FILED 


SEPTEMBER 1,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


JAMES V. ADAMS, ) 

) No. 32012-0-111 

Respondent and ) 

Cross Appellant, ) 

) 

v. ) 

) 

WASHINGTON STATE DEPARTMENT ) 

OF CORRECTIONS, ) PUBLISHED OPINION 

) 

Appellant. ) 

SIDOOWAY, C.J. - Both parties to this Public Records Act (PRA)l dispute appeal 

decisions ofthe Franklin County Superior Court, which concluded that the Washington 

State Department of Corrections (DOC) improperly withheld records that inmate James 

Adams requested from his offender file, acted in bad faith in doing so, and should pay a 

penalty of$24,535. The DOC challenges the conclusion that it acted in bad faith. Mr. 

Adams argues that the penalty awarded was insufficient and was arrived at without full 

consideration of all ofthe relevant evidence. 

The trial court found that the DOC's position that the documents were subject to 

an exemption from disclosure was legally indefensible and that the DOC simply deferred 

1 Chapter 42.56 RCW. 
No. 32012-0-III 

Adams v. Wash. State Dep't ofCorrections 

to what it was being told by individuals with the Washington State Patrol, without 

engaging in any critical analysis of its 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 of exemption, in continuing to rely on views ofthe state patrol that it preferred over 

the views ofthe court. We hold that "bad faith" for purposes of imposing penalties under 

RCW 42.56.565(1) includes an agency's failure to engage in any serious independent 

analysis of the exempt status ofdocuments it withholds. For that 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's records unit to review his inmate central file. Among other documents included 

in an offender's central file is his criminal conviction record packet. That packet consists 

of criminal 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 of the 

DOC's annual review thereafter. Updated information for the packet is obtained by 

submitting the inmate's name and date of birth into ACCESS, an acronym for "A Central 

2 

No. 32012-0-III 

Adams v. Wash. State Dep 't a/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 STATE PATROL, 

http://www.wsp.wa.gov/crime/isbhome.htm (last visited Aug. 12,2015). 

In response to Mr. Adams's record request, a corrections center records manager 

reviewed his file and removed documents she believed were exempt from disclosure 

under the PRA, including Mr. 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). 

The records manager completed a "Denial of Disclosure ofPublic Records" form 

dated July 14, 2011, that stated in pertinent part: 

1. TO: ADAMS, JAMES 

2. YOUR REQUEST FOR DISCLOSURE OF THE RECORDS 

IDENTIFIED BELOW HAS BEEN DENIED TO THE EXTENT AND 

FOR THE REASON(S) SET FORTH BELOW. 

SPECIFIC INTELLIGENCE AND OR INVESTIGATION RECORDS FBI 

& SIIY RAP SHEETS; CCR PACKET 

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

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No. 32012-0-III 

Adams v. Wash. State Dep't o/Corrections 

Clerk's Papers (CP) at 343. There was no identification of how many pages of 

documents were being withheld or any more specific description oftheir contents. 

When Mr. Adams reviewed the portion of his central file produced on that same 

day, he was presented with the "denial of disclosure" form, which he signed. Later that 

day, the records department sent Mr. Adams the following explanation for its 

withholding: 

EXEMPTION(S) II [sic]-FBI RAP AND WASHINGTON STATE RAP 

SHEET-These records, consisting ofthe Federal Bureau of Investigation 

Rap Sheet and/or the Washington Rap Sheet, are protected from disclosure 

and have been withheld in their entirety per the 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 of his state and federal criminal information 

to the DOC's Public Disclosure Appeals Office, arguing that he 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 "[n Jon-conviction criminal history information is for law 

enforcement use only, and restricted from dissemination under provisions ofRCW 

10.97.050 and 28 USC § 534 and 28 CFR Part 20." CP at 406. The denial letter 

advised Mr. Adams to contact the WSP and the FBI directly, explaining that "these 

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No. 32012-0-111 

Adams v. Wash. State Dep't o/Corrections 

entities can create and provide official copies of FBI Rap Sheets and Washington State 

Rap Sheets, respectively." Id. 

Commencement o/the PRA 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 

Court had entered a memorandum decision in an action entitled David Chester v. 

Department o/Corrections, in which Mr. Chester "aUeg[ed] violations of [the PRA] as 

several groups of public records (criminal rap sheets) belonging to [Mr. Chester] were 

withheld from production and inspection or review 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 of documents withheld from Mr. Chester by the DOC, including six 

pages of Mr. Chester's own Washington State Patrol rap sheet dated April 2002, six 

pages of his state patrol rap sheet dated May 2006, eight pages of his state patrol rap 

sheet dated February 2002, and two pages of his 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 that Plaintiffs [requested records, 

WSP and] FBI rap sheets, are exempt under any provision." Id. at 59. The court ordered 

5 

No. 320 12-0-III 

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

the DOC to provide Mr. Chester with 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 September 4,2012, DOC filed a motion for a show 

cause hearing to resolve Mr. Adams's PRA complaint. It conceded that it violated the 

PRA by withholding the two-page Defendant's Case History report during Mr. Adams's 

offender central file review the year before. But it argued that the remaining 21 pages of 

documents had been withheld based on its signed user agreement with the state patrol and 

its understanding that the state patrol (at least at one time) viewed dissemination of 

ACCESS printouts to inmates as sanctionable misuse ofthe system. 

The DOC filed declarations of the 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 state patrol rap sheets on 

January 10,2012, and now took the position that the ACCESS use agreement was 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 in her declaration that in light 

ofthe state patrol's changed position, she had scheduled a time on August 23, 2012, for 

Mr. Adams to review pages one through 11 of his packet, consisting of the Defendant's 

Case History document and the Washington State portion of the ACCESS printout. She 

6 

No. 32012-0-III 

Adams v. Wash. State Dep 't ofCorrections 

stated that although Mr. Adams appeared at the scheduled time, he refused to review the 

records. 

In its motion to dismiss, the DOC persisted in arguing that it did not violate the 

PRA in withholding ACCESS printouts because state and federal law prohibited it from 

providing Mr. Adams's FBI and WSP rap sheets to him. It persisted in claiming that its 

position was supported by requirements ofthe state patrol's ACCESS Standard 

Procedures and its 2009 and 2011 user agreements, unsigned copies of which it provided 

to the court. 

Show Cause Hearing 

The trial court found the DOC's justification for its withholding indefensibly 

deficient. At the hearing ofthe show cause motion, it pointed out that 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 citation provided by 

DOC that prohibited the DOC from disseminating an offender's state patrol or FBI rap 

sheet to that offender. The court asked the DOC's lawyer three times during the hearing 

to draw the court's attention to any record evidence of an edict or agreement that 

prohibited the offender from being provided with the ACCESS printouts. None was 

identified. 

7 

No. 32012-0-III 

Adams v. Wash. State Dep't ojCorrections 

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. It explained why each authority fell 

short of supporting the DOC's withholding of the 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 whether the DOC withheld the 

records in bad faith, warranting a penalty. It ordered the DOC to submit additional 

briefing together with copies "of any 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 of the show cause motion]." CP at 292. 

Penalty hearing 

The DOC proved unable to produce any consequential additional support 

substantiating its position. It produced none that predated its withholding of Mr. 

Adams's records in July 2011. 

It did produce electronic mail communication that began in December 2011, in 

which representatives of the 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 of the state patrol's Criminal Records Division stated that the 

8 

No. 32012-0-III 

Adams v. Wash. State Dep't o/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 agreement required. 

The Division Commander's response pointed out that the DOC had two 

agreements with the state patrol. As to the first, the user agreement for ACCESS, the 

Division Commander expressed 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 of such a rap sheet to 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 of the culpability 

of an agency that has violated the PRA. Applying those factors, the court found no 

statutory basis for the DOC's withholding ACCESS printouts from the subject of the 

report, that the DOC's position was "legally indefensible," and that the agency's choice 

to solicit the opinions of the state patrol and FBI rather than engage in its own critical 

examination of applicable law (including failing to heed the decision in Chester) 

demonstrated bad faith. It concluded that a substantial penalty was necessary to deter 

9 

No. 32012-0-III 

Adams v. Wash. State Dep 't o/Corrections 

future misconduct. It ultimately imposed a penalty of $35 per day from the date of Mr. 

Adams's request to the date of the penalty hearing, for a total of$24,535. 

Both Mr. Adams and the DOC moved for reconsideration. The requests for 

reconsideration were denied. Both parties appeal. 

ANALYSIS 

The DOC filed the first notice of appeal and assigns error to the trial court's 

finding that it acted in bad faith. Mr. Adams assigns error to the 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 to the 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 of the ACCESS 

printouts that reflected information from the Interstate Identification Index (III) System, 

(2) its actions in withholding the portion that reflected Washington State information, and 

(3) its failure to heed the superior court decision in Chester. Br. of Appellant at 1-2. 

After addressing the meaning of "bad faith" in this context and the standard of review, we 

will address the issues as presented by the DOC. 

The PRA "is a strongly-worded mandate for broad disclosure of public records." 

Rental Hous. Ass'n o/Puget Soundv. City o/Des Moines, 165 Wn.2d 525, 535,199 P.3d 

10 

No. 32012-0-II1 

Adams v. Wash. State Dep't ofCorrections 

393 (2009) (citing Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127,580 P.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 

& Dowd LLP v. 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 ofproving that 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 of the specific exemption authorizing the withholding of the record (or part) 

and a brief explanation of how the exemption applies to the record withheld.'" City of 

Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014) (quoting RCW 

42.56.210(3)). "The purpose ofthe requirement is to inform the requester why the 

documents are being withheld and provide for meaningful judicial review of agency 

action." Id. (citing Progressive Animal Welfare Soc. v. Univ. of Washington, 125 Wn.2d 

243,270,884 P.2d 592 (1994) (PAWS II); Sanders v. State, 169 Wn.2d 827,846,240 

P.3d 120 (2010)). It is improper under the PRA to provide exemption information in 

such vague terms that "the burden [is] shifted to the requester to sift through the statutes 

cited ... and parse out possible exemption claims." Lakewood, 182 Wn.2d at 95. 

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No. 32012-0-III 

Adams v. Wash. State Dep't ofCorrections 

Limitations on Inmate Recovery ofPenalties 

As an inmate at the time he made his public record request, Mr. Adams is subject 

to a limitation on penalties adopted by the legislature in 20 11. 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 person who 

was serving a criminal sentence in a state, local, or privately operated 

correctional facility on the date the request for public records was made, 

unless the court finds that the agency acted in bad faith in denying the 

person the opportunity to inspect or copy a public record. 

By adding the bad faith requirement, "the legislature increased the level of culpability 

needed for an award to an inmate" from the expansive range of culpability that can give 

rise to a penalty where the requester is not incarcerated. Faulkner v. Dep't ofCorrs., 183 

Wn. App. 93, 105,332 P.3d 1136 (2014) review denied, 182 Wn.2d 1004 (2015). 

Legislative committee reports suggest that the underlying bill was introduced as a 

measure to "curb abuses by inmates." Id. "By incorporating the bad faith requirement, 

the legislature allows penalties for inmates only when the conduct of the agency defeats 

the purpose ofthe PRA and deserves harsh punishment." Id. at 106. 

The DOC does not challenge the trial court's ruling that a PRA violation occurred 

nor does it challenge the amount of the penalty arrived at by the court-it challenges only 

the trial court's threshold finding that it acted in bad faith. 

Two decisions by this court following the 2011 amendment ofRCW 42.56.565(1) 

have considered what constitutes bad faith within the meaning ofthat provision. In 

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No. 32012-0-111 

Adams v. Wash. State Dep't ofCorrections 

Francis v. State Department ofCorrections, 178 Wn. App. 42,54,313 P.3d 457 (2013), 

review denied, 180 Wn.2d 1016 (2014), Division Two of our court rejected 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 present under RCW 42.56.565(1) if the agency fails 

to conduct a search that is both reasonable and consistent with its policies." Id. at 63 n.5. 

In Faulkner, this court held that bad faith in the PRA context "incorporates a 

higher level of culpability 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. Citing Black's Law Dictionary 1719-720 (9th ed. 2009), the court 

explained that "wanton" means "[u ]nreasonably or maliciously risking harm while being 

utterly indifferent to the consequences." Id at 103 (alteration in original) (internal 

quotation marks omitted). And "wanton" 

differs from reckless both as to the actual state of mind and as to the degree 

of culpability. One who is acting recklessly is fully aware of the 

unreasonable risk he is creating, but may be trying and hoping to avoid any 

harm. One acting wantonly may be creating no greater risk of harm, but he 

is not trying to avoid it and is indifferent to whether harm results or not. 

Id. at 103-04 (internal quotation marks omitted) (quoting BLACK'S LAW DICTIONARY 

1720 (9th ed. 2009». 

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No. 32012~0~III 

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

"Whether an agency acted in bad faith under the PRA presents a mixed question of 

law and fact, in that it requires the application of legal 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 error to the trial court's factual findings supporting its 

determination of bad faith. Accordingly, these findings are verities on appeal. State v. 

Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). Whether those facts support its 

conclusion that the DOC acted in bad faith, on the other hand, is a question of law that 

this court reviews de novo. Faulkner, 183 Wn. App. at 101-2 (citing Francis, 178 Wn. 

App. at 51-52). 

The court made the following findings relevant to its conclusion that DOC acted in 

bad faith: 

• 	 "DOC's explanation for noncompliance is not reasonable" [Finding 

5]; 

• 	 "[T]he DOC was not completely forthcoming in its initial 

explanation as to why it was 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 or the FBI to withhold Mr. Adams'[s] 

criminal records" [Finding 6]; 

• 	 H[T]he Court finds DOC's position legally indefensible, that there is 

no statute that prohibits the dissemination of rap sheets, either state 

or federal, that the DOC was undaunted by this fact, that one 

government agency cannot rely upon and point to another 

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No. 32012-0-III 

Adams v. Wash State Dep 't ofCorrections 

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 not relying on any statutory exemption 

or basis but simply relying upon the opinion of someone in another 

agency, and prior to this case coming to this court, Judge Eitzen, of 

the Spokane County Superior Court, under Cause No. 11-2-00329-3, 

had already found the DOC in violation of the Act on these grounds" 

[Finding 12]; 

• 	 "The Court also finds that no indication that the [DOC] has filed an 

interlocutory appeal or that it has filed a declaratory action. The 

Court further finds bad faith where the DOC, a department within 

the executive branch of government, has chosen to ignore decisions 

made by the judicial branch regarding rap sheet dissemination. 

[None oft]he DOC, the WSP []or the FBI are privileged to ignore 

judicial decisions; [Finding 12]; 

• 	 "[T]he Court finds that a substantial penalty is necessary, and, in 

respect to the separation of powers issue, the executive branch of 

government is required to follow the decisions that are properly 

within the authority of the judicial branch of government. The Court 

further finds that the existence of other 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 tum to the three issues as 

identified by DOC. 

3 As discussed, we treat "bad faith" as a conclusion of law. See Grundy v. Brack 

Family Trust, 151 Wn. App. 557, 567,213 P.3d 619 (2009) (conclusions oflaw 

mislabeled as findings of fact are reviewed as what they are, de novo). 

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No. 320 12-0-III 

Adams v. Wash. State Dep't ofCorrections 

Withholding ofInterstate Identification Index Criminal History 

The DOC argues that standing alone, an agency's reliance on an invalid basis for 

nondisclosure is not a basis for finding bad faith, although it concedes that reliance on a 

'" farfetched'" basis for nondisclosure may result in such a finding. Br. of Appellant at 

13 (quoting King County v. Sheehan, 114 Wn. App. 325, 357, 57 P.3d 307 (2002)). 

While not assigning error to the trial court's finding that its position proved to be 

indefensible, it provides a ten-page discussion of federal law (mostly federal regulations) 

to show that the issue of whether 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. of Appellant 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 of documents: its withholding of ACCESS printouts reflecting information 

from the III System. While it referred to all of the withheld documents as "rap sheets" at 

the time of withholding, 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 cannot be disseminated by a law enforcement agency to the 

individual who is the subject matter of the 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 Court holding that 

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No. 320'12~0-III 

Adams v. Wash. State Dep't ofCorrections 

federal law only requires restricting third party access to a person's rap sheet 

infonnation. 

As the DOC concedes, 28 U.S.C. § 534(b) was the key provision on which the 

state patrol mistakenly relied in concluding that providing criminal record information 

from FBI-controlled systems to the subject of that infonnation was prohibited. 28 U.S.C. 

§ 534(b) states that "[t]he exchange of records and infonnation authorized by subsection 

(a)(4) ofthis section is subject to cancellation if dissemination is made outside the 

receiving departments or related agencies." 

Over 40 years ago, the director ofthe FBI announced rules under which the 

subject of rap sheet information was free to obtain a copy of that infonnation maintained 

by the FBI pursuant to 28 U.S.C. § 534. The rules were explained as follows: 

By order dated September 24, 1973, the Attorney General of the United 

States directed that the ... FBI[] publish rules for the dissemination of 

arrest and conviction records to the subjects of such records upon request. 

This order resulted from a detennination that 28 U.S.C. 534 does not 

prohibit the subjects of arrest and conviction records from having access to 

those records. 

Department of Justice 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. It also 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 of 28 

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No. 32012-0-111 

Adams v. Wash. State Dep't ofCorrections 

U.S.C. 534 as allowing the granting of an exemption to subj ects of identification 

records," and "it is deemed in the public interest that there be no delay in the effective 

date of availability of identification Records to the subjects thereof." Id. 

Sixteen years later, the United States Supreme Court discussed the FBI's position 

in Department ofJustice v. Reporters Committeefor Freedom ofthe 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 court relied upon in concluding that the DOC had violated 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 argument that 28 U.S.C. § 534(b) prohibited it from 

providing Mr. Adams with copies of his FBI rap sheets. 

In Reporters Committee, a news reporter and an association ofjournalists 

requested FBI rap sheets of members of a 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 of the District of Columbia reversed in a 

split decision and then denied rehearing en banc, with four judges dissenting. The U.S. 

Supreme Court then granted certiorari. 

The Supreme Court's decision recounted the history of the FBI's collection and 

sharing ofrap sheet information, observing that before 1957, the Department ofJustice, 

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No. 32012-0-111 

Adams v. Wash. State Dep't ofCorrections 

as a matter of executive policy, had generally treated rap sheets as confidential. 489 U.S. 

at 752. Consistent with that basic policy oftreating the records 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 Court then discussed the 

FBI's historical exception "allow[ing] the subject of a rap sheet to obtain a copy," as 

reflected in former 28 CFR §§ 16.30-16.34 (1988). Id. It characterized "the FBI's policy 

of granting the subject of a rap sheet access to his own criminal history" as "consistent 

with its policy of denying access to all other members ofthe general public." 489 U.S. at 

771. Thus at the first step-its historical analysis-the Supreme Court pointed out the 

FBI's view that 28 U.S.C. § 534 did not prevent the subject of a rap sheet from obtaining 

a copy. 

The Court went on to discuss FOIA, which identifies nine categories of documents 

that are exempt from its broad disclosure requirements. In the District ofColumbia 

Circuit Court ofAppeals' decision in the Reporters Committee case, it had held that 

Exemption 3,4 which applies to documents that are specifically exempted from disclosure 

by another statute, did not apply, because 28 U.S.C. § 534 did not qualifY as a statute 

4 Exemption 3 is codified at 5 U.S.C § 552(b)(3). 

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No. 320 12-0-III 

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

'" specifically'" exempting rap sheets from disclosure. Reporter's Comm. For Freedom 

o/Press v. Dep't o/Justice, 259 U.S. App. D.C. 436,816 F.2d 730,734 (1987) rev'd on 

other grounds, 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 enforcement purposes, "but only to the 

extent that the production of such [materials] ... could reasonably be expected to 

constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).6 

Thus, at the second step of its analysis-identifying the pertinent FOIA exemption-the 

5 The 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 if that 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 or refuse 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). 

6 The 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 of which 

would constitute a clearly unwarranted invasion of personal privacy," was also arguably 

applicable, but having found the broader Exemption 7 to apply, found "no occasion" to 

address the application of Exemption 6. 489 U.S. at 755 n.7, 762 n.l2. 

20 
No. 320l2-0-III 

Adams v. Wash. State Dep 't ofCorrections 

Supreme Court relied 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 

supporting the conclusion that a privacy interest can inhere in the nondisclosure of 

compiled computerized information. 489 U.S. at 766. It described the Privacy Act as 

"provid[ing] generally that '[n]o agency shall disclose any record which is contained in a 

system of records ... except pursuant to a written request by, or with the prior consent 

of, the individual to whom the record pertains. '" Id. (emphasis added) (some alterations 

in original) (quoting 5 U.S.C. § 552a(b). At this third stage of analysis--deciding 

whether disclosure of compiled computerized information can violate privacy-the 

Supreme Court relied on an analogous nondisclosure statute that allows disclosure of a 

record to the individual to whom the record pertains. 

Finally, the holding of the decision reflected an intentional distinction between the 

subject of the rap sheet and a third party. It said, 

Accordingly, we hold as a categorical matter that a third party's request for 

law enforcement records or information about a private citizen can 

reasonably be expected to invade that citizen's privacy. 

489 U.S. at 780 (emphasis added). 

We agree with the trial court that by no reasonable reading does Reporters 

Committee suggest that the DOC was justified in withholding Mr. Adams's FBI 

rap sheet information from him. 

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No. 32012-0-111 

Adams v. Wash. State Dep't o/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 of birth request through the 

III System. 

What came to be called the Interstate Identification Index System, a system that 

links federal and state criminal records systems, became operational through the FBI's 

National Crime Information Center (NCIC) in 1983. See James Jacobs & Tamara Crepit, 

The Expanding Scope, Use, and Availability o/Criminal Records, 11 N.Y.V. 1. LEGIS. & 

PUB. POL'y 177, 181 (2007-08), and historical materials cited therein. "The III enables 

the FBI to direct searchers to the states containing records on the subject of the search" 

and for this reason "is called a 'pointer system'-it tells law enforcement officials 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 of Justice adopted a final rule amending its 

regulations to expand access to federal criminal history record information to some 

private entities and some noncriminal justice 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 

22 

No. 32012-0-111 

Adams v. Wash. State Dep't ofCorrections 

to "modernize language to ensure that the regulations accurately reflect current FBI 

practices [and] names of systems and programs." Federal Bureau of Investigation, 

Criminal Justice Information Services Division Systems and Procedures, 64 Fed. Reg. 

52,223, 52,229 (Sept. 28, 1999) (Attorney General Order No. 2258-99). 

The DOC correctly observes that the federal regulations in Title 28, chapter 1, part 

20 of the Code of Federal 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 of his 

III System record" and states that the 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 that Mr. 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 request that 

a law enforcement agency obtain a copy of his III System record for his review: 

Procedure. 1. All requests for review must be made by the 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 previously taken which are on file locally and if the FBI 

identification number of the individual's record is available to that agency, 

it can make an on-line inquiry through NCIC to obtain his III System 

record, or, if it does not have suitable equipment to obtain an on-line 

response, obtain the record from Clarksburg, West Virginia, by mail. The 

individual will then be afforded the opportunity to see that record. 

23 

No. 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 existing record by having his identification prints 

compared with those already on file in the FBI, or, possibly, in the state's 

central identification agency. 

4. The subject of the requested record shall request the 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 part 20 requires that any state wishing to have access to 

federal criminal information must submit a Criminal History Record Information Plan 

that includes operational procedures that "[i]nsure the individual's right to access and 

review of criminal history record information maintained for purposes of accuracy and 

completeness" by instituting procedures that allow individuals to review, "without undue 

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 of information and 

for an agency's improper dissemination of information in violation of28 U.S.C. § 

534(b}-but without any companion authority suggesting that providing an inmate with 

III System information is misuse or improper dissemination. 

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No. 32012-0-111 

Adams v. Wash. State Dep 't o/Corrections 

DOC also points to provisions of 28 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 of chapter V of Title 28, dealing with 

the federal "Bureau of Prisons, Department of Justice." The regulations address how an 

"inmate" may obtain such records, with "inmate" defined for purposes of the chapter to 

mean "all persons in the custody of the 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 of the chapter to mean "a U.S. Penitentiary" or one ofa 

list of other federal correctional facilities. 28 C.F .R. § 500.1 (d). The regulations have no 

application to Mr. Adams or to records in his central file at Coyote Ridge. 

None of the federal regulations identified by the DOC is inconsistent with 

longstanding federal law authorizing inmate access to his or her 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 establishing that "[a]t the time, [the DOC's] was a 

reasonable interpretation of both state and federal law." Br. of Appellant at 20. It 

apparently relies on Sargent's holding that the Seattle Police Department properly 

withheld 44nonconviction criminal history" information from the subject ofthe 

information, who failed to support the request with an assertion that the information was 

inaccurate or incomplete. 179 Wn.2d at 399-400. The police department's withholding 

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No. 32012-0-111 

Adams v. Wash. State Dep 't ofCorrections 

was supported by a provision of the Washington State Criminal Records Privacy Act, 

chapter 10.97 RCW, which required such an assertion. 7 Mr. Adams's request was not for 

non conviction criminal history information and does not present the issue addressed in 

Sargent. 

The trial court did not err in concluding that the DOC's position as to federal law 

was indefensible. 

Withholding ofState Criminal History Information 

The State offers a more abbreviated defense of its withholding of Mr. Adams's 

state criminal history information. The only legal authority that the DOC argues 

supported its mistaken but allegedly good faith withholding of Mr. 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 

promulgated under the PRA, but under chapter 10.97 RCW, the Washington State 

Criminal Records Privacy Act. It creates a right that is in addition to, not a substitute for, 

Mr. Adams's rights under the PRA. 

7 "At the time of the show cause hearing, the [act] provided that '[n]o person shall 

be allowed to retain or mechanically reproduce any nonconviction data except for the 

purpose of challenge or correction when the person who is the subject ofthe record 

asserts the beliefin writing that the information regarding such person is inaccurate or 

incomplete.' Former RCW 10.97.080 (2010)." Sargent, 179 Wn.2d at 400 (emphasis 

added) (alteration in original) (footnote omitted). 

26 

No. 320 12-0-III 

Adams v. Wash. State Dep't ofCorrections 

Beyond that, the DOC argues only that the state patrol formerly took the position 

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 if the DOC did 

not abide by the patrol's interpretation. It does not challenge the trial court's conclusion 

that the state patrol's reading of those provisions (a reading the patrol has abandoned) 

was indefensible. It argues instead that "[a]s the WSP is vested with the authority to 

administer all operating phases of ACCESS and the Washington Crime Information 

Center which encompasses the records which are the subject ofRCW 10.97, the 

Department was reasonable to rely on the WSP's position." Br. of Appellant at 22. 

Under the PRA, "[t]he agency must shoulder the burden of proving that one ofthe 

[A]ct's narrow exemptions shields the records it wishes to keep 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's regulation guaranteeing confidentiality of records, 

and had to decide for itself whether the PRA exempted those records from disclosure). 

Even ifthe DOC's user agreement had prohibited it from providing inmates with access 

to their records (and it did not), "an agency's promise of confidentiality or privacy is not 

adequate to establish the nondisclosability of information; promises cannot override the 

requirements of the disclosure law." Hearst v. Hoppe, 90 Wn.2d 123, 137, 580 P.2d 246 

27 

No. 32012-0-111 

Adams v. Wash. State Dep't o/Corrections 

( 1978); WAC 44-14-06002(1) ([a]n agency agreement or promise not to disclose a record 

cannot make a disclosable record exempt from disclosure). 

The DOC had no right to rely on the position of the 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 that the 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 

argument that the III System character of a 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 out that he was also complaining of withholding of his medical records and other 

information not at issue in Mr. Adams's case. It cannot 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 ofthe DOC is not exempt from 

28 

No. 32012-0-III 

Adams v. Wash. State Dep 't ofCorrections 

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 of the state 

patrol rather than the reasoned ruling of the Spokane court. 

The ruling in Chester came four months after the initial withholding of Mr. 

Adams's records and nine months before the DOC relented as to about a third ofthem.8 

What the trial court appears to have found most significant about the DOC's refusal 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 it had taken. The trial court 

reasonably viewed the DOC's actions as illustrating its indifference to whether it was 

withholding records improperly. 

CROSS APPEAL 

Burden ofproof 

Mr. Adams contends that the trial court erred in imposing the burden on him of 

proving bad 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 of Mr. Adams's 

records for his review in August 2012, only to have Mr. Adams refuse to review them, 

demonstrates the absence of bad faith on its part. But this was still incomplete disclosure, 

it occurred seven months after the state patrol had taken the position that these documents 

could be released, and it does not negate the fact that the claim of exemption 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 continued to withhold the majority of the 

ACCESS printouts, it was within the trial court's discretion to disregard the belated 

attempt at partial disclosure for that purpose as well. 

29 
No. 32012-0-II1 

Adams v. Wash. State Dep 't ofCorrections 

ofproof under the PRA is "in all instances" on the offending agency, citing RCW 

42.56.550. Br. ofResp'tlCross Appellant at 30. That statute provides that the burden of 

proof shall be on the agency "to establish that refusal to permit public inspection and 

copying in accordance with a statute that exempts or prohibits disclosure," RCW 

42.56.550(1), and to establish that "the estimate [of time to respond] provided is 

reasonable," RCW 42.56.550(2). It does not address the burden of proving any other 

matters. 

Mr. Adams has no basis for claiming error, since the issue of bad faith was 

resolved in his favor. We note, however, that generally it is a plaintifrs burden to prove 

the elements necessary to recovery. Baldwin v. Sisters ofProvidence, 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 ofYousoufian 2010 factors 

Mr. Adams next assigns error to the trial court's failure in the penalty hearing to 

consider on the record the Yousoufian 2010 factor ofthe size ofthe DOC and the 

inadequacy of the 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 that the 

agency acted in bad faith in denying a record requester the opportunity to inspect or copy 

a public record. Ifthat threshold showing is made, the statute contemplates that the trial 

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No. 32012-0-111 

Adams v. Wash. State Dep 't ofCorrections 

court will then exercise its discretion under RCW 42.56.550(4) "to award ... an amount 

not to exceed one hundred 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 multi factor analysis to 

"provide[] guidance to trial courts, more predictability to parties, 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 under the PRA. 168 Wn.2d at 

468. The ninth aggravating factor was "a penalty amount necessary to deter future 

misconduct by the agency considering the size ofthe agency and the facts of the 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 of appropriate 

considerations. Additionally, no one factor should control. These factors 

should not infringe upon the considerable discretion oftrial courts to 

determine PRA penalties. 

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 ofa proper PRA penalty for abuse of 

discretion. Yousoufian v. Office ofRon Sims, 152 Wn.2d 421,430-31, 98 P.3d 463 

(2004) (Yousoufian 2004). Under this standard, a trial court's decision will only be 

31 

No. 32012-0-II1 

Adams v. Wash. State Dep't o/Corrections 

reversed if its decision "is manifestly unreasonable or based on untenable grounds or 

reasons." Yousoufian 2010, 168 Wn.2d at 458. "A court acts on untenable grounds if the 

record does not support its factual findings, and it acts for untenable reasons if it uses' an 

incorrect standard, or the facts do not meet the requirements of the 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 if the court, 

"despite applying the correct legal standard to the supported facts, adopts a view that no 

reasonable person 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 of future 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 of the judicial branch of government. The Court 

further finds that the existence of other 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. It imposed a per-day penalty of$35 based on its finding of two 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 a judgment about the amount 

32 

No. 32012-0-111 

Adams v. Wash. State Dep't o/Corrections 

necessary to deter future misconduct, the trial court would necessarily have considered 

the size of the agency-likely under Yousoufian 2010, which it was following, but in any 

event as a matter of common sense. It was not required to place its thought process on 

the record. While Mr. Adams believes that a $24,535 penalty is insufficient to deter the 

DOC given the size of its operating budget, 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 consider the 

inadequacy of the DOC's records denial sheet, which he claims fell short of the 

requirements ofRCW 42.56.201(3). Under that statute, 

Agency responses refusing, in whole or in part, inspection of any public 

record shall include a statement ofthe specific exemption authorizing the 

withholding ofthe record (or part) and a brief explanation ofhow the 

exemption applies to the record withheld. 

RCW 42.56.210(3). As Mr. Adams points 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 considered the deficiency ofthe DOC's 

identification of a basis for exemption, however-that deficiency was a principal basis 

for its finding that the 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 of form, the Coyote Ridge 

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No. 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 of what 

they were, and provided citations to statutes and regulations as the asserted basis for its 

withholding. 

The court chose to address the substantive inadequacy of the DOC's explanation 

elsewhere in its written and oral rulings. It found that aggravating factors four and fivethe "unreasonableness of any explanation for noncompliance by the agency" and 

"negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the 

agency"-both justified an increased penalty. 168 Wn.2d at 468. The court did not 

overlook the DOC's failure to identify an exemption that actually justified its 

withholding. 

Because the trial court adequately considered each of the Yousoufian 2010 factors, 

it did not abuse its discretion in its assessment of penalties. 

Cost request 

Mr. Adams devotes a section of his brief to his entitlement to costs on appeal 

under RCW 42.56.550(4), RAP I 8.1 (b), and RAP 14.3(b). RCW 42.56.550(4) provides 

that all costs shall be awarded to "[a]ny person who prevails" in an action under the PRA. 

Because Mr. Adams has prevailed he is entitled to all costs reasonably incurred in 

litigating the appeal subject to compliance with RAP 18.I(d). 

34 
No. 32012-0-II1 

Adams v. Wash. State Dep 't ofCorrections 

Affinned. 

WE CONCUR: 


Brown, J. 

35