Juan Zabala v. Okanogan County

FILED
APRIL 3, 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 OPINION
)
Respondent. )
FEARING, J. — Juan Zabala sues Okanogan County for violations of the Public
Records Act, chapter 42.56 RCW. Because RCW 70.48.100 exempts all records
requested from disclosure under the records act, we affirm the trial court’s summary
judgment dismissal of the suit.
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 Prosecutors Offices.
Clerk’s Papers (CP) at 127. Zabala limited this request to phone calls originating from
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Zabala v. Okanogan County
Okanogan, Chelan, and Douglas County’s 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 record’s officer, timely
responded to both requests asserting that Zabala did not request identifiable records that
could be reasonably located. In Pugsley’s declaration in support of Okanogan County’s
later motion to 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. 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
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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.
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 response, Field located 368 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 materials, whether found in an electronic file or a physical file, used in each
case. As a result, while Field could locate 368 files that matched the date range and
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crimes entered, she could not determine if the files responded to Juan Zabala’s requests
without manually examining the contents of every file.
The Okanogan County prosecuting attorney 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 9.73.095(3)(b) exempts disclosure of
recorded conversations from correctional facilities. On June 29, 2016, counsel sent a
letter to the Okanogan County Prosecuting Attorney’s Office citing disagreement with
the prosecuting attorney’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 in the context of a criminal prosecution.” CP at
80. The 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 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.
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LAW AND ANALYSIS
In bringing its motion to dismiss, Okanogan County presented declarations on
which the trial court relied. Therefore, we consider Okanogan County’s motion as one
for summary judgment. CR 12(b)(7).
Grants of summary judgment are reviewed de novo and appellate courts stand in
the same position as the trial court. Brown v. Department of Corrections, 198 Wash. App.
1, 11, 392 P.3d 1081 (2016). Summary judgment is proper if the pleadings show no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. CR 56(c). A material fact affects the outcome of the litigation. Elcon
Construction, Inc. v. Eastern Washington University, 174 Wash. 2d 157, 164, 273 P.3d 965
(2012). Facts and reasonable inferences are viewed in the light most favorable to the
nonmoving party. Building Industry Association of Washington v. McCarthy, 152 Wn.
App. 720, 735, 218 P.3d 196 (2009).
Okanogan County raises two distinct arguments on appeal to defeat Juan Zabala’s
Public Records Act claim. First, RCW 9.73.095(3) and RCW 70.48.100 exempt
disclosure of recorded conversations from jail facilities. Second, Zabala’s public records
request failed to sufficiently identify requested records. Because we hold that one of the
statutes exempts the requested records, we only address Okanogan County’s first
contention. We may affirm the trial court on any basis found in the record, even a basis
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not used by the trial court. Redding v. Virginia Mason Medical Center, 75 Wash. App. 424,
426, 878 P.2d 483 (1994).
Exemptions
The Public Records Act provides that public records shall be available for
inspection and copying, and agencies shall, upon 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.) Okanogan County contends two “other” statutes shield inmate jail
recordings from disclosure: 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
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:
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(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 provide exempt
recordings requested by Juan Zabala.
Okanogan County’s second statute, RCW 70.48.100, extends to county jails.
Subsection two of the statute bespeaks:
(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
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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.) None of the exceptions in the statute apply to thwart application of
the exemption to Juan Zabala’s Public Records Act 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
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
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County jail, Douglas County jail, or Okanogan County jail, including voicemail, 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. 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 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 note that the prosecuting attorney likely played some of the inmate telephone
recordings or filed with the court clerk records surrounding the recordings. The public
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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.
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
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 upon 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
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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.
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
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.
'.~ ~ 6
Fearmg, J.
I ,
WE CONCUR:
Pennell, A.CJ.
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