                                                                       FILED
                                                                   OCTOBER 2, 2018
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




            COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON


JUAN ZABALA,                                )         No.    34961-6-111
                                            )
                     Appellant,             )         ORDER DENYING MOTION
                                            )         FOR RECONSIDERATION
       V.                                   )         AND WITHDRAWING THE
                                            )         OPINION FILED APRIL 3, 2018
OKANOGAN COUNTY,                            )
                                            )
                     Respondent.            )


      THE COURT has considered appellant's motion for reconsideration and the

answer thereto, and is of the opinion the motion should be denied. Therefore,
                                                                                                       I
       IT IS ORDERED, the motion for reconsideration of this court's decision of April

3, 2018, is hereby denied.

      IT IS FURTHER ORDERED, the court's opinion filed April 3, 2018 is hereby

withdrawn and a new opinion will be filed this day.

      PANEL: Judges Fearing, Korsmo, Pennell

      FOR THE COURT:




                                   ROBERT LAWRENcE:S                Y, ch'f Judg
                                                                        FILED
                                                                    OCTOBER 2, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

JUAN ZABALA,                                 )
                                             )         No. 34961-6-III
                     Appellant,              )
                                             )
       v.                                    )
                                             )
OKANOGAN COUNTY,                             )         PUBLISHED IN PART OPINION
                                             )
                     Respondent.             )



       FEARING, J. — Juan Zabala sues Okanogan County for violations of the Public

Records Act, chapter 42.56 RCW. He contends the county failed to produce phone

conversation recordings of jail inmates and records relating to the recordings. He further

argues that, even if this reviewing court holds the records to be exempt from disclosure,

Okanogan County violated the Public Records Act by failing to identify and list the

records withheld from production. We readily conclude that RCW 70.48.100 shields

disclosure of the requested records, but we must also determine the obligation held by

Okanogan County when answering Zabala’s demand for public records. We also hold

that Okanogan County did not violate the Public Records Act when responding to

Zabala’s requests for records.
No. 34961-6-III
Zabala v. Okanogan County


                                          FACTS

       Juan Zabala sent five requests for public records to Okanogan County. On March

24, 2016, Juan Zabala sent a request to the Okanogan County Sheriff’s Office that

sought:

               any and all records related to recorded and/or monitored jail phone
       calls that were used in the prosecution of any crime by any of the Okanogan
       County Prosecutor’s Offices.

Clerk’s Papers (CP) at 127. Zabala limited this request to phone calls originating from

Okanogan, Chelan, and Douglas Counties’ adult correctional facilities.

       On March 31, 2016, Juan Zabala sent a second request to the Okanogan County

Sheriff’s Office that did not contain any limitations, but instead demanded:

               any and all records related to recordings of inmate phone calls from
       any [a]dult [c]orrectional [f]acility. This request includes but is not limited
       to all voicemail, e[-]mail, audio, notes, reports, transcripts, arguments,
       motions, briefs, memos, letters and any other record related to the same.

CP at 128. Celeste Pugsley, the Okanogan County jail public records officer, timely

responded to both requests, asserting that Zabala did not request identifiable records that

could be reasonably located. Pugsley wrote, in part, to Zabala:

              However, your new request for any and all records related to
       recorded and/or monitored jail phone calls that were used in the prosecution
       of any crime by any of the Okanogan County Prosecutors Offices is so
       broad that the request is not for an identifiable record that agency staff can
       reasonably locate.

CP at 46. In Pugsley’s declaration in support of Okanogan County’s later motion to


                                              2
No. 34961-6-III
Zabala v. Okanogan County


dismiss, she further declared that the jail did not possess the records requested and that

Pugsley would need to obtain that information from the prosecutor’s office.

       On April 5, 2016, Juan Zabala submitted a third and fourth request, with the fourth

request sent four minutes after the third request. Both requests repeated the identical

wording used in Zabala’s first two requests, but this time Zabala directed the requests to

the Okanogan County Prosecuting Attorney’s Office. Okanogan County Deputy

Prosecuting Attorney Albert Lin replied to both requests in one e-mail on April 6. Lin

stated that Zabala’s requests did not identify records that could be reasonably located.

       Juan Zabala’s counsel submitted a fifth request to the Okanogan County

Prosecuting Attorney’s office on June 3, 2016. The request again sought recorded phone

calls placed by adult inmates in Okanogan, Chelan, or Douglas County. Counsel also

demanded transcripts or summaries made of any such recordings and asked for:

             any records prepared by any employee of the Okanogan Prosecuting
       Attorney’s Office that were later filed with any court or provided to any
       defense attorney that explicitly or implicitly mention such a phone call.

CP at 134. Counsel clarified, through an example, that an amended information adding a

count of tampering with a witness, intimidating a witness, or violation of a no-contact

order when the factual basis for the charge arose from such a phone call would be a

responsive record. The request narrowed the scope of records sought to those created

within the past three years and to only those records actually used in the context of

criminal prosecution.

                                              3
No. 34961-6-III
Zabala v. Okanogan County


       Shauna Field, the office administrator for the Okanogan County Prosecuting

Attorney’s Office, attempted to locate records requested by Juan Zabala’s counsel. In a

declaration in support of Okanogan County’s later motion to dismiss, Field described the

search she conducted. Using the date range of three years and the types of crimes

suggested in the fifth request, Field, through use of Justware, her office’s electronic case

management software, located three hundred and sixty-eight files. According to Field,

each case handled by the prosecutor’s office utilizes various types of investigative

materials. Field further explained that the prosecutor’s office does not have a way to

track the specific types of investigation materials, whether found in an electronic file or a

physical file, used in each case. Justware’s search capabilities are limited to case

numbers, names and personal identifiers, involved agencies, statute of a crime, and date.

The software system cannot identify, however, which of those case files referenced jail

phone calls. The user of the software may view the evidence content of a case, such as

police reports, audios, and videos, only after first accessing each case.

       The Okanogan County Prosecuting Attorney’s Office handles up to two thousand

criminal cases per year, with each individual case involving various types of investigative

records and recordings. The office does not have the ability to track the specific types of

these records, nor does the office store the records in any manner other than its physical

case files and electronic case management system, Justware.



                                              4
No. 34961-6-III
Zabala v. Okanogan County


       According to Shauna Field, Juan Zabala’s April 5, 2016 request would require the

Okanogan County Prosecuting Attorney’s Office to individually examine hundreds, if not

thousands, of physical criminal case files in order to determine if and when the office

utilized any inmate phone calls in prosecutions. Even if the office responded to the

narrower June 3, 2016 response, the office would need to review at least three hundred

and sixty-eight physical files, and no documents responding to the request might be

found. Such a task would require the hiring of additional staff and/or the payment of

overtime hours. In order to reasonably locate records from the prosecuting attorney’s

criminal case files, the office needs the names and case numbers of prosecutions.

According to Field, none of Juan Zabala’s public records requests identified records that

can be reasonably located by the prosecutor’s office.

       The Okanogan County Prosecuting Attorney’s Office responded to Juan Zabala’s

counsel’s request, the fifth request, on June 4, 2016, claiming: (1) the request did not

identify records that could be reasonably located, (2) the attorney work product

exemption applied to some of the records sought, and (3) RCW 42.56.070 and RCW

9.73.095(3)(b) exempt disclosure of recorded conversations from correctional facilities.

On June 29, 2016, Juan Zabala’s counsel sent a letter to the Okanogan County

Prosecuting Attorney’s Office citing disagreement with the deputy prosecutor’s response.

Counsel stated that he failed to understand how his original request lacked particularity

and offered to remove the narrowed scope of only “those records that were actually used

                                              5
No. 34961-6-III
Zabala v. Okanogan County


in the context of a criminal prosecution.” CP at 80. The deputy prosecuting attorney

responded on July 5, 2016, by again stating that defense counsel’s requests “still do not

identify records that can be reasonably located.” CP at 84. The deputy prosecuting

attorney clarified that in order to identify records that could be located, specific case

names or numbers would be needed.

                                       PROCEDURE

       Juan Zabala filed this lawsuit against Okanogan County. Okanogan County, with

supporting declarations, filed a motion to dismiss. The trial court granted the motion.

The trial court ruled that Zabala’s requests were not public records requests and the

requests did not identify records that can be reasonably located.

                                  LAW AND ANALYSIS

       On appeal, Juan Zabala asserts two principal arguments. First, Okanogan County

violated the Public Records Act by failing to produce the records relating to phone call

recordings of jail inmates and the recordings themselves. Second, even assuming the

records to be exempt, the county violated Public Records Act procedures by failing to list

and identify the records it withheld from production and tie an exemption to each record.

Okanogan County responds by arguing the Public Records Act does not control this

dispute because two statutes, RCW 9.73.095(3) and RCW 70.48.100, remove jail

recordings from the purview of the Public Records Act. Therefore, the county contends

that, because of RCW 70.48.100, Zabala’s requested records were exempt from

                                              6
No. 34961-6-III
Zabala v. Okanogan County


production, and it did not need to follow Public Records Act procedures concerning

identifying exempt documents. The county also faults Zabala’s request as not seeking

identifiable records and as being burdensome.

                            Jail Inmate Phone Call Recordings

       We first address whether Okanogan County properly withheld disclosure of the

jail inmate phone recordings and records related to the recordings. We later address what

response the county needed to provide Juan Zabala when denying his request for records.

       The Public Records Act provides that public records shall be available for

inspection and copying, and agencies shall, on request for identifiable public records,

make them promptly available to any person. RCW 42.56.080. Some records are exempt

from production, however. RCW 42.56.070(1) declares in part:

              Each agency, in accordance with published rules, shall make
       available for public inspection and copying all public records, unless the
       record falls within the specific exemptions of subsection (8) [renumbered
       from (6) per the Laws of 2017, ch. 304, § 1(1)] of this section, this chapter,
       or other statute which exempts or prohibits disclosure of specific
       information or records.

(Emphasis added.) Thus, the act lists three categories of exemptions: (1) exemptions

found in RCW 42.56.070, (2) exemptions found elsewhere within the Public Records

Act, and (3) exemptions created by “other statute.” An “other statute” need not expressly

address the Public Records Act, but it must expressly prohibit or exempt the release of

records. John Doe A v. Washington State Patrol, 185 Wn.2d 363, 372, 374 P.3d 63


                                             7
No. 34961-6-III
Zabala v. Okanogan County


(2016). This appeal deals only with the “other statute” exemption.

       The Public Records Act does not allow withholding of records in their entirety.

Progressive Animal Welfare Society v. University of Washington, 125 Wn.2d 243, 261,

884 P.2d 592 (1994). Instead, agencies must parse individual records and must withhold

only those portions that come under a specific exemption. Progressive Animal Welfare

Society v. University of Washington, 125 Wn.2d at 261. Portions of records that do not

come under a specific exemption must be disclosed. RCW 42.17.310(2); Progressive

Animal Welfare Society v. University of Washington, 125 Wn.2d at 261. An exception to

this redaction requirement exists. Progressive Animal Welfare Society v. University of

Washington, 125 Wn.2d at 261. If another statute (1) does not conflict with the act, and

(2) either exempts or prohibits disclosure of specific public records in their entirety, then

(3) the information may be withheld in its entirety notwithstanding the redaction

requirement. Progressive Animal Welfare Society v. University of Washington, 125

Wn.2d at 262.

       Okanogan County contends two “other” statutes shield inmate jail recordings and

documents related to the recordings from disclosure in their entirety: RCW 9.73.095(3)

and RCW 70.48.100(2). We address each statute separately.

       RCW 9.73.095(3) declares:

              The department of corrections shall adhere to the following
       procedures and restrictions when intercepting, recording, or divulging any
       telephone calls from an offender or resident of a state correctional facility

                                              8
No. 34961-6-III
Zabala v. Okanogan County


       as provided for by this section. The department shall also adhere to the
       following procedures and restrictions when intercepting, recording, or
       divulging any monitored nontelephonic conversations in offender living
       units, cells, rooms, dormitories, and common spaces where offenders may
       be present:
               (a) Unless otherwise provided for in this section, after intercepting or
       recording any conversation, only the superintendent and his or her designee
       shall have access to that recording.
               (b) The contents of any intercepted and recorded conversation shall
       be divulged only as is necessary to safeguard the orderly operation of the
       correctional facility, in response to a court order, or in the prosecution or
       investigation of any crime.
               (c) All conversations that are recorded under this section, unless
       being used in the ongoing investigation or prosecution of a crime, or as is
       necessary to assure the orderly operation of the correctional facility, shall
       be destroyed one year after the intercepting and recording.

(Emphasis added.) Note that RCW 9.73.095(3) extends protection to inmate recordings

only when recorded by the Department of Corrections. The statute does not cover

recordings inside a county jail. We may not add words when the legislature has chosen

not to include them. Lake v. Woodcreek Homeowners Association, 169 Wn.2d 516, 526,

243 P.3d 1283 (2010). Thus, we rule that RCW 9.73.095(3) does not exempt recordings

requested by Juan Zabala.

       The second statute, on which Okanogan County relies, RCW 70.48.100(2)

extends to county jails. Subsection two of the statute bespeaks, in part:

              Except as provided in subsection (3) of this section, the records of a
       person confined in jail shall be held in confidence and shall be made
       available only to criminal justice agencies as defined in RCW 43.43.705;
       or
              (a) For use in inspections made pursuant to RCW 70.48.070;
              (b) In jail certification proceedings;

                                              9
No. 34961-6-III
Zabala v. Okanogan County


               (c) For use in court proceedings upon the written order of the court
       in which the proceedings are conducted;
               (d) To the Washington association of sheriffs and police chiefs;
               (e) To the Washington institute for public policy, research and data
       analysis division of the department of social and health services, higher
       education institutions of Washington state, Washington state health care
       authority, state auditor’s office, caseload forecast council, office of
       financial management, or the successor entities of these organizations, for
       the purpose of research in the public interest. Data disclosed for research
       purposes must comply with relevant state and federal statutes;
               (f) To federal, state, or local agencies to determine eligibility for
       services such as medical, mental health, chemical dependency treatment, or
       veterans’ services, and to allow for the provision of treatment to inmates
       during their stay or after release. Records disclosed for eligibility
       determination or treatment services must be held in confidence by the
       receiving agency, and the receiving agency must comply with all relevant
       state and federal statutes regarding the privacy of the disclosed records; or
               (g) Upon the written permission of the person.

(Emphasis added.) We quote the entire statute in appendix 1. None of the exceptions in

the statute apply to thwart application of the exemption to Juan Zabala’s public records

request.

       The only decision applying RCW 70.48.100 is Cowles Publishing Co. v. Spokane

Police Department, 139 Wn.2d 472, 987 P.2d 620 (1999). A local newspaper sought the

booking photograph of an arrestee. The state high court affirmed the police department’s

claim of exemption under the statute. The exemption applied despite the arrestee no

longer being in jail and despite the jail sharing the photograph with the police

department.

       Juan Zabala sent Okanogan County officials five requests. Although some of the


                                             10
No. 34961-6-III
Zabala v. Okanogan County


later requests repeated, but narrowed, earlier requests, we do not read the later requests to

void the earlier broader requests. When synthesized, the five requests sought from the

Okanogan County Sheriff’s Office and prosecuting attorney any and all records, created

in the last three years, related to monitored or recorded phone calls of inmates in the

Chelan County jail, Douglas County jail, or Okanogan County jail, including voice mail,

e-mail, audio, notes, reports, transcripts, arguments, pleadings, motions, briefs, memos,

and letters.

       RCW 70.48.100(2) shields “records of a person confined in jail.” Read broadly,

the statute protects any government records of a jail inmate, including the inmate’s

housing permit applications processed by a city planning department. Nevertheless, we

limit the breadth of the statute to records prepared as a result of the inmate being in jail.

       We note that the statute does not limit the exemption to records only in the

possession of the jail. As confirmed by the state Supreme Court in Cowles Publishing

Co. v. Spokane Police Department, 139 Wn.2d 472 (1999), the exemption extends to the

jail records despite the jail forwarding the records to another government agency. Thus,

we hold that the exemption extends to all recordings and documents related to the

recordings, even when in possession of the Okanogan County Prosecuting Attorney’s

Office. Since the exemption does not disappear when an agency other than the jail

creates the records concerning the inmate, the exemption further extends to records

created by the Okanogan County prosecuting attorney concerning the jail inmate, which

                                              11
No. 34961-6-III
Zabala v. Okanogan County


would include all records surrounding the telephone recordings. Thus, we hold that

RCW 70.48.100 exempts all records sought by Juan Zabala from the two Okanogan

County offices.

       We speculate that the prosecuting attorney likely played some of the inmate

telephone recordings or filed with the court clerk records surrounding the recordings.

The public has a right to access court records. WASH. CONST. art. I, § 10; Dreiling v.

Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004). This public right, however, does not

change our analysis under the Public Records Act. Juan Zabala has not sought access to

court clerk records.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.

                             Reasonably Identifiable Records

       Our holding that Okanogan County properly denied production of Juan Zabala’s

requested records does not end review of Zabala’s appeal. Zabala contends that, even if

the county could withhold requested documents, the county violated the Public Records

Act by failing to create an exemption log. Zabala contends that the county breached

RCW 42.56.210(3) and RCW 42.56.520(4) by failing to identify each withheld document

or recording and attaching an explanation for the exemption to each withheld record.

       In response, Okanogan County urges, in part, that RCW 70.48.100 removes jail

                                            12
No. 34961-6-III
Zabala v. Okanogan County


records from the purview of the Public Records Act such that the county held no

obligation to follow the act’s rules regarding responding to a public records request. The

county also contends that, even if the Public Records Act provisions control its reply, it

properly responded that Juan Zabala did not seek reasonably identifiable records.

Because we can resolve this case on other grounds, we do not address Okanogan

County’s interesting contention that it need not fulfill the Public Records Act’s dictates

regarding asserting an exemption.

       RCW 42.56.080 reads, in part:

              (1) A public records request must be for identifiable records. A
       request for all or substantially all records prepared, owned, used, or retained
       by an agency is not a valid request for identifiable records under this
       chapter, provided that a request for all records regarding a particular topic
       or containing a particular keyword or name shall not be considered a
       request for all of an agency’s records.
              (2) . . . Agencies shall not deny a request for identifiable public
       records solely on the basis that the request is overbroad..

(Emphasis added.) In reviewing whether Juan Zabala asked for identifiable public

records, we isolate the many requests by Zabala and his counsel as subsumed into the

following two categories:

              1. recorded phone calls placed by adult inmates in Okanogan
       County, Chelan County, or Douglas County.
              2. any and all records created in the last three years related to
       recordings of inmate phone calls from any adult correctional facility.

       The first category of recorded phone calls seeks readily identifiable records. We

do not know if the Okanogan County Prosecuting Attorney’s Office possesses electronic

                                             13
No. 34961-6-III
Zabala v. Okanogan County


recordings of phone calls, physical recordings of calls, or both. Locating the records may

consume significant time, but the prosecuting attorney’s office should be able to peruse

each physical or electronic file and find each recording. Administrative inconvenience or

difficulty does not excuse strict compliance with the Public Records Act. Benton County

v. Zink, 191 Wn. App. 269, 280, 361 P.3d 801 (2015).

       The more difficult question concerns the second category of requests—all records

relating to the recordings. Often the requestor seeks a readily identifiable record because

the requestor employs a title for the document such as the 1988 study by BioEngineers on

the Impact of Glue Sniffing. Unfortunately, Juan Zabala seeks a broad category of

records and the Okanogan County Prosecuting Attorney’s Office records will not include

a heading that reads: this record relates to a jail inmate recording.

       Record requestors are not required to supply the exact name of the record, but

requests must be for identifiable records or a class of records. Fisher Broadcasting-

Seattle TV LLC v. City of Seattle, 180 Wn.2d 515, 522, 326 P.3d 688 (2014). We

conclude that, because of the use of words “any,” “all,” and “related to” and because the

requested records hold confidential attorney notes, Juan Zabala does not seek identifiable

records. In so concluding, we traverse the competing values of government transparency

and accommodating an agency in performing its many duties other than locating and

accessing records.

       Initially we address Okanogan County’s contention concerning the inability to

                                              14
No. 34961-6-III
Zabala v. Okanogan County


perform a computer search for the requested records. The Okanogan County Prosecuting

Attorney’s Office emphasizes its inability to identify, by a search query under its

computer software program, those files in which lies a jail inmate recording. We assume

this impossibility extends to pleadings, memoranda, or other records inside files that

reference recordings.

       RCW 42.56.080(1) permits requests for all records regarding a particular topic or

containing a particular keyword or name. The statute’s reference to a keyword implies

that the government agency will often employ an electronic search of its files.

       A few Washington decisions and many foreign and federal decisions address

whether a government entity performed a reasonable search when employing keyword

searches of electronic records. Nevertheless, only one Washington decision tangentially

relates to the question of whether records must be capable of being found when searched

by key words on a computer software program in order to be “reasonably identifiable.”

In Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 180 Wn.2d 515 (2014), the

television station requested copies of police officer patrol car video and audio recordings.

The department’s information technology expert concluded that the department could not

query its software system to generate a report that would provide a list of retained videos.

The department therefore responded to the requestor that: “Without this capability we are

unable to respond to your request.” Fisher Broadcasting-Seattle TV LLC v. City of

Seattle, 180 Wn.2d at 520. Without any analysis, the court concluded that the city had

                                            15
No. 34961-6-III
Zabala v. Okanogan County


the capability to produce the list, so, to the extent that its ability to produce the videos

was contingent on its ability to produce the list, its response violated the Public Records

Act. The court did not indicate whether the city police department needed to extensively

hand comb each file and drawer and cabinet and isolate each requested video or audio

recording.

       We conclude that the inability to perform a key word search in computer files does

not excuse a government entity’s response to a public records request. Nevertheless, we

also conclude that the inability to perform a key word search for electronic records can be

considered in determining whether the records sought are identifiable.

       Juan Zabala seeks “any and all” records related to jail inmate recordings. We

discern difficulty in a government agency responding to a request seeking “all” records

relating to a broad subject. RCW 42.56.080(1) expressly declares a request for “all” or

“substantially all” records as an invalid request. Juan Zabala, however, limits his request

to all records related to a particular subject.

       The state public disclosure act closely parallels the federal Freedom of

Information Act, 5 U.S.C. § 552, and thus judicial interpretations of the federal act assist

in construing our own. Servais v. Port of Bellingham, 127 Wn.2d 820, 835, 904 P.2d

1124 (1995). RCW 42.56.080’s requirement of “identifiable” records echoes the federal

requisite that the request “reasonably describes” the records sought. 5 U.S.C.

§ 552(a)(3)(A). Under federal law, the requestor satisfies the requirement if a

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No. 34961-6-III
Zabala v. Okanogan County


professional employee of the agency familiar with the subject matter can locate the

records with a reasonable amount of effort. Marks v. United States, Department of

Justice, 578 F.2d 261, 263 (9th Cir. 1978); Freedom Watch, Inc. v. Central Intelligence

Agency, 895 F. Supp. 2d 221, 228 (D.D.C. 2012). While no specific formula for a

reasonable description of a record can be established, the requirement will generally be

satisfied if the requestor gives the name, subject matter, location, and years at issue, of

the requested records. 26 C.F.R. § 601.702(c)(4)(i)(A) (IRS regulation). The linchpin

inquiry is whether “the agency is able to determine precisely what records are being

requested.” Tax Analysts v. Internal Revenue Service, 326 U.S. App. D.C., 117 F.3d 607,

610 (1997) (quoting Yeager v. Drug Enforcement Agency, 220 U.S. App. D.C. 1, 678

F.2d 315, 326 (1982).

       Broad, sweeping requests lacking specificity are not sufficient. American

Federation of Government Employees Local 2782 v. United States Department of

Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986), aff’d, 907 F.2d 203 (1990). An

agency need not respond to a request that is so broad as to impose an unreasonable

burden on the agency, such as one that requires the agency to locate, review, redact, and

arrange for inspection a vast quantity of material. Service Women’s Action Network v.

Department of Defense, 888 F. Supp. 2d 282, 290-91 (D. Conn. 2012). The rationale for

this rule is that the Freedom of Information Act was not intended to reduce government

agencies to full-time investigators on behalf of requestors. Dale v. Internal Revenue

                                              17
No. 34961-6-III
Zabala v. Okanogan County


Service, 238 F. Supp. 2d 99, 104 (D.D.C. 2002).

       In National Security Counselors v. Central Intelligence Agency, 960 F. Supp. 2d

101 (D.D.C. 2013), an organization sought a copy of “all CIA records pertaining to the

IBM supercomputer Watson.” National Security Counselors v. Central Intelligence

Agency, 960 F. Supp. 2d at 161. The court upheld the agency’s refusal to produce the

records as not reasonably describing the records sought. The search would require an all-

encompassing search of all agency records.

       In addition to Juan Zabala’s second request seeking all records on a particular

subject, the request seeks records “related” to jail inmate recordings. The word “related”

holds inherent ambiguity. We assume that the request extends to records with any

relationship to the recordings regardless of how direct or indirect the relationship might

be. Nevertheless, one searching for the records likely would be unable to discern when a

particular document indirectly relates to a recording and may even encounter some

difficulty in determining if a record directly relates to a recording.

       We return to some federal law cases and principles. A request for all documents

“relating to” a subject is usually subject to criticism as overbroad since life, like law, is a

seamless web and all documents relate to all others in some remote fashion.

Massachusetts Department of Public Welfare v. United States Department of Health &

Human Services, 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). An agency should not be

required to sift and analyze records to determine what records are covered under the

                                              18
No. 34961-6-III
Zabala v. Okanogan County


request. National Security Counselors v. Central Intelligence Agency, 960 F. Supp. 2d at

158 (D.D.C. 2013). The agency should not be left to perform a subjective analysis as to

the records requested. National Security Counselors v. Central Intelligence Agency, 960

F. Supp. 2d at 158. The Freedom of Information Act was not intended to commandeer

agency employees into research assistants. National Security Counselors v. Central

Intelligence Agency, 960 F. Supp. 2d at 160 n.28.

       Juan Zabala has not provided a precise request. Instead he has submitted a broad

and sweeping request for records that would entail the employment of guesswork to

fulfill and would compel prosecuting attorney’s office staff to serve as his research

assistants.

       Juan Zabala seeks records in the Okanogan County Prosecuting Attorney’s Office.

Some of those records will likely contain legal impressions and strategies of an attorney

prosecuting a crime. The prosecuting attorney’s office has legitimately objected to

disclosing records in part based on the attorney work product exemption. Under

RCW 42.56.290, an agency need not disclose “[r]ecords that are relevant to a controversy

to which an agency is a party but which records would not be available to another party

under the rules of pretrial discovery for causes pending in the superior courts.” This

exemption includes communications containing attorney work product. Block v. City of

Gold Bar, 189 Wn. App. 262, 279-80, 355 P.3d 266 (2015).

       In State ex rel. Strothers v. Keenon, 2016-Ohio-405, 59 N.E.3d 556 (Ct. App.), an

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No. 34961-6-III
Zabala v. Okanogan County


Ohio resident sought from a board of education all staff personnel records. The court

noted that, before producing the records, the board would need to excise confidential

information regarding each employee from the employee file. This process would place

“quite a burden” on the board. State ex rel. Strothers v. Keenon, 59 N.E.3d at 562. The

court thereby declared the request overly broad and as failing to identify the requested

records with reasonable clarity. A response by the board would unreasonably interfere

with the board’s other duties.

       In Irons v. Schuyler, 151 U.S. App. D.C. 23, 465 F.2d 608 (1972), a citizen sought

from the Commissioner of Patents of the United States, under the Freedom of

Information Act, “all unpublished manuscript decisions of the Patent Office, together

with such indices as are available.” The commissioner responded that the blanket request

for all unpublished manuscript decisions did not comply with the requisite of a request

for “identifiable records.” The associate solicitor of the Patent Office filed an affidavit

that declared that the Patent Office maintained more than 3,500,000 files of patents,

approximately 100,000 files of patent interferences, approximately 180,000 pending

patent applications, and over a million abandoned patent applications, any of which may

contain one or more manuscript decisions. The trial court agreed with the Patent Office

that the citizen failed to present a reasonable request for specific material. The trial court

suggested that the citizen narrow his request to identifiable opinions in part because the

request was not specific enough to decide if any particular decision or decisions could be

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No. 34961-6-III
Zabala v. Okanogan County


made available since some of the requested information might need to be kept

confidential.

                             Identification of Exempt Records

       Juan Zabala requests that we remand to the trial court with instructions that

Okanogan County be ordered to disclose all exempt responsive records. We assume that

Zabala does not ask that the entire recordings or the pages relating to the records be

produced with the appropriate redactions. Redacting confidential information from the

recordings would leave nothing. In reading other sentences in Zabala’s request, we

discern that Zabala asks that the county provide a specific means to identify each record

withheld in its entirety. The disclosure would include the type of record, its date and

number of pages, and, unless otherwise protected, the author and recipient, or if

protected, other means of sufficiently identifying particular records without disclosing

protected content. In turn, the county would, in writing, articulate a specific applicable

exemption and provide a brief explanation of how the exemption applies to the record

withheld.

       As already ruled, one of Juan Zabala’s categories of requested records seeks

records not reasonably identifiable. Because those records cannot be identified,

Okanogan County holds no obligation to identify the records and provide the additional

information sought by Zabala. As to jail inmate phone recordings, Okanogan County has

properly notified Zabala of the exemption available for the recordings. Still, Okanogan

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No. 34961-6-III
Zabala v. Okanogan County


County has not identified what recordings exist.

       We question what purpose is served for the Okanogan County Prosecuting

Attorney’s Office to peruse hundreds, if not thousands, of its files, identify files that

contain jail inmate recordings, and then prepare and send an exemption log to Juan

Zabala when such a task would require the hiring of additional staff or the payment of

overtime hours. We wonder why the prosecuting attorney’s office should engage in this

task when Juan Zabala is not entitled to any portion of the recordings requested.

       The controlling statute, RCW 42.56.520, declares:

               Prompt responses required.
               (1) Responses to requests for public records shall be made promptly
       by agencies. . . . Within five business days of receiving a public record
       request, an agency . . . must respond in one of the ways provided in this
       subsection (1):
               (a) Providing the record;
               ....
               (e) Denying the public record request.
               (2) Additional time required to respond to a request may be based
       upon the need to clarify the intent of the request, to locate and assemble the
       information requested, to notify third persons or agencies affected by the
       request, or to determine whether any of the information requested is exempt
       and that a denial should be made as to all or part of the request.
               ....
               (4) Denials of requests must be accompanied by a written statement
       of the specific reasons therefor.

RCW 42.56.070 also states, in part: “in each case, the justification for the deletion shall

be fully explained in writing.”

       Some principles favor requiring Okanogan County to identify each jail inmate


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No. 34961-6-III
Zabala v. Okanogan County


recording as to the name of the inmate, the location of the jail, and the date of the

recording. The Supreme Court has emphasized the need for particularity in the

identification of records withheld and exemptions claimed. City of Lakewood v. Koenig,

182 Wn.2d 87, 94, 343 P.3d 335 (2014). Therefore, in order to ensure compliance with

the statute and to create an adequate record for a reviewing court, an agency’s response to

a requestor must include specific means of identifying any individual records which are

being withheld in their entirety. City of Lakewood v. Koenig, 182 Wn.2d at 94. This

requirement ensures compliance with the statute and provides an adequate record on

review. City of Lakewood v. Koenig, 182 Wn.2d at 94. Also, administrative

inconvenience does not relieve an agency of its duty to comply with the Public Records

Act. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 130, 580 P.2d 246 (1978).

       Our state Supreme Court has denounced the “silent withholding” of information in

response to a Public Records Act request. Progressive Animal Welfare Society v.

University of Washington, 125 Wn.2d at 270 (1994). Silent withholding would allow an

agency to retain a record or portion without providing the required link to a specific

exemption and without providing the required explanation of how the exemption applies

to the specific record withheld. Progressive Animal Welfare Society v. University of

Washington, 125 Wn.2d at 270. Without a specific identification of each individual

record withheld in its entirety, the reviewing court’s ability to conduct the statutorily

required de novo review is vitiated. Progressive Animal Welfare Society v. University of

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No. 34961-6-III
Zabala v. Okanogan County


Washington, 125 Wn.2d at 270. In Rental Housing Association of Puget Sound v. City of

Des Moines, 165 Wn.2d 525, 539-40, 199 P.3d 393 (2009), the Supreme Court held that

the city’s reply letter did not adequately describe individually the withheld records by

stating the type of record withheld, date, number of pages, and author and recipient or

explain which individual exemption applied to which individual record rather than

generally asserting the controversy and deliberative process exemptions as to all withheld

documents.

       Still other principles suggest Okanogan County should be excused from

identifying each inmate recording withheld from production. Courts have never required

repetitive, detailed explanations for each piece of withheld information. Judicial Watch,

Inc. v. Food & Drug Administration, 371 U.S. App. D.C. 187, 449 F.3d 141, 147 (2006).

The agency may not be required to justify its refusal on a document-by-document basis.

Murray v. New Hampshire Division of State Police, Special Investigation Unit, 154 N.H.

579, 913 A.2d 737, 741 (2006). The agency need only provide the court with sufficient

information for it to understand the basic reasoning behind the claimed exemption.

Morley v. Central Intelligence Agency, 378 U.S. App. D.C. 411, 508 F.3d 1108, 1123

(2007). The level of detail necessary for a requestor to determine whether an exemption

is properly invoked will depend on both the nature of the exemption and the nature of the

document or information. City of Lakewood v. Koenig, 182 Wn.2d at 95 (2014). The

Washington Legislature does not wish excessive interference with other essential

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No. 34961-6-III
Zabala v. Okanogan County


functions of the agency with a public records request. RCW 42.56.100.

       To provide an exemption log for Juan Zabala, Okanogan County would, in

essence, be providing a list of information as to which jail inmates jails recorded phone

calls. Juan Zabala’s Public Records Act simply becomes a request for information not

for records. An agency need not mine data from distinct systems and create a new

document. Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 180 Wn.2d at 523

(2014).

       Since none of the recordings must be disclosed, Okanogan County would in part

be performing a futile task. In general, the government need not undertake a futile act.

State v. Hernandez, 192 Wn. App. 673, 687-88, 368 P.3d 500, review denied, 186 Wn.2d

1006, 380 P.3d 452 (2016); Robinson v. Employment Security Department, 84 Wn. App.

774, 779, 930 P.2d 926 (1996). Okanogan County has provided the court a sufficient

response to enable the court to determine whether an exemption applies.

       Under the unique circumstances of this appeal, we rule that Okanogan County

complied with the Public Records Act when declining to provide an exhaustive list of

cases in which it holds a jail inmate phone call recording.

                                       Attorney Fees

       Both parties request attorney fees be awarded on appeal. Pursuant to RCW

42.56.550(4), any person who prevails against an agency in seeking the right to inspect or



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No. 34961-6-III
Zabala v. Okanogan County


copy a public record is entitled to reasonable attorney fees. Since Juan Zabala does not

prevail against Okanogan County, we deny his request for attorney fees.

       Okanogan County asserts three bases for requesting reasonable attorney fees and

costs: RAP 14.2, RAP 18.1, and RAP 18.9. RAP 18.1 allows an award of reasonable

attorney fees and costs if another rule or statute authorizes the award. RCW 42.56.550(4)

authorizes an award only to a person prevailing against the government agency.

Okanogan County cites no other statutory basis for a grant of fees.

       The county argues that RAP 18.9 gives authority for an award of attorney fees

since Juan Zabala filed a frivolous appeal. An appeal is frivolous if there are no

debatable issues on which reasonable minds might differ and it is so totally devoid of

merit that there was no reasonable possibility of reversal. Fay v. Northwest Airlines Inc.,

115 Wn.2d 194, 200-01, 796 P.2d 412 (1990). We do not consider Juan Zabala’s appeal

frivolous. Only one case addresses the applicability of RCW 70.48.100 and that decision

involves records of a different nature. No court has addressed whether records sent by a

jail to a prosecuting attorney and used in court proceedings retains a shield from Public

Records Act’s disclosure. More importantly, this appeal addresses unique questions

regarding the extent to which an agency must supply information when claiming an

exemption.

       Okanogan County asks for an award of fees pursuant to RAP 14.2 for being the

substantially prevailing party on review. “Attorney fees under RAP 14.2 are statutory

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No. 34961-6-III
Zabala v. Okanogan County


attorney fees and costs are limited to costs on review." Hudson v. Hapner, 170 Wn.2d

22, 35, 239 P.3d 579 (2010). We award Okanogan County the statutory attorney fees

allowed by RAP 14.2.

                                    CONCLUSION

      We affirm the trial court's dismissal of Juan Zabala's Public Records Act suit.




                                            Fearing, J.

WE CONCUR:




K&t/                                        Pennell, A.CJ.




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No. 34961-6-III
Zabala v. Okanogan County


                                         Appendix 1

                                      RCW 70.48.100

        (1) A department of corrections or chief law enforcement officer responsible for
the operation of a jail shall maintain a jail register, open to the public, into which shall be
entered in a timely basis:
        (a) The name of each person confined in the jail with the hour, date and cause of
the confinement; and
        (b) The hour, date and manner of each person's discharge.
        (2) Except as provided in subsection (3) of this section, the records of a person
confined in jail shall be held in confidence and shall be made available only to criminal
justice agencies as defined in RCW 43.43.705; or
        (a) For use in inspections made pursuant to RCW 70.48.070;
        (b) In jail certification proceedings;
        (c) For use in court proceedings upon the written order of the court in which the
proceedings are conducted;
        (d) To the Washington association of sheriffs and police chiefs;
        (e) To the Washington institute for public policy, research and data analysis
division of the department of social and health services, higher education institutions of
Washington state, Washington state health care authority, state auditor's office, caseload
forecast council, office of financial management, or the successor entities of these
organizations, for the purpose of research in the public interest. Data disclosed for
research purposes must comply with relevant state and federal statutes;
        (f) To federal, state, or local agencies to determine eligibility for services such as
medical, mental health, chemical dependency treatment, or veterans' services, and to
allow for the provision of treatment to inmates during their stay or after release. Records
disclosed for eligibility determination or treatment services must be held in confidence by
the receiving agency, and the receiving agency must comply with all relevant state and
federal statutes regarding the privacy of the disclosed records; or
        (g) Upon the written permission of the person.
        (3)(a) Law enforcement may use booking photographs of a person arrested or
confined in a local or state penal institution to assist them in conducting investigations of
crimes.
        (b) Photographs and information concerning a person convicted of a sex offense as
defined in RCW 9.94A.030 may be disseminated as provided in RCW 4.24.550,
9A.44.130, 9A.44.140, 10.01.200, 43.43.540, 43.43.745, 46.20.187, 70.48.740,
72.09.330, and section 401, chapter 3, Laws of 1990.
        (4) Any jail that provides inmate records in accordance with subsection (2) of this

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No. 34961-6-III
Zabala v. Okanogan County


section is not responsible for any unlawful secondary dissemination of the provided
inmate records.




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