                                                                        FILED
                                                                      APRIL 3, 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 OPINION
                                             )
                     Respondent.             )

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

Records Act, chapter 42.56 RCW. Because RCW 70.48.100 exempts all records

requested from disclosure under the records act, we affirm the trial court’s summary

judgment dismissal of the suit.

                                         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 Prosecutors Offices.

Clerk’s Papers (CP) at 127. Zabala limited this request to phone calls originating from
No. 34961-6-III
Zabala v. Okanogan County


Okanogan, Chelan, and Douglas County’s 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 record’s officer, timely

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

could be reasonably located. In Pugsley’s declaration in support of Okanogan County’s

later motion to 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. 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


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Zabala v. Okanogan County


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.

       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 response, Field located 368 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 materials, whether found in an electronic file or a physical file, used in each

case. As a result, while Field could locate 368 files that matched the date range and



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Zabala v. Okanogan County


crimes entered, she could not determine if the files responded to Juan Zabala’s requests

without manually examining the contents of every file.

       The Okanogan County prosecuting attorney 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 9.73.095(3)(b) exempts disclosure of

recorded conversations from correctional facilities. On June 29, 2016, counsel sent a

letter to the Okanogan County Prosecuting Attorney’s Office citing disagreement with

the prosecuting attorney’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 in the context of a criminal prosecution.” CP at

80. The 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 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.

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


                                 LAW AND ANALYSIS

       In bringing its motion to dismiss, Okanogan County presented declarations on

which the trial court relied. Therefore, we consider Okanogan County’s motion as one

for summary judgment. CR 12(b)(7).

       Grants of summary judgment are reviewed de novo and appellate courts stand in

the same position as the trial court. Brown v. Department of Corrections, 198 Wn. App.

1, 11, 392 P.3d 1081 (2016). Summary judgment is proper if the pleadings show no

genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law. CR 56(c). A material fact affects the outcome of the litigation. Elcon

Construction, Inc. v. Eastern Washington University, 174 Wn.2d 157, 164, 273 P.3d 965

(2012). Facts and reasonable inferences are viewed in the light most favorable to the

nonmoving party. Building Industry Association of Washington v. McCarthy, 152 Wn.

App. 720, 735, 218 P.3d 196 (2009).

       Okanogan County raises two distinct arguments on appeal to defeat Juan Zabala’s

Public Records Act claim. First, RCW 9.73.095(3) and RCW 70.48.100 exempt

disclosure of recorded conversations from jail facilities. Second, Zabala’s public records

request failed to sufficiently identify requested records. Because we hold that one of the

statutes exempts the requested records, we only address Okanogan County’s first

contention. We may affirm the trial court on any basis found in the record, even a basis



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Zabala v. Okanogan County


not used by the trial court. Redding v. Virginia Mason Medical Center, 75 Wn. App. 424,

426, 878 P.2d 483 (1994).

                                        Exemptions

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

inspection and copying, and agencies shall, upon 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.) Okanogan County contends two “other” statutes shield inmate jail

recordings from disclosure: 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
       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:



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


             (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 provide exempt

recordings requested by Juan Zabala.

      Okanogan County’s second statute, RCW 70.48.100, extends to county jails.

Subsection two of the statute bespeaks:

             (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

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


       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.) None of the exceptions in the statute apply to thwart application of

the exemption to Juan Zabala’s Public Records Act 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

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


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Zabala v. Okanogan County


County jail, Douglas County jail, or Okanogan County jail, including voicemail, 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. 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 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 note that the prosecuting attorney likely played some of the inmate telephone

recordings or filed with the court clerk records surrounding the recordings. The public

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


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.

                                      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

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 upon 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

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Zabala v. Okanogan County


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.

       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

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.




                                                 '.~ ~ 6
                                             Fearmg, J.
                                                        I ,

WE CONCUR:




                                             Pennell, A.CJ.




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