### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II DENNIS GASTON, No. 50338

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Appellant,

v. STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, UNPUBLISHED OPINION

Respondent.
S UTTON , J.

— Dennis Gaston appeals the superior court’s order dismissing his Public Records Act (PRA) 1 claim against the Department of Corrections (Department) . Gaston argues that the superior court erred by concluding that the prison surveillance videos he requested were exempt from disclosure under the specific intelligence information exemption, RCW 42 .56.240. Under Fischer v. Dep artment of Corr ections , 160 Wn. App. 722, 727

- 28, 254 P.3d 824 (2011), and Gronquist v. Department of Corrections , 177 Wn. App. 389, 313 P.3d 416 (2013), the requested prison surveillance videos were exempt from disclosure und er the PRA

. Therefore, the superior court properly concluded that the Department did not violate the PRA by withholding the jail surveillance videos. Gaston also argues that his status as a non - inmate is relevant to determining whether the requested pris on surveillance videos are exempt. And Gaston argues that the Department waived its ability to claim an exemption for the videos by using the video s as part of a criminal prosecution.

1 Ch. 42.56 RCW. Filed Washington State Court of Appeals Division Two July 24, 2018No. 50338

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Finally, Gaston argues that the superior court erred by failing to con sider releasing the requested prison surveillance videos subject to a protective order. These arguments lack merit. Accordingly,

we affirm.
FACTS When Gaston was an inmate in Coyote Ridge Correction s Center, he was assaulted by another inmate. After his release, Gaston filed a PRA request for documents relating to the assault. The Department responded by disclosing numerous documents. However, the Department did not disclose surveillance video s of Gaston’s assault , asserting that the surveillance videos were exempt from disclosure under the specific intelligence information exemption, RCW 42.56.240 (1) and Fischer

. CP 52; PDF 53. Gaston filed a PRA claim against the Department asserting that the Department violated the PRA by refusing to disclose the surveillance videos. T he superior court concluded that the Department did not violate the PRA by withholding the surveillance videos under the specific intelligence information exemption and under Fi scher and Gronquist . Therefore, the superior court denied the request to produce the surveillance videos and dismissed Gaston’s PRA action. Gaston appeals.
ANALYSIS

I. S PECIFIC I NTELLIGENCE I NFORMATION E XEMPTION A. L EGAL P RINCIPLES We review challenges to an agency action under the PRA de novo. RCW 42.56.55 0 (3); Resident Action Council v. Seattle Hous. Auth. , 177 Wn.2d 417, 428, 327 P.3d 600 (2013). “Where the record consists only of affidavits, memoranda of law, and other documentary evide nce, anNo. 50338

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appellate court stands in the same position as the trial court in reviewing agency action challenged under the PRA.” Robbins, Geller , Rudman & Dowd, LLP v. Office of the Attorney Gen. , 179 Wn. App. 711, 719

- 20, 328 P.3d 905 (2014). The PRA mandates the broad disclosure of public records. Resident Action Council , 177 Wn.2d at 431. RCW 42.56.030 expressly requires that the PRA b e “liberally construed and its exemptions narrowly construed

. . . to assure that the public interest will be fully protected.” When evaluating a PRA claim, we must “take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to pu blic officials or others.” RCW 42.56.550(3). Under RCW 42.56.070(1), a government agency must disclose public records upon request unless a specific exemption in the PRA applies or some other statute applies that exempts or prohibits disclosure of specif ic information or records. Ameriquest Mortg. Co. v. Office of the Att orney Gen. , 177 Wn.2d 467, 485

- 86, 300 P.3d 799 (2013). The agency claiming the exemption bears the burden of proving that the withheld records are within the scope of the exemption. R esident Action Council , 177 Wn.2d at 428.
B

. J AIL S URVEILLANCE V IDEOS ARE E XEMPT Gaston argues that the superior court erred by concluding that the Department properly withheld the prison surveillance videos

. Under Fischer and Gronquist , the superior court properly concluded that the prison surveillance videos were exempt. Therefore, the superior court did not

err.No. 50338

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The specific intelligence information exemption, RCW 42.56.240(1), states, The following investigative, law enforcement, and crime vi ctim information is exempt from public inspection and copying under this chapter: (1) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies , and state agencies vested with th e responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy.
In Fischer , Division One of this court held that prison surveillance videos were exempt from disclosure under the specific intelligence information exemption because intelligence information provided by video surveillance systems falls squarely within the core defin itions of law enforcement and “[c]oncealment of the full recording capabilities of those systems is critical to [the Department’s] effectiveness in the specific setting of a prison.” 160 Wn. App. at 72 8. In Gronquist , we adopted Division One’s holding in Fischer and affirmed a superior court’s order concluding that prison surveillance videos were exempt from disclosure under the specific intelligence information exemption. 177 Wn. App. at 400

- 01. Fishcer and Gronquist clearly hold that prison surveill ance videos are exempt from disclosure under the PRA. Therefore, the superior court properly concluded that the Department was entitled to withhold the prison surveillance videos. Accordingly, the superior court did not

err. 2

2 We note that our decision in this case is limited to the Department’s duty to disclose the prison surveillance videos under the PRA. We make no decision regarding the Department’s obligations under the civil discovery rules.No. 50338

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5 II. I DENTITY OF R EQUEST ER Gaston argues that Fischer and Gronquist do not apply here because he is not currently an inmate in Coyote Ridge Correctional Center, he is not a pro se requester, and he is a victim of the assault that is the subject of certain surveillance video s . H owever, with a few, very specific, limited exceptions, the status of the requester and the purpose of the request may not be considered when determining whether to grant or deny a PRA request. Therefore, the superior court did not err by refusing to consi der Gaston’s status when determining whether to apply Fischer and Gronquist

. Gaston’s arguments are completely contrary to the PRA’s explicit prohibition against distinguishing between records requestors and the prohibition against the State agencies requesting information regardin g the purpose of the request. RCW 42.56.080 states, Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to e stablish whether inspection and copying would violate RCW 42.56.070( 9 ) [ , the commercial purposes exemption,] or 42.56.240(14) [ , regarding body worn cameras,] or other statute which exempts or prohibits disclosure of specific information or records to certain persons. Therefore, the Department cannot be required to consider the identity of a requester or the reasons for the reques t in order to determine whether to disclose records. Accordingly, Gaston’s argument
lacks merit.
III. W AIVER Gaston argues that the Department has waived its claim that the prison surveillance videos are exempt from disclosure because certain surveillan ce videos were utilized during the criminal prosecution of the inmate who assaulted Gaston , he and his wife viewed the videos , and theNo. 50338

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Department released the recordings to the third party prosecutor in that case . However, this argument fails. Nothing in the use of the surveillance videos in criminal prosecution prevents the Department from successfully claiming that the jail surveillance videos that are responsive to Gaston’s public records request are exempt from disclosure. Gaston bases a significant portion of his argument on his assertion that the surveillance video s were played in open court and therefore, accessible to be viewed by the public. The only information in the record regarding the disclosure of the video s comes from Gaston’s declaration which states, The records that I am trying to get were disclosed for viewing to me, my wife, the prosecutor, and at least the attorney for [the defendant], saw the four recordings of the assault on me. Clerk’s Papers ( CP ) at 69. Fischer explicitly rejec ted the argument that, because prison surveillance video s could be viewed by the general public, they were no longer exempt under the specific intelligence information exemption. 160 Wn. App. at 727. Although here, Gaston saw actual video recordings ra ther than real

- time images, much of the same reasoning applies. Allowing limited members of the public to view a recording may reveal some information about which cameras are recording and when

. However, it still does not reveal information about monitor ing, camera control, or whether cameras are recording

. Therefore, providing limited access to view video recordings in a situation such a s preparing for criminal prosecution, should not preclude the Department from claiming prison surveillance videos are exempt from disclosure in a public records request. Gaston cites to Bainbridge Island Police Guild v. City of Puyallup , 172 Wn.2d 398, 259 P.3d 190 (2011), to support his waiver argument . But Bainbridge Island Police Guild addressesNo. 50338

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the waiver of an individual’s right of privacy, not an agency’s waiver of an important government
interest. 172 Wn.2d at 409

- 10. And even if Bainbridge Island Police Guild were relevant to determining whether an agency can waive its government interest, the agency’s acti on must be inconsistent with the interest protected by the claimed exemption. Bainbridge Island Police Guild , 172 Wn.2d at 410

. As Fischer explains, allowing limited viewing of prison surveillance videos is not inconsistent with claiming nondisclosure of the videos themselves. 160 Wn. App. at 727. And in Bainbridge Island Police Guild , the court held that the “failure to object to a single public records request is only a relinquishment of the right to prevent that specific production

. It is not an i ntentional and voluntary relinquishment of a person’s right to privacy regarding all future requests for that document.” 172 Wn.2d at 410. Based on the court’s reasoning in Bainbridge Island Police Guild , allowing the prosecutor to utilize select video r ecordings in a single criminal prosecution would not prevent the Department from claiming a relevant exemption in future requests to disclose those recordings. Therefore, Gaston’s reliance on Bainbridge Island Police Guild is misplaced.
IV. P ROTECTIVE O R DER Gaston also argues that the superior court erred by failing to consider disclosing the surveillance videos under a protective order to alleviate concerns regarding the dissemination of the surveillance videos. However, Gaston has cited no authority f or the proposition that the superior court is required to consider releasing otherwise exempt documents under conditions such as a protective order. “Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has foundNo. 50338

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none.” DeHeer v. Seattle Post

- Intelligencer , 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Therefore, we do not entertain Gaston’s argument that the superior court should have considered releasing the surveillance videos under a protective order.
ATTORNEY FEES Gaston requests attorney fees on appeal under RAP 18.1 and RCW 42.56.550(4). RCW 42.56.550(4) allows any party who prevails in a PRA action to recover reasonable attorney fees. Here, the superior court did not err by concluding that the prison surveillance videos were exempted records and dismissing Gaston’s PRA claim. Therefor e, Gaston is not the prevailing party and his request for attorney fees is denied. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

S UTTON , J. We concur:

W ORSWICK , P.J.

B JORGEN , J.