                                                                           FILED
                                                                    COURT OF

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                   A        9;
                                                                   2Q S FEB - 3
                                             DIVISION II .
                                                                    STPTE OF WASHINGTON
EUGENE GARVIE,                                                         No. 453 -            II
                                                                     BY
                                                                               P       1'
                                    Appellant.


         v.



    WASHINGTON STATE DEPARTMENT OF                                UNPUBLISHED OPINION
    CORRECTIONS,


                                    Respondent.


        MELNICK, J. —      Pursuant to the Public Records Act (PRA), 1 Eugene Garvie, an inmate with

the Department    of   Corrections ( DOC), made four requests for audio recordings of telephone calls


he made through DOC' s inmate telephone system. DOC claimed an exemption and withheld the

records. Garvie filed a complaint against DOC in Thurston County Superior Court. The trial court

denied Garvie' s motion to show cause and granted DOC' s motion for summary judgment. It ruled

that Garvie' s claims relating to his first two requests were time barred, and that DOC complied

with his latter two requests. Garvie appeals. We affirm.

                                                  FACTS


         The PRA requires agencies to make available for public inspection and copying all public

records, unless the records fall within the specific exemptions of another statute which exempts

disclosure    of certain records.   RCW 42. 56. 070( 1).   RCW 9. 73. 095( 3)( b) exempts disclosure of

recorded conversations from corrections facilities. It provides




1
    Ch. 42. 56 RCW.
45329 -1 - II



           t] he contents of any intercepted and recorded conversation shall be divulged only
          as is necessary to safeguard the orderly operation of the correctional facility, in
          response to a court order, or in the prosecution. or investigation of any crime.

RCW 9. 73. 095( 3)( b).

I.        SUBSTANTIVE FACTS


          A.        First Request: PDU -14345


          On February 14, 2011, DOC received a public records request from Garvie for "recordings

by   inmate telephone" to a specified telephone number for the period of "March 10, 2010 to


present."      Clerk' s Papers ( CP) at 58. DOC acknowledged receipt of this request in a timely manner

and assigned      it tracking   number   PDU- 14345.        On March 2, 2011, DOC informed Garvie that it


prepared a compact disc ( CD) containing the requested telephone recordings, but the recordings

were exempt       from disclosure    under   RCW 9. 73. 095( 3)( b)    and   RCW 42. 56. 070( 1).    Garvie appealed


through the DOC appeals process. On April 12, 2011, DOC confirmed the recordings are exempt


and denied his appeal.


          B.        Second Request: PDU -19078


          On February 17, 2012, DOC received a public records request from Garvie' s attorney' s

legal   assistant   for "[   r] ecordings of calls    between Brian Eugene Garvie ...               and [ a specified]




telephone       number ...      between March        of   2009   and   September    of   2010."   CP   at   103.   DOC


acknowledged receipt of this request in a timely manner and assigned it tracking number PDU -

 19078.    DOC indicated it would further respond to the request on or before April 6, 2012.

          On April 3, 2012, DOC notified the requestor that DOC had identified and gathered the

records she requested, but the records were exempt from disclosure under RCW 9. 73. 095( 3)( b).

Additionally, DOC provided a three -page call report identifying the calls made by Garvie during
the time period requested.




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45329 -1 - II




            On April 23, 2012, the same requestor provided DOC with a copy of a court order issued

by   Snohomish        County    Superior Court compelling the          release of    the   recordings.    The order, dated


April 23, 2012,       required   DOC to " produce      a   recording   of ...   phone calls in its possession involving

Mr. G arv i e . ..     calling" the   specified     telephone   number     between     January   and     July   2010.   CP at


110.


            On April 30, 2012, DOC sent the requestor a letter informing her that DOC could not locate

any    recordings      specified   in the   court   order.    In the letter, DOC explained that recorded calls


automatically drop off the recording system after one year unless saved outside the system on a

CD. DOC claimed the telephone recordings subject to the order were not preserved outside of the


recording        system.     On May 17, 2012, the superior court dismissed with prejudice the case from

which the order to compel issued. The requestor did not appeal.


            C.        Third Request: PDU -20589


            On June 12, 2012, DOC            received      another public       records    request   from Garvie.       DOC


acknowledged receipt of this request in a timely manner and assigned it tracking number PDU -

20589. In its response letter, DOC asked for confirmation of its interpretation of Garvie' s request

that   he   sought "[   t] he original request submitted by [ Garvie] that was assigned tracking number

PDU -14345 and all the correspondence addressed to [ Garvie] and /or [ DOC] that were generated

from that        request."   CP at 74. DOC requested Garvie to notify it if its interpretation was incorrect.

DOC additionally notified Garvie that it would mail nine pages of responsive records to his father,

Ralph Garvie.


            Garvie did not challenge DOC' s interpretation of his request, and he sent payment for the

records.         On July 11, 2012, DOC mailed the records relating to his first request to Ralph Garvie

and closed the request. Garvie did not appeal DOC' s response.




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45329 -1 - II



         D.        Fourth Request: PDU -20850


         On June 29, 2012, while the third request was pending, DOC received another public

records request     from Garvie.    This request sought " PDU -19078 which was filed on February 17,

2012, for [t] elephone [ r] ecordings of Brian Eugene Garvie to [ a specified number], between March

2009    and   September 2010.      CP at 82. In this request, Garvie indicated he had a court order issued


by a superior court compelling the release of the recordings.

         DOC acknowledged receipt of Garvie' s request in a timely manner, confirmed that he

sought the telephone recordings originally requested in his second request, assigned it tracking

number    PDU -20850,     and requested a   copy   of   the   order   compelling   release of   the   recordings.   A


week later, Garvie provided DOC a copy of the same order it received in the second request. The

case from which the order issued had already been dismissed with prejudice.

         DOC acknowledged receipt of the order and stated it was reviewing everything. On August

27, 2012, DOC notified Garvie that it closed the fourth request and informed Garvie that he should


contact his attorney with concerns regarding the court order. Garvie thereupon requested that DOC

reopen this request. DOC responded that the requested records were exempt from disclosure for

the same reasons stated in Garvie' s earlier request.


II.      PROCEDURAL HISTORY


         On January 14, 2013, Garvie filed a complaint in the Thurston County Superior Court

alleging violations of the PRA regarding the four public records requests. He sought statutory

penalties.      Subsequently, he filed a declaration of personal service of summon and complaint in

which he declared that Ralph Garvie personally served the complaint on DOC Public Disclosures

Unit.    DOC entered a limited notice of appearance and, in its answer, affirmatively alleged

insufficient service of process and lack of personal jurisdiction.




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45329 -1 - 1I



          On March 8, 2013, the trial court told Garvie that his case would not be adjudicated until


he properly served DOC and filed proof of the same. On May 9, 2013, Garvie properly served his

complaint on the Attorney General' s Office.

          On September 13, 2013, the trial court entered an order denying Garvie' s motion to show

cause.    The trial court granted DOC' s motion for summary judgment because DOC " claimed an

exemption for PDU -14345 on March 2, 2011, thereby triggering the one -year statute of limitations

under    RCW 42. 56. 550( 6)."             CP at 19. The trial court also found that DOC " claimed an exemption


for PDU -19078 on April 3, 2012, thereby triggering the one -year statute of limitations under RCW

42. 56. 550( 6)."      CP    at    19.     The trial court ruled that Garvie' s claims regarding PDU -14345 and

PDU -19078 were barred because he did not commence the action in a timely fashion.

          Additionally, the trial court ruled that DOC complied with the PRA in regards to PDU -

20589     by     responding        within     five business days          and "    produced all records responsive to its


reasonable       interpretation          of [ Garvie]' s request."       CP   at   20. The trial court also found that DOC


complied with the PRA in regards to PDU -20850 by responding within five business days, and it

properly    exempted         the   requested     telephone   recordings under          RCW 9. 73. 095( 3)( b). The trial court


denied Garvie' s motion to show cause, granted DOC' s summary judgment motion, and dismissed

the complaint with           prejudice.       Garvie appealed.


                                                           ANALYSIS


          Garvie argues that the trial court erred by granting DOC' s motions for summary judgment.

We disagree. We review a trial court' s decision to grant a motion for summary judgment de novo.

                                                 177 Wn.2d 584, 594, 305 P. 3d 230 ( 2013).            We perform the same
Kofinehl    v.
                 Baseling Lake, LLC,

inquiry    as    the trial    court.       Kofinehl, 177 Wn.2d           at   594.   Summary judgment is an appropriate

procedure        for   deciding      public     records   cases.     Spokane Research &           Defense. Fund v. City of




                                                                     5
45329 -1 - II




Spokane, 155 Wn.2d 89, 106, 117 P. 3d 1117 ( 2005).                          Summary judgment is appropriate where

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. CR 56( c).


I.          PRA REQUESTS


            As a preliminary matter, Garvie argues that his four PRA requests should be treated as one

ongoing      request.             He provides neither reference to the record nor citations to legal authority in

support of this argument. Self represented
                               -           litigants are held to the same standard as attorneys and


must comply with all procedural rules on appeal. In re Marriage of Olson, 69 Wn. App. 621, 626,

850 P. 2d 527 ( 1993).               An appellant must provide " argument in support of the issues presented for


review, together with citations to legal authority and references to relevant parts of the record."

RAP 10. 3(       a)(   6).    We will not consider arguments that are not supported by any reference to the

record or by citation of authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,

828 P. 2d 549 ( 1992).               In this case, the record clearly demonstrates that Garvie treated his requests

as separate requests.                 Two of the four requests sought telephone recordings from different time


frames. We treat each of Garvie' s requests separately and review each accordingly.

            A.          First Request: PDU -14345


            Garvie argues that the trial court erred when it found that his claim relating to PDU -14345

is time barred because he did not commence a legal action within the PRA' s one year statute of

limitations. We disagree and affirm the trial court' s denial of Garvie' s claim.

            Civil actions are subject to dismissal if not commenced within the prescribed statute of

limitations. See             e.   g., Unisys   Corp.   v.   Senn, 99 Wn.   App.   391, 994 P. 2d 244 ( 2000). PRA actions


     must   be filed         within one year of        the agency'   s   claim of exemption."     RCW 42. 56. 550( 6). In


addition, "[      w]hen an agency claims an exemption for an entire record or portion of one, it must



                                                                     6
45329 -1 - II




inform the requestor of the statutory exemption and provide a brief explanation of how the

exemption applies        to the   record or portion withheld."     Rental Hous. Ass' n ofPuget Sound v. City

of Des Moines, 165 Wn.2d 525, 539, 199 P. 3d 393 ( 2009) ( quoting                 WAC 44- 14- 04004( 4)( b)( ii));

RCW 42. 56. 210( 3).


         Here, DOC responded in a timely manner and properly claimed an exemption on March 2,

2011, which triggered the start of the one -year statute of limitations. Garvie' s action is time barred

because he did     not   file it within   one year of   March 2, 2011. We affirm the trial court because there


is no genuine issue of material fact and DOC is entitled to judgment as a matter of law.

         B.        Second Request: PDU -19078


         Garvie next argues that the trial court erred when it found that his claim relating to PDU-

19078 is time barred because he did not commence action within the PRA' s one year statute of

limitations. We disagree and affirm the trial court' s denial of Garvie' s claim.


         As discussed above, PRA actions must be filed within one year of the agency' s claim of

exemption.       RCW 42. 56. 550( 6).        Here, DOC properly claimed an exemption on April 3, 2012

when it informed the requestor that it gathered the requested telephone recordings and identified

that statutes under which the recordings were exempt. Garvie filed his complaint on January 14,

2013, within the one -year statute of limitations. But he did not properly serve DOC until May 9,

2013.


         For the purpose of tolling the applicable statute of limitations,• an action is commenced

when    either   the   complaint     is filed   or   the summons    is   served,   whichever   occurs   first.   RCW


4. 16. 170. If the complaint is filed, the plaintiff then has 90 days thereafter to perfect service. RCW

4. 16. 170. Therefore, if a case is filed first, there is a 90 -day tolling period to serve the defendant.




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45329 -1 - II




If service is accomplished within 90 days, the lawsuit is timely, even if the applicable limitations

period     has   expired.     See,    e. g.,   Wothers    v.   Farmers Ins. Co.,        101 Wn. App. 75, 5 P. 3d 719 ( 2000).

           Garvie did not properly serve DOC after the 90 -day window allowed by RCW 4. 16. 170.2
Therefore, the statute of limitations was not tolled. Garvie' s complaint is time barred because he

did not timely commence his lawsuit. We affirm the trial court because there is no genuine issue

of material fact and DOC is entitled to judgment as a matter of law.

           Garvie also argues that the trial court stayed and tolled the time to perfect service and DOC

did   not object.       Garvie provides no support or citation to authority for this argument. Therefore,

we    do   not consider       this argument. RAP 10. 3(              a)(   6);   Cowiche Canyon Conservancy, 118 Wn.2d at

809. Garvie' s claim that the trial court tolled the statute of limitations fails.


           Garvie finally argues that the trial court should have applied equitable tolling to revive his

claims. A court may toll the statute of limitations when justice requires; however, it should permit,

equitable        tolling sparingly.             State    v.   Duvall, 86 Wn.          App.   871, 875, 940 P. 2d 671 ( 1997);


Finkelstein       v.   Sec.   Prop.,   Inc., 76 Wn.           App.   733, 739, 888 P. 2d 161 ( 1995). "       The predicates for


equitable tolling are bad faith, deception, or false assurances by the defendant and the exercise of

diligence                                 Millay         Cam, 135 Wn.2d 193, 206, 955 P. 2d 791, 797 ( 1998).               The
              by   the   plaintiff."                v.




party asserting equitable tolling bears the burden of proof. City ofBellevue v. Benyaminov, 144
Wn.    App.      755, 767, 183 P. 3d 1127 ( 2008).                   Here, Garvie offers no .evidence and the record does

not support a          finding   of   bad faith, deception,           or    false   assurances   by   DOC. Therefore, equitable


tolling does not apply and the trial court did not err.




2 Service is accomplished in a civil against the State by serving the " attorney general, or by
leaving the summons and complaint in the office of the attorney general with an assistant
attorney     general."        RCW 4. 92. 020.
45329 -1 - II



          C.       Third Request:      PDU -20589


          Garvie argues that the trial court erred when it found DOC complied with the PRA relating

to his claim, PDU- 20589. We disagree and affirm the trial court' s grant of summary judgment to

DOC.


          The PRA requires that, within five business days of receiving a record request, an agency

must provide the record, acknowledge receipt of the request and provide a reasonable estimate of


the time needed to respond, or deny the request. RCW 42. 56. 520. Additional time to respond to

a request may be based on the need to clarify the request, locate and assemble requested

information,     or   determine   whether   any     requested         information is       exempt.    RCW 42. 46. 520.      An


agency may seek clarification if a request is unclear. RCW 42.46. 520.

          Here, DOC      received   Garvie'   s   third   public records request on           June 12, 2013.        Within five


days it   responded     to the   request and assigned        it   a   tracking   number     PDU- 20589.         In its response,


DOC requested clarification of Garvie' s request and advised him that its interpretation was that

Garvie sought the records associated with his original request from February 2011, PDU -14345.

Garvie did not notify DOC that its interpretation was incorrect, and he sent DOC payment for the

records.       DOC properly      complied with       the PRA.          Therefore, the trial court did not err and we


affirm the trial court because there is no genuine issue of material fact and DOC is entitled to

judgment as a matter of law.


          D.       Fourth Request: PDU -20850


          Garvie argues that the trial court erred when it found DOC complied with the PRA relating

to his claim, PDU- 20850, and that DOC properly exempted the telephone recordings under RCW

9. 73. 095( 3)( b). We disagree      and affirm     the trial     court' s   denial   of   Garvie'   s claim.
45329 -1 - II




           The PRA requires that denials of requests must be accompanied by a written statement of

the specific reasons      for denial. RCW 42. 46. 520.         As discussed above, when an agency refuses

inspection of a record based on exemption of that record, the agency' s response must include a

statement of the specific statutory exemption authorizing withholding and a brief explanation of

how the exemption applies to the record withheld. Rental Hous. Ass' n, 165 Wn.2d at 539 ( quoting

WAC 44- 14- 04004( 4)( b)( ii)); RCW 42. 56. 210( 3).            RCW 42. 56. 070( 1)   provides that agencies



shall make available for public inspection and copying all public records, unless the record falls

within the specific exemptions of another statute which exempts disclosure of certain records.

RCW 9. 73. 095( 3)( b)     provides   that "[   t]he contents of any intercepted and recorded conversation

shall be divulged only as is necessary to safeguard the orderly operation of the correctional facility,

in response to a court order, or in the prosecution or investigation of any crime."

           Here, DOC received Garvie' s fourth public records request on June 29, 2012. It responded

to the request and assigned it tracking number PDU -20850 on July 9, 2012, within five business

days.      In its response, DOC notified Garvie he was requesting the same telephone recordings

previously sought by his attorney on his behalf. Therefore, DOC complied with the PRA when it

responded to Garvie' s request within five business days.


           DOC properly exempted the requested telephone recordings from disclosure under RCW

9. 73. 095( 3)( b).   In its response on July 9, 2012, DOC requested the court order compelling release

of   the   records.   Although Garvie provided a copy of a court order issued by a superior court

compelling release of the recordings, the order was no longer valid because the case had been
dismissed       with prejudice.   Therefore, DOC properly claimed a statutory exemption for release.

RCW 9. 73. 095( 3)( b), RCW 42. 56. 070.




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45329 -1 - II



          Garvie also argues that DOC failed to adequately explain the basis for withholding the

records   as    required   by   RCW 42. 56. 210( 3).   We disagree.     DOC provided an adequate brief


explanation in a timely manner in which it identified the statutes under which the recording were

exempt.    We affirm the trial court because there is no genuine issue of material fact and DOC is

entitled to judgment as a matter of law.


          We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                      Melnick,


We concur:




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