### FILED APRIL 12, 2016 In the Office ofthe Clerk ofCourt WA StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STEVENP. KOZOL, ) ) Appellant, ) ) v. ) ) WASHINGTONSTATEDEPARTMENT ) OF CORRECTIONS, ) ) Respondent. ) No. 32596-2-111 (consolidated with No. 32643-8-111)

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- In this consolidated appeal, Steven Kozol challenges the dismissal oftwo actions he filed underthe Public Records Act (PRA), chapter42.56 RCW. He complains thatthe Department ofCorrections (DOC) failed to produce copies oftheback side ofa documentthat it electronicallypreserved inpart, butthen destroyed before realizing thatMr. Kozol viewedthe unpreservedportion as responsive to his public record requests. We affirm the dismissal ofboth actions. FACTS AND PROCEDURAL BACKGROUND OnApril 15, 2011, Steve Kozol submitted 22 requests for records tothe DOC "pursuanttothe PRA." Clerk'sPapers (CP) at 140, 630-50. Each request sought "any and all records" for a different offender grievance, by grievance number, adding, "ThisNo. 32596-2-III (consol. w/No. 32643-8-III) Koza! v. Dep 't of Corr.
includes the original complaint form." Id. Upon receipt, the DOC forwarded the requests to the Washington State Penitentiary's grievance coordinatorto gather responsive documents. Within a week ofMr. Kozol's request the DOC responded to him, indicating thatthe requests had been assignedtracking numbers from PDU 15229 to PDU 15250 and that he would receive a response to his requests by June 28. The DOC's grievance form, entitled "OffenderComplaint," appears onthe front side ofa grievance form/instruction document. DOC's internal designation for the document is DOC 05-165. Appearing on the back side ofDOC 05-165 are preprinted instructions on howto complete the form, along with a checklist for the information that should be provided. The grievance coordinator located the complaint forms requested by Mr. Kozol and e-mailed scanned copies backto the DOC. The instructions onthe back sides ofthe DOC 05-165 documents, which the DOC does not consider part ofthe grievance form, were not scanned orprovided. On orbefore its promisedJune 28 response date, the DOC sent Mr.Kozolatotal of22 letters, one for each PRA request, notifying him thatthe responsive documents located would be provided to him uponpayment ofthe costs ofpostage andthe CD on which each had been stored. 1 The DOC later complied with Mr. Kozol's revised request that it e-mail him the documents.

1Mr. Kozol's requests had askedthatthe DOC "[p]leaseprovide these records in electronic format on CD." CP at 140, 630-50. 2

### No. 32596-2-111 (consol. w/No. 32643-8-111) Kozol v. Dep 'tof Corr.


### On April 11, 2012, 

### Mr. Kozol commenced the first ofthe two PRA actions in Walla Walla County that are consolidated in this appeal. 2 

### His complaint alleged he had submitted a PRA request to which the DOC had "failed to respond within the terms and timeframes ofthe PRA." CP at 4. He further alleged that he had "personal knowledge that there are additional public records that Defendant is not identifying or producing, constituting a 'silentwithholding', in violation ofRCW 42.56 et. seq." Id. 

### When the DOC requested a more definite statement, Mr. Kozol filed an amended complaintthat identified PDU-15229 as the request at issue. In November 2013, Mr. Kozol filed a motion to amend his April 2012 PRA complaintto assert a failure to properly respond to another 52 PRArequests: the remaining 21 made in April 2011, and another 31 made in February 2012. The DOC objected and the trial court, Judge M. Scott Wolfram, denied the motion to amend. In December 2013, Mr. Kozol filed a second PRA complaint3 

### alleging the DOC had failed to timely respond to the remaining 21 PRA requests he had made in April 2011 and that it was silently withholding responsive records. He filed an affidavit ofprejudice against Judge Wolfram.

2 

### Walla Walla Superior Court No. 12-2-00285-2 (Court ofAppeals No. 32643-8-111). 3 

### Walla Walla Superior Court No. 13-2-00930-8 (Court ofAppeals No. 32596-2-111).

3

### No. 32596-2-111 (consol. w/No. 32643-8-111) Kozolv. Dep 'tof Corr.


### On November 22, 2013, Mr. Kozol was deposed. He revealed for the first time that it was DOC's failure to provide him with copies ofthe back side ofeach DOC 05- 165 that he contended was the PRA violation. In a declaration filed in support ofthe DOC's motion practice below, Lee Young,
a correctional specialist assigned as the grievance coordinator, explained that because "[n]one ofthe information on the backpage ofDOC 05-165 is used to process the offender's grievance
... it is not considered to be part ofthe grievance record." CP at 443. She also testified to her standard practice in processing a grievance, as apart of which, after responding to an inmate complaint, she "scan[s] and maintain[s] a copy of the completed complaint and response." Id. 

### Because the back side ofthe document is not consideredpart ofthe complaint, "itwould not be scanned and maintained as part of the grievance record." Id. 

### The original inmate complaint is shredded after being scanned, so the back sides ofthe 22 offender complaints requested by Mr. Kozol had been destroyed almost a year before Mr. Kozol revealed in his deposition that he viewed them as responsive to his request. By May 2014, the parties had filed and briefed several motions in the second action. They included the DOC's show cause motion seeking dismissal ofthe 21-claim action and a motion by Mr. Kozol to consolidate his two cases. On May 12, Judge John Lohrmann heard argument ofthe parties' pending motions. He denied Mr. Kozol's motions to amend or consolidate and granted the DOC's 4No. 32596-2-111 (consol. w/No. 32643-8-111) Kozol v. Dep 'tof Corr.
show cause motion, dismissing the 21-claim case withprejudice. In addition to finding that Mr. Kozol's second action was time barred, Judge Lohrmann concluded that dismissal was warranted for the further reason that the sole basis ofthe alleged violation is the Defendant[']s failure to provide [Mr. Kozol] with the back instructionpage ofeach ofthe separate grievances. Perthe declarations filed, it is clearthat said page is merely instructional for the offender filling out the form; it would not be scanned and maintained as part ofthe grievance record, and it would not have been considered responsive to the request. CP at 810. In addition to dismissing the 21-claim action, the court found it to be "frivolous and malicious" within the meaning and purposes ofRCW 4.24.430. Id. at 811. Mr. Kozol moved for reconsideration, which was denied. A few days later, the DOC filed a motion for summaryjudgment in the singleclaim action, presenting the same issue ofwhether the back side ofthe DOC grievance form was a documentresponsive to Mr. Kozol's PRArequest. Mr. Kozol responded. On June 19, 2014, Judge Lohrmannheard the DOC's motion for summaryjudgmentand a number ofmotions filed by Mr. Kozol. He denied all ofMr. Kozol's motions, granted the DOC's motion, and dismissed Mr. Kozol's single-claim action, making the following handwritten addition to the DOC'sproposed order: Because the sole purpose ofthe complaint was a scheme to request a document or documents regarding which the Plaintiffmight anticipate and argue that a page was missing-without any true or good faith desire or need to see the page alleged to be missing-this action is deemed "frivolous and malicious" within the meaning ofRCW4.24.430.


### 5No. 32596-2-III (consol. w/No. 32643-8-III) 

### Koza/v. Dep 't of Corr.
CP at 570. Mr. Kozol appealed the dismissal ofboth actions. We consolidated the appeals. ANALYSIS "The PRA is a 'strongly worded mandate for broad disclosure ofpublic records.'" 

### ResidentAction Council v. 

### Seattle Haus. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013) (quoting

### Hearst Corp. v. 

### Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)). The policy behind the PRA is that "free and open examination ofpublic records is in the public interest." 

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

### County of Spokane, 172 Wn.2d 702, 715, 261 P.3d 119 (2011). Accordingly, the PRA is to be "liberally construed
... to
assure thatthepublic interestwill be fully protected." RCW42.56.030. Under RCW 42.56.080, agencies must make "identifiable public records" available for public inspection and copying. A public record is broadly defined as "any writing containing information relating to the conduct ofgovernment." RCW 42.56.010. "An identifiablepublic record is one for which the requestor has given a reasonable description enablingthe government employee to locate the requested record." 

### Bealv. 

### City of Seattle, 150 Wn. App. 865, 872, 209 P.3d 872 (2009). When interpreting public records requests, the PRA does notrequire agencies to be mind readers. 

### Bonamy v. 

### City of Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998). Agencies are not required to provide records that do not exist. 

### Sperr v. 

### City of Spokane, 123 Wn. App. 132, 136-37, 96 P.3d 1012 (2004). However, where the.agency 6No. 32596-2-111 (consol. w/No. 32643-8-111) Kozol v. Dep 't of Corr.
possesses undisclosed responsive records, it "mustexplain andjustify any withholding, in whole or in part, ofany requested public records." ResidentAction Council, 177 Wn.2d at 432. "Silent withholding is prohibited." Id. Agency actions taken or challenged under the PRA are reviewed de novo. RCW 42.56.550. Mr. Kozol's opening briefs in the two appeals before us challenge the trial court's actions in denying amendment, refusing to deem his first complaint amended, concluding thathis claims were nottimely, refusing to consolidate his two cases, engaging in allegedly improperprocedure, denying a motion to continue the DOC's summary judgmentmotion andpermit further discovery, and concludingthatthe back side ofthe DOC's grievance form was notresponsive to his 22 PRArequests. The last issue proves dispositive. Mr. Kozol's contention thatthe DOC withheld responsive documents is based solely on its failure to produce copies ofthe back side ofthe 22 grievance forms. He disputes the DOC'sposition that the back side is solely instructional and not a part ofthe grievance or complaint form. Focusing on his request for the "original complaint form," he contends thatthe back side ofeach DOC 05-165 was encompassedbyhis requests. 

### It first bears noting that RCW42.56.070(1) requires agencies to make theirpublic records "available for public inspection and copying"-it is notrequired to give its original public records to requesters. Forthat reason, and also because 

### Mr. Kozol's request was for an electronic copy ofthe record, his use ofthe word "original" could not 7No. 32596-2-111 (consol. w/No. 32643-8-111) Kozol v. Dep 'tof Corr.
be understood as meaningthe actual complaint form completed and signed bythe inmate (which would necessarily have the instructions onthe back). Itcould only have meant a copy ofthe actual complaint form. At issue, then, is whether "complaint form" is reasonably understood to mean the "Offender Complaint" side ofDOC 05-165 or both the "OffenderComplaint" side and the instruction side ofthat document. Therelevant meaning ofthe word "form" is defined as e (1) : a printed ortyped document with blank spaces for insertion of required orrequested specific information <a [form] for a deed> <be sure to fill all blanks on yourtax [form]>. WEBSTER'S THIRDNEW INTERNATIONAL DICTIONARY 892 (1993). Only the front, "Offender Complaint" side ofDOC 05-165 includes blank spaces for inserting the specific information required for a grievance. Mr. Kozol has offered supplemental evidence ofback sides ofgrievance forms on which handwriting appears, 4

4 OnMay 27, 2015, our commissioner granted Mr. Kozol's motionto add to the record on appeal the material in appendix A to his briefin cause no. 32596-2-111. It contains a total of51 single-sided sheets. See Appellant's Opening Br. (No. 32643-8-111) at AppendixA. Forty-two sheets contain preprinted instructions from the back side of DOC 05-165, the grievance form, and nine contain no preprinted material, suggesting that the inmate was using a photocopy ofthe Offender's Complaint form. While 30 sheets have some form ofwriting on them, 23 ofthose only contain the date, orthe name or mailbox number ofthe grievance counselor. Only six appearto reflect anything remotely substantive. On one, the offender suggests a remedy for the grievance. On another, which is largely incomprehensible, the offender makes vague allegations of kidnapping, torture, and false statements and then makes potential threats to several people. Onthree, it appears thatthe offenderwasjustworking through the questions on the bottom ofthe grid in shorthand in orderto fully explainthe grievance onthe front. One is illegible. Appellant's Opening Br. (No. 32643-8-111) at AppendixA. 8No. 32596-2-111 (consol. w/No. 32643-8-111) 

### Kozol v. Dep 't of Corr.
but none undercut the DOC's evidence thatthe instructionpage is not a part ofthe grievance as processed by the DOC. The infrequent and random use ofthe instruction sheetby third parties does not support a conclusion that the DOC should reasonably have regarded it as responsive to Mr. Kozol's request. The DOC did not violate the PRA in failing to recognize that Mr. Kozol was seeking copies ofpreprinted instruction sheets
never used by the DOC in processing grievances. The DOC's innocent destruction ofthe records also excuses its failure to produce them. In a decision involving an action commenced in Spokane County by Mr. Kozol, this court recently held: [W]hether or not a record should exist is a different question than whether it does exist. The PRA only requires that access be granted to existent records, not nonexistentrecords that one believes should exist. While Mr. Kozol believes thatthe back side ofthe original grievance form should exist, DOCproved otherwise. As DOC producedthe only part ofthe specified grievance forms that still existed, it complied with the dictates of thePRA. 

### Kozolv. Dep'tofCorr., 192 Wn. App. 1, 7-8, 366 P.3d 933 (2015) (footnote and citation omitted). For both reasons, no further discovery was warranted and Mr. Kozol's claims, whether time-barred or not, were properly dismissed. Affirmed.

9No. 32596-2-111 (consol. w/No. 32643-8-111) Koza! v. Dep 'tof Corr.
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, A.CJ. 

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