                                                                          FILED
                                                                       APRIL 12, 2016
                                                                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

STEVEN P. KOZOL,                              )
                                              )         No. 32596-2-111
                     Appellant,               )         (consolidated with
                                              )         No. 32643-8-111)
       v.                                     )
                                              )
WASHINGTONSTATEDEPARTMENT                     )
OF CORRECTIONS,                               )         UNPUBLISHED OPINION
                                              )
                     Respondent.              )


       SIDDOWAY, J. -    In this consolidated appeal, Steven Kozol challenges the

dismissal of two actions he filed under the Public Records Act (PRA), chapter 42.56

RCW. He complains that the Department of Corrections (DOC) failed to produce copies

of the back side of a document that it electronically preserved in part, but then destroyed

before realizing that Mr. Kozol viewed the unpreserved portion as responsive to his

public record requests. We affirm the dismissal of both actions.

                    FACTS AND PROCEDURAL BACKGROUND

       On April 15, 2011, Steve Kozol submitted 22 requests for records to the DOC

"pursuant to the PRA." Clerk's Papers (CP) at 140, 630-50. Each request sought "any

and all records" for a different offender grievance, by grievance number, adding, "This
No. 32596-2-III (consol. w/ No. 32643-8-III)
Koza! v. Dep 't of Corr.


includes the original complaint form." Id. Upon receipt, the DOC forwarded the

requests to the Washington State Penitentiary's grievance coordinator to gather

responsive documents. Within a week of Mr. Kozol's request the DOC responded to

him, indicating that the requests had been assigned tracking numbers from PDU 15229 to

PDU 15250 and that he would receive a response to his requests by June 28.

      The DOC's grievance form, entitled "Offender Complaint," appears on the front

side of a grievance form/instruction document. DOC's internal designation for the

document is DOC 05-165. Appearing on the back side of DOC 05-165 are preprinted

instructions on how to complete the form, along with a checklist for the information that

should be provided. The grievance coordinator located the complaint forms requested by

Mr. Kozol and e-mailed scanned copies back to the DOC. The instructions on the back

sides of the DOC 05-165 documents, which the DOC does not consider part of the

grievance form, were not scanned or provided.

       On or before its promised June 28 response date, the DOC sent Mr.Kozola total

of 22 letters, one for each PRA request, notifying him that the responsive documents

located would be provided to him upon payment of the costs of postage and the CD on

which each had been stored. 1 The DOC later complied with Mr. Kozol's revised request

that it e-mail him the documents.


       1
         Mr. Kozol's requests had asked that the DOC "[p]lease provide these records in
electronic format on CD." CP at 140, 630-50.

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No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


      On April 11, 2012, Mr. Kozol commenced the first of the two PRA actions in

Walla Walla County that are consolidated in this appeal. 2 His complaint alleged he had

submitted a PRA request to which the DOC had "failed to respond within the terms and

timeframes of the PRA." CP at 4. He further alleged that he had "personal knowledge

that there are additional public records that Defendant is not identifying or producing,

constituting a 'silent withholding', in violation of RCW 42.56 et. seq." Id. When the

DOC requested a more definite statement, Mr. Kozol filed an amended complaint that

identified PDU-15229 as the request at issue.

       In November 2013, Mr. Kozol filed a motion to amend his April 2012 PRA

complaint to assert a failure to properly respond to another 52 PRA requests: the

remaining 21 made in April 2011, and another 31 made in February 2012. The DOC

objected and the trial court, Judge M. Scott Wolfram, denied the motion to amend.

       In December 2013, Mr. Kozol filed a second PRA complaint 3 alleging the DOC

had failed to timely respond to the remaining 21 PRA requests he had made in April 2011

and that it was silently withholding responsive records. He filed an affidavit of prejudice

against Judge Wolfram.


       2Walla Walla Superior Court No. 12-2-00285-2 (Court of Appeals
No. 32643-8-111).
       3Walla Walla Superior Court No. 13-2-00930-8 (Court of Appeals
No. 32596-2-111).



                                                3
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


       On November 22, 2013, Mr. Kozol was deposed. He revealed for the first time

that it was DOC's failure to provide him with copies of the back side of each DOC 05-

165 that he contended was the PRA violation.

       In a declaration filed in support of the DOC's motion practice below, Lee Young,

a correctional specialist assigned as the grievance coordinator, explained that because

"[n]one of the information on the back page of DOC 05-165 is used to process the

offender's grievance ... it is not considered to be part of the grievance record." CP at

443. She also testified to her standard practice in processing a grievance, as a part of

which, after responding to an inmate complaint, she "scan[ s] and maintain[ s] a copy of

the completed complaint and response." Id. Because the back side of the document is

not considered part of the complaint, "it would not be scanned and maintained as part of

the grievance record." Id. The original inmate complaint is shredded after being

scanned, so the back sides of the 22 offender complaints requested by Mr. Kozol had

been destroyed almost a year before Mr. Kozol revealed in his deposition that he viewed

them as responsive to his request.

       By May 2014, the parties had filed and briefed several motions in the second

action. They included the DOC' s show cause motion seeking dismissal of the 21-claim

action and a motion by Mr. Kozol to consolidate his two cases.

       On May 12, Judge John Lohrmann heard argument of the parties' pending

motions. He denied Mr. Kozol's motions to amend or consolidate and granted the DOC's

                                             4
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


show cause motion, dismissing the 21-claim case with prejudice. In addition to finding

that Mr. Kozol's second action was time barred, Judge Lohrmann concluded that

dismissal was warranted for the further reason that

      the sole basis of the alleged violation is the Defendant[']s failure to provide
      [Mr. Kozol] with the back instruction page of each of the separate
      grievances. Per the declarations filed, it is clear that said page is merely
      instructional for the offender filling out the form; it would not be scanned
      and maintained as part of the grievance record, and it would not have been
      considered responsive to the request.

CP at 810. In addition to dismissing the 21-claim action, the court found it to be

"frivolous and malicious" within the meaning and purposes of RCW 4.24.430. Id. at 811.

Mr. Kozol moved for reconsideration, which was denied.

      A few days later, the DOC filed a motion for summary judgment in the single-

claim action, presenting the same issue of whether the back side of the DOC grievance

form was a document responsive to Mr. Kozol's PRA request. Mr. Kozol responded. On

June 19, 2014, Judge Lohrmann heard the DOC's motion for summary judgment and a

number of motions filed by Mr. Kozol. He denied all of Mr. Kozol's motions, granted

the DOC's motion, and dismissed Mr. Kozol's single-claim action, making the following

handwritten addition to the DOC's proposed order:

      Because the sole purpose of the complaint was a scheme to request a
      document or documents regarding which the Plaintiff might anticipate and
      argue that a page was missing-without any true or good faith desire or
      need to see the page alleged to be missing-this action is deemed
      "frivolous and malicious" within the meaning of RCW 4.24.430.


                                             5
No. 32596-2-III (consol. w/ No. 32643-8-III)
Koza/ v. Dep 't of Corr.


CP at 570. Mr. Kozol appealed the dismissal of both actions. We consolidated the

appeals.

                                      ANALYSIS

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

Resident Action Council v. Seattle Haus. Auth., 177 Wn.2d 417, 431, 327 P.3d 600

(2013) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)). The

policy behind the PRA is that "free and open examination of public records is in the

public interest." Neigh. All. of Spokane County v. County ofSpokane, 172 Wn.2d 702,

715, 261 P.3d 119 (2011). Accordingly, the PRA is to be "liberally construed ... to

assure that the public interest will be fully protected." RCW 42.56.030.

       Under RCW 42.56.080, agencies must make "identifiable public records"

available for public inspection and copying. A public record is broadly defined as "any

writing containing information relating to the conduct of government." RCW 42.56.010.

"An identifiable public record is one for which the requestor has given a reasonable

description enabling the government employee to locate the requested record." Beal v.

City ofSeattle, 150 Wn. App. 865, 872, 209 P.3d 872 (2009). When interpreting public

records requests, the PRA does not require agencies to be mind readers. Bonamy v. City

ofSeattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998).

      Agencies are not required to provide records that do not exist. Sperr v. City of

Spokane, 123 Wn. App. 132, 136-37, 96 P.3d 1012 (2004). However, where the.agency

                                            6
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


possesses undisclosed responsive records, it "must explain and justify any withholding, in

whole or in part, of any requested public records." Resident Action Council, 177 Wn.2d

at 432. "Silent withholding is prohibited." Id. Agency actions taken or challenged under

the PRA are reviewed de novo. RCW 42.56.550.

       Mr. Kozol's opening briefs in the two appeals before us challenge the trial court's

actions in denying amendment, refusing to deem his first complaint amended, concluding

that his claims were not timely, refusing to consolidate his two cases, engaging in

allegedly improper procedure, denying a motion to continue the DOC's summary

judgment motion and permit further discovery, and concluding that the back side of the

DOC's grievance form was not responsive to his 22 PRA requests. The last issue proves

dispositive.

       Mr. Kozol's contention that the DOC withheld responsive documents is based

solely on its failure to produce copies of the back side of the 22 grievance forms. He

disputes the DOC's position that the back side is solely instructional and not a part of the

grievance or complaint form. Focusing on his request for the "original complaint form,"

he contends that the back side of each DOC 05-165 was encompassed by his requests.

       It first bears noting that RCW 42.56.070( 1) requires agencies to make their public

records "available for public inspection and copying"-it is not required to give its

original public records to requesters. For that reason, and also because Mr. Kozol's

request was for an electronic copy of the record, his use of the word "original" could not

                                             7
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


be understood as meaning the actual complaint form completed and signed by the inmate

(which would necessarily have the instructions on the back). It could only have meant a

copy of the actual complaint form. At issue, then, is whether "complaint form" is

reasonably understood to mean the "Offender Complaint" side of DOC 05-165 or both

the "Offender Complaint" side and the instruction side of that document.

      The relevant meaning of the word "form" is defined as

      e ( 1) : a printed or typed document with blank spaces for insertion of
      required or requested specific information <a [form] for a deed> <be sure to
      fill all blanks on your tax [form]>.

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 892 (1993).

      Only the front, "Offender Complaint" side of DOC 05-165 includes blank spaces

for inserting the specific information required for a grievance. Mr. Kozol has offered

supplemental evidence of back sides of grievance forms on which handwriting appears, 4


      4
          On May 27, 2015, our commissioner granted Mr. Kozol's motion to add to the
record on appeal the material in appendix A to his brief in cause no. 32596-2-111. It
contains a total of 51 single-sided sheets. See Appellant's Opening Br. (No. 32643-8-111)
at Appendix A. Forty-two sheets contain preprinted instructions from the back side of
DOC 05-165, the grievance form, and nine contain no preprinted material, suggesting
that the inmate was using a photocopy of the Offender's Complaint form. While 30
sheets have some form of writing on them, 23 of those only contain the date, or the name
or mailbox number of the grievance counselor. Only six appear to reflect anything
remotely substantive. On one, the offender suggests a remedy for the grievance. On
another, which is largely incomprehensible, the offender makes vague allegations of
kidnapping, torture, and false statements and then makes potential threats to several
people. On three, it appears that the offender was just working through the questions on
the bottom of the grid in shorthand in order to fully explain the grievance on the front.
One is illegible. Appellant's Opening Br. (No. 32643-8-111) at Appendix A.

                                            8
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Kozol v. Dep 't of Corr.


but none undercut the DOC's evidence that the instruction page is not a part of the

grievance as processed by the DOC. The infrequent and random use of the instruction

sheet by third parties does not support a conclusion that the DOC should reasonably have

regarded it as responsive to Mr. Kozol's request. The DOC did not violate the PRA in

failing to recognize that Mr. Kozol was seeking copies of preprinted instruction sheets

never used by the DOC in processing grievances.

       The DOC's innocent destruction of the records also excuses its failure to produce

them. In a decision involving an action commenced in Spokane County by Mr. Kozol,

this court recently held:

       [W]hether or not a record should exist is a different question than whether
       it does exist. The PRA only requires that access be granted to existent
       records, not nonexistent records that one believes should exist. While Mr.
       Kozol believes that the back side of the original grievance form should
       exist, DOC proved otherwise. As DOC produced the only part of the
       specified grievance forms that still existed, it complied with the dictates of
       thePRA.

Kozolv. Dep'tofCorr., 192 Wn. App. 1, 7-8, 366 P.3d 933 (2015) (footnote and

citation omitted).

       For both reasons, no further discovery was warranted and Mr. Kozol's claims,

whether time-barred or not, were properly dismissed.

       Affirmed.




                                              9
No. 32596-2-111 (consol. w/ No. 32643-8-111)
Koza! v. Dep 't of Corr.


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Lawrence-Berrey, A.CJ.
                                   j




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