                                                                  FILED 

                                                               AUGUST 19,2014 

                                                          In the Office of the Clerk of Court 

                                                        W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


CLARENCEJAYFAl~KNE~                           )        No. 31658-1-III
                                              )
                     Appellant,               )
                                              )
              v.                              )        PUBLISHED OPINION
                                              )
WASHINGTON DEPARTMENT OF                      )

CORRECTIONS,                                  )

                                              )

                     Respondent.              )


      CULP, J.* - Newly enacted RCW 42.56.565(1) prohibits the award of penalties to

inmates for violations of the Public Records Act (PRA), chapter 42.56 RCW, unless the

court finds that the agency acted in bad faith in denying the person the opportunity to

inspect or copy the public record. Inmate Clarence Faulkner submitted a public records

request to the Washington State Department of Corrections (DOC) for two documents

related to rejected mail. After the initial production was incomplete, Mr. Faulkner sought

penalties from the DOC for a violation of the PRA. The trial court found that a violation



      * Judge Christopher E. Culp is serving as judge pro tempore of the Court of
Appeals pursuant to RCW 2.06.150.
No. 31658-1-III 

Faulkner v. Dep 't ofCorr. 



occurred, but declined to award penalties because there was no showing of bad faith as

required by RCW 42.56.565(1). Mr. Faulkner appeals. He contends that the DOC's

dilatory search and disclosure of the identifiable documents constituted bad faith. We

conclude that the DOC did not act in bad faith and affirm the decision of the trial court.

                                          FACTS

       On July 11,2012, the DOC received a PRA request from Mr. Faulkner. He

requested disclosure of:

              1. A copy of the Coyote Ridge Corrections Center's [CRCC]
       "signature sheet" for the issuance of incoming Legal Mail from the
       Thurston County Superior Court addressed to Clarence Jay Faulkner
       #842107 received on July 2,2012 and logged in at 11:36 a.m. by OA3 Mr.
       Michael True. This signature sheet contains 9 entries and the entry for
       Clarence Faulkner is line 6. In the place where prisoner Faulkner would
       normally sign his name is written "NOT RECEIVED" and is signed by
       prison guard V. Miller and possibly another prison guard.
              If you assert that this document does not exist, or is exempt from
       disclosure, please so state.
              2. A copy of the CRCC Local Mail Rejection Disposition Notice
       Mail Rejection F-4-60.

Clerk's Papers (CP) at 201. On July 18, public disclosure specialist Paula Terrell

responded to Mr. Faulkner. She summarized his request and notified him that she would

respond to him on or before August 24,2012, regarding the status of his request.




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Faulkner v. Dep't a/Carr.


      Ms. Terrell contacted the CRCC and requested:

       1. 	   A copy of the Coyote Ridge Corrections Center "signature sheet" for
              the issuance of incoming legal mail from the Thurston County
              Superior Court addressed to you Clarence Faulkner #842107 and
              received on July 2, 2012 and logged in at 11 :36 a.m. by OA3
              Michael True;
       2. 	   Coyote Ridge Corrections Center local mail rejection disposition
              notice mail rejection #F460.

CP at 203. A responsive document was provided to Ms. Terrell.

      On August 29, the DOC informed Mr. Faulkner that his requested record was

ready for disclosure after payment of a fee. The completed request contained one page.

      Mr. Faulkner paid the fee and received CRCC's legal mail log for July 2,2012.

DOC indicated to Mr. Faulkner that the matter was closed. The legal mail log contained

Mr. Faulkner's name and inmate number and listed Mr. Faulkner's mail from Thurston

County Superior Court. However, the log was blank and did not contain any signatures.

      Mr. Faulkner notified DOC that he requested the completed legal mail log, not a

blank original. A few days later, Mr. Faulkner contacted DOC again and asked about the

local mail rejection disposition notice. Mr. Faulkner filed a formal appeal with the DOC

on these matters. DOC acknowledged the complaint and notified Mr. Faulkner that Ms.

Terrell was out of the office but would respond before October 17.




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No.31658-1-III
Faulkner v. Dep 'f a/Carr.


       The public disclosure unit of the DOC informed Mr. Faulkner that an additional

search for responsive records would be conducted and he would receive further

communication from the DOC on or before December 10. Within a few days of receiving

the appeal, the DOC located a copy of the July 2, 2012 legal mail log, complete with

signatures. The DOC also attempted to locate the local mail rejection disposition notice

F-4-60 by tracking down the mail rejection packet associated with this form. The

rejection packet could not be located. The packet was last seen when it was mailed to

DOC headquarters by the CRee mailroom. After multiple searches, DOC headquarters

claimed that it never received the packet.

       As a result of this search, on December 7, the DOC provided Mr. Faulkner with a

copy of the July 2,2012 signed legal mail log. The DOC also notified Mr. Faulkner that

the local mail rejection disposition notice F -4-60 could not be located. DOC closed its

inquiry into the request.

       During this second search for the requested documents, Mr. Faulkner filed suit

against the DOC, complaining that the DOC violated the PRA in responding to his

request for the July 2, 2012 legal mail log and the local mail rejection disposition notice.

       The trial court held a show cause hearing and a determination of penalties hearing.

The DOC presented the declaration of Randall Smith, the mailroom supervisor at CRee.



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Faulkner v. Dep't a/Carr. 



Mr. Smith explained the DOC process for rejecting unauthorized mail. He stated that

there was no formal disposition notice for Mr. Faulkner because the CRCC mail room

does not use such a notice. Instead, when mail is rejected, the inmate is given a mail

rejection notice. The inmate can appeal this rejection notice. If appealed, the entire mail

rejection packet is sent to DOC headquarters. If there is no appeal or if the assistant

secretary upholds the rejection and sends the mail rejection packet back, the inmate is

given the opportunity to decide how to dispose of the rejected items. Inmates complete

an "Options For Rejected Mail" form to alert the mailroom of the inmate's choice for

disposition of the rejected mail. Once an inmate makes a disposition decision, this

decision may be noted in the mail rejection log. No formal mail disposition notice is

given to offenders, which was the document requested by Mr. Faulkner.

       Mr. Faulkner used an "Options For Rejected Mail" form to notifY the mail room

that he wished to appeal the mail rejection and asked the mail room to continue to hold the

mail items. CP at 186. He did not choose a method of disposition ofthe rejected mail.

His entire mail packet was sent to DOC headquarters. Mr. Smith stated that he was

familiar with Mr. Faulkner and knew of the mail rejection notice issued to him. However,

he was unable to determine the ultimate disposition for the mail because he did not

receive the F-4-60 mail rejection packet back from headquarters.


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Faulkner v. Dep 't o/Corr. 



       The trial court found no violation relating to the request for the local mail rejection

disposition notice because no such record existed. However, for the signed legal mail log

request, the court found that the DOC violated the PRA when it initially produced an

incomplete version of the requested document. Nevertheless, the court also found that the

DOC did not act in bad faith because the initial production of the incomplete log was an

unfortunate mistake, and Mr. Faulkner failed to provide any evidence that the delay or

denial was intentional. Because there was no showing of bad faith as required by RCW

42.56.565(1), the court concluded that Mr. Faulkner was not entitled to penalties for the

violation. The court awarded costs to Mr. Faulkner in connection with the action as

allowed by RCW 42.56.550(4).

       Mr. Faulkner appeals.

                                         ANALYSIS

       Local Mail Rejection Disposition Notice. Mr. Faulkner contends that the DOC

violated the PRA by failing to respond to his request for "CRCC Local Mail Rejection

Disposition Notice Mail Rejection F-4-60." He maintains that the DOC should have

interpreted this request to mean the "Options For Rejected Mail" form that is part of the

mail disposition process, and that the DOC waited an unreasonable amount of time before

telling him that the local mail rejection disposition notice did not exist.



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No. 31658-1-III 

Faulkner v. Dep't ofCorr. 



       The trial court applies de novo review to agency actions challenged under the

PRA. City ofFederal Way v. Koenig, 167 Wn.2d 341, 344, 217 P.3d 1172 (2009).

       The PRA "requires all state and local agencies to disclose any public record upon

request, unless it falls within certain specific enumerated exemptions." Bldg. Indus. Ass 'n

of Wash. v. McCarthy, 152 Wn. App. 720, 734, 218 P.3d 196 (2009). "The provisions of

the act are to be construed liberally to promote the complete disclosure of public records."

Bonamy v. City ofSeattle, 92 Wn. App. 403, 408,960 P.2d 447 (1998).

       An agency does not have a duty to produce a record that does not exist. Sperr v.

City ofSpokane, 123 Wn. App. 132, 136-37,96 P.3d 1012 (2004). If the requested record

does not exist, there is no agency action for the court to review under the PRA. Id. at

137.

       A party seeking public records under the PRA must, "at a minimum, provide

notice that the request is made pursuant to the [PRA] and identify the documents with

reasonable clarity to allow the agency to locate them." Hangartner v. City ofSeattle, 151

Wn.2d 439,447,90 P.3d 26 (2004).

       The DOC did not violate the PRA in response to Mr. Faulkner's request for

"CRCC Local Mail Rejection Disposition Notice Mail Rejection F-4-60." As explained

by Mr. Smith, this document did not exist. The DOC did not have a duty to produce a



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No.31658-I-II1 

Faulkner v. Dep't o/Corr. 



record that was not in existence. Without a duty, there is no agency action to review. The

DOC did not deny Mr. Faulkner an opportunity to review or copy an existing public

record. See Zink v. City o/Mesa, 162 Wn. App. 688, 256 PJd 384 (2011).

       Also, the DOC did 110t violate the PRA by failing to disclose the document entitled

"Options For Rejected Mail" in response to Mr. Faulkner's request for the "CRCC Local

Mail Rejection Disposition Notice Mail Rejection F-4-60." The document that Mr.

Faulkner requested does describe the "Options" document. The "Options" document is

not a notice of mail rejection, but rather a form that inmates use to determine disposal of

the rejected mail. Mr. Faulkner's request did not identity the "Options" document with

reasonable clarity to allow the DOC to locate it. The trial court correctly concluded that

the DOC did not violate the PRA in regard to this request.

       The trial court correctly concluded that the DOC did not violate the PRA in regard

to the CRCC Local Mail Rejection Disposition Notice Mail Rejection F-4-60.

       Signed Legal Mail Log. Mr. Faulkner assigns error to the trial court's finding that

the DOC did not act in bad faith in regard to the DOC's failure to produce a signed

version of the legal mail log. Mr. Faulkner maintains that the DOC's delayed response in

producing the completed legal mail log showed evasiveness, a lack of diligence, and

willful rendering of poor performance, all of which meet the legal definition of bad faith.


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No. 31658-I-III 

Faulkner v. Dep't ofCorr. 



       "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 v. Dep't of

Corr., 178 Wn. App. 42, 51-52, 313 P.3d 457 (2013), review denied, 180 Wn.2d 1016

(2014). When underlying facts are uncontested, we apply de novo review to ascertain

whether the facts amount to bad faith. Id. at 52.

       RCW 42.56.565( I) applies to requests by incarcerated individuals.

RCW 42.56.565(1) states:

       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 that 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.

       Recently, Division Two of this court became the first court to address the

interpretation of bad faith in the context ofRCW 42.56.565(1). Francis, 178 Wn. App. at

52-63. It held in Francis that in addition to intentional acts,

       failure to conduct a reasonable search for requested records also supports a
       finding of "bad faith" for purposes of awarding PRA penalties to
       incarcerated requestors. This standard does not make an agency liable for
       penalties to incarcerated persons simply for making a mistake in a record
       search or for following a legal position that was subsequently reversed. In
       addition to other species of bad faith, an agency will be liable, though, ifit
       fails to carry out a record search consistently with its proper policies and
       within the broad canopy of reasonableness.

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No. 31658-1-111
Faulkner v. Dep't ofCorr.



Id. at 63 (footnote omitted). On reconsideration, the court clarified the holding, stating

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

does not necessarily constitute bad faith. Id. at 63 n.5. "We hold below 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. The court

determined reasonableness by examining the circumstances of the case. Francis, 178

Wn. App. at 63 n.5.

       The appeals court in Francis affirmed the trial court and determined that the

agency's actions constituted bad faith when the clerk spent 15 minutes searching for the

records, did not record that she searched in all the usual places for the records, and

produced a document that did not fit the request made by the inmate.! Id. at 64.

Furthermore, the agency waited eight months after the action was filed to produce the

document that did fit the request. Id.



        ! Mr. Francis requested documents concerning the prohibition against fans and hot
pots, but the agency initially provided a copy of a policy permitting the items. Id. at 64
n.8. The agency conceded that it violated the PRA, but challenged the penalty amount.
Id. at 49. The trial court in Francis found no agency dishonesty, recklessness, or
intentional noncompliance, but it concluded that the agency acted in bad faith based on
aggravating factors used to determine penalties under Yousoufian v. Office ofRon Sims,
168 Wn.2d 444,229 P.3d 735 (2010) (Yousoufian V). Francis, 178 Wn. App. at 50. The
appeals court upheld the bad faith finding based on the facts of the case, without

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No. 31658-l-III 

Faulkner v. Dep 't ofCorr. 



       While Francis provides guidance in applying the bad faith standard in

RCW 42.56.565, we take this opportunity to further clarify the standard. We do this

because a finding of bad faith is now a threshold that must be met before penalties can be

awarded to an inmate under RCW 42.56.565(1).2 While a finding of bad faith is up to the

discretion of the trial court judge, some framework is appropriate to adequately guide

how such discretion should be exercised. Yousoujian      V.   Office ofRon Sims, 168 Wn.2d

444,465,229 P.3d 735 (2010) (Yousoujian V).

       In the PRA context, bad faith incorporates a higher level of culpability than simple

or casual negligence. We hold that to establish bad faith, an inmate must demonstrate a

wanton or willful act or omission by the agency. "Wanton" is defined as "[u]nreasonably

or maliciously risking hann while being utterly indifferent to the consequences."

BLACK'S LAW DICTIONARY 1719-720 (9th ed. 2009). Further, '" [w]anton 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. ' "



determining the applicability of the Yousoujian V factors. Francis, 178 Wn. App. at 64.
      2 Ordinarily, a showing of bad faith is not required in order for the penalties to be
awarded under the PRA. Am. Civil Liberties Union v. Blaine Sch. Dist. No. 503,95 Wn.

                                              11
 No. 31658-1-111
 Faulkner v. Dep 'f o/Corr.


 Jd. at 1720 (quoting ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LA W 879-80

 (3d ed. 1982)).

        This level of culpability in bad faith determinations is supported by prior PRA

 decisions. Bad faith continues to hold the high end of the culpability spectrum in PRA

 cases. Yousoujian v. Office o/King County Exec., 152 Wn.2d 421,435,98 P.3d 463

 (2004) (Yousoujian II) (quoting Amren v. City o/Kalama, 131 Wn.2d 25,37-38,929 P.2d

. 389 (1997)). In Yousoujian v. Office o/Ron Sims, 137 Wn. App. 69,151 P.3d 243 (2007)

 (Yousoujian III), Division One of this court set out degrees of agency culpability in an

 attempt to provide guidance to lower courts in determining PRA penalty amounts. The

 court clearly considered bad faith more culpable conduct and separate from forms of

 negligence. Jd. at 79-80. The court held,

       Instances where the agency's actions or inactions constituted gross
       negligence would call for a higher penalty than ordinary negligence, and
       instances where the agency acted wantonly would call for an even higher
       penalty. Finally, instances where the agency acted willfully and in bad faith
       would occupy the top end of the scale. Examples of bad faith would
       include instances where the agency refused to disclose information it knew
       it had a duty to disclose in an intentional effort to conceal government
       wrongdoing and/or to harm members of public. Such examples fly in the
       face of the [public disclosure act, chapter 42.17 RCW] and thus deserve the
       harshest penalties. We decline to attach firm dollar amounts to these
       degrees of culpability, but offer them instead as a guide for the trial court's
       exercise of discretion.


 App. lO6, 111,975 P.2d 536 (1999).

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No. 31658-1-111 

Faulkner v. Dep 'f olCorr. 



Id. at 80.

       Admittedly, the Supreme Court in Yousoufian V determined that the

culpability tiers were inadequate to address the complexity of the PRA penalty analysis.

Yousoufian V, 168 Wn.2d at 460. However, the court recognized that the agency's

culpability is the basis for setting PRA penalties, with bad faith being the primary factor

taken into consideration. Id. Here, we continue to focus on the agency's culpability to

define bad faith and to establish a threshold for an award of penalties under RCW

42.56.565(1). Bad faith is associated with the most culpable acts by an agency. Penalties

are owed when an agency acts unreasonably with utter indifference to the purpose of the

PRA.

       Francis is an example of a wanton act made in bad faith-the agency knew it had

a duty to conduct an adequate search for the requested records but instead performed a

"cursory search and delayed disclosure well short of even a generous reading of what is

reasonable under the PRA." Francis, 178 Wn. App. at 63. This wanton act of

performing an unreasonable search contrary to agency policy resulted in the appeals court

upholding the trial court's finding of bad faith. Id. at 63-64. By contrast, withholding

names of police officers in a good faith effort to protect the privacy and the safety of the




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No. 31658-I-III 

Faulkner v. Dep't o/Corr. 



officers does not constitute a wanton act. See King County v. Sheehan, 114 Wn. App.

325, 356, 57 P.3d 307 (2002).

       Defining bad faith in this manner meets the legislature's intent in enacting

RCW 42.56.565(1). By adding the bad faith requirement, the legislature increased the

level of culpability needed for an award to an inmate. RCW 42.56.565(1). According to

legislative committee reports, the bill underlying RCW 42.56.565(1) was introduced as a

measure to curb abuses by inmates who use the PRA to gain automatic penalty provisions

when an agency fails to produce eligible records. S.B. 5025, 62d Leg., Reg. Sess. (Wash.

2011). Initially, the measure barred inmates from recovering penalties all together. Id.

After receiving public comment regarding the effect the elimination of penalties would

have on legitimate inmate PRA cases, the bill was amended to include the bad faith

requirement and passed as amended. SUBSTITUTE S.B. 5025, 62d Leg., Reg. Sess. (Wash.

2011). "Thus, the legislature plainly intended to afford prisoners an effective records

search, while insulating agencies from penalties as long as they did not act in bad faith."

Francis, 178 Wn. App. at 60. 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.




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No. 31658-1-111 

Faulkner v. Dep'( ofCorr. 



       Requiring an inmate to show wanton or willful conduct as bad faith before

penalties can be awarded does not violate the general purpose ofthe PRA or the specific

purpose of the PRA penalty provision. The general purpose of the PRA is to ensure

sovereignty of the people and government accountability by providing full access to

information concerning government conduct. Arnren, 131 Wn.2d at 31. For penalties

under the PRA, the purpose of the provision is to promote government transparency and

to deter improper denials of access to public records. Yousoufian V, 168 Wn.2d at 461.

Inmates can still gain access by requesting records even though penalties may be harder to

obtain. Additionally, allowing penalties to punish wanton and willful agency misconduct

continues to act as a deterrent to improper denials.

       Applying the bad faith standard established here and in Francis, the trial court in

Mr. Faulkner's action correctly found that the DOC did not act in bad faith in responding

to his request for the legal mail log. There is no evidence of wanton or willful

misconduct. The DOC made a timely and reasonable effort to obtain the document. In its

initial response to Mr. Faulkner's request for the legal mail log, Ms. Terrell, a public

disclosure specialist for the DOC, contacted the CRCC within seven days of receiving the

request and asked that the CRCC gather the responsive documents.




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No. 31658-1-111
Faulkner v. Dep 'f ofCorr.


       Admittedly, Ms. Terrell's request sent to CRCC did not indicate that the words

"not received" should be written on the document where Mr. Faulkner would normally

sign his name, and this omission resulted in production of an unsigned version of the

desired document. However, Mr. Faulkner fails to show that the inadvertent error by Ms.

Terrell in transmitting the request was unreasonable or lacked diligence. To the contrary,

the request was detailed. Ms. Terrell included the name of the document and other

precise identifying features including Mr. Faulkner's identification number, the date and

time the mail was logged in, and the name of the DOC employee who logged in the mail.

Ms. Terrell stated in her declaration that she did not realize that leaving out the specific

information regarding the "not received" notation would change the nature of Mr.

Faulkner's request. CP at 82. She recovered the responsive document once she was

informed of her inadvertent mistake.

       Also, contrary to Mr. Faulkner's assertion, the timing of the DOC's production of

the signed legal mail log did not constitute bad faith. The DOC did not have an

obligation to produce the document as soon as it was acquired. The DOC held the signed

legal mail log until it completed its investigation into the remainder of Mr. Faulkner's

records request. The PRA does not require piecemeal production of documents.

Ockerman v. King County Dep'f ofDev. & Envtl. Servs., 102 Wn. App. 212, 219, 6 P.3d


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No. 31658-1-II1
Faulkner v. Dep't o/Corr.


1214 (2000). The DOC gave Mr. Faulkner a reasonable time line for producing the

documents and complied with this time line. The trial court correctly concluded that the

DOC did not act in bad faith.

       The DOC's actions in Mr. Faulkner's records request do not meet the standard for

bad faith. The DOC did not act unreasonably or maliciously while being utterly

indifferent to the consequences when it inadvertently omitted two words when requesting

the records from another agency employee. Unlike the dilatory search in Francis, here

the DOC conducted a reasonable search and produced an unsigned version of the

document Mr. Faulkner requested. The error in production was the result of an

inadvertent mistake in summarizing the request. When Mr. Faulkner alerted the DOC to

the mistake, the DOC acquired the signed version of the legal mail log and provided it to

Mr. Faulkner by the deadline provided to him.

      The trial court did not abuse its discretion. The DOC did not act in bad faith in

processing and handling Mr. Faulkner's request for the legal mail log. The trial court

properly denied awarding penalties. Additionally, because Mr. Faulkner is not the

prevailing party, his request for costs on appeal is denied. RCW 42.56.550(4).




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No. 31658-1-111 

Faulkner v. Dep" ofCorr. 



      Affirm.




WE CONCUR:




Brown, A.C.J.




                             18 

