    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

CHRISTOPHER COOK, KEVIN EVANS,                   No. 76012-2-
JOSEPH JONES, CHRISTOPHER S.
ROBINSON,
                                                                                       Tt
                                                                                       m

                     Respondents,                                                       i



          v.


                                                                                       V?
WASHINGTON STATE DEPARTMENT                       UNPUBLISHED OPINON                   CO
OF CORRECTIONS,
                                                  FILED: February 6, 2017
                     Appellant.


      Verellen, C.J. — An inmate requesting public records is entitled to penalties

only if the public agency acts in bad faith.1 Bad faith requires a wanton or willful act or
omission with utter indifference to the consequences.2 Considering all of the

circumstances, the act or omission must be unreasonable and warrant harsh

punishment.3

       The Department of Corrections (the Department) appeals four Thurston County

Superior Court orders awarding monetary penalties to inmates who requested phone
logs under the Public Records Act (PRA), chapter 42.56 RCW. After initially denying



       1 Faulkner v. Wash. Dep't of Corr., 183 Wn. App. 93, 102, 332 P.3d 1136 (2014)
(quoting RCW 42.56.565(1)).
       2 Id, at 103-04.
       3 Id. at 105-06.
No. 76012-2-1/2


those requests based upon its then-existing policy that phone logs were not public

records, the Department revised its policy and provided the requested phone logs. On

de novo review, we conclude the Department did not act willfully or wantonly with utter

indifference to the consequences. Considering all of the circumstances, harsh penalties

are not warranted. We reverse.

                                         FACTS


      The Department contracts with a private company, Global Tel-Link (GTL), to run

its inmate phone system and maintain records, including phone logs. Prior to 2013, the

Department provided phone logs in response to public record requests by obtaining the

logs from GTL. In 2013, the Department became aware ofa security incident in which
an inmate at one of its facilities requested another inmate's phone logs through public

disclosure. The inmate requester was a member of a security threat group and the

inmate whose call logs were requested was a confidential informant.

       In view of the security issues raised by the 2013 incident, and other concerns,

the Department determined that inmate phone logs maintained and possessed by GTL
were not public records. In June 2013, the Department issued Newsbrief 13-01 to

provide guidance to its staff about processing public record requests for phone logs.
Newsbrief 13-01 stated:

       The Department contracts with Global Tel Link (GTL) to manage and
       provide inmate phone services. Records maintained within the GTL
       system are not agency public records and therefore not subject to
       disclosure. They do not need to be gathered and retained in response to
       a public records request.

       If you receive a request from any requester for a copy of inmate telephone
       logs or inmate telephone audio recordings the following language should
       be used in your response.
No. 76012-2-1/3



                "The Department's phone system is run and maintained by an
                outside vendor and the phone call records you request are not
                public records created, used or maintained by the department;
                therefore, the records are not disclosable under the Public Records
                Act, RCW42.56."

      Please note, that records pulled from the GTL system for use in agency
      business (i.e. as an exhibit attached to an investigation) may be subject to
      disclosure and in this case would need to be pulled and provided in
      response to any public records request and reviewed for potential release.

      If you have questions regarding disclosure of inmate phone system
      records in response to a public records request, please contact the
      Agency Public Records Officer.14'

      Christopher Cook, Joseph Jones, Kevin Evans, and Christopher Robinson,

inmates housed at Coyote Ridge Corrections Center, requested phone logs. Using the

language in Newsbrief 13-01, the Department timely notified them that phone logs are

not public records because the phone system is run and maintained by an outside

vendor.


      Cook, Evans, Jones, and Robinson filed lawsuits in Thurston County Superior

Court challenging the Department's denial of their public record requests and seeking

monetary penalties. Soon after a Franklin County Superior Court judge ruled in

unrelated litigation that inmate phone logs are public records, the Department revised its

position and made the requested phone logs available to Cook, Evans, Jones, and

Robinson.


      The Department opposed any penalties, arguing it initially denied the requests

because, consistent with Newsbrief 13-01, it reasonably believed the phone logs were

not public records.



          4 Cook Clerk's Papers (CP) at 34; Evans CP at 36; Jones CP at 40; Robinson CP
at 224.
No. 76012-2-1/4


       In its letter opinions for Evans, Jones, and Robinson, the trial court ruled the

Department's approach appeared to "have been based on a good faith understanding of

the law, including awareness of all three elements in the definition of public records."5

The court also concluded the Department's policy was "objectively reasonable."6 But in

its letter opinion, the trial court concluded the Department failed to perform a search in

accordance with or to fully disclose an exception contained in its policy:

              As discussed above, the Department's approach described in its
       Newsbrief embodied a general rule and an exception to that general rule.
       The general rule was that phone records did not typically qualify as public
       records, the exception to that general rule was that, if the records had
       been used for a government purpose, then they would qualify as a public
       record. The policy as a whole is reasonable, but its reasonableness
       depends on application of both parts of the policy, the general rule and its
       exception.

              In implementing its approach, however, the Department did not
       inform the requesters of the exception. Instead, the response provided by
       the Department simply explained that phone records were not public
       records because they were maintained by an outside vendor and they
       were not created, used or maintained by the Department. This
       explanation was not complete in that it did not reference that such records
       would be public records ifthey were used for a governmental purpose.

              The Department also did not perform any search of its own records
       or take any steps to determine whether the records of [Evans, Jones, and
       Robinson] came within the exception set forth in its own policy.[7]
       The court found bad faith based on:

       (1) the inadequacy and incompleteness of the Department's explanation to
       [Evans, Jones, and Robinson] for not providing the records and (2) the
       Department's failure to perform any search to determine whether the
       records [Evans, Jones, and Robinson] sought came within the policy's
       exception before sending its letter to [Evans, Jones, and Robinson]. See
       Francis v. Dep't of Corrs, 178 Wn. App. 42, 63 n.5 (2013) (bad faith

       5 Evans CP at 247; Jones CP at 523; Robinson CP at 316.
       6 Cook CP at 148; Evans CP at 247; Jones CP at 522; Robinson CP at 316.
       7 Evans CP at 248; Jones CP at 523-24; Robinson CP at 317.
No. 76012-2-1/5


      present under RCW 42.65.565(1) if agency fails to conduct a search that
      is both reasonable and consistent with its policies taking into account the
      facts and circumstances of the request).[8)

In Cook's case, the court ruled the policy was objectively reasonable, but

       [the Department's] act of failing to describe the terms of that policy to
       Plaintiff Cook in its response, together with its failure to conduct an
       adequate search for responsive records in accordance with that policy, did
       constitute bad faith.191

The court concluded Cook, Jones, Evans, and Robinson were each entitled to a

monetary penalty of $25 per day between the date the Department received the request

and the date the Department made the records available.10 The trial court denied the

Department's motions for reconsideration.11

       The Department appeals.

                                        ANALYSIS

       We review a challenge to agency action under the PRA de novo.12 This court

sits in the same position as the trial court when the record consists only of affidavits,

memoranda of law, and other documentary evidence.13 Specifically, review of a

determination of agency bad faith toward inmates is a mixed question of law and fact.14



       8 Evans CP at 248-49; Jones CP at 524; Robinson CP at 318.
       9 Cook CP at 148.
      10 Cook CP at 147-49 (totaling $8,775); Evans CP at 249 (totaling $5,875); Jones
CP at 524-25 (totaling $7,025); Robinson CP at 318 (totaling $6,925).
      11 The Department moved for reconsideration under CR 59(a)(7) and (9).
       12 City of Federal Way v. Koenig, 167Wn.2d.341, 344, 217 P.3d 1172(2009).
      13 Progressive Animal Welfare Soc'v v. Univ. of Wash., 125 Wn.2d 243, 252, 884
P.2d 592 (1995).
      14 Faulkner, 183 Wn. App. at 101-02 (quoting Francis v. Dep't of Corr., 178 Wn.
App. 42, 51-52, 313 P.3d 457 (2013)).
No. 76012-2-1/6


"When underlying facts are uncontested, we apply de novo review to determine if the

facts amount to bad faith."15

       An inmate is entitled to penalties under the PRA upon showing the agency acted

in bad faith.16 To establish bad faith, an inmate must establish "a wanton or willful act or

omission by the agency."17 In this setting, "'[w]anton' is defined as '[unreasonably or

maliciously risking harm while being utterly indifferent to the consequences.'"18 Bad
faith is not a mere violation of the PRA; it is associated with the most culpable acts by

an agency.19

       The legislature adopted this bad faith standard in 2011 "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."20 The legislature "'intended to afford prisoners
an effective records search, while insulating agencies from penalties as long as they did

not act in bad faith.'"21 "By incorporating the bad faith requirement, the legislature

allows monetary penalties for inmates only when the agency's conduct defeats the




       15 Id at 102.
       16 Id, (quoting RCW 42.56.565(1)).
       17 Id, at 103.
       18 ]d,at 103-04 ("Further, 'wanton differs from reckless both as to the actual state
of mind and as to the degree of culpability. One who is acting recklessly is fully aware
of the unreasonable risk he is creating, but may be trying and hoping to avoid any harm.
One acting wantonly may be creating no greater risk of harm, but he is not trying to
avoid it and is indifferent to whether harm results or not.'" (quoting Black's Law
Dictionary 1720 (9th ed. 2009))).
        19 Id, at 105.
        20 Id, (citing S.B. 5025, 62d Leg., Reg. Sess. (Wash. 2011)).
        21 ]d, at 106 (quoting Francis, 178 Wn. App. at 60).
No. 76012-2-1/7



purpose of the PRA and deserves harsh punishment."22 "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."23

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

search does not necessarily constitute bad faith."24 But an agency is subject to

penalties if it fails to perform a search consistent with its own policy "'within the broad

canopy of reasonableness.'"25 Reasonableness is determined by examining all the

circumstances of the case.26

       The Department argues no penalties are warranted. We agree.

       The plain meaning of Newsbrief 13-01 is that phone logs are not public records,

and the response to a request for phone logs should be that

       [t]he Department's phone system is run and maintained by an outside
       vendor and the phone call records you request are not public records
       created, used or maintained by the department; therefore, the records are
       not disclosable under the Public Records Act, RCW 42.56.1271

The parties dispute the meaning of the additional note in Newsbrief 13-01:

       Please note, that records pulled from the GTL system for use in agency
       business (i.e. as an exhibit attached to an investigation) may be subject to
       disclosure and in this case would need to be pulled and provided in
       response to any public records request and reviewed for potential
       release.1281




       22 id,
       23 id,
       24 id, at 102 (citing Francis, 178 Wn. App. at 63 n.5).
       25 Id, (quoting Francis, 178 Wn. App. at 63).
       26 Francis, 178 Wn. App. at 63 n.5)
       27 Cook CP at 34; Evans CP at 36; Jones CP at 40; Robinson CP at 224.
       28 Cook CP at 34; Evans CP at 36; Jones CP at 40; Robinson CP at 224.
No. 76012-2-1/8


On its face, this note is an internal guideline informing staff that exhibits to investigations

are not the subject of Newsbrief 13-01.29 The note is narrow in scope, "(i.e. [that is]

exhibits attached to an investigation)" and tentative in nature, "may be subject to

disclosure." We do not discern any implied policy to search investigation files or to

disclose the substance of the internal note.

       The Department consistently applied the plain meaning of Newsbrief 13-01 and

gave the requesters the specific response dictated by the policy. When the Department

reconsidered its policy and concluded phone logs were public records, it promptly made

the requested phone logs available. Merely because the Department could have
offered more information does not mean that its conduct was willful or wanton. The

Department reasonably complied with its then-existing objectively reasonable belief that
phone logs were not public records. It reasonably construed Newsbrief 13-01 as limited
to the policy that phone logs are not public records. Under these circumstances, the
failure to search or disclose to inmates that exhibits to investigations may be public

records did not jeopardize the sovereignty of the people or government accountability.
We conclude the Department did not act in bad faith and the "harsh punishment" of

monetary penalties is not warranted.

        RCW 42.56.550(4) provides, "Any person who prevails against an agency in any
action in the courts seeking the right to inspect or copy any public record . . . shall be
awarded all costs, including reasonable attorney fees, incurred in connection with such
legal action." Based on the Department's concessions that the inmate phone logs are


        29 We do not rely on any ofthe declarations offered by the Department on its
motion for reconsideration.


                                               8
No. 76012-2-1/9


public records, the Department acknowledges remand is appropriate to determine

reasonable costs and attorney fees.

      Accordingly, we reverse and remand to the trial court to revise its award of costs

and attorney fees to the inmate requesters consistent with this opinion.




WE CONCUR:
