### FILED SEPTEMBER 1,2015 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JAMES V. ADAMS, ) ) No. 32012-0-111 Respondent and ) CrossAppellant, ) ) v. ) ) WASHINGTON STATE DEPARTMENT ) OF CORRECTIONS, ) PUBLISHED OPINION ) Appellant. ) SIDOOWAY, C.J.

- Bothparties tothis Public Records Act (PRA)l dispute appeal decisions ofthe Franklin County Superior Court, which concludedthatthe Washington State Department ofCorrections (DOC) improperly withheldrecords that inmate James Adamsrequested from his offender file, acted in bad faith in doing so, and shouldpay a penalty of$24,535. The DOC challenges the conclusionthat it acted in bad faith. Mr. Adams argues that the penalty awarded was insufficient and was arrived atwithout full consideration ofall ofthe relevant evidence. The trial court found thatthe DOC'spositionthatthe documents were subject to

an exemption from disclosure was legally indefensible and thatthe DOC simply deferred

1Chapter42.56 RCW.No. 32012-0-III Adams v. Wash. State Dep'tof Corrections

to what itwas being told by individuals with the Washington State Patrol, without engaging in any critical analysis ofits own. It found that the intentional bad faith character ofthe DOC's decision to withhold the documents was further demonstrated by the DOC's persistence, after a Spokane County Superior Court squarely rejected any claim ofexemption, in continuing to rely on views ofthe state patrol that it preferred over the views ofthe court. We hold that "bad faith" for purposes ofimposingpenalties under RCW42.56.565(1) includes an agency's failure to engage in any serious independent analysis ofthe exempt status ofdocuments it withholds. Forthat reason, and because Mr. Adams fails to demonstrate any error in his cross appeal, we affirm all ofthe decisions of the trial court. FACTS AND PROCEDURAL BACKGROUND James Adams is incarcerated at the Coyote Ridge Corrections Center, a facility operated by the DOC. In July 2011, Mr. Adams submitted a request to the corrections center'srecords unit to review his inmate central file. Among other documents included in an offender's central file is his criminal conviction record packet. Thatpacket consists ofcriminal history obtained from the Washington State Patrol and the Federal Bureau of Investigation (FBI) at the time the inmate's fingerprint cards are forwarded following his admission to DOC custody. It also includes updated information obtained as part ofthe DOC's annual review thereafter. Updated information for the packet is obtained by submitting the inmate's name and date ofbirth into ACCESS, an acronym for "ACentral 2No. 32012-0-III Adams

### v. Wash. State Dep 'ta/Corrections Computerized Enforcement Service System," which is the Washington State Patrol's telecommunications system providing linkage to law enforcement and other criminal justice agencies. See WASHINGTON STATEPATROL, http://www.wsp.wa.gov/crime/isbhome.htm (last visited Aug. 12,2015). In response to Mr. Adams'srecord request, a corrections center records manager reviewed his file andremoved documents she believed were exempt from disclosure under the PRA, includingMr. Adams' 23-page criminal conviction record packet. The first two pages ofMr. Adams's packet were a Defendant's Case History Report. The remaining 21 pages were printouts from ACCESS. The ACCESS printouts included information on Mr. Adams from Washington State, from the FBI, and from the Interstate Identification Index System, a "cooperative federal-state system for the exchange of criminal history records." 28 C.F.R. §20.3(m). Therecords manager completed a "Denial ofDisclosure ofPublic Records" form dated July 14, 2011, that stated in pertinentpart: 1. TO: ADAMS, JAMES 2. YOURREQUESTFORDISCLOSURE OF THE RECORDS IDENTIFIEDBELOW HAS BEENDENIED TOTHE EXTENT AND FORTHE REASON(S) SETFORTHBELOW. SPECIFIC INTELLIGENCE AND ORINVESTIGATIONRECORDS FBI & SIIYRAPSHEETS; CCR PACKET

2 "SID" is the acronym for "state identification number." 

### 3No. 32012-0-III Adams 

### v. Wash. State Dep'to/Corrections

Clerk's Papers (CP) at 343. There was no identification ofhow many pages of documents were being withheld or any more specific description oftheir contents. When Mr. Adams reviewedthe portion ofhis central file produced onthat same day, he was presented with the "denial ofdisclosure" form, which he signed. Laterthat day, the records department sent Mr. Adamsthe following explanation for its withholding: EXEMPTION(S) 

### II [sic]-FBIRAP AND WASHINGTON STATE RAP SHEET-Theserecords, consisting ofthe Federal Bureau ofInvestigation Rap Sheet and/orthe Washington Rap Sheet, are protected from disclosure and have been withheld in their entirety perthe following citations:

... [citing 28 CFR 

### § 513.1 1 (a)(1), 28 CFR 

### § 513.20(b), and RCW 4.56.070(1)]. 

### ld. at 289. Mr. Adams appealed the withholding ofhis state and federal criminal information to the DOC's Public DisclosureAppeals Office, arguing thathe was exempt "from all of the above-mentioned citations that would necessarily deny my review ofmy own FBI and SID RAP Sheets." 

### ld. at 404. The appeals office denied his appeal. It again cited 28 CFR 

### § 513.11(a)(I), 28 CFR 

### § 513.20(b) and RCW 4.56.070(1), quoting in part from each, and also stated that "[nJon-conviction criminal history information is for law enforcement use only, andrestricted from dissemination underprovisions ofRCW 10.97.050 and28 USC

### § 534 and28 CFRPart20." CP at406. The denial letter advised Mr. Adams to contactthe WSP andthe FBI directly, explainingthat "these 4No. 32012-0-111 Adams v. Wash. State Dep'to/Corrections
entities can create and provide official copies ofFBI Rap Sheets and Washington State Rap Sheets, respectively." Id. Commencement o/thePRA action Mr. Adams commenced this action in Franklin County shortly thereafter, on October 31, alleging that the DOC violated the PRA in responding to his request. Three days before Mr. Adams filed his complaint, the Spokane County Superior Courthad entered a memorandum decision in an action entitled DavidChester v. Departmento/Corrections, in which Mr. Chester "aUeg[ed] violations of[the PRA] as several groups ofpublic records (criminal rap sheets) belongingto [Mr. Chester] were withheld from production and inspection orreview during [his] central file reviews on June 17,2010, and June 7, 2011." CP at 57 (Memorandum Opinion and Order, Cause No. 11-2-00329-3 (Oct. 28, 2011)). At Mr. Chester's request, the court had reviewed in

camera a number ofdocuments withheld from Mr. Chesterby the DOC, including six pages ofMr. Chester's own Washington State Patrol rap sheet dated April 2002, six pages ofhis state patrol rap sheet dated May 2006, eight pages ofhis state patrol rap sheet dated February 2002, and twopages ofhis FBI rap sheet dated April 2002. The Spokane court's decision stated that "[a]fter an additional review of potentially applicable exemptions,

... it does not seem thatPlaintiffs [requested records, WSP and] FBI rap sheets, are exempt under any provision." 

### Id. at 59. The court ordered



### 5No. 32012-0-III 

### Adams v. Wash. State Dep't a/Corrections

the DOC to provide Mr. Chesterwith copies ofhis state and FBI rap sheets, among other documents. The DOC moved for reconsideration, which the court denied in November. Almost 10 months later, on September4,2012, DOC filed a motion for a show

cause hearing to resolve Mr. Adams's PRA complaint. Itconceded that it violated the PRAby withholding the two-page Defendant's Case History report during Mr. Adams's offender central file review the yearbefore. But it argued that the remaining 21 pages of documents had been withheld based on its signed user agreementwith the state patrol and its understanding that the state patrol (at least at onetime) viewed dissemination of ACCESS printouts to inmates as sanctionable misuse ofthe system. The DOC filed declarations ofthe correctional records manager for the DOC and the Coyote Ridge records supervisor that undercut its position in part, since they admitted that the state patrol had "modified its position" with respect to statepatrol rap sheets on January 10,2012, and now took the position that the ACCESS use agreementwas not violated by allowing an offender to inspect his or her own Washington State rap sheet information. According to the declarations, federal and out ofstate rap sheet information remained nondisclosable. The Coyote Ridge records supervisor further stated inher declaration that in light ofthe state patrol's changedposition, she had scheduled a time on August 23, 2012, for Mr. Adams to reviewpages one through 11 ofhis packet, consisting ofthe Defendant's Case History document and the Washington Stateportion ofthe ACCESS printout. She 6No. 32012-0-III Adams

### v. Wash. State Dep 't of Corrections

stated that although Mr. Adams appeared at the scheduled time, he refused to review the records. In its motion to dismiss, the DOCpersisted in arguing that it did notviolate the PRA in withholdingACCESS printouts because state and federal law prohibited it from providingMr. Adams's FBI and WSP rap sheets to him. Itpersisted in claimingthat its position was supported by requirements ofthe state patrol'sACCESS Standard Procedures and its 2009 and 2011 user agreements, unsigned copies ofwhich itprovided to the court. Show Cause Hearing The trial court found the DOC'sjustification for its withholding indefensibly deficient. At the hearing ofthe show cause motion, it pointed outthat DOC's legal support for its position was limited to a state patrol records section manager's conclusory declaration as to applicable law, regulation,.policy, and federal-state agreement. The court stated it had been unable to locate a single document or legal citationprovidedby DOC that prohibitedthe DOC from disseminating an offender's state patrol orFBI rap sheetto that offender. The court asked the DOC's lawyer three times during the hearing to draw the court's attention to any record evidence ofan edict or agreement that prohibited the offender from being providedwith the ACCESS printouts. None was identified.

7No. 32012-0-III 

### Adams 

### v. Wash. State Dep'tojCorrections
After hearing the parties' argument, the trial court serially addressed the state patrol's ostensible authority on which the DOC relied in refusing to provide Mr. Adams with the ACCESS printouts from his central file. Itexplained why each authority fell short ofsupportingthe DOC's withholding ofthe records. Finding no basis for exemption, the trial court concluded that the DOC had violated the PRA. The court found the record inadequate to determine whetherthe DOC withheldthe records inbad faith, warranting apenalty. Itorderedthe DOC to submit additional briefing together with copies "ofany and all agreements it may have" with the state patrol, FBI, or other state or federal agencies regarding the information obtained through ACCESS, "as well as any specific policies, manuals, or correspondence between the agencies that substantiates the statements made in [the state patrol section manager's] declaration [in support ofthe show cause motion]." CP at 292. 

### Penalty hearing The DOC proved unable to produce any consequential additional support substantiating its position. It produced none thatpredated its withholding ofMr. Adams's records in July 2011. Itdidproduce electronic mail communicationthat began in December 2011, in which representatives ofthe DOC sought clarification or support for its position from the state patrol and FBI. A February 1 letter from the DOC's correctional records manager to the Division Commander ofthe state patrol's Criminal Records Division stated thatthe 

### 8No. 32012-0-III Adams v. Wash. State Dep'to/Corrections

DOC had withheld rap sheets based on unidentified "previous advice" and was "seek[ing] clarification." CP at 270. Rather than discuss the PRA or any other applicable law, the DOC employee simply asked the state patrol's division commander what he thought the parties' user agreementrequired. The Division Commander's response pointed out that the DOC had two agreements with the state patrol. Asto the first, the user agreement for ACCESS, the Division Commanderexpressed no opinion on its dissemination provisions. As to the second, a user agreement for fingerprint-based Washington rap sheets, the Division Commander stated that for DOC to provide a copy ofsuch a rap sheetto the rap sheet's subject "would not breach the [automated fingerprint modification system] user agreement with the WSP." Id. at 275. With this scant support for the DOC's actions in hand, the trial court looked to the mitigating and aggravating factors identified in Yousoufian v. Office 

## 0/ Ron Sims, 168 Wn.2d 444,229 P.3d 735 (2010) (Yousoufian 2010) to aid assessment ofthe culpability ofan agency that has violated the PRA. Applying those factors, the court found no statutory basis for the DOC'swithholding ACCESS printouts from the subject ofthe report, that the DOC'sposition was "legally indefensible," and that the agency's choice to solicit the opinions ofthe state patrol and FBI rather than engage in its own critical examination ofapplicable law (including failing to heed the decision in Chester) demonstrated bad faith. It concludedthat a substantialpenalty was necessary to deter 9No. 32012-0-III 

### Adams 

### v. Wash. State Dep 'to/Corrections

future misconduct. Itultimately imposed a penalty of$35 per day from the date ofMr. Adams's requestto the date ofthepenalty hearing, for a total of$24,535. BothMr. Adams andthe DOC moved for reconsideration. The requests for reconsideration were denied. Both parties appeal. ANALYSIS The DOC filed the first notice ofappeal and assigns errortothe trial court's finding that it acted in bad faith. Mr. Adams assigns error tothe trial court's allocation of the burden ofproving bad faith to the record requester and to the trial court's alleged failure to consider evidence relevant tothe penalty. We first address the DOC's appeal and then turn to Mr. Adams's. DOC APPEAL The DOC identifies three issues by segregating its actions on which the trial court relied into three categories: (1) its actions in withholding the portion ofthe ACCESS printouts that reflected information from the Interstate Identification Index (III) System, (2) its actions in withholdingthe portion that reflected Washington State information, and (3) its failure to heed the superior court decision in 

### Chester. Br. ofAppellant at 1-2. After addressing the meaning of"bad faith" in this context and the standard ofreview, we will address the issues as presented by the DOC. The PRA "is a strongly-worded mandate for broad disclosure ofpublic records." 

### RentalHous. Ass'no/PugetSoundv. City o/DesMoines, 165 Wn.2d 525, 535,199 P.3d 10No. 32012-0-II1 Adams v. Wash. State Dep'tof Corrections

393 (2009) (citingHearst Corp. v. Hoppe, 90 Wn.2d 123, 127,580P.2d 246 (1978)). It requires that state and local agencies "produce all public records upon request unless a specific PRA exemption or other statutory exemption applies." Robbins, Geller, Rudman & DowdLLPv. State, 179 Wn. App. 711, 719-20,328 P.3d 905 (2014); RCW 42.56.070(1). "[T]he agency claiming the exemption bears the burden ofprovingthat the documents requested fall within the scope ofthe exemption." Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wn.2d 472,476, 987 P.2d 620 (1999). "When an agency withholds or redacts records, its response'shall include a statement ofthe specific exemption authorizing the withholding ofthe record (orpart) and a briefexplanation ofhowthe exemption applies to the record withheld.'" City of Lakewoodv. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014) (quoting RCW 42.56.210(3)). "Thepurpose ofthe requirement is to inform the requester why the documents are being withheld and provide for meaningfuljudicial review ofagency action." Id. (citingProgressiveAnimal Welfare Soc. v. Univ. ofWashington, 125 Wn.2d 243,270,884P.2d 592 (1994) (PAWSII); Sanders v. State, 169 Wn.2d 827,846,240 P.3d 120 (2010)). Itis improperunder the PRA to provide exemption information in such vague terms that "the burden [is] shiftedto the requesterto sift through the statutes cited

... and parse outpossible exemption claims." Lakewood, 182 Wn.2d at 95.

11No. 32012-0-III Adams v. Wash. State Dep'tof Corrections

Limitations on Inmate Recovery of Penalties As an inmate at the time he made his public recordrequest, Mr. Adams is subject to a limitation on penalties adopted by the legislature in 2011. LAWS OF 2011, ch. 300, § 1. Under RCW 42.56.565(1), A court shall not award penalties under RCW 42.56.550(4) to a personwho was serving a criminal sentence in a state, local, orprivately operated correctional facility on the date the request for public records was made, unless the court finds thatthe agency acted in bad faith in denyingthe personthe opportunity to inspect orcopy a public record. By adding thebad faith requirement, "the legislature increased the level ofculpability needed for an awardto an inmate" from the expansive range ofculpability that can give rise to a penalty where the requester is not incarcerated. Faulkner v. Dep'tofCorrs., 183 Wn. App. 93, 105,332 P.3d 1136 (2014) review denied, 182 Wn.2d 1004 (2015). Legislative committee reports suggestthatthe underlyingbill was introduced as a

measureto "curb abuses by inmates." Id. "By incorporating the bad faith requirement, the legislature allows penalties for inmates only when the conduct ofthe agency defeats thepurpose ofthe PRA and deserves harsh punishment." Id. at 106. The DOC does not challenge the trial court'sruling that a PRA violation occurred

nordoes it challenge the amount ofthe penalty arrived atbythe court-it challenges only the trial court'sthreshold finding that it acted in bad faith. Two decisions by this court following the 2011 amendment ofRCW42.56.565(1) have considered what constitutes bad faith within the meaning ofthatprovision. In 12No. 32012-0-111 Adams v. Wash. State Dep'tof Corrections

Francis v. State Department of Corrections, 178 Wn. App. 42,54,313 P.3d 457 (2013), review denied, 180 Wn.2d 1016 (2014), Division Two ofour courtrejected the DOC's assertion that "an agency acts in bad faith only when it knows that it has responsive records but intentionally fails to disclose them." Instead, it held that "among other potential circumstances, bad faith is presentunder RCW 42.56.565(1) ifthe agency fails to conduct a search that is bothreasonable and consistent with its policies." Id. at 63 n.5. In Faulkner, this courtheld thatbad faith in the PRA context "incorporates a higher level ofculpability than simple or casual negligence," and is "associated with the most culpable acts by an agency." 183 Wn. App. at 103, 105. Accordingly, to establish bad faith, an inmate "must demonstrate a wanton or willful act or omission by the agency." Id. at 103. CitingBlack'sLawDictionary 1719-720 (9th ed. 2009), the court explained that "wanton" means "[u]nreasonably or maliciously risking harm while being utterly indifferentto the consequences." Idat 103 (alteration in original) (internal quotation marks omitted). And "wanton" differs from reckless both as to the actual state ofmind and as to the degree ofculpability. One who is acting recklessly is fully aware ofthe unreasonable riskhe is creating, but may be trying and hoping to avoid any harm. One acting wantonly may be creating no greater risk ofharm, but he is not trying to avoid it and is indifferentto whetherharm results ornot. Id. at 103-04 (internal quotation marks omitted) (quoting BLACK'S LAW DICTIONARY 1720 (9th ed. 2009».

13No.**32012~0~III** 

### Adams v. 

### Wash. State Dep'ta/Corrections

"Whetheran agency acted in bad faith underthe PRApresents a mixed question of law and fact, in that itrequires the application oflegal precepts (the definition of'bad faith') to factual circumstances (the details ofthe PRA violation)." 

### Francis, 178 Wn. App. at**51~52.** The DOC does not assign errorto the trial court's factual findings supporting its determination ofbad faith. Accordingly, these findings are verities on appeal. 

### State v. 

### Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). Whetherthose facts support its conclusion that the DOC acted in bad faith, on the otherhand, is a question oflaw that this courtreviews de novo. 

### Faulkner, 183 Wn. App. at 101-2 (citing

### Francis, 178 Wn. App. at 51-52). The court madethe following findings relevant to its conclusion that DOC acted in bad faith:

• "DOC's explanation for noncompliance is notreasonable" [Finding 5];

• "[T]he DOC was not completely forthcoming in its initial explanation as to why itwas withholding the records, wherein it stated there was a statutory basis for withholding the rap sheets, when in fact there was no statutory basis for the DOC, the Washington State Patrol orthe FBIto withhold Mr. Adams'[s] criminal records" [Finding 6];

• H[T]he Court finds DOC'sposition legally indefensible, that there is no statute thatprohibits the dissemination ofrap sheets, either state or federal, that the DOC was undaunted by this fact, that one government agency cannot rely upon andpointto another

14No. 32012-0-III Adams v. Wash State Dep 't of Corrections governmental agency where that governmental agency's decisionmaking process is clearly in error" [Finding 11];

• "[T]he Court finds that the DOC actions are clearly intentional and in bad faith[;3 t]he DOC was notrelying on any statutory exemption orbasis but simply relying upon the opinion ofsomeone in another agency, and prior to this case comingto this court, Judge Eitzen, of the Spokane County Superior Court, under Cause No. 11-2-00329-3, had already found the DOC inviolation ofthe Act on these grounds" [Finding 12];

• "The Court also finds thatno indication thatthe [DOC] has filed an interlocutory appeal orthat it has filed a declaratory action. The Court further finds bad faith where the DOC, a department within the executivebranch ofgovernment, has chosen to ignore decisions made by thejudicial branch regarding rap sheet dissemination. [None oft]heDOC, the WSP []or the FBI are privileged to ignore judicial decisions; [Finding 12];

• "[T]he Court finds that a substantialpenalty is necessary, and, in respect to the separation ofpowers issue, the executive branch of government is required to follow the decisions that are properly within the authority ofthejudicial branch ofgovernment. The Court further finds thatthe existence ofother legal remedies are available to the DOC and that the DOC cannot simply ignor[e]judicial decisions as occurred herein" [Finding 16]. CP at 30-32. With these undisputed findings in mind, we tumto the three issues as identified by DOC.

3As discussed, wetreat "bad faith" as a conclusion oflaw. See Grundy v. Brack Family Trust, 151 Wn. App. 557, 567,213 P.3d 619 (2009) (conclusions oflaw mislabeled as findings offact are reviewed as whatthey are, de novo). 15No. 32012-0-III Adams v. Wash. State Dep'tof Corrections Withholding of Interstate Identification Index CriminalHistory The DOC argues that standing alone, an agency's reliance on an invalidbasis for nondisclosure is not a basis for finding bad faith, although it concedes thatreliance on a '" farfetched'" basis for nondisclosure may result in such a finding. Br. ofAppellant at 13 (quotingKing County v. Sheehan, 114 Wn. App. 325, 357, 57 P.3d 307 (2002)). While not assigning errorto the trial court's finding that its positionproved to be indefensible, it provides a ten-page discussion offederal law (mostly federal regulations) to show that the issue ofwhether federal law prohibits a state criminal agency from disclosing rap sheet information on an inmate, to that inmate, "is not as simplistic as the trial court held." Br. ofAppellant at 13. In short, it seeks to show that its position was not "farfetched." The discussion begins with what the DOC views as its most defensible withholding ofdocuments: its withholding ofACCESS printouts reflecting information from the III System. While it referred to all ofthe withheld documents as "rap sheets" at the time ofwithholding, it now distinguishes information from the III System from what it calls fingerprint-based rap sheets and contends that unlike fingerprint-based rap sheets, III System information cannotbe disseminated by a law enforcement agency to the individual who is the subject matter ofthe information. It misconstrues federal rules that not only permit, but require, that inmates have an opportunity to review their own criminal history record information and a United States Supreme Courtholding that 16No.**320'12~0-III** Adams 

### v. Wash. State Dep'tof Corrections

federal law only requires restricting thirdparty access to aperson'srap sheet infonnation. As the DOC concedes, 28 U.S.C. 

### § 534(b) was the key provision on which the statepatrol mistakenly relied in concluding thatproviding criminal record information from FBI-controlled systems to the subject ofthat infonnation was prohibited. 28 U.S.C. 

### § 534(b) states that "[t]he exchange ofrecords and infonnation authorized by subsection (a)(4) ofthis section is subject to cancellation ifdissemination is made outside the receiving departments or related agencies." Over40 years ago, the director ofthe FBI announced rules under which the subject ofrap sheet information was free to obtain a copy ofthat infonnation maintained by the FBIpursuantto 28 U.S.C. 

### § 534. The rules were explained as follows: By order dated September 24, 1973, the Attorney General ofthe United States directed thatthe

...FBI[] publish rules for the dissemination of arrest and conviction records to the subjects ofsuch records upon request. This orderresulted from a detennination that 28 U.S.C. 534 does not prohibit the subjects ofarrest and conviction records from having access to those records. Department ofJustice Order No. 556-73, 38 Fed. Reg. 32,806 (Nov. 28, 1973). The announcement went on to explain that the rules would provide a procedure by which the records could be obtained from the FBI. Italso explained that it was able to announce the rules without following rulemaking procedure under the federal Administrative Procedure Act "because the material contained herein relates to the interpretation of28

17No. 32012-0-111 Adams v. Wash. State Dep'tof Corrections

U.S.C. 534 as allowing the granting ofan exemption to subjects ofidentification records," and "itis deemed in the public interest that there be no delay in the effective date ofavailability ofidentification Records to the subjects thereof." Id. Sixteen years later, the United States Supreme Courtdiscussed the FBI'sposition in Departmentof Justice v. Reporters CommitteeforFreedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989), the seminal authority on 28 U.S.C. 

### § 534 that the trial courtrelied upon in concluding thatthe DOC hadviolated the PRA. In Reporters Committee, the Supreme Court considered whether subsection 534(b) made the FBI's criminal history information exempt from disclosure under the federal Freedom of Information Act (FOIA), 5 U.S.C. 

### § 552. Three steps in the Supreme Court's reasoning and its holding are fatal to DOC's argumentthat 28 U.S.C. § 534(b)prohibited it from providing Mr. Adams with copies ofhis FBI rap sheets. In Reporters Committee, a news reporter and an association of journalists requested FBI rap sheets ofmembers ofa family associated with organized crime. The district court for the District ofColumbia found that the records were exempt from disclosure under FOIA; the Court ofAppeals ofthe District ofColumbiareversed in a split decision and then denied rehearing en banc, with fourjudges dissenting. The U.S. Supreme Courtthen granted certiorari. The Supreme Court's decision recounted the history ofthe FBI's collection and sharing ofrap sheet information, observing that before 1957, the Department ofJustice, 18No. 32012-0-111 Adamsv. Wash. State Dep'tof Corrections

as a matter ofexecutive policy, had generally treated rap sheets as confidential. 489 U.S. at 752. Consistentwiththatbasicpolicy oftreating therecords as confidential, Congress in 1957 amended the criminal information statute to include the non-dissemination language presently provided by 28 U.S.C. § 534(b). Id. The Courtthen discussed the FBI's historical exception "allow[ing] the subject ofa rap sheetto obtain a copy," as reflected in former 28 CFR §§ 16.30-16.34 (1988). Id. Itcharacterized "theFBI'spolicy ofgranting the subject ofa rap sheet access to his own criminal history" as "consistent with its policy ofdenying access to all other members ofthe general public." 489 U.S. at 771. Thus at the first step-itshistorical analysis-the Supreme Courtpointed out the FBI'sviewthat 28 U.S.C. § 534 did not preventthe subject ofa rap sheet from obtaining

a copy. The Court went on to discuss FOIA, which identifies nine categories ofdocuments that are exempt from its broad disclosure requirements. 

### In the District ofColumbia Circuit Court ofAppeals' decision in the Reporters Committee case, it had heldthat Exemption 3,4 which applies to documents that are specifically exempted from disclosure by another statute, did notapply, because 28 U.S.C. § 534 did not qualifY as a statute

4Exemption 3 is codified at 5 U.S.C 

### § 552(b)(3). 19No. 320 12-0-III 

### Adams 

### v. Wash. State Dep'ta/Corrections

'" specifically'" exemptingrap sheets from disclosure. 

### Reporter's Comm. For Freedom o/Pressv. 

### Dep'to/Justice, 259 U.S. App. D.C. 436,816 F.2d 730,734 (1987) 

### rev'don othergrounds, 489 U.S. 749 (1989).5 While the petitioners abandoned reliance on Exemption 3 in the Supreme Court, the Court's opinion made the passing observation that 28 U.S.C. 

### § 534(b) was "perhaps not specific enough to constitute a statutory exemption under FOIA Exemption 3." 489 U.S. 765 & n.17. The U. S. Supreme Court instead analyzed Exemption 7(C) under FOIA, which excludes records or information compiled for law enforcementpurposes, "but only to the extent that theproduction ofsuch [materials]

... couldreasonably be expected to constitute an unwarranted invasion ofpersonal privacy." 5 U.S.C. 

### § 552(b)(7)(C).6 Thus, at the second step ofits analysis-identifyingthe pertinentFOIA exemption-the

5The Circuit Court observed: The government's contention that [28 U.S.C. 

### § 534(b)], which authorizes the Attorney General to stop exchanging information with a particular governmental entity ifthat entity discloses the information, brings the statute within Exemption 3 is unpersuasive. Subsection (b) does not speak to the Attorney General's authority to disclose orrefuse to disclose to the public; only by implication does it even address the recipient agency's authority to disclose to the public. 816 F.2d at 735 (emphasis omitted). 6The Court observed that Exemption 6, codified at 5 U.S.C. § 552(b)(6), and which protects "personnel and medical files and similar files the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy," was also arguably applicable, buthaving found the broaderExemption 7 to apply, found "no occasion" to address the application ofExemption 6. 489 U.S. at 755 n.7, 762 n.l2. 20No. 320l2-0-III Adams 

### v. Wash. State Dep 't of Corrections Supreme Courtrelied on an exemption that applies only when privacy is invaded. Privacy is not invaded when an individual reviews records that are only about himself. The Court then identified the Privacy Act of 1974, codified at 5 U.S.C. 

### § 552a, as supportingthe conclusion that a privacy interest can inhere in the nondisclosure of compiled computerized information. 489 U.S. at 766. Itdescribed the Privacy Act as "provid[ing] generally that '[n]o agency shall disclose any record which is contained in a system ofrecords

...exceptpursuant to a written request 

### by, orwith theprior consent of, the individual to whom the recordpertains.'" Id. (emphasis added) (some alterations in original) (quoting 5 U.S.C. 

### § 552a(b). At this third stage ofanalysis--deciding whether disclosure ofcompiled computerized information can violate privacy-the Supreme Courtreliedon an analogous nondisclosure statute that allows disclosure ofa record to the individual to whom the recordpertains. Finally, the holding ofthe decision reflected an intentional distinction between the subject ofthe rap sheet and a third party. Itsaid, Accordingly, we hold as a categorical matter that a thirdparty's request for law enforcement records or information about aprivate citizen can reasonably be expected to invade that citizen'sprivacy. 489 U.S. at 780 (emphasis added). We agree with the trial court that by no reasonable reading does Reporters Committee suggestthat the DOC wasjustified in withholding Mr. Adams's FBI rap sheet information from him. 21No. 32012-0-111 

### Adams 

### v. Wash. State Dep'to/Corrections

The DOC nonetheless points to a supposed federal regulatory distinction between disclosing criminal history information it obtains through a fingerprint card-based request to the FBI and information it obtains through a name and date ofbirthrequest through the III System. What came to be called the Interstate Identification Index System, a systemthat links federal and state criminal records systems, became operationalthrough the FBI's National Crime Information Center (NCIC) in 1983. 

### See James Jacobs & TamaraCrepit, 

### The ExpandingScope, Use, andAvailabilityo/CriminalRecords, 11 

### N.Y.V. 1. LEGIS. & PUB. POL'y 177, 181 (2007-08), and historical materials citedtherein. "The III enables the FBI to direct searchers to the states containingrecords on the subject ofthe search" and for this reason "is called a 'pointer system'-ittells law enforcementofficials which states have criminal history record information on a particular subject and allows searchers to obtain this information directly from the state repository where the information is located." 

### Id. at 182 (footnote omitted). The terms "Interstate Identification Index" and the shorthand "III System" were first reflected in federal regulation in 1999, when the Department ofJustice adopted a final rule amending its regulations to expand access to federal criminal history record information to some private entities and some noncriminaljustice governmental agencies; to acknowledge

access to such information by the National Instant Criminal Background Check System (NICS) under the Brady Handgun Violence Prevention Act of 1993; and at the same time 22No. 32012-0-111 Adams v. Wash. State Dep'tof Corrections

to "modernize language to ensure thatthe regulations accurately reflect current FBI practices [and] names ofsystems and programs." Federal Bureau ofInvestigation, Criminal Justice Information Services Division Systems and Procedures, 64 Fed. Reg. 52,223, 52,229 (Sept. 28, 1999) (Attorney General OrderNo. 2258-99). TheDOC correctly observes that the federal regulations in Title 28, chapter 1, part 20 ofthe Code ofFederal Regulations govern the access issue under federal law. 28 C.F.R. 

### § 20.34 addresses the procedure by which "an individual may obtain a copy ofhis III System record" and states thatthe individual's "III System record

... is available to that individual for review" so long as he has a criminal record supported by fingerprints that have been entered in the III system. 28 C.F.R. pt. 20 app., § 20.34 cmt. The DOC does not dispute thatMr. Adams has a criminal record supported by fingerprints entered in the III System. 28 C.F.R. § 20.34 also sets forth a procedure by which an inmate may requestthat

a law enforcement agency obtain a copy ofhis III System record for his review: Procedure. 1. All requests for review must be made bythe subject of the record through a law enforcement agency which has access to the III System. That agency within statutory or regulatory limits can require additional identification to assist in securing a positive identification. 2. Ifthe cooperating law enforcement agency can make an identification with fingerprints previouslytaken which are on file locally and ifthe FBI identification number ofthe individual's record is availableto that agency, it can make an on-line inquiry through NCIC to obtain his III System record, or, ifit does nothave suitable equipmentto obtain an on-line response, obtain the record from Clarksburg, West Virginia, by mail. The individual will then be afforded the opportunity to see thatrecord. 23No. 32012-0-II1 Adams v. Wash. State Dep 't o/Corrections

3. Should the cooperating law enforcement agency not have the individual's fingerprints on file locally, it is necessary for that agency to relate his prints to an existingrecord by having his identificationprints compared with those already on file in the FBI, or, possibly, in the state's central identification agency. 4. The subject ofthe requested record shall requestthe appropriate arresting agency, court, or correctional agency to initiate action necessary to correct any stated inaccuracy in his record or provide the information needed to make the record complete. 28 C.F.R. pt. 20 app., § 20.34) cmt. Another regulation under part20 requires that any state wishingtohave access to federal criminal information must submit a Criminal History Record Information Plan that includes operational procedures that "[i]nsurethe individual's right to access and review ofcriminal history record information maintained for purposes ofaccuracy and completeness" by institutingprocedures that allow individuals to review, "withoutundue burden" "any criminal history information about the individual." 28 C.F.R. § 20.21(g)(l). The DOC fails to explain why these are not the controlling federal regulations. It directs our attention instead to 28 C.F.R. § 16.30, which provides a different but nonexclusive procedure through which an inmate can obtain criminal history information. It directs us to regulations that impose sanctions for an agency's misuse ofinformation and for an agency's improper dissemination ofinformation in violation of28 U.S.C. § 534(b}-butwithout any companion authority suggesting that providing an inmate with III System information is misuse or improper dissemination. 24No. 32012-0-111 

### Adams v. 

### Wash. State Dep 't o/Corrections

DOC also points to provisions of28 C.F.R. § § 513.11 and 513.20. 28 C.F.R. § 513.1I(b), in particular, requires requests for 

### III System information to be directed to the FBI. But subsections 513.11 and 513.20 are part ofchapter V ofTitle 28, dealingwith the federal "Bureau ofPrisons, Department ofJustice." The regulations address how an "inmate" may obtain such records, with "inmate"defined for purposes ofthe chapter to

mean "allpersons inthe custody ofthe Federal Bureau ofPrisons or Bureau contract facilities." 28 C.F.R. 

### § 500.I(c). They discuss records in an "institution's" files, with "institution" defined for purposes ofthe chapterto mean "aU.S. Penitentiary" or one ofa list ofother federal correctional facilities. 28 C.F.R. 

### § 500.1(d). The regulations have no application to Mr. Adams orto records in his central file at Coyote Ridge. None ofthe federal regulations identified by the DOC is inconsistent with longstanding federal law authorizing inmate access to his orher FBI criminal history information. Finally, the DOC cites 

### Sargent v. 

### Seattle Police Department, 179 Wn.2d 376, 399, 314 P.3d 1093 (2013), as somehow establishingthat "[a]tthe time, [the DOC's] was a reasonable interpretation ofboth state and federal law." Br. ofAppellant at 20. It apparently relies on

### Sargent's holding that the Seattle Police Departmentproperly withheld 44nonconviction criminal history" information from the subject ofthe information, who failed to support the request with an assertion thatthe information was inaccurate or incomplete. 179 Wn.2d at 399-400. The police department's withholding 25No. 32012-0-111 Adams 

### v. Wash. State Dep 't of Corrections

was supportedby a provision ofthe Washington State Criminal Records Privacy Act, chapter 10.97 RCW, which required such an assertion. 7 Mr. Adams's request was not for

nonconviction criminal history information and does not presentthe issue addressed in Sargent. Thetrial court did not err in concludingthatthe DOC'sposition as to federal law

was indefensible. Withholding of State CriminalHistoryInformation The State offers a more abbreviated defense ofits withholding ofMr. Adams's state criminal history information. The only legal authority that the DOC argues supported its mistaken but allegedly good faith withholding ofMr. Adams's state rap sheet information is WAC 446-20-090, which provides individuals with a right to review their criminal history information for a reasonable fee. The regulation was not promulgatedunder the PRA, but under chapter 10.97 RCW, the Washington State Criminal Records Privacy Act. Itcreates a right that is in addition to, not a substitute for, Mr. Adams's rights under the PRA.

7 "Atthe time ofthe show cause hearing, the [act] providedthat '[n]operson shall be allowedtoretain or mechanically reproduce any nonconviction data except for the purpose ofchallenge or correction when theperson who is the subject of the record asserts the belief in writing that the information regardingsuchperson is inaccurate or incomplete.' FormerRCW 10.97.080 (2010)." Sargent, 179 Wn.2d at 400 (emphasis added) (alteration in original) (footnote omitted). 26No. 320 12-0-III Adams v. Wash. State Dep'tof Corrections Beyond that, the DOC argues only that the state patrol formerly took theposition that Washington State criminal history information was exempt from the PRA under RCW 10.97.050 and RCW 10.97.080, and DOC employees feared they would violate the agency's user agreement with the patrol and lose access to information ifthe DOC did not abide by the patrol's interpretation. Itdoes not challenge the trial court's conclusion thatthe state patrol'sreading ofthose provisions (areading the patrol has abandoned)

was indefensible. Itargues instead that "[a]s the WSP is vested with the authority to administer all operatingphases ofACCESS and the Washington Crime Information Center which encompasses the records which are the subject ofRCW 10.97, the Departmentwas reasonable to rely on the WSP's position." Br. ofAppellant at 22. Underthe PRA, "[t]he agency must shoulderthe burden ofprovingthat one ofthe [A]ct's narrow exemptions shields the records it wishes tokeep confidential." Brouillet

v. Cowles Publ'g Co., 114 Wn.2d 788, 794, 791 P.2d 526 (1990) (court was precluded from deferring to education board'sregulation guaranteeing confidentiality ofrecords, and had to decide for itselfwhether the PRA exemptedthose records from disclosure). Even ifthe DOC's user agreementhad prohibited it from providing inmates with access to their records (and it did not), "an agency's promise ofconfidentiality or privacy is not adequate to establish the nondisclosability ofinformation; promises cannot override the requirements ofthe disclosure law." Hearst v. Hoppe, 90 Wn.2d 123, 137, 580 P.2d 246

27

### No. 32012-0-111 Adams v. 

### Wash. State Dep'to/Corrections 

### (1978); WAC 

### 44-14-06002(1) ([a]n agency agreement orpromise not to disclose a record cannot make a disclosable record exempt from disclosure). The DOC had no right to rely on the position ofthe state patrol or on the terms of any interagency agreement in determining whether the requested records were exempt from disclosure under the PRA. 

### The Chester

### Decision Finally, the DOC contends that the trial court erred when it relied on the DOC's actions following the 

### Chester decision as a basis for concluding thatthe agency acted in bad faith. It argues that 

### Chester presented different facts and a request for only fingerprint-based records, not an III System record. We have already rejected the DOC's argumentthat the III System character ofa criminal history record makes it nondisclosable to an inmate by the DOC. The DOC only halfheartedly argues that Mr. Chester's case is distinguishable, pointing outthat he was also complaining ofwithholding ofhis medical records and other information not at issue in Mr. Adams's case. Itcannot and does not dispute that in 

### Mr. Chester's case it withheld similar criminal history record information relying on the same legal authority that it relied upon in the trial court here: principally 

### 28 U.S.C. 

### § 

### 534 and RCW 

### 10.97.080. The Spokane County Superior Court's memorandum decision explained why neither statute applied, discussed

### Reporters Committee, and squarely and directly ruled that rap sheet information in the possession oftheDOC is not exempt from 

### 28No. 32012-0-III Adamsv. Wash. State Dep 't of Corrections
disclosure under the PRA. Yet the DOC did not stop to reconsider its exemption claim. It continued in its dealings with Mr. Adams to follow the discredited view ofthe state patrol rather than the reasoned ruling ofthe Spokane court. The ruling in Chester came four months afterthe initial withholding ofMr. Adams's records and nine months before the DOC relented as to about athird ofthem. 8 What the trial court appears to have found most significant about the DOC'srefusal to heed the Chester decision is that it forecloses any argument by the DOC that it simply didn't realize there was a problem with the legal position ithadtaken. The trial court reasonably viewed the DOC's actions as illustrating its indifference to whether it was withholding records improperly. CROSS APPEAL Burden of proof Mr. Adams contends thatthe trial court erred in imposing the burden on him of provingbad faith under the newly enacted RCW 42.56.565(1). He argues that the burden

8 In passing, the DOC argues that its attempt to present 11 pages ofMr. Adams's records for his review in August 2012, only to have Mr. Adams refuse to review them, demonstrates the absence ofbad faith on its part. Butthis was still incomplete disclosure, it occurred seven months afterthe state patrol had taken the position that these documents could bereleased, and itdoes not negate the fact that the claim ofexemption was never seriously examined in the first place. At most, it could bear on the period for which penalties were imposed-but since the DOC continuedto withhold the majority ofthe ACCESS printouts, it was within the trial court's discretion to disregard the belated attempt at partial disclosure for thatpurpose as well. 29No. 32012-0-II1 Adams 

### v. Wash. State Dep 't of Corrections
ofproofunder the PRA is "in all instances" on the offending agency, citing RCW 42.56.550. Br. ofResp'tlCross Appellant at 30. That statute provides thatthe burden of proofshall be on the agency "to establish that refusal to permitpublic inspection and copying in accordance with a statute that exempts orprohibits disclosure," RCW 42.56.550(1), and to establish that "the estimate [oftime to respond] provided is reasonable," RCW 42.56.550(2). Itdoes not address the burden ofproving any other matters. Mr. Adams has no basis for claiming error, since the issue ofbad faith was resolved in his favor. We note, however, that generally it is a plaintifrsburden to prove the elements necessary to recovery. Baldwin v. Sisters of Providence, 112 Wn.2d 127, 135, 769 P.2d 298 (1989). Accordingly, in Faulkner, we held that an inmate must establish bad faith. Faulkner, 183 Wn. App. at 103. The trial court did not err. Consideration ofY ousoufian 2010 factors Mr. Adams next assigns error to the trial court's failure in the penalty hearingto consider onthe record the Yousoufian 2010 factor ofthe size ofthe DOC and the inadequacy ofthe DOC's records denial sheet. He argues that both should have been considered in fixing the amount ofthe penalty. Under RCW 42.56.565(I), the court must make a threshold determination thatthe agency acted in bad faith in denying a record requesterthe opportunity to inspect or copy
a public record. Ifthat threshold showing is made, the statute contemplates thatthe trial 30No. 32012-0-111 Adams v. Wash. State Dep 't of Corrections

court will then exercise its discretion underRCW42.56.550(4) "to award

... an amount not to exceed onehundred dollars for each day that he or she was denied the right to inspect or copy [the requested] record." In Yousoufian 2010, our Supreme Court outlined a multifactor analysis to "provide[] guidance to trial courts, more predictability toparties, and a framework for meaningful appellate review," identifYing seven mitigating factors and nine aggravating factors to be considered by a court in imposing a penalty underthe PRA. 168 Wn.2d at 468. The ninth aggravating factor was "apenalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts ofthe case." Jd. (emphasis added). In announcing the multifactor analysis for arriving at an appropriate penalty, the Yousoufian 2010 court "emphasize[d]"that [t]he factors may overlap, are offered only as guidance, may not apply equally or at all in every case, and are not an exclusive list ofappropriate considerations. Additionally, no one factor should control. These factors should not infringe upon the considerable discretion oftrial courts to determine PRApenalties. Yousoufian 2010, 168 Wn.2d at 468. A trial court nonetheless abuses its discretion ifit fails entirely to conduct its penalty analysis within the Yousoufian 2010 framework. Sargent, 179 Wn.2d at 398. We review a trial court's determination ofaproperPRApenalty for abuse of discretion. Yousoufian v. Office of Ron Sims, 152 Wn.2d 421,430-31, 98 P.3d463 (2004) (Yousoufian 2004). Under this standard, a trial court's decision will only be 31No. 32012-0-II1 Adams v. Wash. State Dep'to/Corrections
reversed ifits decision "is manifestly unreasonable orbased on untenable grounds or reasons." Yousoufian 2010, 168 Wn.2d at 458. "Acourt acts on untenable grounds ifthe record does not support its factual findings, and it acts for untenable reasons ifit uses'an incorrect standard, orthe facts do not meet the requirements ofthe correct standard.'" Francis, 178 Wn. App. at 65 (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)). A trial court's decision is manifestly unreasonable ifthe court, "despite applying the correct legal standard to the supported facts, adopts a view that no reasonableperson would take." Yousoufian 2010, 168 Wn.2d at 458-59 (internal quotation marks omitted). Here, the trial court conducted its penalty analysis within the Yousoufian 2010 framework and made the following finding as to the ninth aggravating factor: [D]eterrence offuture misconduct; the Court finds that a substantial penalty is necessary, and, in respect to the separation ofpowers issue, the executive branch ofgovernment is required to follow the decisions that are properly within the authority ofthejudicial branch ofgovernment. The Court further finds that the existence ofother legal remedies are available to the DOC and that the DOC cannot simply ignor[e]judicial decisions as occurred herein, therefore this factor is present. CP at 12. Itimposed a per-day penalty of$35 based on its finding oftwo mitigating factors and three aggravating factors. 

### ld. at 13. Mr. Adams has not demonstrated that the trial court failed to consider the DOC's SIze. The court explicitly addressed the need to impose a penalty amount necessary to deter future misconduct by the agency. In making ajudgment about the amount 32No. 32012-0-111 

### Adams v. 

### Wash. State Dep'to/Corrections

necessary to deter future misconduct, the trial court would necessarily have considered the size ofthe agency-likelyunder 

### Yousoufian 2010, which it was following, but in any event as a matter ofcommon sense. Itwas not required to place its thought process on the record. While 

### Mr. Adams believes that a $24,535 penalty is insufficientto deterthe DOC given the size ofits operatingbudget, he has not shown that the trial court abused its discretion in arriving at that amount. Mr. Adams also contends that the trial court erred in failing to considerthe inadequacy ofthe DOC'srecords denial sheet, which he claims fell short ofthe requirements ofRCW42.56.201(3). Underthat statute, Agency responses refusing, in whole orin part, inspection ofany public record shall include a statement ofthe specific exemption authorizing the withholding ofthe record (orpart) and a briefexplanation ofhow the exemption applies to the record withheld. RCW42.56.210(3). As Mr. Adamspoints out, in reviewing the 

### Yousoufian 2010 factors, the trial court did not explicitly find any failure by the DOC to comply with the PRA's procedural requirements. The trial court unquestionably consideredthe deficiency ofthe DOC's identification ofa basis for exemption, however-that deficiency was a principal basis for its finding thatthe DOC acted in bad faith. But it is apparent that the trial court differentiated between compliance with procedural requirements 

### inform, and compliance with procedural requirements 

### in substance. As a matter ofform, the Coyote Ridge

33No. 32012-0-111 Adams v. Wash. State Dep 't o/Corrections
records department provided Mr. Adams with a contemporaneous log on which it disclosed that it was withholding some documents, provided some description ofwhat they were, and provided citations to statutes and regulations as the asserted basis for its withholding. The court chose to address the substantive inadequacy ofthe DOC's explanation elsewhere in its written and oral rulings. Itfound that aggravating factors four and fivethe "unreasonableness ofany explanation for noncompliance by the agency" and "negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRAby the agency"-bothjustified an increased penalty. 168 Wn.2d at 468. The court did not overlook the DOC's failure to identify an exemption that actuallyjustified its withholding. Becausethe trial court adequately considered each ofthe Yousoufian 2010 factors, it did not abuse its discretion in its assessment ofpenalties. Cost request 

### Mr. Adams devotes a section ofhis briefto his entitlement to costs on appeal under RCW 42.56.550(4), RAP I8.1(b), and RAP 14.3(b). RCW 42.56.550(4) provides that all costs shall be awarded to "[a]ny person whoprevails" in an action under the PRA. Because

### Mr. Adams has prevailedhe is entitled to all costs reasonably incurred in litigating the appeal subjectto compliance with RAP 18.I(d).

34No. 32012-0-II1 Adams 

### v. Wash. State Dep 't of Corrections


### Affinned.

WE CONCUR:

Brown, J.



### 35