                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             July 24, 2018


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    DENNIS GASTON,                                                    No. 50338-7-II

                        Appellant,

          v.

    STATE OF WASHINGTON                                         UNPUBLISHED OPINION
    DEPARTMENT OF CORRECTIONS,

                        Respondent.

         SUTTON, 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. Department of Corrections, 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 under 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 prison surveillance videos are exempt. And Gaston argues that the Department waived

its ability to claim an exemption for the videos by using the videos as part of a criminal prosecution.


1
    Ch. 42.56 RCW.
No. 50338-7-II


Finally, Gaston argues that the superior court erred by failing to consider 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 Corrections 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 videos 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. The superior court concluded that the

Department did not violate the PRA by withholding the surveillance videos under the specific

intelligence information exemption and under Fischer and Gronquist. Therefore, the superior

court denied the request to produce the surveillance videos and dismissed Gaston’s PRA action.

Gaston appeals.

                                           ANALYSIS

                      I. SPECIFIC INTELLIGENCE INFORMATION EXEMPTION

A. LEGAL PRINCIPLES

       We review challenges to an agency action under the PRA de novo. RCW 42.56.550(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 evidence, an



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No. 50338-7-II


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 be “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 public 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

specific information or records. Ameriquest Mortg. Co. v. Office of the Attorney 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. Resident Action Council, 177

Wn.2d at 428.

B. JAIL SURVEILLANCE VIDEOS ARE EXEMPT

       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.




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No. 50338-7-II


        The specific intelligence information exemption, RCW 42.56.240(1), states,

               The following investigative, law enforcement, and crime victim 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 the 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 definitions 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 728. 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 surveillance 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.


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No. 50338-7-II


                                   II. IDENTITY OF REQUESTER

       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 videos. However, 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 consider 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 regarding 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 establish 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 request in order to determine whether to disclose records. Accordingly, Gaston’s argument

lacks merit.

                                           III. WAIVER

       Gaston argues that the Department has waived its claim that the prison surveillance videos

are exempt from disclosure because certain surveillance videos were utilized during the criminal

prosecution of the inmate who assaulted Gaston, he and his wife viewed the videos, and the




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No. 50338-7-II


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

videos 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 videos 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 rejected the argument that, because prison

surveillance videos 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 rather 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 monitoring, camera control, or whether cameras are recording.

Therefore, providing limited access to view video recordings in a situation such as 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 addresses



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No. 50338-7-II


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 action 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

intentional 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 recordings 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. PROTECTIVE ORDER

       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 for 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 found



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No. 50338-7-II


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. Therefore, 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.



                                                         SUTTON, J.
 We concur:



 WORSWICK, P.J.




 BJORGEN, J.




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