### FILED AUGUST 16, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JEFFREY MCKEE,

V. Appellant, ) ) ) ) ) ) WASHINGTON STATEDEPARTMENT ) OF CORRECTIONS, a subdivision ofthe STATE OF WASHINGTON, Respondent. ) ) ) ) No. 33876-2-111

UNPUBLISHED OPINION

FEARING, C.J.

- Coyote Ridge Correctional Centerinmate Jeffrey McKee filed suit alleging violations ofthe PublicRecords Act, chapter42.56 RCW. Thetrial court dismissedthe suit. Weprincipally affirm the trial court, butremand the case for the trial courtto review one claim. FACTS Jeffrey McKee resides atConnell's Coyote Ridge Corrections Center. On November 10, 2014, Coyote Ridge Classification CounselorAndreaHusky summoned 

# fNo. 33876-2-111 

### McKeev. DOC

McKee into her office and askedhim to sign a document entitled "ClassificationHearing Notice/Appearance Waiver." The correction facility's Facility Risk ManagementTeam periodically conducts a classification hearingto update an offender's security ranking. A signature onthe document confirms the prisoner's notice ofthe hearing time. Jeffrey McKee signedthe document andrequested from Husky a copy ofthe document. Andrea Husky told McKee thathe must seek a copy from the Washington Department of Corrections Public Disclosure Unit in Olympia. OnNovember 24, 2014, Jeffrey McKee submittedto Coyote Ridge Corrections Center a Request for Disclosure ofRecords on a public records request form preparedby the Department ofCorrections. He requested more thanthe notice and waiver form he signed on November 10. Onthe records request form, McKee checkedthe box nextto "I request to inspect my central file." Clerk's Papers (CP) at 38. The law does not define or describe an incarcerated offender's "central file." The central file includes, among other documents, the offender's criminal conviction record packet. Thatpacket, intum, contains the offender's criminal history as obtained from the Washington State Patrol and the Federal Bureau ofInvestigation at the time ofthe offender's admission to Department ofCorrections' custody andupdated information aboutthe offender generated as part of the department's annual reviews. The department also refers to the central file as an "offender file" or an "offendercentral file." CP at 28. In his November24 request for public records, Jeffrey McKee also handwrote: 2No. 33876-2-III 

### McKeev. DOC

I am requesting "areview ofall pertinent official records in the offender file" pursuant to the classification notice/appearance waiverDOC form 05-794 for my November [Facility Risk Management Team] meeting. CP at 38. Dena Leaverton, a Coyote Ridge records technician, handledthe request. She latertestified that she did not understand what McKee intended by "'pertinent official records."' CP at 29. Leaverton returned McKee's request to McKee the following day with the response: PerWAC 137-08-090 Public Disclosure Requests must be submitted through U.S. Mail: Public Disclosure Unit Department ofCorrections P.O. Box 41118 Olympia, WA 98504 CP at 37-38. Leaverton's response also contained a handwritten note that read: "Ifyou want more than this one document please re-kite for central file review." CP at 38. A kite is a written communication within the prison. On December 1, 2014, Classification CounselorAndrea Husky again summoned Jeffrey McKee to her office and asked him to sign another Classification Hearing Notice/Appearance Waiver for a classification hearing on December 3. The appellate record contains a copy ofthis notice and waiver, but not the notice and waiver signed by Jeffrey McKee on November 10. We do not know ifthe notice and waiver signed on November 10 was also for a December 3 hearing or an earlierhearing. The December 1 notice and waiverread, in part: "Youhave the right to submit a written request for a

3No. 33876-2-111 

### McKeev. DOC

review ofall pertinent official records in the offender file through the Records Manager, using DOC 05-066 Request for Disclosure ofRecords." CP at 119. OnDecember 1, 2014, Jeffrey McKee completed and submittedto Coyote Ridge a request for disclosure ofrecords on a form prepared by the Department ofCorrections. The December 1request echoed the November 24 request. In the December 1request, McKee sought his "central file." CP at 41. He also wrote: Perthe classificationhearing notice/appearance waiver I signed today I am requesting "areview ofall pertinent official records in the offender file" priorto my 12/3/14 FRMTmeeting/review. Thankyou. CP at 41. DenaLeaverton, the Coyote Ridge records technician, receivedthe request on December 3. Leaverton again stamped the following response: Per WAC 137-08-090 Public Disclosure Requests mustbe submitted through U.S. Mail:

CP at 40. Public Disclosure Unit Department ofCorrections P.O. Box 41118 Olympia, WA 98504

On December 28, 2014, Jeffrey McKee prepared a third records requestthathe sent to the Department ofCorrections Public Disclosure Unit in Olympia. The third request was the first request he sentto Olympia. The public disclosure unit received the request on January 5, 2015. The request was in the form ofa letterrather than contained

on the Department ofCorrections records request form. The December28 requestread:

4No. 33876-2-III 

### McKeev. DOC By this letter and pursuantto the Public Records ActI amrequesting to "areview ofall pertinent official records in the offender file" pursuantto DOC form 05-066 related to the 1/24/14 FRMTnotice I received on or about 11/24/14 and on or about 12/1/14. CP at 110. Department ofCorrections Public Disclosure Specialist CaryNagel handled Jeffrey McKee'sDecember 28 request. On January 6, 2015, Nagel sent a response to McKee that read in part: Ifyou are requesting to review records in your central or "offender file" you mustprocess yourrequest through the records department at your parent facility. You will then be scheduled for review ofyour file within 30 business days. You will then be placed on the Call-Out list for your place and time to review documents. Ifthere are specific copies ofdocuments thatyou want and do not need an entire central file review, notify the Records Departmentthatyou are cancelling the request for the central file review. Ifyou are requesting copies ofspecific documents in your Central File, please define what is meantby "pertinent official records." Upon receipt ofyour clarificationwe will proceed with yourrequest. Ifno correspondence is received within 30 days ofthis letter your request will be closed. CP at 114. Jeffrey McKee never responded to Cary Nagel's request for clarification. According to McKee, he refrained from replyingbecause Nagel's letter was confusing, Nagel's request for clarification was puzzling since McKeeparroted the department's

own language of"pertinent official records," and McKee hoped to inspect all records during the later central file review in Connell. CP at 116.



### 5No. 33876-2-111 

### McKeev. DOC Cary Nagel also contacted Coyote Ridge Corrections Center and scheduled an appointment for Jeffrey McKee to review his central file. In tum, DenaLeaverton sent McKee a notice that the department would schedule him for a review ofhis central file within thirty business days. On January 22, 2015, Jeffrey McKee reviewed his central file. McKee then noticed the file contained no criminal rap sheets. According to McKee, the file clerks, with whom McKee met, told him that the produced file did not include his electronic file. McKee asked ifthe produced file included records pertinentto the November 10 orDecember 1notices ofhearing. Each clerk indicated she did not know. Duringthe January 22 records review, the Department ofCorrections provided Jeffrey McKee an exemption log that identified documents redacted orwithheld. Redactions included the names ofMcKee's rape victims found in hisjudgments and sentences and in the appellate decision affirming a conviction. The department also withheld e-mail sentbetween "Bowman and Brooks" from December 20, 2010-to January 6, 2011. CP at 47. The department asserted thatthe attorney-clientprivilege exempted the e-mail. PROCEDURE Jeffrey McKee sued the Department ofCorrections. He alleged violations ofthe Public Records Act for the failure to respond to his requests, the withholding ofrecords, the failure to provide an exemption logjustifyingthe withholding ofrecords, improper redaction ofdocuments, and the department acting in bad faith. 6 

# INo. 33876-2-111 

### McKeev. DOC

The Department ofCorrections brought a motion asking "foran order determining whether there has been a violation ofthe Public Records Act (PRA) pursuantto RCW 42.56.550." CP at 1. The department captioned its motion as a "motionto show cause," and the motion's legal argument impliedly contended that the court should conduct a show cause hearing. CP at 1. In support ofthe motion, the department filed declarations ofPublic Records Officer and Compliance ManagerTeresa Pemula, DenaLeaverton, and Cary Nagel. In its motion, the department alternatively argued that it committed no violation ofthe Public Records Act, any violation was without bad faith, and any bad faith violation merited only nominal penalties. Jeffrey McKee did not objectto the trial court conducting a show cause hearing. McKee analyzed the Department ofCorrections' motion as ifit was a summaryjudgment motion. McKee did not file a countervailing motion. Jeffrey McKee did not seek a hearing with live testimony. The trial court entertained oral argument in support ofand in oppositionto the Department ofCorrections' motion for show cause. Neitherparty sentthis court a transcript ofthe oral argument. The trial court granted the Department ofCorrections' motion and dismissed the

case with prejudice. In granting the motion, the trial court enteredthe following findings offact: 1. On November 24, 2014, Plaintiffsubmitted an Offender's Kite to 7No. 33876-2-III 

### McKeev. DOC

the Coyote Ridge Correctional CenterRecords Departmentwith a copy of the Request for Disclosure ofRecords (DOC form 05-066) marked "I request to inspect my central file" and requesting "areview ofall pertinent official records in the offender file." As it was unclearto the records technician what "pertinent official records" were, she responded "perWAC 137-08-090 Public Disclosure Requests must be submitted through the U.S. mail: Public Disclosure Unit" in Olympia, Washington. 2. On December 1, 2014[,] Plaintiffsubmitted another Offender's Kite to the Records Departmentwith a copy ofthe Request for Disclosure ofRecords (DOC form 05-066) asking for confirmation ofthe receipt regarding his Request for Disclosure ofRecords DOC form 05-066. Plaintiffrequested, "perthe classification Hearing Notice/ Appearance waiver I signed today I am requesting "areview ofall pertinent official records in the offender file" and marked "I requestto inspect my central file." The records technician responded to his kite and Request for Disclosure ofRecords on December 3, 2014[,] with the same response as the November 24, 2014 request. 3. On January 5, 2015, the Unitreceived Plaintiffsrequest for "a review ofall pertinent officialrecords in the offender file." Pursuantto DOC form 05-066 related to the 1/24/14 FRMT notice I received on or about 11/24/14 and on or about 12/1/14." The request was assigned to Specialist Nagel. The next day, Nagel sent aresponse letter indicating the request had been assigned tracking numberPDU-32422 and asking Plaintiff for clarification of"pertinent official records" in the offender file. The Plaintiffnever responded to the clarification letter. 4. In order to provide Plaintiffassistance, the following day Nagel took the initiative to expedite his request for an offender central file review and contacted the facility to schedule an appointment for him to review his central file and place him on the Call-Out list. The same day, the records technician also sent a Central File Review Response Letter to Plaintiff which stated he would be scheduled for review ofhis file in 30 business days. 5. The records technicianreviewed andprepared Plaintiffs central file. The central file review did not contain records located in Plaintiffs electronic file. On January 22, 2015, Plaintiffwas given access to his central file and provided with an exemption log identifying any documents redacted or withheld. The exemption log noted documents were redacted as exempt from disclosure under RCW42.56.240(4) for containing computer security information, RCW42.56.070(1) and Title 5, Section 8No. 33876-2-III McKeev. DOC 552(a) for containing social security numbers and RCW42.56.240 for containing victim information. The exemption log also noted four pages of documents were withheld in their entirety because they contained emails protected under attorney clientprivilege as exempt under RCW 42.56.240(2) and RCW 42.56.240(5). 6. Documents redacted under RCW 42.56.240 for containing victim information included a published Court ofAppeals decision, Plaintiffs Judgment and Sentence and form DOC 12-761, Prohibited ContactReview. CP at 247-48. The trial court also entered the following conclusions oflaw: 1. Defendant did not violate the Public Records Act as it sent Plaintiffa letter seeking clarification ofhis public records request and Plaintifffailed to respond to the letter; 2. Defendant did not violate the Public Records Actwhen it redacted Plaintiffsvictim information in the documents located in Plaintiffs offender central file. Requiring the Defendantto parse out individual victim information would place the Defendant in an untenable position ofresponding based on who the requestor is which is not authorized by statute. CP at 248. The order signed by the trial court was captioned Order Granting Defendant's Motion to Show Cause, and the body ofthe order declares that the court granted the department's motion to show cause. LAWAND ANALYSIS Issue 1: Shouldthis courtdefer to a trial court's finding of fact in a Public RecordsActsuit, when the trial court issueda ruling basedon affidavits rather than live testimony, when the losingpartydidnotask for live testimony andsubstantial evidence supports the trial court's finding?

9No. 33876-2-111 

### McKeev. DOC

Answer 1: Yes. In finding offact 1, the trial court found thatthe Coyote Ridge Correctional Center'srecords technician DenaLeaverton did not understand whatrecords Jeffrey McKee sought in his November 24, 2014, public records request. The request sought inspection ofMcKee's central file and a review ofall pertinent official records in his offender file. Because ofLeaverton's confusion, she directed McKee to address his request to the Department ofCorrections Public Disclosure Unit in Olympia. Important to our decision is whetherwe decide anew whetherDenaLeaverton understood Jeffrey McKee's request or whetherwe defer to the trial court's finding of fact 1that Leaverton was confused. The answer to this question hinges on what procedure orprocedures are available to the trial court in resolving a Public Records Act suit. Ifwe did not defer to the trial court's finding offact, we would holdthat a question offact exists as to whetherLeaverton was confused orwas reasonably confused, andwe would remand the case for an evidentiary hearing. Nevertheless, since the Department of Corrections brought a show cause motion and Jeffrey McKee did not ask for an evidentiary hearing, the trial court was authorized by statute to resolve questions offact by reviewing only affidavits. The Public Record Act contains two importantpassages with regard to the procedure to be used by the trial court and one importantpassage with regard to the standard ofreview for courts. RCW42.56.550(1) authorizes a show cause hearing, and 10No. 33876-2-III McKeev. DOC

RCW42.56.550(3) permits the courtto resolve a Public Records Act suit on affidavits. RCW42.56.550(3) also directs courts to engage in de novo review ofan agency action with regard to apublic records request. RCW42.56.550 reads, in relevant part: (1) Upon the motion of anyperson having been deniedan opportunity to inspect or copyapublic recordbyan agency, the superior court in the county in which a record is maintainedmay require the responsible agency to show cause why it has refused to allow inspection or copying ofa specific public record or class ofrecords. The burden ofproof shall be on the agency to establish that refusal to permitpublic inspection and copying is in accordance with a statute that exempts orprohibits disclosure in whole or in part ofspecific information orrecords. (3)Judicial review of allagency actions taken or challengedunder RCW42.56.030 through 42.56.520 shall be de nova. Courts shall take into account the policy ofthis chapterthat free and open examination ofpublic records is in the public interest, even though such examination may cause inconvenience or embarrassmenttopublic officials or others. Courts may examine any record in camera in any proceeding brought under this section. The courtmay conducta hearing basedsolely on affidavits. (Emphasis added.) Note that RCW42.56.550(1) authorizes a show causehearing, but only when initiated by the party suing for access to public records. The statute, however, does not expressly preclude the defending government agency from initiating a show cause hearing. In at least one Washington decision, the government agency filed the motion to show cause. Forbes v. City a/GoldBar, 171 Wn. App. 857,862,288 P.3d 384 (2012). Jeffrey McKee did not seek an orderto show cause or an order on show cause. Instead, the Department ofCorrections filed a motion and characterized its motion as a

11No. 33876-2-111 McKeev. DOC

motion to show cause. The trial court expressly granted the motion to show cause. Jeffrey McKee did not object to the department employing the show cause procedure, but analyzed the department's motion as a summaryjudgmentmotion. McKee did not seek

an evidentiary hearing. A Public Records Act suit may be resolved on a CR 12(b)(6) motion to dismiss. Nissen v. Pierce County, 183 Wn.2d 863, 871-72, 357 P.3d 45 (2015). A party may also seek to prevail in the suit with a summaryjudgmentmotion. WAC 44-14-08004(3); see Neigh. All. a/Spokane Countyv. Spokane County, 172 Wn.2d 702,261 P.3d 119 (2011); Spokane Research & Defense Fundv. City of Spokane, 155 Wn.2d 89, 117 P.3d 1117 (2005); Hangartner v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004); Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997); Robbins GellerRudman &Dowd, LLPv. Office of Atty Gen., 179 Wn. App. 711, 328 P.3d 905 (2014); Bealv. City of Seattle, 150 Wn. App. 865, 209 P.3d 872 (2009); Belenskiv. Jefferson County, 187 Wn. App. 724, 350 P.3d 689 (2015), reviewgranted, 184 Wn.2d 1032, 364 P.3d 120 (2016); Greenhalgh v. Dep'ta/Corr., 160 Wn. App. 706,248 P.3d 150 (2011; Harley H Hoppe &Assocs., Inc. v. King County, 162 Wn. App. 40, 255 P.3d 819 (2011). In one suit, the trial court resolved the case after a testimonial hearing. Cowles Pub! 'g Co. v. State Patrol, 44 Wn. App. 882,886, 724 P.2d 379 (1986), rev'd, 109 Wn.2d 712, 748 P.2d 597 (1988). Show cause hearings are the usual method ofresolving litigation under the Public Records Act. WAC 44-14-08004; O'Neillv. City a/Shoreline, 170 Wn.2d 138, 12No. 33876-2-111 McKeev. DOC 153,240 P.3d 1149 (2010); West v. Gregoire, 184 Wn. App. 164, 165, 336 P.3d 110 (2014), review denied, 182 Wn.2d 1018, 345 P.3d 784 (2015); Woodv. Thurston County, 117 Wn. App. 22, 27, 68 P.3d 1084 (2003); see Zinkv. City of Mesa, 162 Wn. App. 688, 700, 256 P.3d 384 (2011). A show cause motion is neither a CR 56 motion nor a CR 12(b)(6) motion. O'Neillv. City of Shoreline, 145 Wn. App. 913, 939, 187 P.3d 822 (2008), ajf'dinpart, rev 'dinparton othergrounds by O'Neillv. City of Shoreline, 170 Wn.2d 138 (2010). RCW 42.56.550 expressly permits a show cause hearing to determine issues and the court may completely resolve public records act claims in the show cause proceeding. West v. Gregoire, 184 Wn. App. at 172 (2014). The show cause hearing may settle the threshold issue ofwhether there is a public records act violation, and, ifso, whetherthe government agency's actions amounted to bad faith under RCW42.56.565. West v. Gregoire, 184 Wn. App. at 172. A trial court may conduct a show cause hearing and dismiss a records act claim based solely on affidavits. 0 'Neill v. City of Shoreline, 170 Wn.2d at 153 (2010); Forbes v. City of GoldBar, 171 Wn. App. at 864 (2012). A decision based on affidavits is a decision on the merits and is ordinarily not treated as a summaryjudgmentmotion on appeal. Brouilletv. Cowles Puhl 'g Co., 114 Wn.2d 788, 793-94, 791 P.2d 526 (1990). These principles suggestthat the trial court may resolve issues offact based solely on affidavits.

13No. 33876-2-111 McKeev. DOC

A court is permitted to resolve issues in a public records act suit without a trial. O'Neillv. City of Shoreline, 145 Wn. App. at 938-39. A requestorhas no constitutional right to a hearing with oral argument in a public records act case. 0 'Neill v. City of Shoreline, 145 Wn. App. at 939 (2008). Some pronouncements in Washington decisions, including high court decisions, contradict our conclusion that we may defer to the trial court's findings entered after a show cause hearing on affidavits. An appellate courtreviews public agency actions challenged underthe public records act de novo. RCW42.56.550(3); Cornu-Labatv. Hosp. Dist. No. 2, 177 Wn.2d 221,229,298 P.3d 741 (2013). When the trial court decides the case onthe basis ofaffidavits, an appeals court will review its decision de

novo. Amren v. City of Kalama, 131 Wn.2d 25, 32, 929 P.2d 389 (1997); Zinkv. City of Mesa, 140 Wn. App. 328, 336, 166 P.3d 738 (2007). An appellate court stands in the

sameposition as the trial courtwhen the record consists entirely ofdocumentary evidence and affidavits. Cornu-Labat, 177 Wn.2d at 229; ProgressiveAnimal Welfare Soc

### '.Yv. Univ. ofWash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994); Brouilletv. Cowles Publ'g Co., 114 Wn.2d at 793 (1990); In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986); Greenhalgh v. Dep 't of Corr., 160 Wn. App. at 714 (2011). The reviewing court is not bound by the trial court's factual findings. Cornu-Labat, 177 Wn.2d at 229; Robbins GellerRudman &Dowd, LLPv. Office of Att

### '.Y Gen., 179 Wn. App. at 720 (2014). 14 

# i 

# INo. 33876-2-III McKeev. DOC Despite the conflict with proclamations that an appeals courtreviews de novo orders on show cause based solely on affidavits, we conclude that we should deferto the trial court's findings offact because ofstatutory language and for policy reasons. To repeat, RCW 42.56.550(3) expressly authorizes the trial courtto "conduct a hearing based solely on affidavits." Ifthe trial court followed the normal summaryjudgmentrule ofdenying a motion ifa question offact exists, this statutory language becomes a nullity. The court could not resolve the case based only on affidavits ifa question offact exists. The statutory sentence does not exclude from its coverage motions that create issues of material disputed facts. When interpreting a statute, we strive to avoid a constructionthat wouldrender a portion ofa statute meaningless. FordMotor Co. v. City of Seattle, 160 Wn.2d 32, 41, 156 P.3d 185 (2007). ForRCW 42.56.550(3) to be meaningful, the trial court should be free to resolve disputes offact based only on affidavits, and this court should affirm if evidence supports the trial court's resolution. Several cases annunciate the principle that the court may completely resolve public records act claims in the show cause proceeding. 0 'Neill v. City of Shoreline, 170 Wn.2d at 154 (201O); West v. Gregoire, 184 Wn. App. at 171 (2014); Zink v. City of Mesa, 140 Wn. App. at 335-36 (2007). Deciding factual disputes contained in affidavits quickens resolution ofa public records act suit. Show cause hearings occurpromptly; evidentiary hearings do not. The public records act is intended to provide a speedy remedy for a requestor to obtain a court 15No. 33876-2-111 

### McKeev. DOC hearing on whether the agency has violated the act. RCW 42.56.550(1), (2); WAC 44- 14-08004(1). The purpose ofthe quickjudicialprocedure is to allow requestors to expeditiously find out ifthey are entitledto obtainpublic records. WAC 44-14-08004(1 ). To speed up the courtprocess, apublic records case may be decided merely on the motion ofa requestor and solely on affidavits. RCW42.56.550(1), (3); WAC 44-14- 08004(1). We do not wish to renderpublic records act cases so expensive that citizens cannot use the act for its intended purpose. 

### O'Neillv. City of Shoreline, 170 Wn.2d at 153 (2010). Deciding the case on affidavits does not violate the requestor's due process rights. 0 

### 'Neill v. City of Shoreline, 170 Wn.2d at 153-54. In 

### O'Neillv. 

### City of Shoreline, the high court held that the trial court, against a party's wishes, can resolve a public records act case on affidavits, although the high court did not address whetherthe reviewing court addresses anew the facts or defers to the trial court's findings offact. In 

### Woodv. Thurston County, 117 Wn. App. 22 (2003), the trial court resolved, by accepting the county's affidavit, a disputed fact as to whetherthe county received a records request. Wood presented a declarationthat he mailed the request to the county. Wood did not ask for live testimony before the trial court. Wood argued on appeal that he was entitled to a trial on the issue ofwhetherthe county received the disputed request. The court ofappeals rejected the argument and affirmed the trial court's finding. The 

### Woodcourt emphasized the statute permitting show cause hearings for public records act 16No. 33876-2-111 McKeev. DOC

cases. This court concludedthat "Wood is not entitled to a trial on the factual issue the trial court resolved against him in the show cause hearing." 117 Wn. App. at 29. Issue 2: Didthe Departmentof Correctionsproperly respondto JeffreyMcKee's November 24 request/or his centralfile andpertinentrecordsfrom his offender file? Answer2: Yes, basedon the trial court finding of confusion. We have concludedthat we will deferto the trial court's findings offact despite the lack ofan evidentiary hearing and even ifa question offact exists. We now affirm the trial courtbecause substantial evidence supportedthe trial courts' finding offacts. On November 24, 2014, Jeffrey McKee submitted to Coyote Ridge Corrections Center apublic records act application that included a request for his central file and pertinent official records from his offender file. We note that the central file and offender file are the same, such thatthe two categories ofdocuments soughtby McKee overlapped. Agencies must promptly disclose any requested public record unless it falls within

a specific, enumerated exemption. RCW 42.56.070(1). An agency may need additional time within which to respond because ofthe need to clarify the request. RCW42.56.520; Forbes v. City of GoldBar, 171 Wn. App. at 863 (2012). Each state agency mustpublishrules establishing methods ofobtaining records under the Public Records Act. RCW42.56.040(1). Failure to follow the agency's rules for obtaining records relieves the agency ofthe duty to provide the requested record. 17No. 33876-2-111 McKeev. DOC

Parmelee v. Clarke, 148 Wn. App. 748, 754-55, 201 P.3d 1022 (2008). WAC 137-08- 090 controls the location to which one addresses a public records request to the Department ofCorrections. The Department ofCorrections rule declares: (1) All requests for the disclosure ofapublic record, other than requests by incarceratedoffenders for inspection oftheirhealth record or central file must be submitted in writing directly to the Department of Corrections Public Records Officer at P.O. Box41118, Olympia, WA 98504 orvia e-mail at publicdisclosureunit@docl.wa.gov identifyingthe record sought with reasonable certainty

.... Incarceratedoffenders under the authority of the department of corrections shall submitrequests to inspect their own health record or central file to the records manager at thefacility in which, they are currently incarcerated. (Emphasis added.) On November 25, 2014, Dena Leaverton, a Coyote Ridge records technician, returned Jeffrey McKee's November 24 request to McKee with a direction to send his request to the department's OlympiaPublic Disclosure Unit. Ifwewere to resolve the facts on our own, we might disagree with the trial court that Leaverton's response was appropriate, particularly because one could conclude that McKee only requested records that WAC 137-08-090 directs to be sought from the offender's own facility. Nevertheless, the trial court found that McKee's broadrequest confused Leaverton such that she directed McKee to seek records from the Public Disclosure Unit. Leaverton also suggested to McKee that he send another kite ifhe wished access to his central file. Substantial evidence supports this trial court finding. Leaverton testified, in her affidavit, 18 

### j 

### f 

# INo. 33876-2-111 McKeev. DOC

that she did not understand what McKee intended his request for "pertinent official records." CP at 29. DenaLeaverton was then free to direct Jeffrey McKee to seek records from Olympia. In tum, Olympiatechnician Cary Nagle sought a clarification, but, in the meantime, arranged for a review ofMcKee's records at Coyote Ridge. Jeffrey McKee never responded to Nagle's request for clarification. In a similar situation, this court found the department acted reasonably when it took no further action after the offender failed to respond to a request for clarification. Bartzv. Dep 't of Corr. Pub. Disclosure Unit, 173 Wn. App. 522, 532-33 n.10, 297 P.3d 737 (2013). Coyote Ridge went further and allowed McKee access to his central file. We review findings offact under a substantial evidence standard. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App. 803, 814, 225 P.3d 280 (2009). Substantial evidence is evidence that would persuade a fair-minded person ofthe truth of the statement asserted. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App. at 814. We reserve credibility determinations for the fact finder and do not review them. Mitchellv. Wash. State Inst. of Pub. Policy, 153 Wn. App. at 814. To repeat, substantial evidence supports the trial court's finding offact 1and the finding supports the conclusion that the Department ofCorrections did not violate the public records act. Issue 3: Didthe Departmentof Correctionsproperlyrespondto JeffreyMcKee's December 1 request for his central file and pertinentrecordsfrom his offender file? 19No. 33876-2-III McKeev. DOC

Answer 3: Yes, basedon the trial court finding of confusion. Jeffrey McKee also asserts that the Department ofCorrections failed to respond to his December I, 2014 request for records. The December I request echoed the November 24 request. McKee soughthis central file andpertinent official records from his offender file. DenaLeaverton replied to the December I request as she replied to the November 24 request. Therefore, we affirm for the same reasons that we affirm the trial court's denial ofrelieffor the response to the November 24 public records request. Issue 4: Didthe trial courterr in notdetermining whether the Department of Corrections silentlywithheldrecords that are located in Jeffrey McKee's electronic file? Answer4: We neednotaddress this question since the recordallows us to make a determination that the Department of Corrections didnotsilentlywithholdrecords. In his first two public records requests, Jeffrey McKee sought access to his central file and pertinent official records from his offender file. In his third request, he sought only pertinent official records in his offender file. McKee argued before the trial court and argues on appeal that the Department ofCorrections failed to give him access to electronic files. He contends that the department maintains electronic files not contained in his central file that he reviewed. He believes the electronic files would be part ofhis offender file. McKee further observes that the trial court did not address his argument that the department silently withheld access to his electronic files. Although this court generally will not address issues the trial court has not 20No. 33876-2-III McKeev. DOC decided, we may choose to do so in the interest of judicial economy when the issue is clear. Pascua v. Heil, 126 Wn. App. 520, 533, 108 P.3d 1253 (2005). We choose to resolve the claim ofsilent withholding because the record permits a resolution, and we do not wish to create additional litigation for the parties and trial court. Jeffrey McKee's contention fails because the Department ofCorrections provided him with all records in his central file during his file review, except those listed in the exemption log. Before the review and on January 6, 2015, Public Disclosure Unit technician Cary Nagle asked Jeffrey McKee for a clarification ofhis request. McKee never responded to the request. In a similar situation, this court found the department acted reasonably when it took no further action afterthe offender failed to respond to a request for clarification. Bartzv. Dep 't of Corr. Pub. Disclosure Unit, 173 Wn. App. at 532-33 n.10 (2013). Issue 5: Didthe trial court errwhen itapprovedthe Department of Corrections' redaction of victim names in McKee'sjudgmentandsentence,publishedcourt of appeals opinion, and prohibitedcontact review? Answer 5: No. Jeffrey McKee contends the Department ofCorrections violatedthe Public Records Act by redacting victim information from hisjudgment and sentence, a published decision from his direct appeal, and prohibited contact review. The department responds that its redaction is proper because victim information is exempt from the public 21 

# I

tNo. 33876-2-III McKeev. DOC

records act by RCW 42.56.240(2). McKee replies that RCW42.56.240(2) does not apply since he already knows the identity ofhis victims. We agree with the Department of Corrections. RCW42.56.240 provides: The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter: (2) Information revealing the identity ofpersons who are witnesses to or victims ofcrime orwho file complaints with investigative, law enforcement, or penology agencies, otherthan the commission, ifdisclosure would·endanger any person's life, physical safety, orproperty. We find no language in the statute that directs the government entity to disclose the identity ofthe victim ofa crime ifthe requestor already knows the identity. Adopting Jeffrey McKee's contention would require the government agency to evaluate the subjective knowledge ofa requestor, a task not demanded by the public records act. Jeffrey McKee also contends that the Department ofCorrections violated the public records act because victim information was accessible in otherpublicly available records. Again, no language in RCW42.56.240 invalidates an exemption from the act if the exempted information is available publicly elsewhere. Adoption ofMcKee's argument wouldrequire the government agency to research public records to determine if the exempted data is found elsewhere, a task not demanded by the public records act. Issue 6: Whether the trial courterredwhen omittinga ruling on whether the Department of Correctionsproperlywithheldthe Bowman-Brooks e-mails? 22 

# I I

### No. 33876-2-111 McKeev. DOC

Answer 6: We do notknow. Therefore, we remand forfurther review by the trial court. Jeffrey McKee contends the trial court erred in not deciding whetherthe department violated the public records act by withholding four pages ofe-mail from his central file review. The department responds that McKee abandoned this argumentby not raising it at the show cause hearing. McKee contests that the issue was not abandoned because it was raised in his complaint, the department's motion to show cause, and his response to the motion to show cause. In asserting Jeffrey McKee abandoned his claim, the Department ofCorrections relies on our decision in West v. Gregoire, 

### 184 Wn. App. 

### 164 (2014). In West, we held that, even ifa requestor raises a claim in his pleadings, he abandons the claimby failing to argue it in the show cause hearing. West v. Gregoire, 

### 184 Wn. App. at 

### 170-72. Jeffrey McKee asserted, in his briefopposing the motion to show cause, that the department wrongfully withheld e-mail between Bowman and Brooks. Since neitherparty ordered the transcript from the hearing, we are unable to determine ifMcKee forwarded this argument at the show cause hearing. Our dissenting brother writes that Jeffrey McKee waived this claim because he failed to show that he forwarded the claim to the trial court at the time ofthe show cause hearing. In otherwords, our dissenting brother imposes the burden ofshowingthe absence ofwaiver upon McKee. We disagree that aparty holds the burden ofdisproving 

### 23No. 33876-2-III McKeev. DOC

waiver. Waiver is an affirmative defense. CR 8(c); Mahoney v. Tingley, 85 Wn.2d 95, 529 P.2d 1068 (1975); Upjohn v. Russell, 33 Wn. App. 777,782,658 P.2d 27 (1983). The party asserting waiverholds the burden ofestablishingthe waiver. Christianson v. Snohomish Health Dist., 82 Wn. App. 284,288, 917 P.2d 1093, 1096 (1996), affd, 133 Wn.2d 647, 946 P.2d 768 (1997); State v. Gross, 23 Wn. App. 319, 322-23, 597 P.2d 894 (1979). Ifthe Department ofCorrections wanted to show waiver, the department should have filed the show cause hearing transcript with this court. The Department of Corrections claims that the attorney-clientprivilege covered the e-mail. The attorneyclientprivilege is a valid exemption under the public records act, howeverthe party asserting attorney-client privilege has the burden ofshowing the attorney-client relationship existed and that the exempted records containprivileged communications. Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 745-47, 174 P.3d 60 (2007); Hangartner v. City of Seattle, 151 Wn.2d at 451-53 (2004); Zinkv. City of Mesa, 162 Wn. App. at 724 (2011).Ifthe record permitted us, we would decide the merits ofwhetherthe attorneyclientprivilege exempted the records. Nevertheless, the affidavits submittedby the Department ofCorrections do not enable us to reach the merits. We remand to the trial courtthe question ofwhether Jeffrey McKee failed to argue, at the show cause hearing, the wrongful withholding ofthe Bowman-Brooks email. IfMcKee did not presentthis argument at the hearing, McKee abandoned the 24No. 33876-2-111 

### McKeev. DOC

contention. IfMcKeepresented the argument at the hearing, the trial court should address the merits ofthe question ofwhetherthe attorney-clientprivilege exempts disclosure ofthe e-mail. CONCLUSION We affirm the trial court's dismissal ofJeffrey McKee'spublicrecords act suit, exceptto the extent McKee claims the Department ofCorrections wrongfully withheld the Bowman-Brooks e-mail. Weremand to the trial court to determine ifMcKee abandoned this contention, and, ifnot, to address the merits ofthe claim. A majority ofthe panel has determined this opinionwill not be printed inthe Washington Appellate Reports, but itwill be filed for publicrecordpursuant to RCW 2.06.040.

Fearing, C.J. I CONCUR:

2533876-2-III KORSMO, J. (dissenting)

- There is no needto remand this case for a hearing about what took place at the previous hearing. Jeffrey McKee asserted that he was entitled to

see the missing e-mails while the Department ofCorrections (DOC) asserted its attorneyclientprivilege to withholdthem. Clerk's Papers at 9, 232-233. Thetrial court did not order DOC to produce the documents. Ergo, either Mr. McKee agreed with the claim and did not argue the point (as DOC contends), or the trial court concluded that they were privileged, or both. IfMr. McKee had any confusion on thatpoint, he was quite free to ask the trial court to clarify its ruling. He did not. More fundamentally, it was Mr. McKee's burden to provide the record necessary to resolve his claimthat the trial court did not address the e-mail issue. E.g.,Allemeierv. Univ. ofWash., 42 Wn. App. 465, 472-473, 712 P.2d 306 (1985) (appellanthas burden of perfecting record for appeal). 1 Mr. McKee decided to proceed without obtaining a verbatim transcript ofthe hearing. He, accordingly, has waived his right to complain about any perceived shortcomings ofthat hearing since he is unable toprove that anything

1While DOC could have provided the transcript, it was under no responsibility to pay for a record that the appellant needed in orderto support his appeal.No. 

### 33876-2-111 (Dissent) McKeev. DOC

untoward occurred. Since the majority improperly shifts the burden ofproduction to the respondent, I dissent.2 While that is sufficientto explain my disagreement with the majority, that opinion's thoughtful discussion concerning whetherto give deference to the trial court's findings from a paperrecord provides a nice opportunity to opine onthatpoint as well. The majority notes that in a number ofrecent cases appellate courts have conducted their

ownreview ofdocumentary records and reached their own factual conclusions. The majority wisely eschews that approach here, relying on language from the governing statute. This recent trend in the case law is disturbing because it confuses the roles oftrial courts and appellate courts. Trial courts decide cases, primarily by determining what happened-i.e., they find facts. Appellate courts review the trial court's processes to determine ifthere was some prejudicial errorthat calls the trial court's decision into question. There was a time in the pastwhen appellate courts felt free to make their own

2 The majority errs in concluding that because the respondent would have the burden ofproving waiver, it had the obligation to provide a transcript. This skips a step in the analysis. Mr. McKee first hadto show that he raised the claim in the trial court before he could claim the trial court erred by not resolving the issue. His failure to object to the lack ofa ruling orto seekreconsideration strongly suggests that respondent is correct in its assertion thatMcKee abandoned the argument in the trial court. Respondent should not be required topay for an unnecessary transcript to prove the pointwhen it was appellant's obligation to prove that he made the argument and also explain why he let the matter go unresolved. 2 

# l l 

# , 

# I ! 

# I I I I 

# I

,,No. 33876-2-III (Dissent) McKeev. DOC

factual determinations, but Washington abandoned that practice two generations ago. See Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). Now, we do not weigh the evidence under any circumstance. Id. at 575; Quinn v. CherryLaneAuto Plaza, Inc., 153 Wn. App. 710,717,225 P.3d 266 (2009). We similarly do not substitute

ourjudgment for that ofthe trier offact. Thorndike, 54 Wn.2d at 575. Whetherthe facts

are as the parties allege is for the trialjudgeto determine, not this court. Id. Trial courts and appellate courts have different functions. The fact that appellate judges can probably3read as well as trialjudges do should notbe treated as ajustification for usurping the trial court's role within thejudicial branch. The separation ofpowers doctrine should be respected for intra-branch disputes as it is in the classical circumstance when the executive, legislative, and/orjudicial branches ofgovernment are in conflict with each other. Forthat reason, I believe that the majority appropriately gives deference to the trial court's factual findings. Irespectfully dissent from the decision to remand to the trial court for an unnecessary hearing.

3 An argument certainly can be made that in many instances the trialjudge is likely to have a betterknowledge ofthe actors before them, even ifthe appearance is in a document, and more accurately assess the credibility ofthe evidence than an appellate judge can. 3