he sought "investigation packets related to any investigation
of any Coyote Ridge Corrections Center (CRCC) staff, employee and/or contract staff for
any allegations of any type of misconduct from 11/21/13 to 4/23/15." CP at 959.
Department staff spent over 12 hours on this request. In December 2015, the Department
had 12 pending requests from Mr. McKee. By February 2016, Mr. McKee had sent the
Department at least 336 records requests in total.
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PROCEDURE
In December 2015, the Department filed suit against Mr. McKee to enjoin him
from making public records requests and from receiving responses to his pending records
requests. The Department also requested that the trial court enter a preliminary injunction
until a hearing on the merits occurred. The Department supported its request with
declarations setting forth an exhaustive history of Mr. McKee's PRA requests. The
Department argued it was entitled to a preliminary injunction because Mr. McKee's
extensive PRA activity harassed or intimidated the agency or its employees, as prohibited
by RCW 42.56.565(2)(c)(i). Mr. McKee responded to the Department's preliminary
injunction request. His principal assertion was that his history of PRA requests involved
good faith inquiries for public records. The Department responded with another series of
declarations refuting Mr. McKee's assertions.
The trial court did not attempt to resolve the factual issues raised in the competing
declarations. Rather, the trial court disagreed with the Department's argument that RCW
42.56.565(2)( c)(i) authorized injunctive relief against inmates profiting from extensive
PRA requests. The trial court construed RCW 42.56.565(2) as only addressing the
problem of inmates seeking private information of agency employees and then harassing
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those employees, much like what Allan Parmelee did. 2 Because Mr. McKee was not
harassing agency employees in the manner similar to Allan Parmelee, the trial court
generally denied the Department's request for a preliminary injunction.
After the trial court entered its order, the Department filed a motion in this court
for discretionary review. It argued the trial court's interpretation of the statutory language
was purely legal and would not change at a hearing for a final injunction, thus rendering
further proceedings useless. We agreed and granted the Department's motion for
discretionary review under RAP 2.3(b)(l).
ANALYSIS
A. STANDARD OF REVIEW
The question before us is whether the trial court properly construed RCW
42.56.565(2)(c)(i) when it generally denied the Department's request for a preliminary
2
Allan Parmelee was an inmate in the Department's custody who had a long
history of submitting public records requests to obtain personal information of
government employees. Burt v. Dep 't of Corr., 168 Wash. 2d 828, 830, 832, 231 P .3d 191
(2010). "He sought photographs, addresses, incomes, retirement and disability
information, administrative grievances or internal investigations, and any other related
documents." Id. at 832. He would then harass and threaten these employees by
publishing their private information on public web sites, issuing "press releases" and
flyers accusing them of being "sexual predators," sending threatening letters to their
homes, hiring individuals to follow them and picket their houses, and filing administrative
grievances and lawsuits. King County Dep 't ofAdult & Juvenile Det. v. Parmelee, 162
Wash. App. 337, 342, 254 P.3d 927 (2011); Delong v. Parmelee, 157 Wash. App. 119, 134-
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injunction. Statutory construction is a question of law that we review de novo. State v.
Gonzalez, 168 Wash. 2d 256, 263, 226 P.3d 131 (2010).
B. CONSTRUCTION OF RCW 42.56.565(2)(c)(i)
The Department argues it is entitled to a preliminary injunction under RCW
42.56.565(2)( c)(i). That subsection allows courts to enjoin inmates from copying or
inspecting a record if the request is "made to harass or intimidate the agency or its
employees." The Department argues that an inmate who files prolific records requests in
an effort to profit financially "harasses" the agency within the meaning of this provision.
The Department contends the trial court erred in concluding that this provision is limited
to situations where an inmate seeks the private information of agency employees to harass
those employees.
The PRA is a "strongly worded mandate for broad disclosure of public records."
Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 127, 580 P.2d 246 (1978). It requires all state and
local agencies to make any public record available for public "inspection and copying" on
request, unless the record falls within certain specific exemptions. RCW 42.56.070(1);
RCW 42.56.080. The policy behind this law is that "free and open examination of public
records is in the public interest." Neighborhood All. of Spokane County v. Spokane
35, 236 P.3d 936 (2010).
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County, 172 Wash. 2d 702, 715, 261 P.3d 119 (2011). To promote this policy, the PRA is to
be "liberally construed and its exemptions narrowly construed." RCW 42.56.030.
In 2009, the legislature enacted RCW 42.56.565 to address abusive requests for
public records by inmates. See LA ws OF 2009, ch. 10, § 1. This statute authorizes courts
to enjoin the "inspection or copying of any nonexempt public record by persons serving
criminal sentences in state, local, or privately operated correctional facilities" if the court
finds that one of following four situations applies:
(i) The request was made to harass or intimidate the agency or its
employees;
(ii) Fulfilling the request would likely threaten the security of
correctional facilities;
(iii) Fulfilling the request would likely threaten the safety or security
of staff, inmates, family members of staff, family members of other
inmates, or any other person; or
(iv) Fulfilling the request may assist criminal activity.
RCW 42.56.565(2), (2)(c).
The statute then gives a nonexhaustive list of factors a court may consider in
deciding whether to enjoin an inmate's past or future records requests. See
RCW 42.56.565(3). These factors include: (1) other requests by the requestor, (2) the
type of records sought, (3) statements offered by the requestor concerning the purpose for
the request, (4) whether disclosure of the requested records would likely harm any person
or vital government interest, (5) whether the request seeks a significant and burdensome
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number of documents, (6) the impact of disclosure on correctional facility security and
order, the safety or security of correctional facility staff, inmates, or others, and (7) the
deterrence of criminal activity. RCW 42.56.565(3)(a)-(g).
On a showing by a preponderance of the evidence, a court may "enjoin all or any
part of a request" for public records, and may also enjoin future requests by the same
requestor for a reasonable period of time. RCW 42.56.565(4). An agency is not liable for
PRA penalties while an order under this statute is in effect, including the time it is under
appeal, regardless of the appeal's outcome. RCW 42.56.565(5). At issue in this case is
whether the first of the four situations enumerated above applies to Mr. McKee's
requests-whether they were "made to harass or intimidate the agency or its employees."
RCW 42.56.565(2)( c)(i).
1. Principles ofstatutory construction
The fundamental goal of statutory interpretation is to discern and implement the
legislature's intent. State v. J.P., 149 Wash. 2d 444, 450, 69 P .3d 318 (2003 ). When
interpreting a statute, courts look first to the statute's plain meaning. State v. Armendariz,
160 Wash. 2d 106, 110, 156 P .3d 201 (2007). "Plain meaning is discerned from the
ordinary meaning of the language at issue, the context of the statute in which that
provision is found, related provisions, and the statutory scheme as a whole." Christensen
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v. Ellsworth, 162 Wash. 2d 365, 373, 173 P.3d 228 (2007). "If the statutory language is
susceptible to more than one reasonable interpretation, then a court may resort to statutory
construction, legislative history, and relevant case law for assistance in discerning
legislative intent." Id.
When construing statutory language, "' each word of a statute is to be accorded
meaning.'" State v. Roggenkamp, 153 Wn.2d 614,624, 106 P.3d 196 (2005) (quoting
State ex rel. Schillberg v. Barnett, 79 Wn.2d 578,584,488 P.2d 255 (1971)). "' [T]he
drafters of legislation ... are presumed to have used no superfluous words,'" and courts
must ascribe meaning to every word in a statute. Id. at 624 (alterations in original)
(internal quotation marks omitted) (quoting In re Recall of Pearsall-Stipek, 141 Wash. 2d
756, 767, 10 P.3d 1034 (2000)).
2. RCW 42.56.565(2)(c)(i) applies when requests are made to harass
agencies themselves, in addition to their employees
The principle that each word in a statute has meaning supports interpreting RCW
42.56.565(2)( c )(i) to include requests made to harass the agency itself, rather than just its
employees. A court may enjoin requests if "[t]he request was made to harass or
intimidate the agency or its employees." RCW 42.56.565(2)(c)(i) (emphasis added). If
the legislature wanted to only address situations where the inmate seeks the private
information of agency employees to harass those employees, it would have only referred
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to employees. In order for the word "agency" to have meaning, the provision must apply
when an inmate seeks to harass the agency itself.
Although RCW 42.56.565(2)(c)(i) clearly protects an agency from being harassed
or intimidated by an inmate who makes a records request, the scope of the provision is
unclear and examination beyond the statutory language is required.
3. Discerning the scope of RCW 42.56.565(2)(c)(i) requires examining
the plain language of the statute, the factors set forth in RCW
42.56.565(3), and legislative history
The legislature's intent for this provision is first evidenced by the ordinary
meaning of the language at issue. "Harass" is defined as "to worry and impede by
repeated attacks ... to tire out ... to vex, trouble, or annoy continually or chronically."
WEBSTER' s THIRD NEW INTERNATIONAL DICTIONARY 1031 ( 1993 ). The plain meaning
of this word indicates this provision applies when an inmate submits multiple records
requests that impede, tire, vex, trouble, or annoy an agency.
The legislature's intent is further evidenced by a related provision, RCW
42.56.565(3), which lists factors for courts to consider when deciding whether to enjoin
inmate records requests. RCW 42.56.565(3) lists the following factors that are pertinent
to records requests that might harass an agency: (1) other requests by the requestor, (2)
the type of record or records sought, (3) the requestor's statements offered concerning the
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purpose of the request, and (4) whether the request seeks a significant and burdensome
number of documents. These factors would permit a trial court to even enjoin an inmate's
first records request, provided the request was sufficiently burdensome and without a
legitimate purpose.
Finally, the legislative history demonstrates the legislature intended the statute to
apply to requestors who abuse the PRA for financial gain. The senate bill report, in
describing the purpose for the bill, states:
[T]here is a small group of offenders who are abusing the system. . . . Some
are using the system for financial gain and make outrageous public records
requests in order to sue the department for not providing records. Last year,
87 lawsuits were filed against the state for the failure to provide public
records. Sixty-eight of these were filed by inmates. This bill does not
categorically prevent inmates from making a public records request but is
narrowly tailored to allow the Department of Corrections (DOC) to address
those few who are abusing the system.
S.B. REP. ON SECOND SUBSTITUTE S.B. 5130, at 2, 61st Leg., Reg. Sess. (Wash. 2009).
The house bill report similarly states:
Over the past several years, incarcerated felons have been flooding state and
local governments with requests intended to overburden the public records
staff. . . . The inmates hope to either gain the information which can be
used to further harass the employees or to trigger a violation of the PRA
that results in fines payable to the inmate.
H.B. REP. ON SECOND SUBSTITUTE S.B. 5130, at 3, 61st Leg., Reg. Sess. (Wash. 2009).
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At a hearing before the Senate Committee on Human Services and Corrections,
which was the sponsor of the substitute senate bill, a witness testified about the need for
the bill:
Not only are incarcerated felons, like these two gentlemen, using the Public
Records Act to harass public employees, they are increasingly turning to
Public Records Act litigation as a money making venture. In fact, in the
materials that I have provided you, there is a letter from Mr. Parmelee to his
brother, also an inmate in the federal system in Michigan. In that letter, Mr.
Parmelee goes so far as to propose a business venture, the sole purpose of
which is to make money off of public records requests. I think you will find
that letter interesting and it illustrates the mindset of these few inmates who
are abusing the system.
Hr'g on S.B. 5130 Before the S. Human Servs. and Corr. Comm., at 25:48, 61st Leg.,
Reg. Sess. (Wash. Jan. 29, 2009), audio recording by TVW, Washington State's Public
Affairs Network, http://www.tvw.org.
Mr. McKee argues RCW 42.56.565(2)(c)(i) should not be construed as applying to
profit-driven inmate PRA litigation. He relies on RCW 42.56.565(1 ), which was added to
the statute in 2011. See LA ws OF 2011, ch. 300, § 1. This subsection provides that a
court may not award an inmate penalties in a PRA lawsuit unless the court finds that the
agency acted in bad faith in responding to the inmate's request. RCW 42.56.565(1). Mr.
McKee argues that this subsection is meant to address the problem of inmates who abuse
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the PRA for profit, and that also interpreting RCW 42.56.565(2)(c)(i) this way would
render subsection ( 1) superfluous.
Mr. McKee is correct the legislature added subsection ( 1) to discourage profit..
driven inmate PRA litigation. See S.B. REP. ON SECOND SUBSTITUTE S.B. 5025, at 2-3,
62nd Leg., Reg. Sess. (Wash. 2011). Although these subsections each address the same
problem, they serve different purposes. When an inmate files prolific records requests
and sues an agency, subsection (1) ensures the agency will not have to pay penalties in the
event it makes a good faith error in responding. However, even if the agency is not
required to pay penalties, it is still obligated to respond to future requests. See Francis v.
Dep 't of Corr., 178 Wash. App. 42, 62-63, 313 P.3d 457 (2013) (holding that the failure to
conduct a reasonable search constitutes "bad faith"). This is still burdensome and
expensive, even if the agency does not have to pay penalties. To alleviate these burdens
and expenses, subsection (2)(c)(i) allows the agency to seek to enjoin the inmate from
making future requests, just like the Department did here. For this reason, subsection ( 1)
and subsection (2)(c)(i) are complementary, and neither renders the other superfluous.
Given the plain language of the statute, the factors the legislature directed courts to
consider, and the legislative history of the particular statute, we hold: An inmate's request
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or requests for public records may be enjoined under RCW 42.56.565(2)(c)(i) if the
request or requests are burdensome and made for financial gain.
C. REMEDY
The Department urges this court to reverse the trial court and to remand with
directions for the trial court to enter a preliminary injunction. Although we reverse the
trial court's construction ofRCW 42.56.565(2)(c)(i), we decline to direct the trial court to
enter a preliminary injunction.
One reason for declining is because there are competing issues of material fact.
We acknowledge that an appellate court may substitute its findings for the lower court
when facts were presented below by written declarations and a weighing of the evidence
by the trial court was unnecessary. Bainbridge Island Police Guild v. City of Puyallup,
172 Wn.2d 398,407, 259 P.3d 190 (2011). But here, a weighing of the evidence arguably
is necessary. An additional reason for declining is because the trial court should
determine the scope of the preliminary injunction, if one is appropriate. For instance, the
trial court might find that one or more pending records requests should not be enjoined
under the standard we have adopted.
We finally note that RCW 42.56.565(4) provides for entry of an injunction by a
summary motion proceeding based on affidavits and declarations, unless the court orders
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otherwise. There is nothing that prohibits the Department from asking the trial court, on
remand, to promptly issue a final injunction or to promptly set the matter for argument
toward such an injunction. Unless the trial court authorizes discovery and directs a
hearing, the rapidity envisioned by RCW 42.56.565(4) likely renders moot any need for a
preliminary injunction.
We, therefore, reverse the trial court's construction of RCW 42.56.565(2)(c)(i) and
remand this matter for further proceedings consistent with this opinion.
WE CONCUR:
Pennell, J.
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