 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CARLOS BENITEZ, JR.,
                                                           No. 79444-2-I
                          Appellant,
                                                           DIVISION ONE
                 v.
                                                           UNPUBLISHED OPINION
 SKAGIT COUNTY,

                          Respondent.


        DWYER, J. — Carlos Benitez submitted a public records request to Skagit

County seeking all “communications” to or from the deputy prosecuting attorney

in his criminal case. Believing he had not been given all the records responsive

to his request, Benitez filed suit against the County alleging violations of the

Public Records Act (PRA), chapter 42.56 RCW. The trial court granted the

County’s summary judgment motion, dismissing the complaint. Because Benitez

raises a genuine issue of material fact as to whether the County conducted an

adequate search for responsive records, the trial court erred by concluding as a

matter of law that the County did not violate the PRA. We remand to the trial

court for further proceedings consistent with this opinion.

                                                 I

        Following a multiagency surveillance operation, the Skagit County

Prosecutor’s Office charged Benitez and several codefendants with multiple




Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79444-2-I/2


counts of drugs, firearms, and theft offenses. Benitez was convicted in 2010

and is serving a lengthy prison sentence.

      On April 3, 2016, Benitez sent a letter to the Skagit County records

management office requesting copies of the following records:

      Any and all communications, e-mails, or other documents,
      generated/created during October 25, 2009 – July 3, 2010, sent to,
      received from or exchanged between Skagit County Deputy
      Prosecutor Trisha D. Johnson and any third party, including
      attorney Jennifer A. Bouwens, any Skagit County Interlocal Drug
      Enforcement Unit officers, any Northwest Regional Drug Task
      Force officers, any employee of the Whatcom County Prosecutor’s
      Office, any Skagit County Sheriff officers, any Burlington Police
      officers, any Washington State Patrol officers, and any ATF Seattle
      Group 1 officers, that mention, reference, or relate to Carlos
      Benitez, Jr., Abel Cantu, Jr., Jesus Hernandez, and Jeremiah
      Winchester.

(Emphasis added.)

      Cori Russell, who has been the County’s public records officer since 2007,

assigned Benitez’s request a tracking number. She informed him that she

anticipated having the records available on or around May 6, 2016.

      Russell knew, from fulfilling other requests for records from the

prosecutor’s office, that “if there were any responsive records, they would be

found in a prosecution case file or in an email account.” Russell contacted Vickie

Maurer, the office administrator for the prosecutor’s office. From Maurer, she

learned that Johnson—the deputy prosecutor responsible for prosecuting

Benitez, Cantu, and Hernandez—stored all records related to a particular

prosecution in the case file for that defendant, did not keep separate or personal

files, did not use voice mail or text messages, and seldom sent letters or

facsimiles. Because “nearly everything in the case file would have been sent to

                                            2
No. 79444-2-I/3


or from [Johnson],” Russell interpreted Benitez’s request for “[a]ny and all

communications, e-mails, or other documents” exchanged between Johnson and

third parties as “a broad request for essentially everything in those files.” Russell

stated:

        Everything in that file would have been responsive to Mr. Benitez’
        April 3, 2016, request because everything in Mr. Benitez’ case file
        would “relate” to him and all of it had either been sent to or from
        DPA Johnson to someone else.

Russell also planned to search Johnson’s e-mail folders “to identify potentially

responsive emails.”

        Russell obtained the prosecution case files for Benitez and Cantu.

Hernandez’s case file had already been destroyed in accordance with the

designated retention schedule.1 Russell first began working through Benitez’s

case file. She scanned the entire file into the County’s imaging system, page by

page, “to review each document to note whether any exemptions applied.”

        On May 6, 2016, Russell notified Benitez that she had a first installment of

246 pages of records for him. At this point, Russell had not yet begun to search

the other case files or Johnson’s e-mail folders. Nonetheless, some e-mails were

included in the first installment because they had been printed and placed in the

case file. Russell told Benitez she anticipated having a second installment of

records on or about June 3, 2016.

        On May 25, 2016, Benitez sent a letter to Russell complaining that he

already had most of the records she provided as part of the discovery in his


        1  Winchester was a witness who testified against Benitez at trial. As such, there was no
case file for him; any information regarding Winchester would have been in the case files for the
three defendants.

                                                    3
No. 79444-2-I/4


criminal case. Benitez informed Russell that “the records you provided are not

the records I was seeking to obtain, i.e., records relating to communications

between the parties referenced in my request.” He amended his request as

follows:

       All communications by e-mail, letter, Fax, or other media,
       generated/created or that occurred during October 25, 2009
       through July 3, 2010, between Skagit County Prosecutor Trisha D.
       Johnson and any third party, including attorney Jennifer A.
       Bouwens, any Skagit County Interlocal Drug Enforcement Unit
       officers, any Northwest Regional Drug Task Force officers, any
       employee of the Whatcom County Prosecutor’s Office, any Skagit
       County Sheriff officers, any Burlington Police Department officers,
       any Washington State Patrol officers, and any ATF Seattle Group 1
       officers, that mention, reference, or relate to Carlos Benitez, Jr.,
       Abel Cantu, Jr., Jesus Hernandez, Jeremiah Winchester, and
       Jessica Gonzalez.[2]

(Emphasis added.) Benitez stated: “My request should now be clear that I am

only seeking records pertaining to all communications between any and all

parties referenced in my request.”

       Russell viewed Benitez’s amended request for “all communications” as

“still broad enough to cover almost all of the records in the case file.” On June 2,

2016, Russell contacted Benitez asking him to further clarify his amended

request. She wrote:

       I read your request as asking for all communications, regardless of
       the media, between October 25, 2009 and July 3, 2010. You
       mention Trisha Johnson in your request therefore I have asked for
       her file. In reviewing her file, I’ve begun to pull any and all
       communications in the file between the date ranges you have
       requested. . . . The only significant difference I see in your
       amended request is you’ve added the name of Jessica Gonzales.
       In order to better provide you with the records you are seeking, I
       am asking for additional clarification.


       2   Gonzalez was another witness who testified against Benitez at trial.

                                                      4
No. 79444-2-I/5


       Russell told Benitez that, because he had asked for “all communications,”

she did not plan to sort out and remove any duplicate information. According to

Russell, “[i]f two or more copies of a responsive record are in a file, they are each

responsive and the better practice is to disclose each.”

       For example, one copy of the record may have been used in one
       context while the second copy was used in another. The fact that
       two copies of a particular record have been filed indicates that the
       record was used in differing contexts or that one was a draft. Also,
       as is common for records of emails, the emails will be attached in a
       string. The original email may be forwarded or responded to
       multiple times. Each email string is a separate record even though
       each additional record is largely duplicative of an earlier email in
       the string.

       Treating duplicates that are in a file or several files as
       independently responsive records is a best practice used by public
       records act officers throughout the state.

       On June 12, 2016, Benitez responded to Russell, amending his request a

second time. He told her that he was seeking

       [a]ny records of Skagit County Prosecuting Attorney Trisha D.
       Johnson’s communications, whether by e-mail, fax, text message,
       or other media, generated or that occurred from October 25, 2009
       through and up to July 3, 2010, with any third party, including
       attorney Jennifer A. Bouwens, any Skagit County Interlocal Drug
       Enforcement Unit officers, any Northwest Regional Drug Task
       Force officers, any employee of the Whatcom County Prosecutor’s
       Office, any Skagit County Sheriff officers, any Burlington Police
       Department officers, any Washington State Patrol officers, and any
       ATF Seattle Group 1 officers, that mention, reference, or relate to
       Carlos Benitez, Jr., Abel Cantu, Jr., Jesus Hernandez, Jeremiah
       Winchester, and Jessica Gonzalez.

(Emphasis added.) Benitez asked Russell to provide an index of the records she

located. He also instructed her to not provide duplicate copies of documents he

had already received.




                                             5
No. 79444-2-I/6


       Because Benitez was still asking for “[a]ny records,” Russell did not

believe that he had materially changed his request. She “interpreted it to mean

what it appeared to say: send me copies of everything in the file.” Russell asked

Benitez to confirm that he was seeking

       records dated October 25, 2009 through July 3, 2010 associated
       with Trisha Johnson, Jennifer Bouwens, Skagit County Inter local
       Drug Enforcement Unit Officer, Northwest Regional Drug Task
       Force Officers, any employee of the Whatcom County Prosecutor’s
       office, any Skagit County Sheriff officers, any Burlington Police
       Department officers, Washington State Patrol, ATF Seattle Group 1
       officers that mention, reference or relate to Carolos Benitez, Jr.,
       Abel Cantu, Jr., Jesus Hernandez, Jeremiah Winchester, and
       Jessica Gonzales.

Russell noted that Benitez had asked for “an index of the responsive documents”

but informed him that “[t]here is not an index for Ms. Johnson’s working file.”

       On June 29, 2016, Benitez responded, asserting that Russell did not

appear to understand what he wanted. He told her he was not requesting “an

index of Ms. Johnson’s working file” but rather “an index of any responsive

records” that Russell had ready for inspection and copying.

       On July 14, 2016, Russell again attempted to clarify what Benitez wanted:

       I have received your letter asking if I understand your request.
       Maybe it will be helpful if I explain the process of gathering the
       requested records. It’s my understanding that you want records
       dated October 25, 2009 through July 3, 2010 associated with
       Trisha Johnson, Jennifer Bouwens, Skagit County Inter local Drug
       Enforcement Unit Officer[s], Northwest Regional Drug Task Force
       Officers, any employee of the Whatcom County Prosecutor’s office,
       any Skagit County Sheriff officers, any Burlington Police
       Department officers, Washington State Patrol, ATF Seattle Group 1
       officers that mention, reference or relate to Carlos Benitez, Jr., Abel
       Cantu, Jr., Jesus Hernandez, Jeremiah Winchester, and Jessica
       Gonzales.




                                             6
No. 79444-2-I/7


      I have taken Trisha Johnson’s working file, and pulled out the date
      range you specified. Within her file, I have pulled out any “Attorney
      Work Product”. I do not look for duplicated information, only that the
      documents is within the specific date range. The file has a variety of
      documents in it and we do not index these files.

      In regards to the installment, there are approximately 200 pages.
       . . . The majority of documents are copies of the court case that
      can be viewed in the Superior Court Clerk’s office.

(Emphasis added.)

      On July 24, 2016, Benitez responded, clarifying that he was seeking

records of Johnson’s “communications,” not records “associated” with Johnson.

He argued that Russell did not appear to be searching Johnson’s e-mail

accounts, phone records, or fax records. Benitez threatened to sue the County

for violations of the PRA if he was required to pay for records that were not

responsive to his request.

      Russell consulted with counsel for the County, who advised her that the

totality of Benitez’s letters suggested that “he was looking for correspondence

and not police reports, briefs, motions, subpoenas, etc.” Russell thus began to

focus on searching for correspondence rather than all documents sent to or from

Johnson, “based on the more narrow intent expressed in his several letters rather

than on the broad language he used to frame his requests for records.”

      Because there were “no letters, text messages, or facsimiles in the case

files,” Russell concluded that she “only needed to search for emails”. She

believed she could do that by searching through Johnson’s e-mail program

“because any paper copies in the files would be duplicates, which Mr. Benitez

expressly said he did not want.”



                                            7
No. 79444-2-I/8


       Russell searched Johnson’s e-mails for responsive records by entering

the names of the people Benitez named in his request into a search window in

the e-mail program. On September 13, 2016, Russell wrote to Benitez that she

had obtained a first installment of 186 pages of e-mails responsive to his request.

Before mailing the records, Russell determined that nine of the pages were blank

and removed them. On November 8, 2016, Russell sent Benitez 175 pages of

documents comprising of “copies of emails and correspondence from Trisha

Johnson’s files.” She concluded: “Please let me know if this is the information

you were requesting. If this is the type of information you are looking for, I may

have another 30 or so pages that I could review and send you within the next

couple of weeks.”

       On December 6, 2016, Benitez wrote to Russell acknowledging receipt of

the records. He stated:

       The emails you provided are one type of communications records I
       have been seeking to obtain. I would like to remind you, however,
       that my request is not only for Ms. Johnson’s communications by
       email but is for any of her communications, regardless of the type
       of media – i.e.; fax, text messages, etc. So I’m assuming that you
       are continuing to search for other records of Ms. Johnson’s
       communications by other media.

He again complained that the batch of documents contained “a lot of duplicate

emails/information.” He also asserted that some of the e-mails referenced

attachments that were not included.

       After carefully reviewing the emails you provided, I also found that
       there are some emails with attachments missing and there are
       some emails referencing other emails related to them which have
       not been disclosed or produced. You reviewed these documents,
       so maybe you overlooked these attachments and emails, or maybe
       they were silently withheld. If you need help in identifying which

                                             8
No. 79444-2-I/9


      emails indicate there [are] attachments missing or other emails
      related to them, I can tell you on which pages of the documents
      they are located. Unless these attachments and other emails are
      exempt, you must produce these records.

      As a reminder, silently withholding non-exempt public records is a
      violation of the Public Records Act. I trust that you will review the
      documents and produce any missing records. I do not wish to take
      legal action to compel production of these missing records, but I will
      do so if necessary to obtain them, and for violations of the PRA.

      On December 21, 2016, Russell sent Benitez a letter explaining that she

did not remove duplicate records to ensure that all records responsive to his

request were provided. She asked Benitez to identify the attachments he did not

receive.

      Benitez did not respond. On January 18, 2017, Russell sent Benitez

additional pages of “emails and correspondence from Trisha Johnson’s files.”

She informed him that she would complete his request by February 10, 2017.

      On April 16, 2017, Benitez notified Russell that one of the e-mails he

received—a May 19, 2010 e-mail to Johnson from assistant United States

attorney Jill Otake—referred to a prior e-mail that had not been provided.

      As I reviewed the records I found an email from Jill Otake to Ms.
      Johnson, dated May 19, 2010, in which Ms. Otake references an
      email “just sent” to Ms. Johnson. More specifically, Ms. Otake
      states: “If there is anything you want changed in the email I just
      sent, let me know.” The email Ms. Otake references is nowhere in
      the records you provided. Based on the substance of Ms. Otake
      and Ms. Johnson’s communications, I found that the email pertains
      to Cantu and myself, possibly something about federal charges.
      Thus, the email clearly falls within my request, and you should have
      provided me with it.




                                            9
No. 79444-2-I/10


       On May 22, 2017, Russell responded, enclosing “the remainder of

emails from Ms. Johnson’s file,” including the missing Otake e-mail. The

e-mail from Otake, entitled “Cantu,” states:

       I write this email in advance of a more formal letter to follow to
       confirm the following regarding Abel Cantu.

       The United States Attorney’s Office for the Western District of
       Washington agrees not to prosecute Mr. Cantu for crimes outlined
       in Task Force case number 09-TF048, on the condition that: (1) Mr.
       Cantu plead guilty as outlined in the attached chart and (2) Mr.
       Cantu articulates in his plea statement co-defendant Carlos
       Benitez’s involvement in the crimes with which Mr. Cantu is
       charged.[3]

       On June 4, 2017, Benitez contacted Russell seeking the “more formal

letter” referenced in the Otake e-mail. Benitez sent a second letter on July 9,

2017 asking about the whereabouts of the letter. According to Russell, she did

not receive either the June 4 or the July 9 letter.

       On April 10, 2018, Benitez sued the County, alleging violations of the

PRA. Benitez argued that the County improperly withheld non-exempt public

records, and that it acted in bad faith by repeatedly seeking clarification of his

requests, by failing to provide a written statement of the exemptions authorizing

the withholding, by conducting an inadequate search for records, by failing to

respond to his requests in a timely manner, and by failing to provide a list of the

records identified as responsive to his request. Benitez sought an order directing

the County to show cause why it failed to produce the records, for an in camera

review of all withheld records, and for a determination that the County acted in

bad faith. He requested statutory penalties, attorney fees, and costs.


       3   Benitez received the “attached chart” referred to in the e-mail.

                                                      10
No. 79444-2-I/11


       After the County was served with the complaint, Russell observed an

interview between the County’s counsel and Johnson. Johnson stated that she

“could not say with absolute certainty that she had not accidentally deleted an

email that could have related to her prosecution of Benitez, Cantu, or

Hernandez.” Russell thus concluded that she may not have disclosed all of the

responsive correspondence because some of the e-mails in the case files may

have been deleted from Johnson’s e-mail folders.

       Russell directed two of her employees, Stevee Kivi and Kevin Luna, to pull

all correspondence from the Benitez and Cantu case files, and to search for any

attachments referenced in e-mails. Kivi and Luna located multiple e-mails that

had been printed out and placed in the case files. However, they were unable to

find a copy of the “more formal letter” that Otake referred to in her e-mail.

       On June 4, 2018, Russell mailed Benitez copies of all correspondence

found in the case files that had been sent from or received by Johnson. She

explained:

       As advised in my letter dated November 8, 2016, I had taken a
       different approach in preparing records for release relevant to your
       request at that time. The different approach was made in an effort
       to avoid providing and charging you for duplicate records. It
       involved switching my search from communications, meaning any
       document that was transmitted, to correspondence. Because,
       except in rare instances, Ms. Johnson used emails for all of her
       correspondence and did not use facsimile, text messages, or
       letters, all of her correspondence to and from others would have
       been in her email folders. Anything in the file would have been a
       duplicate, which you complained about receiving.

       However, following DPA Denny’s review of the allegations in your
       recently filed complaint and his discussions with potential
       witnesses, he has advised that I mail you a courtesy copy of all of
       the emails that were filed in your and Cantu’s case files. (Because

                                             11
No. 79444-2-I/12


       the Hernandez case file was destroyed before April 2, 2016, it is no
       longer available and was not included in the possible locations
       where responsive records could be found.) This supplemental
       disclosure is provided out of an abundance of caution that an email
       that is in the case file may have been deleted.

Because the case file likely contained many duplicates of e-mails that Benitez

had already received, Russell did not charge him for the copies.

       Eleven documents Russell sent to Benitez in this final installment had not

been previously provided to him. This included: (1) an e-mail from Johnson

dated June 2, 2010 listing the date of Cantu’s plea hearing, (2) an e-mail from

Johnson dated July 3, 2010 announcing the verdict in Benitez’s trial to other

members of the prosecutor’s office, (3) subpoenas e-mailed from Johnson’s legal

assistant (on which Johnson was copied), (4) an e-mail string between Johnson,

Benitez’s trial counsel and a police officer regarding notes from a controlled buy

conducted as part of the law enforcement investigation, (5) an e-mail between

Johnson and Benitez’s trial counsel about Benitez’s offender score, (6) e-mails

from Johnson’s legal assistant (on which Johnson was copied) to Benitez’s trial

counsel notifying her to pick up discovery, (7) e-mails from Johnson’s legal

assistant (on which Johnson was copied) requesting certified copies of court

records, and (8) an e-mail to Johnson from a Department of Corrections

employee notifying her that an unidentified document was being mailed to the

prosecutor’s office.

       On June 7, 2018, the County moved for summary judgment. In support of

the motion, the County provided declarations from Russell, Johnson, Maurer,

Kivi, and Luna.



                                            12
No. 79444-2-I/13


       In her declaration, Johnson described her personal practice for storing and

maintaining e-mails. She explained that she routinely deletes transitory e-mails

in order to free up storage space. She saves all important e-mails in an archive

folder. But she stated that it was possible she had deleted an e-mail before

moving it to an archive folder.

               Keeping my email folders uncluttered is important because
       of the limit on the number of emails that can be held in non-archive
       folders. If the limit on the number of emails is reached, then I would
       not receive new emails unless I deleted or archived some of the
       emails. Therefore, I do not save all of my email correspondence.
       For example, I routinely delete emails that are transitory in nature,
       such as “call me” notes and reminders of blood drives.

              However, I am particularly diligent about saving my
       important emails. To avoid the problems caused by having too
       many emails in my in and out boxes, I would create archive folders
       and would routinely copy emails from the in and out boxes to an
       archive folder. I save such emails in my archive folders even if I
       print one and place it into the applicable case file. This way I am
       assured that if a question arises about my actions, especially
       conversations with defense counsel or negotiations, an email
       record of the action would be available.

            I put all of my emails related to the Benitez, Cantu, and
       Hernandez prosecutions in an archive folder that I created and
       named “Cantu & Co”.

              While being interviewed for this declaration, I reported that I
       cannot say with absolute certainty that I did not unintentionally or
       accidentally delete an important email from an email folder before I
       moved it to an archive folder. I do not believe that Ms. Russell, the
       county’s Public Records Officer, was aware of that. On May 29,
       2018, while explaining my records management to DPA Denny,
       who is representing the county in this litigation, I told Ms. Russell
       about the possibility that I may not have saved all of my important
       emails.

       Johnson also explained that she did not have, and possibly had never

received, the letter referenced in the Otake e-mail.



                                            13
No. 79444-2-I/14


               Benitez alleges that the county did not disclose a letter from
       Jill Otake that is referenced in an email that I received from her on
       May 19, 2010. I recall receiving that email. It is attached as
       Attachment 1. Jill Otake is the U.S. Attorney who was, at that time,
       recently assigned to coordinate the prosecution of charges that
       could be addressed as a violation of federal law, such as unlawful
       possession of a machine gun, with local prosecuting attorneys. I
       had asked for confirmation, which I could share with Cantu’s
       defense counsel, that the U.S. Attorney would not charge Cantu
       with a violation of federal law if he pled guilty as set forth in my
       offer. Ms. Otake responded with an email that set out the text of a
       “more formal letter to follow.” . . .

               I do not recall ever receiving a “more formal letter,” and I
       have been told that a copy of a “more formal letter” is not in the
       Cantu case file. There are three reasons why I would not have a
       copy of that letter and why it is not in the case file. One, it would
       have been addressed to Cantu’s lawyer. There was no need for a
       copy to be sent to me. Two, if I did get a letter, I probably gave it to
       Cantu’s lawyer. Cantu’s lawyer had a habit of not bringing
       necessary documents to court and then asking me for copies. If l
       had received a copy of the letter, it is probable that I gave it to
       Cantu’s lawyer at a hearing on May 21, 2010, which had been set
       for a change of plea, but was continued instead, or at a hearing on
       May 26, 2010, where Cantu’s lawyer told the court that Cantu
       would plead guilty and a hearing date was set for the plea and
       sentence. If I had a copy of the letter and did give it to Cantu’s
       lawyer, I didn’t get it back. Three, the May 19, 2010, email was
       sufficient assurance that the U.S. Attorney would not prosecute
       Cantu, causing his lawyer to report the change of plea; so, it is
       possible that a formal letter was never mailed.

       On December 21, 2018, the trial court granted the County’s motion for

summary judgment and dismissed Benitez’s PRA claim.4 The trial court made

findings of fact as follows:

             After careful consideration of both parties’ pleadings, briefing
       and oral argument, the Court has determined that the motion for
       summary judgment should be granted.

             The initial request sought “any or all communications,
       emails, or other documents” that “mention, reference or relate to”

       4 A hearing on the motion was held on August 17, 2018. A transcript of the hearing on
the motion was not made part of the record on appeal.

                                                  14
No. 79444-2-I/15


      four named people, at least two of whom had had extensive contact
      with Skagit County’s law enforcement and criminal justice agencies.
      An amended request added a fifth person. Given the broad scope
      of this language, a request for clarification was reasonable.

             Confusion about the scope of the request continued. After
      the County produced an initial set of documents, Mr. Benitez
      amended the request to “all communications” relating to the five
      named individuals, deleting the reference to documents and
      maintaining the scope as those that “mention, reference or relate
      to” those people. The request specified that duplicate copies and
      blank pages contained in the files not be produced. The record of
      detailed correspondence between Mr. Benitez and the County’s
      public records officer, Cori Russell, indicates Ms. Russell’s
      continuing efforts to understand and meet the scope of the request.
      That confusion was not unreasonable, in the Court’s view, given the
      broad scope of the request.

               After reviewing the County’s two initial productions of
      records, Mr. Benitez wrote Ms. Russell that he wanted copies of
      communications sent and received by Deputy Prosecuting Attorney
      Trisha Johnson, who had prosecuted his criminal case and had
      been involved in investigation and/or prosecution of several of the
      other named people. Ms. Russell consulted DPA Johnson and
      learned that Johnson corresponded entirely by email. Russell
      searched Johnson’s account in the email archives and found about
      186 pages of email messages. She deleted the blank and duplicate
      pages and sent 175 pages to Mr. Benitez with a letter advising that
      “[I]f this is the type of information you’re looking for, I may have
      about thirty more pages.”

             Mr. Benitez then asked about a letter, a copy of which he
      understood to have been sent to Ms. Johnson by a federal
      prosecutor in May 2010. Ms. Russell searched the email archives
      again, then searched the prosecution case file, but did not find the
      requested letter.1

              After receiving the Complaint in this matter, Ms. Russell
      conferred with the County’s counsel, and on his advice, sent copies
      of all emails contained in the case files regarding Mr. Benitez and
      Mr. Cantu, in case any of those emails were not contained in the
      email archives she had previously searched. She also consulted
      DPA Johnson, who told her that she, Johnson, sometimes deleted
      email messages she considered nonsubstantive or unnecessary to
      retain. On learning this, Ms. Russell searched the pertinent case
      files and produced all the emails they contained. In short, the

                                           15
No. 79444-2-I/16


      record indicates that Ms. Russell made a reasonable and good faith
      effort to comply with the law in responding to the Plaintiff’s records
      requests.

             The Complaint also alleges that Skagit County violated the
      Public Records Act by failing to produce lists of potentially
      responsive documents; failing to prepare an index of emails in the
      prosecutor’s files; and failing to produce a list of documents it
      claimed were exempt. But the record establishes that an index of
      potentially responsive documents did not exist, and could not have
      been compiled electronically. A public agency is not required to
      create indices in response to a disclosure or production request.
      Similarly, the County was not required to create an index of the
      prosecutor’s emails. A list of claimed exemptions was not
      necessary because the County’s concerns about DPA Johnson’s
      work product became moot when the request was clarified and
      limited to Johnson’s correspondence. DPA Johnson did not share
      her work product with anyone, she testified, and email
      correspondence did not include work product.

             Lastly, the Complaint asserts that Skagit County has failed to
      implement procedures for responding to records requests, as
      required by the Public Records Act. This claim fails because the
      County produced a copy of its Public Records Policy and
      demonstrated, through the declarations of Ms. Russell, that the
      policy predates by some time the records request at issue in this
      matter.

             In summary, the evidence does not [show] that Skagit
      County violated the Public Records Act. The request was complex
      and its scope remained unclear even after it was amended; Ms.
      Russell’s confusion was understandable. The record demonstrates
      Ms. Russell’s continuing efforts to identify and produce all the
      requested records.

             As the Court finds that the Public Records Act was not
      violated, the motion for summary judgment of dismissal is granted.
      1DPA Johnson testified in her declaration that the letter had been
      sent by the U.S. Attorney’s office to defense counsel in one of
      several related cases she was handling, with a copy to her. As she
      was a third party to the letter, which did not affect her prosecution
      of the defendants, Johnson did not photocopy the letter. Ms.
      Johnson testified that she believed she shared her copy of the letter
      with one of the lawyers representing defendants in the case or
      cases she was prosecuting, and did not get back her copy.

                                           16
No. 79444-2-I/17



Benitez appeals.

                                          II

       We review an order granting summary judgment de novo, engaging in the

same inquiry as the trial court. Gronquist v. Dep’t of Corr., 159 Wn. App. 576,

582-83, 247 P.3d 436 (2011). Summary judgment is appropriate if the

supporting materials, viewed in the light most favorable to the nonmoving party,

show “‘that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’” Owen v. Burlington N. &

Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005) (quoting CR

56(c)). “Once the moving party has met this burden, however, the burden shifts

to the nonmoving party to set forth specific facts showing that there is a genuine

issue for trial.” Sisters of Providence v. Snohomish County, 57 Wn. App. 848,

850, 790 P.2d 656 (1990). The nonmoving party may not rely on speculation

alone. Becker v. Wash. State Univ., 165 Wn. App. 235, 245-46, 266 P.3d 893

(2011).

       We likewise review challenges to government action under the PRA de

novo. Gronquist, 159 Wn. App. at 582. Where, as here, “the record consists

only of affidavits, memoranda of law, and other documentary evidence,” this

court “stands in the same position as the trial court” and “is not bound by the trial

court’s findings on disputed factual issues.” Progressive Animal Welfare Soc’y v.

Univ. of Wash. (PAWS), 125 Wn.2d 243, 252-53, 884 P.2d 592 (1994).




                                               17
No. 79444-2-I/18


                                       III
       Benitez contends that the County violated the PRA by failing to conduct an

adequate search for responsive records. We agree.

       The PRA “‘is a strongly worded mandate for broad disclosure of public

records.’” PAWS, 125 Wn.2d at 251 (quoting Hearst Corp. v. Hoppe, 90 Wn.2d

123, 127, 580 P.2d 246 (1978)). “Agencies are required to disclose any public

record on request unless it falls within a specific, enumerated exemption.” Neigh.

All. of Spokane County v. Spokane County, 172 Wn.2d 702, 715, 261 P.3d 119

(2011). To adequately disclose documents, an agency must conduct “a sincere

and adequate search for records.” Fisher Broad.-Seattle TV LLC v. City of

Seattle, 180 Wn.2d 515, 522, 326 P.3d 688 (2014). An adequate search is one

that is “reasonably calculated to uncover all relevant documents.” Neigh. All.,

172 Wn.2d at 720. “To determine whether a search is reasonable, we focus not

on whether a document exists that is responsive to the request, but on the nature

of the search process.” Rufin v. City of Seattle, 199 Wn. App. 348, 357, 398 P.3d

1237 (2017). “[A]gencies are required to make more than a perfunctory search

and to follow obvious leads as they are uncovered.” Neigh. All., 172 Wn.2d at

720. “The search should not be limited to one or more places if there are

additional sources for the information requested. Indeed, ‘the agency cannot

limit its search to only one record system if there are others that are likely to turn

up the information requested.’” Block v. City of Gold Bar, 189 Wn. App. 262,

271, 355 P.3d 266 (2015) (internal quotation marks omitted) (quoting Neigh. All.,

172 Wn.2d at 719-20). “What will be considered reasonable will depend on the



                                             18
No. 79444-2-I/19


facts of each case.” Neigh. All., 172 Wn.2d at 720. The agency bears the

burden of showing its search was adequate. Neigh. All., 172 Wn.2d at 721.

Because the PRA considers the failure to properly respond as a violation, the

failure to adequately search is also considered a violation. Neigh. All., 172

Wn.2d at 721.

       Russell initially began searching for responsive records in the case files.

By July 24, 2016, Russell was aware that what Benitez was seeking was

“correspondence,” meaning e-mails, letters, faxes, phone calls, text messages,

and the like. Because Johnson only corresponded by e-mail, Russell

appropriately recognized that Johnson’s e-mail account would be a likely source

of responsive records. But Russell abandoned her search of the case files,

reasoning that all e-mails sent to or from Johnson remained in Johnson’s e-mail

account. This was not the case. As Johnson stated in her declaration, she

occasionally deleted e-mails from her e-mail account in order to free up space.

Though Johnson was diligent about saving electronic copies of “important”

e-mails, she admitted that it was possible she could have unintentionally deleted

something.

       As it turned out, 11 e-mails that were not discovered in Russell’s search of

Johnson’s e-mail account were later discovered in the case file. Some were only

marginally responsive to Benitez’s request, such as the subpoenas sent by

Johnson’s legal assistant on which Johnson was copied as an addressee. But

several were unquestionably responsive, including e-mails Johnson sent

discussing discovery, Benitez’s offender score, and the trial verdict.



                                            19
No. 79444-2-I/20


        Russell had experience handling public records requests for documents

held by the prosecutor’s office. She appropriately discussed the storage and

maintenance of records with Maurer. But she did not contact Johnson directly to

ask if Johnson had deleted any of her e-mails, or whether paper copies of those

e-mails might be in the case files. Russell’s search methodology did not account

for this possibility. An agency cannot limit its search to only one record system if

responsive documents are likely to be found in other systems. Also, as Russell

stated in her declaration, it is a best practice to disclose all copies of a

responsive record even if they are duplicates of the same record found

elsewhere. Under the facts of this case, Russell’s search was not reasonably

calculated to uncover all relevant documents. The County failed to show that

there was no genuine issue of material fact that it violated the PRA. The trial

court erred in granting summary judgment.5

        Benitez also contends that the County violated the PRA when Russell held

back documents she characterized as attorney work product without providing

any further written explanation. We disagree.

        When an agency refuses to allow inspection of a public record, it must

“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). Failure to provide an explanation




        5 The trial court concluded that the County did not violate the PRA because Russell

ultimately produced all the responsive e-mails after Benitez filed his complaint. But “[s]ubsequent
events do not affect the wrongfulness of the agency’s initial action to withhold the records if the
records were wrongly withheld at that time.” Spokane Research & Defense Fund v. City of
Spokane, 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005).

                                                    20
No. 79444-2-I/21


constitutes “silent withholding,” which is “clearly and emphatically” prohibited by

the PRA. PAWS, 125 Wn.2d at 270.

       Benitez appears to be referring to Russell’s July 14, 2016 letter, in which

Russell stated that she had obtained the prosecution case files and “pulled out”

any attorney work product. But Russell explained that she sent this letter before

she understood that Benitez wanted Johnson’s correspondence, not everything

in the case file. According to Russell, all of Johnson’s correspondence “was with

third persons who would not have been covered by an attorney client

relationship” and Johnson “did not email, fax, or otherwise send her work product

to anyone.” Thus, Russell did not withhold any records responsive to Benitez’s

request, and no explanation was required by RCW 42.56.210(3).

       Benitez argues that the County was required to comply with RCW

42.56.210(3) at the time it withheld attorney work product, regardless of whether

the documents were responsive. But Benitez cites no authority in support of the

claim that an agency must identify exemptions for nonresponsive documents.

And a failure to provide nonresponsive documents is not “withholding.” See

Forbes v. City of Gold Bar, 171 Wn. App. 857, 866, 288 P.3d 384 (2012) (“The

personal e-mails are not responsive to Forbes’ requests and, therefore, nothing

was withheld and no log document needed to be created.”).

       We similarly reject Benitez’s claim that the trial court erred by failing to

conduct an in camera review to determine whether the withheld records were

exempt as attorney work product. The County met its burden to show that no

responsive records were withheld because Johnson did not send or receive



                                              21
No. 79444-2-I/22


attorney work product. The burden then shifted to Benitez to show that the

County withheld responsive documents. Benitez offers nothing more than

speculation that it did so. This is insufficient to create a genuine issue of material

fact for trial.

        Benitez next argues that the County violated RCW 42.56.100, which

provides that “[a]gencies shall adopt and enforce reasonable rules and

regulations . . . consonant with the intent of this chapter to provide full public

access to public records.” He cites to the County’s policy requiring that “[e]ach

Records Assistant shall be knowledgeable of the public records in the

possession and control of that department or office such that they are able to

assist both the County Public Records Officer and person requesting records in

determining where documents are located and what documents are being sought

by the requestor.” He contends that the County clearly violated its own policy

because Russell stated in her declaration: “I am the only person in my office

qualified to review and make final decisions on Public Records Act (PRA)

requests that go beyond a plain vanilla request.” But Russell stated only that she

has supervisory authority over complex public records requests. Nothing in

Russell’s statement indicates that the County employees were unable to assist

Russell or members of the public with public records requests. Benitez’s claim is

without merit.

                                          IV

        The County argues that, even if it violated the PRA, the facts do not

support a finding of bad faith. We do not address this issue.



                                               22
No. 79444-2-I/23


        A court is prohibited from awarding penalties for PRA violations to an

individual who, as here, is incarcerated at the time the PRA action is filed,

“unless the court finds that the agency acted in bad faith in denying the person

the opportunity to inspect or copy a public record.” RCW 42.56.565(1). But “the

failure to conduct a reasonable search or the failure to follow policies in a search

does not necessarily constitute bad faith.” Faulkner v. Dep’t of Corr., 183 Wn.

App. 93, 102, 332 P.3d 1136 (2014). “[B]ad faith incorporates a higher level of

culpability than simple or casual negligence.” Faulkner, 183 Wn. App. at 103. To

establish bad faith, “an inmate must demonstrate a wanton or willful act or

omission by the agency.” Faulkner, 183 Wn. App. at 103. “Wanton” means

“‘[u]nreasonably or maliciously risking harm while being utterly indifferent to the

consequences.’” Faulkner, 183 Wn. App. at 103 (alteration in original) (quoting

BLACK’S LAW DICTIONARY 1719-20 (9th ed. 2009)).

        The trial court found that the County did not violate the PRA. Accordingly,

it made no findings regarding bad faith or penalties.6 The parties may address

this issue on remand.

                                                 V

        Benitez requests an award of attorney fees and costs on appeal. He cites

no authority supporting an award of attorney fees for a pro se litigant. Instead,

he simply cites the PRA’s attorney fee provision, which provides for an award of

costs, including attorney fees, to any person who prevails against an agency in a


         6 While the trial court concluded that “Russell made a reasonable and good faith effort to

comply with the law,” this appears simply to be the court’s word choice in assessing the
reasonableness of the County’s actions, not a determination of whether those actions constituted
bad faith for the purpose of assessing penalties.

                                                     23
No. 79444-2-I/24


PRA action. But a nonlawyer litigating a PRA action incurs no attorney fees and

is not entitled to a fee award under RCW 42.56.550(4). Mitchell v. Dep’t of Corr.,

164 Wn. App. 597, 608, 277 P.3d 670 (2011). However, Benitez, as the party

that has substantially prevailed on review, is entitled to an award of costs actually

incurred on appeal pursuant to RAP 14.2. Subject to compliance with RAP 14.4,

a commissioner of our court will enter an appropriate order.

       Reversed and remanded for further proceedings consistent with this

opinion.




WE CONCUR:




                                            24
