IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE CHRISTOPHER COOK, KEVIN EVANS, JOSEPH JONES, CHRISTOPHER S. ROBINSON, Respondents,

v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Appellant. No. 76012-2-

UNPUBLISHED OPINON FILED: February 6, 2017 Tt mi

V? CO



### Verellen, C.J. — An inmate requesting public records is entitled to penalties 

### only ifthepublic agency acts in bad faith.1 Bad faith requires awanton orwillful act or omission with utter indifference to the consequences.2 Considering all of the 

### circumstances, the act or omission must be unreasonable and warrant harsh punishment.3 

### The Department ofCorrections (theDepartment) appeals four Thurston County 

### Superior Court ordersawarding monetary penalties toinmates who requested phone 

### logs underthePublic Records Act (PRA), chapter42.56 RCW. After initially denying

1 Faulkner v. Wash. Dep't ofCorr., 183 Wn. App. 93, 102, 332 P.3d 1136 (2014) (quoting RCW42.56.565(1)). 2Id, at 103-04. 3 Id. at 105-06.No. 76012-2-1/2 

### those requests based upon its then-existing policythat phone logs were not public records, the Department revised its policyand provided the requested phone logs. On de novo review, we conclude the Department did not act willfully or wantonly with utter indifference to the consequences. Considering all ofthe circumstances, harsh penalties

are not warranted. We reverse. FACTS 

### The Department contracts with a private company, GlobalTel-Link (GTL), to run 

### its inmate phone system and maintain records, including phone logs. Priorto 2013, the 

### Departmentprovided phone logsin response to public record requests byobtaining the 

### logs from GTL. In 2013, theDepartment became aware ofa security incident in which an inmate at one of itsfacilities requested another inmate's phone logs through public disclosure. The inmate requester was a member of a security threat group and the inmate whose call logs were requested was a confidential informant. In view of the security issues raised by the 2013 incident, and other concerns, 

### theDepartmentdetermined thatinmate phone logs maintained and possessedby GTL were notpublic records. In June 2013, the Department issued Newsbrief 13-01 to 

### provide guidance toits staffabout processing public record requests for phone logs.
Newsbrief 13-01 stated: 

### TheDepartment contractswith Global Tel Link (GTL) to manage and 

### provide inmate phone services. Records maintained within theGTL system are not agency public records and therefore not subject to disclosure. They do not need to be gathered and retained in response to a public records request. 

### Ifyou receive a requestfrom anyrequesterfor a copy ofinmate telephone 

### logs orinmate telephone audio recordings thefollowing language should be used in your response.No. 76012-2-1/3 "The Department's phone system is runand maintained by an outside vendorand the phone call records you request are not public records created, used or maintained by the department; therefore, the records are not disclosable underthe Public Records Act, RCW42.56." Please note, that records pulled from the GTL system for use in agency business (i.e. as an exhibit attached to an investigation) may be subject to disclosure and in this case would need to be pulled and provided in response to any public records request and reviewed for potential release. Ifyou have questions regarding disclosure of inmate phone system records in response to a public records request, please contact the 

### Agency Public Records Officer.14' Christopher Cook, Joseph Jones, Kevin Evans, and Christopher Robinson, inmates housed at Coyote Ridge Corrections Center, requested phone logs. Using the language in Newsbrief 13-01, the Department timely notified them that phone logs are not public records because the phone system is run and maintained by an outside
vendor. Cook, Evans, Jones, and Robinson filed lawsuits in Thurston County Superior Court challenging the Department's denial of their public record requests and seeking 

### monetary penalties. Soon after a Franklin County Superior Courtjudge ruled in unrelated litigation that inmate phone logs are public records, the Department revised its position and made the requested phone logs available to Cook, Evans, Jones, and
Robinson. 

### The Department opposed any penalties, arguing itinitially denied the requests because, consistent with Newsbrief 13-01, itreasonably believed the phone logs were not public records.



### 4Cook Clerk's Papers (CP) at 34; Evans CP at 36; Jones CP at 40; Robinson CP at 224.No. 76012-2-1/4 In its letter opinions for Evans, Jones, and Robinson, the trial court ruled the Department's approach appeared to "have been based on a good faith understanding of 

### the law, including awareness of allthree elements in the definition of publicrecords."5 The court also concluded the Department's policywas "objectivelyreasonable."6 But in its letter opinion, the trial court concluded the Departmentfailed to perform a search in accordance with or to fullydisclose an exception contained in its policy: As discussed above, the Department's approach described in its Newsbriefembodied a general rule and an exception to that general rule. 

### The general rulewas that phone records did not typically qualifyas public records, the exception to that general rule was that, ifthe records had been used for a government purpose, then they would qualify as a public record. The policyas a whole is reasonable, but its reasonableness 

### depends on application of both parts of the policy, the general rule and its exception. 

### In implementing its approach, however, the Department did not 

### inform the requesters of the exception. Instead, the response provided by the Department simply explained that phone records were not public records because they were maintained by an outside vendor and they were not created, used or maintained by the Department. This 

### explanation was not complete in that it did not reference that such records would be public records ifthey were used for a governmental purpose. 

### The Department also did notperform any search of its own records 

### or take any steps to determine whether the records of [Evans, Jones, and 

### Robinson] camewithin theexception setforth in its own policy.[7] The court found bad faith based on: 

### (1) the inadequacy and incompleteness of the Department's explanation to [Evans, Jones, and Robinson] for notproviding the records and (2) the 

### Department's failure toperform any search todetermine whetherthe records [Evans, Jones, and Robinson] sought came within the policy's 

### exception before sending its letterto [Evans, Jones, and Robinson]. See Francis v. Dep't of Corrs, 178 Wn. App. 42, 63 n.5 (2013) (bad faith
5 Evans CP at 247; Jones CP at 523; Robinson CP at 316. 

### 6Cook CP at 148; Evans CP at 247; Jones CP at 522; Robinson CP at 316. 7Evans CP at 248; Jones CP at 523-24; Robinson CP at 317.No. 76012-2-1/5 present under RCW 42.65.565(1) ifagency fails to conduct a search that is both reasonable and consistent with its policies taking into account the facts and circumstances of the request).[8) In Cook's case, the court ruled the policy was objectively reasonable, but [the Department's] act of failing to describe the terms ofthat policy to Plaintiff Cook in its response, together with its failure to conduct an adequate search for responsive records in accordance with that policy, did constitute bad faith.191 The court concluded Cook, Jones, Evans, and Robinson were each entitled to a monetary penalty of $25 per day between the date the Department received the request 

### and the date the Department made the records available.10 The trial court denied the 

### Department's motions forreconsideration.11 The Department appeals.
ANALYSIS 

### We review a challenge to agency action under the PRA de novo.12 This court sits in the same position as the trial court when the record consists only ofaffidavits, memoranda oflaw, and other documentary evidence.13 Specifically, review of a 

### determination ofagency badfaith toward inmates is a mixed question oflaw andfact.14

8Evans CP at 248-49; Jones CP at 524; Robinson CP at 318. 9 Cook CP at 148. 

### 10 Cook CP at 147-49 (totaling $8,775); Evans CP at 249 (totaling $5,875); Jones CP at 524-25 (totaling $7,025); Robinson CP at 318 (totaling $6,925). 11 The Department moved forreconsideration under CR 59(a)(7) and (9). 12 City of Federal Way v. Koenig, 167Wn.2d.341, 344, 217 P.3d 1172(2009). 13 Progressive Animal Welfare Soc'v v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1995). 

### 14 Faulkner, 183 Wn. App. at 101-02 (quoting Francis v. Dep't ofCorr., 178 Wn. App. 42, 51-52, 313 P.3d 457 (2013)).No. 76012-2-1/6 

### "When underlying facts are uncontested, we apply de novo reviewto determine ifthe facts amount to bad faith."15 

### An inmate is entitled to penalties under the PRA upon showing the agency acted in bad faith.16 To establish bad faith, an inmate must establish "a wanton or willful act or 

### omission by the agency."17 In this setting, "'[w]anton' is defined as '[unreasonably or 

### maliciously risking harm while being utterly indifferentto the consequences.'"18 Bad faith is not a mere violation ofthe PRA; it is associated withthe most culpable acts by


### an agency.19 

### Thelegislature adopted this badfaith standard in 2011 "as a measure tocurb abuses by inmates who use the PRAtogain automatic penalty provisions when an 

### agency fails toproduce eligible records."20 The legislature "'intended toafford prisoners
an effective records search, while insulating agencies from penalties as long as theydid 

### not actin badfaith.'"21 "By incorporating the badfaith requirement, the legislature 

### allows monetary penalties for inmates only when theagency's conductdefeats the

15 Id at 102. 

### 16 Id, (quoting RCW42.56.565(1)). 17 Id, at 103. 

### 18 ]d,at 103-04 ("Further, 'wanton differs from reckless both as totheactual state ofmind and as to the degree ofculpability. Onewho isacting recklessly isfully aware ofthe unreasonable risk he iscreating, but may be trying and hoping to avoid anyharm. 

### One acting wantonly may becreating no greaterrisk ofharm, butheis nottrying to avoid it and is indifferent to whether harm results or not.'" (quoting Black's Law Dictionary 1720 (9th ed. 2009))). 19 Id, at 105. 

### 20 Id, (citing S.B. 5025, 62dLeg., Reg. Sess. (Wash. 2011)). 21 ]d, at 106(quoting Francis, 178Wn. App. at 60).No. 76012-2-1/7 

### purpose of the PRA and deserves harsh punishment."22 "The general purpose of the PRA is to ensure sovereignty of the people and government accountability by providing 

### full access to informationconcerning government conduct."23 "The failure to conduct a reasonable search or the failure to follow policies in a 

### search does not necessarily constitute bad faith."24 But an agency is subjectto penalties if it fails to perform a search consistent with its own policy "'within the broad 

### canopy ofreasonableness.'"25 Reasonableness is determined by examining all the circumstances ofthe case.26 The Department argues no penalties are warranted. We agree. The plain meaning ofNewsbrief 13-01 is that phone logs are not public records, and the response to a request for phone logs should be that 

### [t]heDepartment's phone system is run and maintained by an outside vendor and the phone call records you request are not public records created, used or maintained by the department; therefore, the records are not disclosable under the Public Records Act, RCW 42.56.1271 

### The parties dispute the meaning of the additional note in Newsbrief 13-01: Please note, that records pulled from the GTL system for use in agency 

### business (i.e. as an exhibit attached to an investigation) may be subject to disclosure and inthis case would need to be pulled and provided in 

### response to any public records request and reviewed for potential release.1281

22 id, 23 id, 24 id, at 102 (citing Francis, 178 Wn. App. at 63 n.5). 25 Id, (quoting Francis, 178 Wn. App. at 63). 26 Francis, 178 Wn. App. at 63 n.5) 27 Cook CP at 34; Evans CP at 36; Jones CP at 40; Robinson CP at 224. 28 Cook CP at 34; Evans CP at 36; Jones CP at 40; Robinson CP at 224.No. 76012-2-1/8 On its face, this note is an internal guideline informing staff that exhibits to investigations 

### are not the subject ofNewsbrief 13-01.29 The note is narrow in scope, "(i.e. [thatis] exhibits attached to an investigation)" and tentative in nature, "may be subjectto 

### disclosure." We do not discern any implied policyto search investigation files or to disclose the substance ofthe internal note. 

### The Department consistently applied the plain meaning ofNewsbrief 13-01 and 

### gave the requesters the specific response dictated by the policy. When the Department reconsidered itspolicy and concluded phonelogs werepublic records, it promptly made 

### the requested phone logs available. Merely because the Department could have offered more information does not mean that its conduct was willful or wanton. The 

### Departmentreasonably complied with its then-existing objectively reasonable beliefthat 

### phone logs were notpublic records. It reasonably construed Newsbrief 13-01 as limited to the policythat phone logs arenot public records. Underthesecircumstances, the failure to search or disclose to inmates that exhibits to investigations may be public 

### records did notjeopardizethesovereignty ofthe people or government accountability. Weconclude the Department did not actin badfaith and the "harsh punishment" of monetary penalties is not warranted. 

### RCW42.56.550(4) provides, "Any person who prevails against an agency in any action in thecourts seeking the righttoinspect orcopy anypublic record

. . . shall be awarded all costs, including reasonable attorney fees, incurred in connection with such 

### legal action." Based on the Department's concessions thatthe inmate phone logs are

29We donot rely onany ofthedeclarations offered by theDepartmenton its motion for reconsideration.

8No. 76012-2-1/9 public records, the Department acknowledges remand is appropriate to determine reasonable costs and attorney fees. Accordingly, we reverse and remand to the trial court to revise its award of costs and attorney fees to the inmate requesters consistent with this opinion.

WE CONCUR: