                                                                                  £_M
                                                                                  —pj
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                         rn

                                                                                   !
JOHN F. KLINKERT,
                                                  No. 71461-9-1
                     Appellant,
                                                                                  V?
                                                  DIVISION ONE
                                                                                  CO
              v.                                                                  CO




WASHINGTON STATE CRIMINAL                         PUBLISHED OPINION
JUSTICE TRAINING COMMISSION,
                                                  FILED: February 9, 2015
                     Respondent.


       Becker, J. — By statute, an investigative file sent by a law enforcement

agency to the Washington State Criminal Justice Training Commission is exempt

from public disclosure. Because the appellant in this case brought his action

more than one year from the Commission's properly-stated claim of exemption,

the trial court did not err by dismissing the action as time barred.

       The Commission licenses all Washington police officers. RCW

43.101.085(6). Officers must be certified by the Commission as a condition of

continuing employment. RCW 43.101.095(1). If an employer terminates an

officer's employment for "disqualifying misconduct," the Commission may revoke

the officer's certification. RCW 43.101.105(d). Washington law enforcement

agencies are required to notify the Commission when an officer is so terminated.

RCW 43.101.135. The Commission may request the agency's investigative file
No. 71461-9-1/2


documenting the misconduct leading to the termination, and the terminating

agency is required to comply with such a request. RCW 43.101.135.

Commission records that are exempt from public disclosure include "investigative

files of the commission compiled in carrying out the responsibilities of the

commission." RCW 43.101.400(1 )(c).

       On October 27, 2009, appellant John F. Klinkert submitted a public

records request to the Commission, asking for documents involving a King

County sheriff's deputy. The deputy had been terminated from his job after an

internal investigation found he used excessive force against a juvenile arrestee in

a holding cell. Klinkert asked the Commission to produce "any and all

documents, transcripts, emails, handwritten notes, recordings or images" relating

to that incident.1

       On November 18, 2009, the Commission responded to Klinkert with a

one-page exemption log for two documents that were being withheld. Both had

been received from the King County Sheriff's Office. The first document was

identified as a one-page "Notice of HirerTermination" for the deputy dated

September 24, 2009. The log explained, "This is a personnel action report and

such reports are confidential and exempt from public disclosure under

43.101.400(1)."

       The second document was identified as a 713-page investigative file on

the deputy with a cover letter dated September 30, 2009. The log explained that


        1 The record reflects that Klinkert, a retired attorney, successfully obtained some
records concerning this incident from the King County Sheriff's Office. At oral argument
before this court, Klinkert said he wanted to make sure that the sheriff's office sent all the
records it had to the Commission.
No. 71461-9-1/3


it was "additional documentation or information related to the personnel action

report" regarding the deputy and "these are records that may be used by

WSCJTC in an investigation of his certification. These documents cannot be

disclosed under RCW 43.101.400(1)."

      On November 30, 2009, Klinkert sent an e-mail advising the Commission

that in his opinion, the exemption log did not meet the requirements of the law as

stated in Rental Housing Association of Puqet Sound v. City of Pes Moines, 165

Wn.2d 525, 199 P.3d 393 (2009). Klinkert received no answer to this e-mail.

       On August 3, 2010, Klinkert wrote to the Commission complaining that the

exemption log was inadequate because it did not itemize each document within

the 713-page investigative file. He added a new request for all documents

related to the incident containing the deputy's handwriting.

       On August 5, 2010, the Commission responded to Klinkert by e-mail,

stating that the exemption log was "fully adequate." The e-mail stated that it was

permissible to withhold the entirety of the 713-page investigative file, so long as

the privilege log provided enough information to the requester to understand

whether the file was within the exemption. According to the e-mail, "Publishing

an inventory of the investigative file's contents is not required . .. and could

easily defeat our proper claim of privilege." Klinkert was informed that the

Commission did have documents containing the deputy's handwriting, but they

were inside the exempt 713-page investigative file, "part of a record we compiled

in conducting an investigation into his certification."
No. 71461-9-1/4


       On July 24, 2013, Klinkert filed suit in superior court, alleging that the

Commission had violated the Public Records Act, chapter 42.56 RCW, by

improperly withholding the requested records. The Commission moved to

dismiss the complaint as barred by the Act's one-year statute of limitations. The

trial court granted the motion. Klinkert appeals.

       The Act requires that public agencies make all public records available for

public inspection and copying, unless the record falls within the specific

exemptions of RCW 42.56.070(6), chapter 41.56 RCW, or "other statute" which

exempts or prohibits disclosure of specific information or records. RCW

42.56.070(1). Here, the exemption claimed by the Commission is found in an

"other statute," namely RCW 43.101.400. It should be noted that this appeal is

not concerned with RCW 42.56.240(1), the exemption for "specific intelligence

information and specific investigative records ... the nondisclosure of which is

essential to effective law enforcement or for the protection of any person's right

to privacy."

       When an agency responds to a request by refusing inspection of any

public record in whole or in part, the response must include "a statement of the

specific exemption authorizing the withholding ofthe record (or part) and a brief
explanation of howthe exemption applies to the record withheld." RCW
42.56.210(3): Progressive Animal Welfare Soc. v. Univ. of Wash., 125Wn.2d

243, 271 n.18, 884 P.2d 592 (1994). The brief explanation can be in the form of

a privilege log or withholding index and "need not be elaborate but should allow a
requestor to make a threshold determination of whether the agency has properly
No. 71461-9-1/5


invoked the exemption." WAC 44-14-04004(4)(b)(ii), quoted in Rental Housing

Association, 165 Wn.2d at 539. The adequacy of a public agency's response to

a request for production is subject to judicial review in the superior court in the

county in which the records at issue are maintained.

       An action seeking judicial review of an agency's refusal to allow inspection

or copying of a public record must be filed within one year of the agency's claim

of exemption or the last production of a record on a partial or installment basis.

RCW 42.56.550(6). Ifthe claim of exemption does not provide sufficient

identifying information, the one-year statute of limitations does not begin to run.

Rental Housing Ass'n. 165 Wn.2d at 539-40.

       In Rental Housing Association, the city of Des Moines responded to a

public records request in August 2005 by withholding hundreds of pages of

documents that were not individually identified. They were grouped into

categories that included, among other things, appellate court opinions, treatises,

newspaper articles, and ordinances from other municipalities. Rental Housing

Ass'n, 165 Wn.2d at 529. In response to complaints that such documents were

not exempt, the City provided a privilege log on April 14, 2006. The requesters

filed suit on January 16, 2007. The Supreme Court rejected the City's argument

that the one-year statute of limitation had expired. The City's response in August

2005 was insufficient to trigger the statute of limitations, the court held, because

it did not contain enough details. The limitations period did not begin to run until

the day the City provided an adequate privilege log—April 14, 2006. "Without the
information a privilege log provides, a public citizen and a reviewing court cannot
No. 71461-9-1/6


know (1) what individual records are being withheld, (2) which exemptions are

being claimed for individual records, and (3) whether there is a valid basis for a

claimed exemption for an individual record." Rental Housing Ass'n. 165 Wn.2d at

540.

       Klinkert contends his appeal is controlled by Rental Housing Association

and that it was preposterous for the Commission to treat the investigative file as

a single record. We disagree. The exemption log provided by the Commission

on November 18, 2009, was sufficient to trigger the statute of limitations. It let

Klinkert know that the entire 713-page investigative file was being withheld as

exempt under RCW 43.101.400(1). That was enough information to enable

Klinkert to evaluate, and a court to review, the Commission's decision to withhold

the entire file. As soon as Klinkert received the one-page exemption log in

November 2009, he could have brought suit asking the superior court to rule that

each discrete document in the investigative file required its own separate entry in

the exemption log. His suit—filed on July 24, 2013—was time barred, and the

trial court correctly dismissed it.

       Affirmed.




WE CONCUR:




                                                ^fl^v^g^Y
