                                                                                                             EQ
                                                                                             COURT OF AP' E I S
                                                                                                       DIVISION .

                                                                                                              AM «'   00
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN110V0

                                             DIVISION II

LIBBY HAINES- MARCHEL,                                                        No. 43700 -7 -II


                                    Appellant,                         PUBLISHED OPINION


        v.



 STATE, DEPARTMENT OF
CORRECTIONS,


                                    Respondent.


       BJORGEN, J. —      Libby Haines -Marchel, wife of inmate Brock Marchel, appeals an order

denying her motion for summary judgment and granting the Department of Corrections' cross -

motion for summary judgment. This summary judgment upheld redactions made by the

Department in documents requested by Haines -Marchel under the Public Records Act (PRA),

chapter 42. 56 RCW. The superior court found the redacted material was exempt from disclosure

under RCW 42. 56.240, because nondisclosure was essential to effective law enforcement and

protection of personal privacy and because disclosure would endanger individuals' lives or

physical safety.


       On appeal, Haines -
                         Marchel contends that the superior court abused its discretion by

failing to consider all the materials she submitted, that the Department failed to show the claimed

exemptions apply to the redacted material, and that her legitimate interest in obtaining the

information   outweighs      the Department' s   concerns.   We hold that the superior court did not fail to


consider   any   submitted   documents, but that   a small portion of   the   redacted material   is   not exempt
No. 43700 -7 -II


from disclosure under RCW 42. 56. 240( 1) and should have been disclosed to Haines- Marchel.


The rest of the redacted material is exempt from disclosure. Consequently, we affirm in part,

reverse in part and remand for the superior court to enter an order requiring the Department to

disclose the material held not to be exempt from disclosure and to exercise its discretion in


awarding attorney fees and a penalty to Haines -Marchel under RCW 42.56. 550( 4).

                                                     FACTS


        After Haines -Marchel visited Marchel at the Clallam Bay Corrections Center ( CBCC),

prison authorities subjected   Marchel to   a "   dry   cell search,"   an isolation and special supervision


procedure designed to determine whether an inmate has concealed contraband by ingesting it.

Clerk' s Papers ( CP) at 20 -31, 35. After three days in the dry cell, monitoring revealed no

contraband, and prison staff returned Marchel to his usual cell.


        In response to a grievance he filed, Marchel received a copy of form DOC 05 -392,

describing the basis for the decision to subject him to the dry cell search, comprised of a

Confidential Information Report ( Report) on the front side and a Guide to the Evaluation of


Reliability of Informant Information ( Guide) on the back. The Report stated that three inmates,

whose identifying information had been redacted, had at various times informed the prison' s

intelligence and investigation unit that Marchel " was to be introducing narcotics to CBCC

through visitor [ Haines- Marchel],   during      a visit."   CP at 42. The Report also contained " yes" or


 no" answers to questions concerning the reliability of the unidentified informants. CP at 42.

The Guide contained various criteria prison officials use to evaluate informant tips, with the


scoring numbers entered by the preparer indicating the relative applicability of each criterion

under the circumstances presented. For example, for the criterion " Source Reliability,


                                                          2
No. 43700 -7 -II




Authenticity,"     the   preparer would choose   from five levels ranging from "[ n] o doubt source has


direct   access   to information" to "[   s] ource unknown."   CP   at   43. The Guide also required the


preparer to check one of five levels of reliability for the informant and for the validity of the

content. Both the Report and the Guide relating to the dry cell search, filled out by department

official William Paul, were released to Marchel.


          Haines -Marchel subsequently submitted a request under the PRA for documents

concerning the dry cell search, including " all information and documents received by internal

investigations ( I &I) that lead [ sic] to the belief   of reasonable suspicion    to   place   Marchel ...   on




Dry   Cell Watch."       CP at 57. In response, Haines -Marchel received 43 pages of documents,


including a copy of the same document containing the Report and the Guide given to Marchel.

The copy sent to Haines -Marchel, however, was entirely redacted except for the titles,

Department logos, document numbers and identifying information, two lines of instructions to

the preparer on the Report, and a boilerplate statement on the Guide relating to disclosure.

          Haines -Marchel appealed the redactions to the Department, which denied the appeal on

the ground that the documents were exempt from disclosure under RCW 42.56.240( 1) and ( 2).

She then filed suit in superior court to compel disclosure of some of the redacted material,


requesting    costs, penalties, and   attorney fees.    CP at 5 - 17. In support of her motion for summary

judgment, she attached various documents, including the less- redacted version of the disputed

document provided to Marchel and various declarations, including her own and Marchel' s.

          The Department answered Haines -Marchel' s motion and moved for summary judgment,

attaching declarations from CBCC officials William Paul and Denise Larson in support of its

argument that the redactions were appropriate. These declarations explained the potential


                                                         3
No. 43700 -7 -II




dangers posed by releasing information concerning confidential informants and by disclosing the

Department' s criteria for evaluating tips from such informants. The Department also asserted

that Marchel had received the less- redacted versions in error.


         After argument, the superior court reserved ruling because the judge had not been able to

review all the submitted materials. The court issued a letter opinion two weeks later denying

Haines- Marchel' s motion and granting summary judgment to the Department. The opinion

relied primarily on Paul' s declaration in finding the redactions appropriate under both RCW

42. 56. 240( 1)   and ( 2).   The court subsequently entered a written order to the same effect. Haines -

Marchel timely appeals.

                                                  ANALYSIS


                                I. STANDARD OF REVIEW AND GOVERNING LAW


         We review summary judgments de novo and in that review perform the same inquiry as

the superior court. TracFone Wireless, Inc. v. Dep' t ofRevenue, 170 Wn.2d 273, 280 -81, 242

P. 3d 810 ( 2010).     A court should grant summary judgment only if

         the pleadings, depositions, answers to interrogatories, and admissions on file,
         together with the affidavits, if any, show that there is no genuine issue as to any
         material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56( c). A material fact is one upon which the outcome of the litigation depends in whole or in


part.   Atherton Condo. Apartment -Owners Ass 'n Bd. of Dir.        v.   Blume Dev. Co., 115 Wn.2d 506,


516, 799 P. 2d 250 ( 1990).


         A party moving for summary judgment bears the burden of demonstrating that there is no




                                                        4
No. 43700 -7 -II




genuine     issue   of material       fact. Atherton, 115 Wn.2d        at   516.   If the moving party satisfies its

burden, the nonmoving party must present evidence that demonstrates that material facts are in

dispute.     Atherton, 115 Wn.2d           at   516.   If the nonmoving party fails to do so, then summary

judgment is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d


805 ( 2005).


          The court must consider all facts, and the reasonable inferences from them, in the light

most    favorable to the nonmoving party. Vallandigham, 154 Wn.2d at 26; Atherton, 115 Wn.2d


at 516. A court should grant summary judgment only if reasonable persons could reach but one

conclusion      from   all   the   evidence.    Vallandigham, 154 Wn.2d at 26.


           Courts also review an agency' s denial of the opportunity to inspect or copy public records

under. the   PRA de     novo.       RCW 42. 56. 550( 3).     In reviewing such agency action, the superior

court "   may   conduct a      hearing based     solely   on affidavits,"   RCW 42. 56. 550( 3),    and




           tjhe burden of proof shall be on the agency to establish that refusal to permit public
           inspection and copying is in accordance with a statute that exempts or prohibits
           disclosure in whole or in part of specific information or records.


RCW 42. 56. 550( 1).          The PRA " is a strongly worded mandate for broad disclosure of public

records" that requires state agencies to disclose any public record upon request, unless the record

falls   within certain specific exemptions.            Prison Legal News, Inc.      v.   Dep ' t of Corr.,   154 Wn.2d


628, 635, 115 P. 3d 316 ( 2005).           A reviewing court must construe the PRA broadly and its

exemptions narrowly. Prison Legal News, 154 Wn.2d at 636.




                                                               5
No. 43700 -7 -II



                              II. REVIEW OF SUMMARY JUDGMENT PLEADINGS


          As a threshold matter, Haines -Marchel argues first that the superior court' s letter opinion


of May 23, 2012 shows that it did not review all of her exhibits and affidavits, resulting in an

abuse of discretion. We disagree.


          The letter opinion plainly shows that in the portions cited by Haines -Marchel, the court

was referring to evidence it had reviewed prior to the hearing on the summary judgment

motions:




          Prior to considering verbal argument from the parties, the Court reviewed the court
          file   and was    familiar   with     the   pleadings      therein.    The Court had not, however,
          reviewed    the   various    exhibits       attached   to   some      of   those   pleadings.   The Court
          reviewed the electronic version of the court file and that version did not, for
          whatever reason( s),    contain the exhibits.


Clerk' s Papers ( CP) at 229. The superior court made clear that it reviewed all submitted


materials before deciding the motions. In particular, at the conclusion of the hearing the court

stated,



          When I took the bench this           afternoon ...     my inclination was to conduct an in camera
          review.    That inclination was based upon the fact that I had not reviewed the
          exhibits at issue here.


                    So I will take the time to look at these exhibits with a keen eye, but I wanted
          to make certain that the issue was properly framed.

          I am going to take it under advisement, issue a written ruling.
                    As   a general rule,   I   am     loath[] to take matters under advisement.


                    And again, I apologize for not having - I guess the lesson I have learned now
                                                            -
          is to look at the physical court file, which I don' t like to do, because it is easier for
          me to just look at it electronically.




                                                                 6
No. 43700 -7 -II



Verbatim Report     of   Proceedings ( VRP)   at   44 -
                                                      49.     Contrary to Haines -Marchel' s understanding,

then, the subsequent letter opinion in no way suggests that the superior court did not review all of

the documents submitted prior to making a decision.

       In addition, the final written order by the superior court specifies that it reviewed:

              1. Plaintiff' s Motion for Partial Summary Judgment, including the attached
       Declarations of Michael C. Kahrs, Brock Marchel and Libby Haines -Marchel;
               2. Defendant' s Response to Plaintiffs Partial Motion and Cross -Motion for
        Summary Judgment, including the attached Declarations of William Paul and
       Denise Larson;
               3. Plaintiff' s Reply to Defendant' s Response to Plaintiff' s Partial Motion,
       including the attached Declaration of Libby Haines - Marchel;
               4.    Plaintiff' s Response to Defendant' s Cross -Motion for Summary
        Judgment;

               5. Defendant' s Reply to Plaintiff' s Response to Defendant' s Cross -Motion
        for Summary Judgment, including the attached Declaration of Denise Vaughan.

CP 232 -33. All of the documents Haines -Marchel contends the court did not consider appear, or


were attached to documents that appear, in that list.


        The record shows that the superior court considered all the evidence submitted by the

parties in support of their motions for summary judgment. The court did not abuse its discretion

by failing to consider all material submitted.

                                       III. THE PRA EXEMPTIONS


        The superior court held that the redactions were proper under the exemptions to


disclosure found in RCW 42. 56. 240( 1)       and ( 2).     Because we agree that the redacted material was


exempt under   RCW 42. 56. 240( 1),    we do not reach whether it also was exempt under ( 2) of that

section.




        RCW 42.56. 240( 1) exempts the following material from disclosure under the PRA:




                                                          7
No. 43700 -7 -II



           s] pecific intelligence information and specific investigative records compiled
          by ... penology agencies ... the nondisclosure of which is essential to effective
          law enforcement or for the protection of any person' s right to privacy.

The parties do not dispute that the Department qualifies as a penology agency or that it compiled

the records. Thus, the remaining issues are ( 1) whether the redacted information qualifies as

either specific investigative records or specific intelligence information, and ( 2) whether


redaction is essential to effective law enforcement or for the protection of any person' s right to

privacy.'


          Records   are "` specific   investigative   records '   if "'compiled   as a result of a specific



investigation    focusing    with special   intensity   upon a particular   party. '   Dawson v. Daly, 120

Wn.2d 782, 792 -93, 845 P. 2d 995 ( 1993) (        quoting Laborers Intl Union, Local 374 v. Aberdeen,

31 Wn.     App. 445,   448, 642 P. 2d 418 ( 1982)).       The exemption in RCW 42. 56. 240( 1) applies to


all   investigations "'   designed to ferret out criminal activity or to shed light on some other

allegation of malfeasance. "'      Sargent v. Seattle Police Dep' t, 179 Wn.2d 376, 391, 314 P. 3d

1093 ( 2013) (   quoting Koenig v. Thurston County, 175 Wn.2d 837, 843, 287 P. 3d 523 ( 2012)).

          The material entered in both the Report and the Guide that discloses information about

the informants or the investigation was compiled as part of a specific investigation focusing on

potential criminal activity by both Marchel and Haines -Marchel. Thus, under both Daly and

Sargent this material would count as specific investigative records. In addition to the name and


identifying number of the informants, this material would include the description of the

information given by the informant, answers to the questions on the Report, the text entered on



 1 Because our decision .
                        rests on whether the redacted material was essential to effective law
enforcement, we do not reach the question of privacy.

                                                            8
No. 43700 -7 -II



the " Report subject" and " Date of occurrence" lines on the Guide, and all the numeric scores,


conclusions about     reliability,     and    hand- printed   notes on   the Guide.   CP   at   43.   Similarly, the

dates on both the Report and the Guide were compiled as the result of this specific investigation


into this specific alleged crime. They also qualify as specific investigative records under Daly

and Sargent. Daly, 120 Wn.2d at 792 -93; Sargent, 179 Wn.2d at 391.

       The pre -printed text on either the Report or the Guide, however, would not qualify as

specific investigative records, since it was not compiled as a result of a specific investigation


focusing   with special      intensity   upon a particular     party. Dawson, 120 Wn. 2d              at   792 -93. This


material would only be exempt under RCW 42.56.240( 1) if it qualifies as specific intelligence

information.


        The meaning of "specific intelligence information" was plumbed in King County v.

Sheehan, 114 Wn.       App.        325, 337, 57 P. 3d 307 ( 2002), which examined whether a list of the full


names of King County police officers was specific intelligence information under the

predecessor of RCW 42. 56. 240. In the absence of a definition in the records statute, the court


noted the definition of "intelligence" in the Random House Unabridged Dictionary ( 1993) as

 the gathering   or   distribution      of   information, especially     secret   information," or " information


about an   enemy"     or "   the   evaluated conclusions      drawn from     such   information." Sheehan, 114


Wn. App. at 337. Except for those working undercover, the court held that a list of officers'

names was not specific intelligence information under these definitions. Sheehan, 114 Wn. App.

at 338 -39. Sheehan did not rule on whether information about how a police agency carries out

investigations qualifies as specific intelligence information.




                                                               9
No. 43700 -7 -II




         That issue was reached in Fischer v. State, Department of Corrections, 160 Wn. App.

722, 727 -28, 254 P. 3d 824 ( 2011) and Gronquist v. State, Department of Corrections, 177 Wn.

App.   389, 400 -01, 313 P. 3d 416 ( 2013),   review   denied, 180 Wn.2d 1004 ( 2014), which held that


prison video surveillance recordings were exempt from disclosure under RCW 42. 56. 240( 1) as


intelligence information. Neither Fischer nor Gronquist rested its conclusion on the nature of


the activities shown on the tapes. Instead, the decisions relied on the information about


investigative methods that would be disclosed, such as which cameras were recording, which

were dummies, when cameras were off or on, their resolution and field of view, and the extent to


which they were controlled by the staff, knowledge which could help in their evasion. See

Fischer, 160 Wn. App. at 726; Gronquist, 177 Wn. App. at 399 -400.

         Similarly, as shown by Paul' s uncontroverted declaration, information about how the.

Department evaluates the reliability and authenticity of informant tips could be used to better

mask false or deceptive information. Just as the surveillance tapes would disclose the

Department' s methods of surveillance, much of the pre- printed information on the forms would


disclose its methods of evaluating and responding to informants' tips. If the surveillance tapes

count as specific intelligence information for that reason, so would this pre -
                                                                              printed material on


the Report and the Guide. Almost all the pre -printed text on both the Report and the Guide is of


this nature. On the Report, this information would include the pre -printed text asking for the

nature of the information given and the questions about the informant. On the Guide, this

information would include all pre -
                                  printed text below the line marked " Premise" and above the



2
    By pre -printed we mean the text on the forms other than the comments and answers entered by
DOC about a specific individual, as described in more detail in the Facts, above.

                                                       10
No. 43700 -7 -II




line beginning " The contents of this document may be eligible for public disclosure,"

information going directly to the Department' s methods of evaluating and responding to

informants' tips. CP at 42. The content of this pre -
                                                    printed material in the Guide is described in

more detail in the Facts, above.


         Having concluded this pre -printed material is intelligence information, the next question

is   whether   it is "   specific"   intelligence information         as required   by   RCW 42. 56. 240( 1).   This


material is plainly not specific in the sense required for the exemption of specific investigative

records, since      it does   not    focus " with   special   intensity   upon a particular     party,"   as required by

Dawson, 120 Wn.2d at 792 -93. Use of the same definition of "specific" in each context,

however, would ignore the divergent natures of the terms modified. As shown, under Fischer,


160 Wn. App. at 726 -28, and Gronquist, 177 Wn. App. at 399 -401, intelligence information can

include information about methods of investigation, while investigative records must focus on a

particular party. By their nature, the methods of investigation at issue here apply to all informant

tips in the prison. If information about general methods must focus on a particular individual, it

would never be exempt, contrary to both Fischer and Gronquist. Further, such a reading would

risk shrinking the scope of intelligence information to that of investigative records, reducing the

former to the superfluous. This would offend the canon of statutory construction that courts

should avoid interpretations of a statute that render certain provisions superfluous. See Whatcom


County    v.   City   of Bellingham, 128 Wn.2d 537, 546, 909 P. 2d 1303 ( 1996).                    To avoid these


snares, the term " specific" in the exemption for specific intelligence information must be read to

require not that the information concern particular individuals, but that it disclose particular

methods or procedures for gathering or evaluating intelligence information. The pre -
                                                                                    printed text

                                                                 11
No. 43700 -7 -II




described above dealing with methods of evaluating informant statements meets this

requirement.




         The remaining question, then, is whether the specific intelligence information or specific

investigative records described above are essential to effective law enforcement under RCW


42. 56. 240( 1).   The Department argues that the redacted information is essential to effective law

enforcement for three reasons. First, if other inmates obtained the information entered on the


form, they could use it, alone or in combination with other knowledge, to deduce the identity of

and retaliate against     the informants.        Similarly, the Department contends that making the

information entered on the forms available to the public, even with identifying information

redacted, would have a " chilling effect" on potential informants, who would fear that their

enemies could nonetheless piece together the source of the tip using the unredacted information.

Br. of Resp' t at 22. Finally, the Department maintains that disclosure of the form itself, even

with no specific information entered on it, would reveal how the Department evaluates informant

tips, allowing inmates who wish to submit deceptive tips, falsely implicating others in

wrongdoing, to tailor their statements so that investigators would consider them reliable.

          Haines -Marchel     contends       that "[ t] he   [ D] epartment is fully capable of the minimal

redaction    necessary to    protect   the    identity   and   safety   of   the informant,"   and that the only

information that should be exempt from disclosure is the names and inmate numbers of the

informants. Br.      of   Appellant    at   24 -25. Haines -Marchel points out that she is not an inmate, and


that the Department need not worry about inmates obtaining the document because the

Department censors inmates' incoming mail. She further argues that the Department' s concerns

are outweighed by her interest in discovering whether the Department arbitrarily accused her of

                                                                12
No. 43700 -7 -II




committing a felony based on a convicted felon' s false and unreliable information. Finally,

Haines -Marchel argues that, because the Department' s own policy entitles an inmate subjected to

a dry cell search to a summary of the information giving rise to the reasonable suspicion, and

because CBCC officials actually released the form at issue here to Marchel, the Department

should not be allowed to withhold it.


       The uncontroverted evidence submitted by the Department establishes that redaction of

the material found above to be either specific investigative records or specific intelligence

information is essential to effective law enforcement.3 Paul' s declaration shows that serious

attacks against inmates suspected of providing tips to authorities often occur and that inmates

often submit false reports intended to induce authorities to take action against other inmates. As

Paul points out, such details as the number of different informants, the date on which the form

was completed, and whether      the information is " first hand,"   could reveal the identity of the

informant    when combined with    information from    other sources.   CP   at   163.   Further, even with


redactions, the fact that the form could be released at all would likely make potential informants

reluctant to come forward. See Cowles Publ' g Co. v. Pierce County Prosecutor' s Office, 111

Wn.   App.   502, 509, 45 P. 3d 620 ( 2002).   Finally, Paul' s declaration establishes also that

disclosure of the pre -printed information on the forms about how the Department evaluates the


reliability and authenticity of informant tips could aid in disguising false or deceptive

information. Out of all possible indicia of reliability which investigators might use to evaluate

an informant' s tip, the knowledge of what information in a tip will be considered and how



3 Haines -Marchel did not submit evidence that the redacted material was not essential to
effective law enforcement. Thus, there is no genuine dispute as to this material fact.
                                                     13
No. 43700 -7 -I1



investigators will weigh that information could easily be valuable in crafting a false accusation.

As concealment of the methods of video surveillance was essential to effective law enforcement


in Fischer, 160 Wn. App. at 728, so concealment of the methods of examining and evaluating

informant tips is essential here.


          Turning to Haines- Marchel' s other arguments, the Department' s surveillance of inmates'

mail would not necessarily prevent prisoner access to the information were it publicly available.

Someone could simply read the form to the prisoner over the phone or memorize the criteria and

relay them during a visit. Exempting the form from disclosure under the PRA may well be the

only way to keep its contents out of inmates' hands.

          Similarly, the release of some of the redacted information to inmates subjected to dry cell

searches and the prior disclosure of the form to Marchel does not establish that keeping it

confidential is not essential to effective law enforcement. First, the Department points out that

the uncontested evidence shows that CBCC staff released the form to Marchel in error. Second,

the fact that an agency releases documents, whether through a records request or some other

process, does not by itself establish the absence of an exemption. See Sanders v. State, 169

Wn.2d 827, 849 -50, 240 P. 3d 120 ( 2010) ( " Nor do we believe that production of documents after


the requester files suit ipso facto admits that the initial withholding of the documents was

wrongful. ").



          Next, Haines -Marchel' s assertion that her interest outweighs the Department' s is

irrelevant to the exemption at issue here. The authority she cites in support of this argument

 deals   with   the statutory   exemption   for "[ p] ersonal   information in files maintained for employees,

 appointees, or elected officials of any public agency to the extent that disclosure would violate

                                                          14
No. 43700 -7 -II




their   right   to privacy."   RCW 42. 56. 230( 3).   When an agency claims an exemption based on a

person' s right to privacy, the exemption applies only " if disclosure of information about the

person: (   1) [   w]ould be highly offensive to a reasonable person, and ( 2) is not of legitimate

concern    to the   public."   RCW 42. 56. 050. The legislature did not impose these requirements on


the exemptions of RCW 42. 56.240. Thus, the legitimacy of Haines -Marchel' s interest in

obtaining the form is simply not relevant.

          Haines -Marchel argues also that Sargent held that RCW 42. 56. 240 does not exempt the


identities of witnesses from disclosure. Sargent, however, did not make such a broad ruling.

Rather, it held that "[    a] general contention of chilling future witnesses is not enough to exempt

disclosure."       Sargent, 179 Wn. 2d at 395. Here, in contrast, Paul' s declaration establishes that


disclosure of information about prison informants would threaten their safety and inhibit future

informants from coming forward.

          Finally, Haines -Marchel makes a persuasive argument that some of the information

redacted by the Department cannot be deemed essential to effective law enforcement under any

reasonable view. First, the Department does not specifically argue that the disclosure of

Marchel' s name and number to his wife, to himself, or to any other individual is somehow

essential to law enforcement. Similarly, the name of the crime or rule violation in the Report and

the pre -printed material in the Report inquiring into whether an infraction was written and how it

was resolved has no discernible relation to effective law enforcement. Finally, the Department

makes no argument that redacting Paul' s signature is essential to effective law enforcement.

           Consequently, Marchel' s name and number in the Report, the name of the crime or rule

violation in the Report, the pre -printed material in the Report inquiring into whether an infraction

                                                         15
No. 43700 -7 -II



was written and its results, and Paul' s signature on both the Report and the Guide do not fall


within any claimed exemption to disclosure.4 The redaction of this material, therefore, violated
RCW 42. 56. 070( 1),    the principal disclosure requirement of the PRA.


        Turning to the matter of remedies, our Supreme Court has made clear that

         t]he fact that the requesting party possesses the documents does not relieve an
        agency of its statutory duties, nor diminish the statutory remedies allowed if the
        agency fails to fulfill those duties.

Neighborhood Alliance ofSpokane County v. Spokane County, 172 Wn. 2d 702, 727, 261 P. 3d

119 ( 2011).    Thus, even though Haines -Marchel already obtained the improperly withheld

material through Marchel, we must remand for entry of an order directing the Department to

disclose it to Haines -Marchel.


        Another set of remedies available to those prevailing against an agency under the PRA is

announced      in RCW 42. 56. 550( 4),   which states:




         a] ny person who prevails against an agency in any action in the courts seeking the
        right   to inspect   or   copy any   public record ...   shall be awarded all costs, including
        reasonable attorney fees, incurred in connection with such legal action. In addition,
        it shall be within the discretion of the court to award such person an amount not to
        exceed one hundred dollars for each day that he or she was denied the right to
        inspect or copy said public record.

A party prevails under this statute if " records should have been disclosed on request."
                                       the

Spokane Research &       Def. Fund v. City ofSpokane, 155 Wn.2d 89, 103, 117 P. 3d 1117 ( 2005).

Under RCW 42. 17. 340( 4),         the predecessor to this statute, a party was deemed prevailing even



4 The Department does not argue that redaction of this material is needed to protect Marchel' s or
Paul' s right to privacy. The Department does argue in footnote 3 of its brief that the redactions
in general are needed to protect the informants' privacy because disclosure would place them in
danger. The Department, however, does not argue that disclosure of Marchel' s name or number,
the name of the crime or rule violation, the pre -printed material inquiring into whether an
infraction was written and its results, or Paul' s signature would place any informants in danger.
                                                          16
No. 43700 -7 -II




though it succeeded on only one relatively minor violation. Citizens For Fair Share v. State,

Dep 't of Corr.,    117 Wn.    App.   411, 436 -37, 72 P. 3d 206 ( 2003).    The present statute is the same


as its predecessor as applicable to this issue. Therefore, Haines -Marchel must be deemed to have

prevailed under RCW 42. 56. 550( 4).


          The amount of attorney fees and any penalty to be awarded to a prevailing party under

RCW 42. 56. 550( 4) is within the discretion of the superior court. See Neighborhood Alliance,


172 Wn.2d at 728. An award of attorney fees " should relate only to that which is disclosed and

not   to any portion of the    requested   documents found to be     exempt ..."    Limstrom v. Ladenburg,

136 Wn.2d 595, 616, 963 P. 2d 869 ( 1998) (          citations omitted).    Thus, in determining the amount

of the attorney fees award, the superior court must take into account the relatively large share of

the redacted material that we hold was properly withheld. In determining the amount of the

penalty     award, "'   the existence or absence of [an] agency' s bad faith is the principal factor which

the trial   court must consider.'"      Yousoufian   v.   Office of Ron Sims ( Yousoufian V), 168 Wn.2d


444, 460, 229 P. 3d 735 ( 2010) ( quotingAmren             v. City ofKalama, 131 Wn.2d 25, 37 -38, 929

P. 2d 389 ( 1997)).      In setting the penalty award, the trial court must also consider the mitigating

and aggravating factors set out by the court in Yousoufian V, 168 Wn.2d at 467 -68.

                                                 CONCLUSION


            In the Report, the name and identifying number of the informants, the description of the

information given by the informants, the answers to the questions, and the date are specific

investigative records which are essential to effective law enforcement and are consequently

exempt from disclosure under RCW 42. 56. 240( 1).




                                                           17
No. 43700 -7 -II



         In the Guide, the " Report   subject," "   Date   of occurrence,"     and " Date" entries and all the


numeric scores, conclusions about reliability, and hand -printed notes are specific investigative

records that are essential to effective law enforcement and are consequently exempt from

disclosure   under   RCW 42. 56. 240( 1).   CP at 43.


         On the Report, the pre -printed text asking for the nature of the information given and the

questions about the informant is specific intelligence information which is essential to effective

law   enforcement and    is consequently    exempt      from disclosure    under   RCW 42. 56. 240( 1).   On the


Guide, all pre -printed text below the line marked " Premise" and above the line beginning " The

contents of   this document may be     eligible   for   public   disclosure ..."   is specific intelligence


information which is essential to effective law enforcement and is consequently exempt from

disclosure   under   RCW 42. 56. 240( 1).   CP at 43.


         However, Marchel' s name and number in the Report, the name of the crime or rule


violation in the Report, the pre -printed material in the Report inquiring into whether an infraction

was written and its results, and Paul' s signature on both the Report and the Guide do not fall

within any claimed exemption to disclosure. The redaction of this material violated RCW

42. 56. 070( 1).


         We accordingly affirm in part, reverse in part and remand for the superior court to enter

an order requiring the Department to disclose the following to Haines -Marchel: Marchel' s name

and number in the Report, the name of the crime or rule violation in the Report, the pre -
                                                                                         printed


material in the Report inquiring into whether an infraction was written and its results, and Paul' s




                                                          18
No. 43700 -7 -II



signature on both the Report and the Guide. On remand, the superior court shall also exercise its


discretion in awarding attorney fees and a penalty to Haines -Marchel under RCW 42. 56.550( 4).




 We concur:




                                                19
