### FILED JUNE 30, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE KEVINANDERSON, Appellant, V. 

### WALLA WALLA POLICE DEPARTMENT, Respondent. ) ) ) ) ) ) ) ) ) ) 

### No. 33783-9-111

UNPUBLISHED OPINION

FEARING, C.J. -Weaffirm the trial court's denial ofreliefto Kevin Anderson underthe Public Records Act, chapter42.56 RCW. FACTS OnMay 17, 2012, the Walla Walla County District Court entered a temporary order ofprotection against Kevin Anderson in favor ofLaura Gregory. The orderbarred Anderson from contacting Gregory or from beingwithin five hundred feet ofGregory. The orderread, inpart: It is further orderedthatthe clerk ofcourt shall forward a copy of this order on orbefore the nextjudicial day to: ... [the] Walla Walla Police DepartmentWHEREPETITIONERLIVES which shall enter it in a computer-based criminal intelligence system available in this stateusedby law enforcementto list outstanding warrants. Clerk's Papers (CP) at 65. Kevin Anderson thenresided at Airway Heights Correctional

### No. 33783-9-111 Anderson v. Walla Walla PoliceDep 't


### Center. On May 30, 2012, the district court entered an order ofprotection extending the protections afforded Laura Gregory until May 30, 2014. The May 30 order also directed the district court clerk to forward a copy to the Walla Walla Police Department. OnMarch 26, 2014, Kevin Allen Anderson served a criminal sentence at Coyote Ridge Correctional Center. Onthat day, Anderson submitted a public records request to the Walla Walla Police Department. The request sought "' [ a]nyrecords related to myself(Kevin Allen Anderson, DOB: January 27, 1974)."' CP at 163. The police department received the request on March 28, 2014. Dana Hood, the Walla Walla Police Departmentrecords clerk, processedthe request on March 31, 2014. Hood typed the name Kevin Anderson into the police department's records computer management system. The screen, with the heading 'jacket activity," that then appeared listed no police records, and, thus, Hood concluded the police departmentpossessed no records about Kevin Anderson orresponsive to Anderson's public records act request. The screen, however, showedthe existence ofan order ofprotection against Anderson entered by the Walla Walla District Court in a suit

on May 17, 2012. On March 31, Hood printed a copy ofthe screen. We will referto the copy ofthe screen as a "jacket activity." DanaHood handwrote a response on Anderson's request letter and returned the letter to him on March 31, 2014. The note read: Kevin, 2No. 33783-9-111 

### Anderson v. Walla Walla Police Dep 't

We have no Walla WallaPolice reportrecords on file for you. However, a current order ofprotection is on file. Copies can be obtained by/through Walla WallaDistrict Court. CP at 25. The note directed Andersonto contactthe district court because Hood understood that the court might be the only location ofan accurate and current copy of the order. Anderson did not then look to determine ifthe police departmentpossessed a copy ofthe court order. By March 31 and before receiving the response from the Walla Walla Police Department, Anderson had already obtained a copy ofthe order and other courtrecords from Walla Walla District Court. PROCEDURE Kevin Anderson, without any contact with the police department after March 31, 2014, filed this lawsuit against the Walla Walla Police Department on February 17, 2015. DanaHood, Walla WallaPolice Departmentrecords clerk, thenreviewedthe department's records again and confirmed thatthe department lacked a copy ofthe district court order. Hood, nonetheless, retrieved a copy ofthe court file from the district court and, onMarch 10, 2015, the department delivered the copy toAnderson's attorney. The Walla WallaPolice Department movedthe courtto dismiss this case. The superior court grantedthe motion and entered the following conclusions oflaw: 3.1 The March 31, 2014 records response by the Walla WallaPolice Department cannotreasonably be interpreted in context as a refusal to provide responsive records to Kevin Anderson or as an indication that it wouldprovide no further assistance to him. The actions taken by the Walla Walla Police Department on March 31, 2014 wereprompt and meantto 3No. 33783-9-III 

### Anderson v. 

### Walla Walla Police Dep 't provide access to responsive records. 3.2 The March 31, 2014 records response bythe Walla WallaPolice Departmentto Kevin Anderson's March 26, 2014 records request does not constitute a denial ofan opportunity to inspect or copy a public record. CP at 164. LAWAND ANALYSIS On appeal, Kevin Anderson challenges the Walla Walla Police Department's failure to produce, in response to his public records act request, the Walla Walla District Courtrecords and the "jacket activity" computer screenprinted by DanaHood in response to his request. Thepolice department contends that Anderson did not seekthe jacket activity and thejacketentry is not a "record," for purposes ofthe Public Records Act, but rather an index ofrecords. The police department also argues that Kevin Anderson has not shown bad faith. The Public Records Actrequires all state and local agencies to disclose any public record on request unless the record falls within certain very specific exemptions. 

### ProgressiveAnimal Welfare Soc 

### '.Y v. 

### Univ. ofWash., 125 Wn.2d 243, 250, 884 P.2d 592 (1994) 

### (PAWS II). "Public record" includes any writing containing information relating to the conduct ofgovernment or the performance ofany governmental orproprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. RCW 42.56.010(3). An agency has five business days to respond to a request, and must respond eitherbyprovidingthe record, providing an

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### Anderson 

### v. Walla Walla Police Dep 't

Internet address or link to the record, informing the party that additional time is necessary, or denying the request. RCW 42.56.520. Ifan agency denies a request, it must include a written statement ofthe specific reasons for the denial. RCW42.56.520. An agency need not produce a document that does not exist. 

### Sperr v. City of Spokane, 123 Wn. App. 132, 133, 96 P.3d 1012 (2004). The agency need not create a record that is otherwise nonexistent. 

### Smith v. 

### Okanogan County, 100 Wn. App. 7, 13-14, 994 P.2d 857 (2000) (citing

### Nat'!LaborRelationsBd. v. 

### Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504,44 

### L. Ed. 2d 29 (1975)). Nor must an agency comply with

an overly broad request. 

### Hangartner v. City of Seattle, 151 Wn.2d 439,448, 90 P.3d 26 (2004). At a minimum, aperson seeking documents underthe Public Records Actmust identify the documents with sufficient clarity to allow the agency to locate them. 

### Hangartner, 151 Wn.2d at447. Agencies are notrequired to be mind readers. 

### Bonamy

v. 

### City of Seattle, 92 Wn. App. 403,409, 960 P.2d447 (1998). A search must be reasonably calculated to uncover all relevant documents. 

### Neigh. All. of Spokane County v. 

### County of Spokane, 172 Wn.2d 702, 720, 261 P.3d 119 (2011). Reasonableness will be considered onthe facts ofeach case. 

### Neigh. All. of Spokane County, 172 Wn.2d at 720. An inadequate search is comparable to a denial. 

### Neigh. All. of Spokane County, 172 Wn.2d at 721. Kevin Andersonrequested any records pertainingto him. He contends that the Walla Walla Police Departmentviolated this requestby failing to produce at least two 

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### No. 33783-9-111 Anderson v. Walla Walla Police Dep 't


### discrete records: (1) the Walla Walla County District courtrecords ofthe protection order, and (2) thejacket activity printout. The Walla Walla Police Department denies that it possessed any district court records. Kevin Anderson notes that DanaHood did not expressly review police department records to discern ifthe departmentpossessed the court records until he filed suit. He argues that the police department could have held a copy ofthe court records earlier since Hood's search occurred afterthe expiration ofthe order ofprotection. We do not know such and will not speculate. The police department held no obligation to produce a record that did not exist orto gather records kept by another agency. Kevin Anderson contends that thejacket activity printout is a public record that should have been disclosed. We need not and do not address this contention because we may resolve Anderson's claims under RCW 42.56.565(1). In 2011, the Washington Legislature, in response to escalatingpublic records requests fromjail inmates, amended the Public Records Act to deny reliefto an inmate unless he or she proves bad faith. The amendment, codified at RCW 42.56.565(1), reads: A court shall not award penalties under RCW42.56.550(4) to a person who 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 that the agency acted in bad faith in denying the person the opportunity to inspect or copy a public record. Whether an agency acted in bad faith under the Public Records Actpresents a mixed question oflaw and fact, in that it requires the application oflegal precepts, the 6No. 33783-9-III Anderson v. Walla Walla Police Dep't

definition of"bad faith," to factual circumstances, the details ofthe alleged Public Records Actviolation. Faulkner v. Dep'tof Corr., 183 Wn. App. 93, 101-02, 332 P.3d 1136 (2014), review denied, 182 Wn.2d 1004, 342 P.3d 327 (2015). An offender does not establish bad faith by an agency simply for making a mistake in a record search. Francis v. Dep'tof Corr., 178 Wn. App. 42, 63, 313 P.3d457 (2013), review denied, 180 Wn.2d 1016, 327 P.3d 55 (2014). Afterreviewing the entire record, we agree withthe trial courtthat actions taken by the Walla Walla Police Department, on March 31, 2014, were prompt and meantto provide access to responsive records. Dana Hood concluded in good faith that the Walla Walla Police Department lacked records responsive to Kevin Anderson's request. Her suggestion to Kevin Anderson that he contact the district court exhibited a desire to be helpful to Anderson rather than to preclude his access to records. Kevin Anderson claims that we cannot address the question ofbad faith because the Walla Walla Police Department did not cross appeal. Anderson emphasizes the principle that, when a respondent neither files the required notice ofappeal nor independently demonstrates a basis for relieving it ofthe requirements ofRAP 2.4, it may not obtain "affirmative relief." Happy Bunch, LLCv. GrandviewN., LLC, 142 Wn. App. 81, 90 n.2, 173 P.3d 959 (2007). The police department's claim ofgood faith does not seek affirmative relief, butrather defends against Anderson's request for relief. Also, this

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### No. 33783-9-111 

### Anderson v. Walla Walla Police Dep't

court may affirm on any ground supported by the record. 

### Syrovy v. AlpineRes., Inc., 80 Wn. App. 50, 54-55, 906 P.2d 377 (1995). CONCLUSION We affirm the superior court's dismissal ofKevin Anderson's suit under the Public Records Act. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: 

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