                                                                       FILED 

                                                                  SEPTEMBER 1,2015 

                                                               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 


JAMES V. ADAMS,                                  )
                                                 )    No. 32012-0-111
                      Respondent and             )
                      Cross Appellant,           )
                                                 )
       v.                                        )
                                                 )
WASHINGTON STATE DEPARTMENT                      )
OF CORRECTIONS,                                  )    PUBLISHED OPINION
                                                 )
                      Appellant.                 )

       SIDOOWA Y, C.J. -   Both parties to this Public Records Act (PRA)l dispute appeal

decisions of the Franklin County Superior Court, which concluded that the Washington

State Department of Corrections (DOC) improperly withheld records that inmate James

Adams requested from his offender file, acted in bad faith in doing so, and should pay a

penalty of$24,535. The DOC challenges the conclusion that it acted in bad faith. Mr.

Adams argues that the penalty awarded was insufficient and was arrived at without full

consideration of all of the relevant evidence.

       The trial court found that the DOC's position that the documents were subject to

an exemption from disclosure was legally indefensible and that the DOC simply deferred


       1 Chapter   42.56 RCW.
No. 32012-0-III
Adams v. Wash. State Dep't ofCorrections


to what it was being told by individuals with the Washington State Patrol, without

engaging in any critical analysis of its own. It found that the intentional bad faith

character of the DOC's decision to withhold the documents was further demonstrated by

the DOC's persistence, after a Spokane County Superior Court squarely rejected any

claim of exemption, in continuing to rely on views of the state patrol that it preferred over

the views of the court. We hold that "bad faith" for purposes of imposing penalties under

RCW 42.56.565(1) includes an agency's failure to engage in any serious independent

analysis of the exempt status of documents it withholds. For that reason, and because Mr.

Adams fails to demonstrate any error in his cross appeal, we affirm all of the decisions of

the trial court.

                     FACTS AND PROCEDURAL BACKGROUND

       James Adams is incarcerated at the Coyote Ridge Corrections Center, a facility

operated by the DOC. In July 2011, Mr. Adams submitted a request to the corrections

center's records unit to review his inmate central file. Among other documents included

in an offender's central file is his criminal conviction record packet. That packet consists

of criminal history obtained from the Washington State Patrol and the Federal Bureau of

Investigation (FBI) at the time the inmate's fingerprint cards are forwarded following his

admission to DOC custody. It also includes updated information obtained as part of the

DOC's annual review thereafter. Updated information for the packet is obtained by

submitting the inmate's name and date of birth into ACCESS, an acronym for "A Central

                                              2

No. 32012-0-III
Adams v. Wash. State Dep 't a/Corrections


Computerized Enforcement Service System," which is the Washington State Patrol's

telecommunications system providing linkage to law enforcement and other criminal

justice agencies. See WASHINGTON STATE PATROL,

http://www.wsp.wa.gov/crime/isbhome.htm (last visited Aug. 12,2015).

       In response to Mr. Adams's record request, a corrections center records manager

reviewed his file and removed documents she believed were exempt from disclosure

under the PRA, including Mr. Adams' 23-page criminal conviction record packet. The

first two pages of Mr. Adams's packet were a Defendant's Case History Report. The

remaining 21 pages were printouts from ACCESS. The ACCESS printouts included

information on Mr. Adams from Washington State, from the FBI, and from the Interstate

Identification Index System, a "cooperative federal-state system for the exchange of

criminal history records." 28 C.F.R. §20.3(m).

       The records manager completed a "Denial of Disclosure of Public Records" form

dated July 14, 2011, that stated in pertinent part:

       1.       TO: ADAMS, JAMES

       2.   YOUR REQUEST FOR DISCLOSURE OF THE RECORDS
       IDENTIFIED BELOW HAS BEEN DENIED TO THE EXTENT AND
       FOR THE REASON(S) SET FORTH BELOW.

       SPECIFIC INTELLIGENCE AND OR INVESTIGATION RECORDS FBI
       & SIIY RAP SHEETS; CCR PACKET


       2   "SID" is the acronym for "state identification number."

                                              3

No. 32012-0-III
Adams v. Wash. State Dep't o/Corrections



Clerk's Papers (CP) at 343. There was no identification of how many pages of

documents were being withheld or any more specific description of their contents.

       When Mr. Adams reviewed the portion of his central file produced on that same

day, he was presented with the "denial of disclosure" form, which he signed. Later that

day, the records department sent Mr. Adams the following explanation for its

withholding:

       EXEMPTION(S) II [sic]-FBI RAP AND WASHINGTON STATE RAP
       SHEET-These records, consisting of the Federal Bureau of Investigation
       Rap Sheet and/or the Washington Rap Sheet, are protected from disclosure
       and have been withheld in their entirety per the following citations: ...
       [citing 28 CFR § 513.1 1(a)(1), 28 CFR § 513.20(b), and RCW
       4.56.070(1 )].

ld. at 289.

       Mr. Adams appealed the withholding of his state and federal criminal information

to the DOC's Public Disclosure Appeals Office, arguing that he was exempt "from all of

the above-mentioned citations that would necessarily deny my review of my own FBI

and SID RAP Sheets." ld. at 404. The appeals office denied his appeal. It again cited 28

CFR § 513.11(a)(I), 28 CFR § 513.20(b) and RCW 4.56.070(1), quoting in part from

each, and also stated that "[nJon-conviction criminal history information is for law

enforcement use only, and restricted from dissemination under provisions of RCW

10.97.050 and 28 USC § 534 and 28 CFR Part 20." CP at 406. The denial letter

advised Mr. Adams to contact the WSP and the FBI directly, explaining that "these

                                             4

No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections


entities can create and provide official copies of FBI Rap Sheets and Washington State

Rap Sheets, respectively." Id.

                            Commencement o/the PRA action

       Mr. Adams commenced this action in Franklin County shortly thereafter, on

October 31, alleging that the DOC violated the PRA in responding to his request.

       Three days before Mr. Adams filed his complaint, the Spokane County Superior

Court had entered a memorandum decision in an action entitled David Chester v.

Department o/Corrections, in which Mr. Chester "aUeg[ed] violations of [the PRA] as

several groups of public records (criminal rap sheets) belonging to [Mr. Chester] were

withheld from production and inspection or review during [his] central file reviews on

June 17,2010, and June 7, 2011." CP at 57 (Memorandum Opinion and Order, Cause

No. 11-2-00329-3 (Oct. 28, 2011)). At Mr. Chester's request, the court had reviewed in

camera a number of documents withheld from Mr. Chester by the DOC, including six

pages of Mr. Chester's own Washington State Patrol rap sheet dated April 2002, six

pages of his state patrol rap sheet dated May 2006, eight pages of his state patrol rap

sheet dated February 2002, and two pages of his FBI rap sheet dated April 2002.

       The Spokane court's decision stated that "[a]fter an additional review of

potentially applicable exemptions, ... it does not seem that Plaintiffs [requested records,

WSP and] FBI rap sheets, are exempt under any provision." Id. at 59. The court ordered




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No. 320 12-0-III
Adams v. Wash. State Dep't a/Corrections


the DOC to provide Mr. Chester with copies of his state and FBI rap sheets, among other

documents. The DOC moved for reconsideration, which the court denied in November.

       Almost 10 months later, on September 4,2012, DOC filed a motion for a show

cause hearing to resolve Mr. Adams's PRA complaint. It conceded that it violated the

PRA by withholding the two-page Defendant's Case History report during Mr. Adams's

offender central file review the year before. But it argued that the remaining 21 pages of

documents had been withheld based on its signed user agreement with the state patrol and

its understanding that the state patrol (at least at one time) viewed dissemination of

ACCESS printouts to inmates as sanctionable misuse of the system.

       The DOC filed declarations of the correctional records manager for the DOC and

the Coyote Ridge records supervisor that undercut its position in part, since they admitted

that the state patrol had "modified its position" with respect to state patrol rap sheets on

January 10,2012, and now took the position that the ACCESS use agreement was not

violated by allowing an offender to inspect his or her own Washington State rap sheet

information. According to the declarations, federal and out of state rap sheet information

remained nondisclosable.

       The Coyote Ridge records supervisor further stated in her declaration that in light

of the state patrol's changed position, she had scheduled a time on August 23, 2012, for

Mr. Adams to review pages one through 11 of his packet, consisting of the Defendant's

Case History document and the Washington State portion of the ACCESS printout. She

                                              6

No. 32012-0-III
Adams v. Wash. State Dep 't ofCorrections


stated that although Mr. Adams appeared at the scheduled time, he refused to review the

records.

       In its motion to dismiss, the DOC persisted in arguing that it did not violate the

PRA in withholding ACCESS printouts because state and federal law prohibited it from

providing Mr. Adams's FBI and WSP rap sheets to him. It persisted in claiming that its

position was supported by requirements of the state patrol's ACCESS Standard

Procedures and its 2009 and 2011 user agreements, unsigned copies of which it provided

to the court.

                                   Show Cause Hearing

       The trial court found the DOC's justification for its withholding indefensibly

deficient. At the hearing of the show cause motion, it pointed out that DOC's legal

support for its position was limited to a state patrol records section manager's conclusory

declaration as to applicable law, regulation,.policy, and federal-state agreement. The

court stated it had been unable to locate a single document or legal citation provided by

DOC that prohibited the DOC from disseminating an offender's state patrol or FBI rap

sheet to that offender. The court asked the DOC's lawyer three times during the hearing

to draw the court's attention to any record evidence of an edict or agreement that

prohibited the offender from being provided with the ACCESS printouts. None was

identified.




                                             7

No. 32012-0-III
Adams v. Wash. State Dep't ojCorrections


       After hearing the parties' argument, the trial court serially addressed the state

patrol's ostensible authority on which the DOC relied in refusing to provide Mr. Adams

with the ACCESS printouts from his central file. It explained why each authority fell

short of supporting the DOC's withholding of the records. Finding no basis for

exemption, the trial court concluded that the DOC had violated the PRA.

       The court found the record inadequate to determine whether the DOC withheld the

records in bad faith, warranting a penalty. It ordered the DOC to submit additional

briefing together with copies "of any and all agreements it may have" with the state

patrol, FBI, or other state or federal agencies regarding the information obtained through

ACCESS, "as well as any specific policies, manuals, or correspondence between the

agencies that substantiates the statements made in [the state patrol section manager's]

declaration [in support of the show cause motion]." CP at 292.

                                      Penalty hearing

       The DOC proved unable to produce any consequential additional support

substantiating its position. It produced none that predated its withholding of Mr.

Adams's records in July 2011.

      It did produce electronic mail communication that began in December 2011, in

which representatives of the DOC sought clarification or support for its position from the

state patrol and FBI. A February 1 letter from the DOC's correctional records manager to

the Division Commander of the state patrol's Criminal Records Division stated that the

                                              8

No. 32012-0-III
Adams v. Wash. State Dep't o/Corrections


DOC had withheld rap sheets based on unidentified "previous advice" and was "seek[ing]

clarification." CP at 270. Rather than discuss the PRA or any other applicable law, the

DOC employee simply asked the state patrol's division commander what he thought the

parties' user agreement required.

       The Division Commander's response pointed out that the DOC had two

agreements with the state patrol. As to the first, the user agreement for ACCESS, the

Division Commander expressed no opinion on its dissemination provisions. As to the

second, a user agreement for fingerprint-based Washington rap sheets, the Division

Commander stated that for DOC to provide a copy of such a rap sheet to the rap sheet's

subject "would not breach the [automated fingerprint modification system] user

agreement with the WSP." Id. at 275.

       With this scant support for the DOC's actions in hand, the trial court looked to the

mitigating and aggravating factors identified in Yousoufian v. Office 0/ Ron Sims, 168

Wn.2d 444,229 P.3d 735 (2010) (Yousoufian 2010) to aid assessment of the culpability

of an agency that has violated the PRA. Applying those factors, the court found no

statutory basis for the DOC's withholding ACCESS printouts from the subject of the

report, that the DOC's position was "legally indefensible," and that the agency's choice

to solicit the opinions of the state patrol and FBI rather than engage in its own critical

examination of applicable law (including failing to heed the decision in Chester)

demonstrated bad faith. It concluded that a substantial penalty was necessary to deter

                                              9

No. 32012-0-III
Adams v. Wash. State Dep 't o/Corrections


future misconduct. It ultimately imposed a penalty of $35 per day from the date of Mr.

Adams's request to the date of the penalty hearing, for a total of$24,535.

       Both Mr. Adams and the DOC moved for reconsideration. The requests for

reconsideration were denied. Both parties appeal.

                                        ANALYSIS

       The DOC filed the first notice of appeal and assigns error to the trial court's

finding that it acted in bad faith. Mr. Adams assigns error to the trial court's allocation of

the burden of proving bad faith to the record requester and to the trial court's alleged

failure to consider evidence relevant to the penalty. We first address the DOC's appeal

and then turn to Mr. Adams's.

                                      DOC APPEAL

       The DOC identifies three issues by segregating its actions on which the trial court

relied into three categories: (1) its actions in withholding the portion of the ACCESS

printouts that reflected information from the Interstate Identification Index (III) System,

(2) its actions in withholding the portion that reflected Washington State information, and

(3) its failure to heed the superior court decision in Chester. Br. of Appellant at 1-2.

After addressing the meaning of "bad faith" in this context and the standard of review, we

will address the issues as presented by the DOC.

       The PRA "is a strongly-worded mandate for broad disclosure of public records."

Rental Hous. Ass'n o/Puget Soundv. City o/Des Moines, 165 Wn.2d 525, 535,199 P.3d

                                             10 

No. 32012-0-II1
Adams v. Wash. State Dep't ofCorrections


393 (2009) (citing Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127,580 P.2d 246 (1978)). It

requires that state and local agencies "produce all public records upon request unless a

specific PRA exemption or other statutory exemption applies." Robbins, Geller, Rudman

& Dowd LLP v. State, 179 Wn. App. 711, 719-20,328 P.3d 905 (2014); RCW

42.56.070(1). "[T]he agency claiming the exemption bears the burden of proving that the

documents requested fall within the scope of the exemption." Cowles Publ'g Co. v.

Spokane Police Dep't, 139 Wn.2d 472,476, 987 P.2d 620 (1999).

       "When an agency withholds or redacts records, its response' shall include a

statement of the specific exemption authorizing the withholding of the record (or part)

and a brief explanation of how the exemption applies to the record withheld.'" City of

Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014) (quoting RCW

42.56.210(3)). "The purpose of the requirement is to inform the requester why the

documents are being withheld and provide for meaningful judicial review of agency

action." Id. (citing Progressive Animal Welfare Soc. v. Univ. of Washington, 125 Wn.2d

243,270,884 P.2d 592 (1994) (PAWS II); Sanders v. State, 169 Wn.2d 827,846,240

P.3d 120 (2010)). It is improper under the PRA to provide exemption information in

such vague terms that "the burden [is] shifted to the requester to sift through the statutes

cited ... and parse out possible exemption claims." Lakewood, 182 Wn.2d at 95.




                                             11 

No. 32012-0-III
Adams v. Wash. State Dep't ofCorrections


                        Limitations on Inmate Recovery ofPenalties

       As an inmate at the time he made his public record request, Mr. Adams is subject

to a limitation on penalties adopted by the legislature in 20 11. LAWS OF 2011, ch. 300,

§ 1. Under RCW 42.56.565(1),

       A court shall not award penalties under RCW 42.56.550(4) to a person who
       was serving a criminal sentence in a state, local, or privately operated
       correctional facility on the date the request for public records was made,
       unless the court finds that the agency acted in bad faith in denying the
       person the opportunity to inspect or copy a public record.

By adding the bad faith requirement, "the legislature increased the level of culpability

needed for an award to an inmate" from the expansive range of culpability that can give

rise to a penalty where the requester is not incarcerated. Faulkner v. Dep't ofCorrs., 183

Wn. App. 93, 105,332 P.3d 1136 (2014) review denied, 182 Wn.2d 1004 (2015).

Legislative committee reports suggest that the underlying bill was introduced as a

measure to "curb abuses by inmates." Id. "By incorporating the bad faith requirement,

the legislature allows penalties for inmates only when the conduct of the agency defeats

the purpose of the PRA and deserves harsh punishment." Id. at 106.

       The DOC does not challenge the trial court's ruling that a PRA violation occurred

nor does it challenge the amount of the penalty arrived at by the court-it challenges only

the trial court's threshold finding that it acted in bad faith.

       Two decisions by this court following the 2011 amendment ofRCW 42.56.565(1)

have considered what constitutes bad faith within the meaning ofthat provision. In

                                               12 

No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections


Francis v. State Department ofCorrections, 178 Wn. App. 42,54,313 P.3d 457 (2013),

review denied, 180 Wn.2d 1016 (2014), Division Two of our court rejected the DOC's

assertion that "an agency acts in bad faith only when it knows that it has responsive

records but intentionally fails to disclose them." Instead, it held that "among other

potential circumstances, bad faith is present under RCW 42.56.565(1) if the agency fails

to conduct a search that is both reasonable and consistent with its policies." Id. at 63 n.5.

       In Faulkner, this court held that bad faith in the PRA context "incorporates a

higher level of culpability than simple or casual negligence," and is "associated with the

most culpable acts by an agency." 183 Wn. App. at 103, 105. Accordingly, to establish

bad faith, an inmate "must demonstrate a wanton or willful act or omission by the

agency." Id. at 103. Citing Black's Law Dictionary 1719-720 (9th ed. 2009), the court

explained that "wanton" means "[u]nreasonably or maliciously risking harm while being

utterly indifferent to the consequences." Id at 103 (alteration in original) (internal

quotation marks omitted). And "wanton"

       differs from reckless both as to the actual state of mind and as to the degree
       of culpability. One who is acting recklessly is fully aware of the
       unreasonable risk he is creating, but may be trying and hoping to avoid any
       harm. One acting wantonly may be creating no greater risk of harm, but he
       is not trying to avoid it and is indifferent to whether harm results or not.

Id. at 103-04 (internal quotation marks omitted) (quoting BLACK'S LAW DICTIONARY

1720 (9th ed. 2009».




                                              13 

No.   32012~0~III
Adams v. Wash. State Dep't a/Corrections


        "Whether an agency acted in bad faith under the PRA presents a mixed question of

law and fact, in that it requires the application of legal precepts (the definition of 'bad

faith') to factual circumstances (the details of the PRA violation)." Francis, 178 Wn.

App. at   51~52.


        The DOC does not assign error to the trial court's factual findings supporting its

determination of bad faith. Accordingly, these findings are verities on appeal. State v.

Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). Whether those facts support its

conclusion that the DOC acted in bad faith, on the other hand, is a question of law that

this court reviews de novo. Faulkner, 183 Wn. App. at 101-2 (citing Francis, 178 Wn.

App. at 51-52).

        The court made the following findings relevant to its conclusion that DOC acted in

bad faith:

             • 	 "DOC's explanation for noncompliance is not reasonable" [Finding
                 5];

             • 	 "[T]he DOC was not completely forthcoming in its initial
                 explanation as to why it was withholding the records, wherein it
                 stated there was a statutory basis for withholding the rap sheets,
                 when in fact there was no statutory basis for the DOC, the
                 Washington State Patrol or the FBI to withhold Mr. Adams'[s]
                 criminal records" [Finding 6];

             • 	 H[T]he Court finds DOC's position legally indefensible, that there is
                 no statute that prohibits the dissemination of rap sheets, either state
                 or federal, that the DOC was undaunted by this fact, that one
                 government agency cannot rely upon and point to another



                                                14 

No. 32012-0-III
Adams v. Wash State Dep 't ofCorrections


               governmental agency where that governmental agency's decision­
               making process is clearly in error" [Finding 11];

          • 	 "[T]he Court finds that the DOC actions are clearly intentional and
              in bad faith[;3 t]he DOC was not relying on any statutory exemption
              or basis but simply relying upon the opinion of someone in another
              agency, and prior to this case coming to this court, Judge Eitzen, of
              the Spokane County Superior Court, under Cause No. 11-2-00329-3,
              had already found the DOC in violation of the Act on these grounds"
              [Finding 12];

          • 	 "The Court also finds that no indication that the [DOC] has filed an
              interlocutory appeal or that it has filed a declaratory action. The
              Court further finds bad faith where the DOC, a department within
              the executive branch of government, has chosen to ignore decisions
              made by the judicial branch regarding rap sheet dissemination.
              [None oft]he DOC, the WSP []or the FBI are privileged to ignore
              judicial decisions; [Finding 12];

          • 	 "[T]he Court finds that a substantial penalty is necessary, and, in
              respect to the separation of powers issue, the executive branch of
              government is required to follow the decisions that are properly
              within the authority of the judicial branch of government. The Court
              further finds that the existence of other legal remedies are available
              to the DOC and that the DOC cannot simply ignor[ e] judicial
              decisions as occurred herein" [Finding 16].

CP at 30-32.

      With these undisputed findings in mind, we tum to the three issues as

identified by DOC.




      3 As discussed, we treat "bad faith" as a conclusion of law. See Grundy v. Brack
Family Trust, 151 Wn. App. 557, 567,213 P.3d 619 (2009) (conclusions oflaw
mislabeled as findings of fact are reviewed as what they are, de novo).

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No. 320 12-0-III
Adams v. Wash. State Dep't ofCorrections


              Withholding ofInterstate Identification Index Criminal History

       The DOC argues that standing alone, an agency's reliance on an invalid basis for

nondisclosure is not a basis for finding bad faith, although it concedes that reliance on a

'" farfetched'" basis for nondisclosure may result in such a finding. Br. of Appellant at

13 (quoting King County v. Sheehan, 114 Wn. App. 325, 357, 57 P.3d 307 (2002)).

While not assigning error to the trial court's finding that its position proved to be

indefensible, it provides a ten-page discussion of federal law (mostly federal regulations)

to show that the issue of whether federal law prohibits a state criminal agency from

disclosing rap sheet information on an inmate, to that inmate, "is not as simplistic as the

trial court held." Br. of Appellant at 13. In short, it seeks to show that its position was

not "farfetched."

       The discussion begins with what the DOC views as its most defensible

withholding of documents: its withholding of ACCESS printouts reflecting information

from the III System. While it referred to all of the withheld documents as "rap sheets" at

the time of withholding, it now distinguishes information from the III System from what

it calls fingerprint-based rap sheets and contends that unlike fingerprint-based rap sheets,

III System information cannot be disseminated by a law enforcement agency to the

individual who is the subject matter of the information. It misconstrues federal rules that

not only permit, but require, that inmates have an opportunity to review their own

criminal history record information and a United States Supreme Court holding that

                                              16 

No. 320'12~0-III
Adams v. Wash. State Dep't ofCorrections


federal law only requires restricting third party access to a person's rap sheet

infonnation.

       As the DOC concedes, 28 U.S.C. § 534(b) was the key provision on which the

state patrol mistakenly relied in concluding that providing criminal record information

from FBI-controlled systems to the subject of that infonnation was prohibited. 28 U.S.C.

§ 534(b) states that "[t]he exchange of records and infonnation authorized by subsection

(a)(4) of this section is subject to cancellation if dissemination is made outside the

receiving departments or related agencies."

       Over 40 years ago, the director of the FBI announced rules under which the

subject of rap sheet information was free to obtain a copy of that infonnation maintained

by the FBI pursuant to 28 U.S.C. § 534. The rules were explained as follows:

       By order dated September 24, 1973, the Attorney General of the United
       States directed that the ... FBI[] publish rules for the dissemination of
       arrest and conviction records to the subjects of such records upon request.
       This order resulted from a detennination that 28 U.S.C. 534 does not
       prohibit the subjects of arrest and conviction records from having access to
       those records.

Department of Justice Order No. 556-73, 38 Fed. Reg. 32,806 (Nov. 28, 1973). The

announcement went on to explain that the rules would provide a procedure by which the

records could be obtained from the FBI. It also explained that it was able to announce the

rules without following rulemaking procedure under the federal Administrative

Procedure Act "because the material contained herein relates to the interpretation of 28


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No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections


U. S.C. 534 as allowing the granting of an exemption to subj ects of identification

records," and "it is deemed in the public interest that there be no delay in the effective

date of availability of identification Records to the subjects thereof." Id.

       Sixteen years later, the United States Supreme Court discussed the FBI's position

in Department ofJustice v. Reporters Committeefor Freedom ofthe Press, 489 U.S. 749,

109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989), the seminal authority on 28 U.S.C. § 534 that

the trial court relied upon in concluding that the DOC had violated the PRA. In

Reporters Committee, the Supreme Court considered whether subsection 534(b) made the

FBI's criminal history information exempt from disclosure under the federal Freedom of

Information Act (FOIA), 5 U.S.C. § 552. Three steps in the Supreme Court's reasoning

and its holding are fatal to DOC's argument that 28 U.S.C. § 534(b) prohibited it from

providing Mr. Adams with copies of his FBI rap sheets.

       In Reporters Committee, a news reporter and an association ofjournalists

requested FBI rap sheets of members of a family associated with organized crime. The

district court for the District of Columbia found that the records were exempt from

disclosure under FOIA; the Court of Appeals of the District of Columbia reversed in a

split decision and then denied rehearing en banc, with four judges dissenting. The U.S.

Supreme Court then granted certiorari.

       The Supreme Court's decision recounted the history of the FBI's collection and

sharing of rap sheet information, observing that before 1957, the Department of Justice,

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No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections


as a matter of executive policy, had generally treated rap sheets as confidential. 489 U.S.

at 752. Consistent with that basic policy of treating the records as confidential, Congress

in 1957 amended the criminal information statute to include the non-dissemination

language presently provided by 28 U.S.C. § 534(b). Id. The Court then discussed the

FBI's historical exception "allow[ing] the subject of a rap sheet to obtain a copy," as

reflected in former 28 CFR §§ 16.30-16.34 (1988). Id. It characterized "the FBI's policy

of granting the subject of a rap sheet access to his own criminal history" as "consistent

with its policy of denying access to all other members of the general public." 489 U.S. at

771. Thus at the first step-its historical analysis-the Supreme Court pointed out the

FBI's view that 28 U.S.C. § 534 did not prevent the subject of a rap sheet from obtaining

a copy.

       The Court went on to discuss FOIA, which identifies nine categories of documents

that are exempt from its broad disclosure requirements. In the District of Columbia

Circuit Court of Appeals' decision in the Reporters Committee case, it had held that

Exemption 3,4 which applies to documents that are specifically exempted from disclosure

by another statute, did not apply, because 28 U.S.C. § 534 did not qualifY as a statute




       4 Exemption 3 is codified at 5 U.S.C § 552(b)(3).

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No. 320 12-0-III
Adams v. Wash. State Dep't a/Corrections


'" specifically'" exempting rap sheets from disclosure. Reporter's Comm. For Freedom

o/Press v. Dep't o/Justice, 259 U.S. App. D.C. 436,816 F.2d 730,734 (1987) rev'd on

other grounds, 489 U.S. 749 (1989).5 While the petitioners abandoned reliance on

Exemption 3 in the Supreme Court, the Court's opinion made the passing observation

that 28 U.S.C. § 534(b) was "perhaps not specific enough to constitute a statutory

exemption under FOIA Exemption 3." 489 U.S. 765 & n.17.

      The U. S. Supreme Court instead analyzed Exemption 7(C) under FOIA, which

excludes records or information compiled for law enforcement purposes, "but only to the

extent that the production of such [materials] ... could reasonably be expected to

constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).6

Thus, at the second step of its analysis-identifying the pertinent FOIA exemption-the


      5 The Circuit Court observed:
      The government's contention that [28 U.S.C. § 534(b)], which authorizes
      the Attorney General to stop exchanging information with a particular
      governmental entity if that entity discloses the information, brings the
      statute within Exemption 3 is unpersuasive. Subsection (b) does not speak
      to the Attorney General's authority to disclose or refuse to disclose to the
      public; only by implication does it even address the recipient agency's
      authority to disclose to the public.

816 F.2d at 735 (emphasis omitted).
       6 The Court observed that Exemption 6, codified at 5 U.S.C. § 552(b)(6), and
which protects "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy," was also arguably
applicable, but having found the broader Exemption 7 to apply, found "no occasion" to
address the application of Exemption 6. 489 U.S. at 755 n.7, 762 n.l2.

                                            20
No. 320l2-0-III
Adams v. Wash. State Dep 't ofCorrections


Supreme Court relied on an exemption that applies only when privacy is invaded.

Privacy is not invaded when an individual reviews records that are only about himself.

       The Court then identified the Privacy Act of 1974, codified at 5 U.S.C. § 552a, as

supporting the conclusion that a privacy interest can inhere in the nondisclosure of

compiled computerized information. 489 U.S. at 766. It described the Privacy Act as

"provid[ing] generally that '[n]o agency shall disclose any record which is contained in a

system of records ... except pursuant to a written request by, or with the prior consent

of, the individual to whom the record pertains. '" Id. (emphasis added) (some alterations

in original) (quoting 5 U.S.C. § 552a(b). At this third stage of analysis--deciding

whether disclosure of compiled computerized information can violate privacy-the

Supreme Court relied on an analogous nondisclosure statute that allows disclosure of a

record to the individual to whom the record pertains.

       Finally, the holding of the decision reflected an intentional distinction between the

subject of the rap sheet and a third party. It said,

       Accordingly, we hold as a categorical matter that a third party's request for
       law enforcement records or information about a private citizen can
       reasonably be expected to invade that citizen's privacy.

489 U.S. at 780 (emphasis added).

       We agree with the trial court that by no reasonable reading does Reporters

Committee suggest that the DOC was justified in withholding Mr. Adams's FBI

rap sheet information from him.

                                              21
No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections


       The DOC nonetheless points to a supposed federal regulatory distinction between

disclosing criminal history information it obtains through a fingerprint card-based request

to the FBI and information it obtains through a name and date of birth request through the

III System.

       What came to be called the Interstate Identification Index System, a system that

links federal and state criminal records systems, became operational through the FBI's

National Crime Information Center (NCIC) in 1983. See James Jacobs & Tamara Crepit,

The Expanding Scope, Use, and Availability o/Criminal Records, 11 N.Y.V. 1. LEGIS. &

PUB. POL'y 177, 181 (2007-08), and historical materials cited therein. "The III enables

the FBI to direct searchers to the states containing records on the subject of the search"

and for this reason "is called a 'pointer system'-it tells law enforcement officials which

states have criminal history record information on a particular subject and allows

searchers to obtain this information directly from the state repository where the

information is located." Id. at 182 (footnote omitted). The terms "Interstate

Identification Index" and the shorthand "III System" were first reflected in federal

regulation in 1999, when the Department of Justice adopted a final rule amending its

regulations to expand access to federal criminal history record information to some

private entities and some noncriminal justice governmental agencies; to acknowledge

access to such information by the National Instant Criminal Background Check System

(NICS) under the Brady Handgun Violence Prevention Act of 1993; and at the same time

                                             22 

No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections


to "modernize language to ensure that the regulations accurately reflect current FBI

practices [and] names of systems and programs." Federal Bureau of Investigation,

Criminal Justice Information Services Division Systems and Procedures, 64 Fed. Reg.

52,223, 52,229 (Sept. 28, 1999) (Attorney General Order No. 2258-99).

       The DOC correctly observes that the federal regulations in Title 28, chapter 1, part

20 of the Code of Federal Regulations govern the access issue under federal law. 28

C.F.R. § 20.34 addresses the procedure by which "an individual may obtain a copy of his

III System record" and states that the individual's "III System record ... is available to

that individual for review" so long as he has a criminal record supported by fingerprints

that have been entered in the III system. 28 C.F.R. pt. 20 app., § 20.34 cmt. The DOC

does not dispute that Mr. Adams has a criminal record supported by fingerprints entered

in the III System.

       28 C.F.R. § 20.34 also sets forth a procedure by which an inmate may request that

a law enforcement agency obtain a copy of his III System record for his review:

           Procedure. 1. All requests for review must be made by the subject of
       the record through a law enforcement agency which has access to the III
       System. That agency within statutory or regulatory limits can require
       additional identification to assist in securing a positive identification.
           2. If the cooperating law enforcement agency can make an identification
       with fingerprints previously taken which are on file locally and if the FBI
       identification number of the individual's record is available to that agency,
       it can make an on-line inquiry through NCIC to obtain his III System
       record, or, if it does not have suitable equipment to obtain an on-line
       response, obtain the record from Clarksburg, West Virginia, by mail. The
       individual will then be afforded the opportunity to see that record.

                                             23 

No. 32012-0-II1
Adams v. Wash. State Dep 't o/Corrections


           3. Should the cooperating law enforcement agency not have the
       individual's fingerprints on file locally, it is necessary for that agency to
       relate his prints to an existing record by having his identification prints
       compared with those already on file in the FBI, or, possibly, in the state's
       central identification agency.
           4. The subject of the requested record shall request the appropriate
       arresting agency, court, or correctional agency to initiate action necessary
       to correct any stated inaccuracy in his record or provide the information
       needed to make the record complete.

28 C.F.R. pt. 20 app., § 20.34) cmt.

       Another regulation under part 20 requires that any state wishing to have access to

federal criminal information must submit a Criminal History Record Information Plan

that includes operational procedures that "[i]nsure the individual's right to access and

review of criminal history record information maintained for purposes of accuracy and

completeness" by instituting procedures that allow individuals to review, "without undue

burden" "any criminal history information about the individual." 28 C.F.R. §

20.21 (g)(l).

       The DOC fails to explain why these are not the controlling federal regulations. It

directs our attention instead to 28 C.F.R. § 16.30, which provides a different but non-

exclusive procedure through which an inmate can obtain criminal history information. It

directs us to regulations that impose sanctions for an agency's misuse of information and

for an agency's improper dissemination of information in violation of28 U.S.C. §

534(b}-but without any companion authority suggesting that providing an inmate with

III System information is misuse or improper dissemination.

                                             24 

No. 32012-0-111
Adams v. Wash. State Dep 't o/Corrections


       DOC also points to provisions of 28 C.F .R. §§ 513.11 and 513.20. 28 C.F.R. §

513.1I(b), in particular, requires requests for III System information to be directed to the

FBI. But subsections 513.11 and 513.20 are part of chapter V of Title 28, dealing with

the federal "Bureau of Prisons, Department of Justice." The regulations address how an

"inmate" may obtain such records, with "inmate" defined for purposes of the chapter to

mean "all persons in the custody of the Federal Bureau of Prisons or Bureau contract

facilities." 28 C.F.R. § 500.I(c). They discuss records in an "institution's" files, with

"institution" defined for purposes of the chapter to mean "a U.S. Penitentiary" or one ofa

list of other federal correctional facilities. 28 C.F .R. § 500.1 (d). The regulations have no

application to Mr. Adams or to records in his central file at Coyote Ridge.

       None of the federal regulations identified by the DOC is inconsistent with

longstanding federal law authorizing inmate access to his or her FBI criminal history

information.

       Finally, the DOC cites Sargent v. Seattle Police Department, 179 Wn.2d 376, 399,

314 P.3d 1093 (2013), as somehow establishing that "[a]t the time, [the DOC's] was a

reasonable interpretation of both state and federal law." Br. of Appellant at 20. It

apparently relies on Sargent's holding that the Seattle Police Department properly

withheld 44nonconviction criminal history" information from the subject of the

information, who failed to support the request with an assertion that the information was

inaccurate or incomplete. 179 Wn.2d at 399-400. The police department's withholding

                                             25 

No. 32012-0-111
Adams v. Wash. State Dep 't ofCorrections


was supported by a provision of the Washington State Criminal Records Privacy Act,

chapter 10.97 RCW, which required such an assertion. 7 Mr. Adams's request was not for

non conviction criminal history information and does not present the issue addressed in

Sargent.

       The trial court did not err in concluding that the DOC's position as to federal law

was indefensible.

                    Withholding ofState Criminal History Information

       The State offers a more abbreviated defense of its withholding of Mr. Adams's

state criminal history information. The only legal authority that the DOC argues

supported its mistaken but allegedly good faith withholding of Mr. Adams's state rap

sheet information is WAC 446-20-090, which provides individuals with a right to review

their criminal history information for a reasonable fee. The regulation was not

promulgated under the PRA, but under chapter 10.97 RCW, the Washington State

Criminal Records Privacy Act. It creates a right that is in addition to, not a substitute for,

Mr. Adams's rights under the PRA.




       7 "At the time of the show cause hearing, the [act] provided that '[n]o person shall
be allowed to retain or mechanically reproduce any nonconviction data except for the
purpose of challenge or correction when the person who is the subject ofthe record
asserts the beliefin writing that the information regarding such person is inaccurate or
incomplete.' Former RCW 10.97.080 (2010)." Sargent, 179 Wn.2d at 400 (emphasis
added) (alteration in original) (footnote omitted).

                                             26 

No. 320 12-0-III
Adams v. Wash. State Dep't ofCorrections


       Beyond that, the DOC argues only that the state patrol formerly took the position

that Washington State criminal history information was exempt from the PRA under

RCW 10.97.050 and RCW 10.97.080, and DOC employees feared they would violate the

agency's user agreement with the patrol and lose access to information if the DOC did

not abide by the patrol's interpretation. It does not challenge the trial court's conclusion

that the state patrol's reading of those provisions (a reading the patrol has abandoned)

was indefensible. It argues instead that "[a]s the WSP is vested with the authority to

administer all operating phases of ACCESS and the Washington Crime Information

Center which encompasses the records which are the subject ofRCW 10.97, the

Department was reasonable to rely on the WSP's position." Br. of Appellant at 22.

       Under the PRA, "[t]he agency must shoulder the burden of proving that one of the

[A]ct's narrow exemptions shields the records it wishes to keep confidential." Brouillet

v. Cowles Publ'g Co., 114 Wn.2d 788, 794, 791 P.2d 526 (1990) (court was precluded

from deferring to education board's regulation guaranteeing confidentiality of records,

and had to decide for itself whether the PRA exempted those records from disclosure).

Even if the DOC's user agreement had prohibited it from providing inmates with access

to their records (and it did not), "an agency's promise of confidentiality or privacy is not

adequate to establish the nondisclosability of information; promises cannot override the

requirements of the disclosure law." Hearst v. Hoppe, 90 Wn.2d 123, 137, 580 P.2d 246




                                             27 

No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections


( 1978); WAC 44-14-06002( 1) ([a]n agency agreement or promise not to disclose a record

cannot make a disclosable record exempt from disclosure).

       The DOC had no right to rely on the position of the state patrol or on the terms of

any interagency agreement in determining whether the requested records were exempt

from disclosure under the PRA.

                                    The Chester Decision

       Finally, the DOC contends that the trial court erred when it relied on the DOC's

actions following the Chester decision as a basis for concluding that the agency acted in

bad faith. It argues that Chester presented different facts and a request for only

fingerprint-based records, not an III System record. We have already rejected the DOC's

argument that the III System character of a criminal history record makes it non­

disclosable to an inmate by the DOC.

       The DOC only halfheartedly argues that Mr. Chester's case is distinguishable,

pointing out that he was also complaining of withholding of his medical records and other

information not at issue in Mr. Adams's case. It cannot and does not dispute that in Mr.

Chester's case it withheld similar criminal history record information relying on the same

legal authority that it relied upon in the trial court here: principally 28 U.S.C. § 534 and

RCW 10.97.080. The Spokane County Superior Court's memorandum decision

explained why neither statute applied, discussed Reporters Committee, and squarely and

directly ruled that rap sheet information in the possession ofthe DOC is not exempt from

                                             28 

No. 32012-0-III
Adams v. Wash. State Dep 't ofCorrections


disclosure under the PRA. Yet the DOC did not stop to reconsider its exemption claim.

It continued in its dealings with Mr. Adams to follow the discredited view of the state

patrol rather than the reasoned ruling of the Spokane court.

       The ruling in Chester came four months after the initial withholding of Mr.

Adams's records and nine months before the DOC relented as to about a third ofthem. 8

What the trial court appears to have found most significant about the DOC's refusal to

heed the Chester decision is that it forecloses any argument by the DOC that it simply

didn't realize there was a problem with the legal position it had taken. The trial court

reasonably viewed the DOC's actions as illustrating its indifference to whether it was

withholding records improperly.

                                     CROSS APPEAL

                                      Burden ofproof

       Mr. Adams contends that the trial court erred in imposing the burden on him of

proving bad faith under the newly enacted RCW 42.56.565(1). He argues that the burden



       8 In passing, the DOC argues that its attempt to present 11 pages of Mr. Adams's
records for his review in August 2012, only to have Mr. Adams refuse to review them,
demonstrates the absence of bad faith on its part. But this was still incomplete disclosure,
it occurred seven months after the state patrol had taken the position that these documents
could be released, and it does not negate the fact that the claim of exemption was never
seriously examined in the first place. At most, it could bear on the period for which
penalties were imposed-but since the DOC continued to withhold the majority of the
ACCESS printouts, it was within the trial court's discretion to disregard the belated
attempt at partial disclosure for that purpose as well.

                                             29
No. 32012-0-II1
Adams v. Wash. State Dep 't ofCorrections


of proof under the PRA is "in all instances" on the offending agency, citing RCW

42.56.550. Br. of Resp'tlCross Appellant at 30. That statute provides that the burden of

proof shall be on the agency "to establish that refusal to permit public inspection and

copying in accordance with a statute that exempts or prohibits disclosure," RCW

42.56.550(1), and to establish that "the estimate [of time to respond] provided is

reasonable," RCW 42.56.550(2). It does not address the burden of proving any other

matters.

       Mr. Adams has no basis for claiming error, since the issue of bad faith was

resolved in his favor. We note, however, that generally it is a plaintifrs burden to prove

the elements necessary to recovery. Baldwin v. Sisters ofProvidence, 112 Wn.2d 127,

135, 769 P.2d 298 (1989). Accordingly, in Faulkner, we held that an inmate must

establish bad faith. Faulkner, 183 Wn. App. at 103. The trial court did not err.

                        Consideration ofYousoufian 2010 factors

       Mr. Adams next assigns error to the trial court's failure in the penalty hearing to

consider on the record the Yousoufian 2010 factor of the size of the DOC and the

inadequacy of the DOC's records denial sheet. He argues that both should have been

considered in fixing the amount of the penalty.

       Under RCW 42.56.565( I), the court must make a threshold determination that the

agency acted in bad faith in denying a record requester the opportunity to inspect or copy

a public record. If that threshold showing is made, the statute contemplates that the trial

                                             30 

No. 32012-0-111
Adams v. Wash. State Dep 't ofCorrections


court will then exercise its discretion under RCW 42.56.550(4) "to award ... an amount

not to exceed one hundred dollars for each day that he or she was denied the right to

inspect or copy [the requested] record."

       In Yousoufian 2010, our Supreme Court outlined a multi factor analysis to

"provide[] guidance to trial courts, more predictability to parties, and a framework for

meaningful appellate review," identifYing seven mitigating factors and nine aggravating

factors to be considered by a court in imposing a penalty under the PRA. 168 Wn.2d at

468. The ninth aggravating factor was "a penalty amount necessary to deter future

misconduct by the agency considering the size ofthe agency and the facts of the case."

Jd. (emphasis added). In announcing the multifactor analysis for arriving at an

appropriate penalty, the Yousoufian 2010 court "emphasize[d]" that

       [t]he factors may overlap, are offered only as guidance, may not apply
       equally or at all in every case, and are not an exclusive list of appropriate
       considerations. Additionally, no one factor should control. These factors
       should not infringe upon the considerable discretion of trial courts to
       determine PRA penalties.

Yousoufian 2010, 168 Wn.2d at 468. A trial court nonetheless abuses its discretion ifit

fails entirely to conduct its penalty analysis within the Yousoufian 2010 framework.

Sargent, 179 Wn.2d at 398.

       We review a trial court's determination ofa proper PRA penalty for abuse of

discretion. Yousoufian v. Office ofRon Sims, 152 Wn.2d 421,430-31, 98 P.3d 463

(2004) (Yousoufian 2004). Under this standard, a trial court's decision will only be

                                             31 

No. 32012-0-II1
Adams v. Wash. State Dep't o/Corrections


reversed if its decision "is manifestly unreasonable or based on untenable grounds or

reasons." Yousoufian 2010, 168 Wn.2d at 458. "A court acts on untenable grounds if the

record does not support its factual findings, and it acts for untenable reasons if it uses' an

incorrect standard, or the facts do not meet the requirements of the correct standard.'"

Francis, 178 Wn. App. at 65 (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905

P.2d 922 (1995)). A trial court's decision is manifestly unreasonable if the court,

"despite applying the correct legal standard to the supported facts, adopts a view that no

reasonable person would take." Yousoufian 2010, 168 Wn.2d at 458-59 (internal

quotation marks omitted).

       Here, the trial court conducted its penalty analysis within the Yousoufian 2010

framework and made the following finding as to the ninth aggravating factor:

       [D]eterrence of future misconduct; the Court finds that a substantial penalty
       is necessary, and, in respect to the separation of powers issue, the executive
       branch of government is required to follow the decisions that are properly
       within the authority of the judicial branch of government. The Court
       further finds that the existence of other legal remedies are available to the
       DOC and that the DOC cannot simply ignor[e] judicial decisions as
       occurred herein, therefore this factor is present.

CP at 12. It imposed a per-day penalty of$35 based on its finding of two mitigating

factors and three aggravating factors. ld. at 13.

       Mr. Adams has not demonstrated that the trial court failed to consider the DOC's

SIze. The court explicitly addressed the need to impose a penalty amount necessary to

deter future misconduct by the agency. In making a judgment about the amount

                                              32 

No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections


necessary to deter future misconduct, the trial court would necessarily have considered

the size of the agency-likely under Yousoufian 2010, which it was following, but in any

event as a matter of common sense. It was not required to place its thought process on

the record. While Mr. Adams believes that a $24,535 penalty is insufficient to deter the

DOC given the size of its operating budget, he has not shown that the trial court abused

its discretion in arriving at that amount.

       Mr. Adams also contends that the trial court erred in failing to consider the

inadequacy of the DOC's records denial sheet, which he claims fell short of the

requirements ofRCW 42.56.201(3). Under that statute,

       Agency responses refusing, in whole or in part, inspection of any public
       record shall include a statement of the specific exemption authorizing the
       withholding of the record (or part) and a brief explanation of how the
       exemption applies to the record withheld.

RCW 42.56.210(3). As Mr. Adams points out, in reviewing the Yousoufian 2010 factors,

the trial court did not explicitly find any failure by the DOC to comply with the PRA's

procedural requirements.

       The trial court unquestionably considered the deficiency of the DOC's

identification of a basis for exemption, however-that deficiency was a principal basis

for its finding that the DOC acted in bad faith. But it is apparent that the trial court

differentiated between compliance with procedural requirements inform, and compliance

with procedural requirements in substance. As a matter of form, the Coyote Ridge



                                              33 

No. 32012-0-111
Adams v. Wash. State Dep 't o/Corrections


records department provided Mr. Adams with a contemporaneous log on which it

disclosed that it was withholding some documents, provided some description of what

they were, and provided citations to statutes and regulations as the asserted basis for its

withholding.

       The court chose to address the substantive inadequacy of the DOC's explanation

elsewhere in its written and oral rulings. It found that aggravating factors four and five-

the "unreasonableness of any explanation for noncompliance by the agency" and

"negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the

agency"-both justified an increased penalty. 168 Wn.2d at 468. The court did not

overlook the DOC's failure to identify an exemption that actually justified its

withholding.

       Because the trial court adequately considered each of the Yousoufian 2010 factors,

it did not abuse its discretion in its assessment of penalties.

                                         Cost request

       Mr. Adams devotes a section of his brief to his entitlement to costs on appeal

under RCW 42.56.550(4), RAP I 8.1 (b), and RAP 14.3(b). RCW 42.56.550(4) provides

that all costs shall be awarded to "[a]ny person who prevails" in an action under the PRA.

Because Mr. Adams has prevailed he is entitled to all costs reasonably incurred in

litigating the appeal subject to compliance with RAP 18.I(d).




                                              34
No. 32012-0-II1
Adams v. Wash. State Dep 't ofCorrections


       Affinned.




WE CONCUR: 




Brown, J.




                                            35 

