                                                                            FILED 

                                                                          DEC 1,2015 

                                                                  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. 33163-6-111
                      Appellant,              )
                                              )
       v.                                     )
                                              )
WASHINGTONSTATEDEPARTMENT                     )         UNPUBLISHED OPINION
OF CORRECTIONS,                               )
                                              )
                      Respondents.            )

       KORSMO, J. -    Steven Kozol concocted a scheme in prison to make money off the

Public Records Act (PRA) with a former inmate who was out of prison. When the trial

court dismissed his action on show cause, he appealed to this court. We affirm.

                                          FACTS

       Mr. Kozol communicated with Aaron Leigh concerning a method of filing vague

PRA requests for documents that they knew the Department of Corrections (DOC) did

not maintain and then win awards for the failure of DOC to comply with the request. In

accordance with that plan, Mr. Kozol sent 31 1 separate PRA requests to DOC, each


       1 Although  only 29 of these appear in the record, there is no dispute that there
were in fact 31, and all subsequent correspondence shows requests for 31 specific
grievance numbers.
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Kozol v. Wash. State Dep't ojCorrs. 



requesting "any and all records for inmate/offender grievance # []. This includes the

original complaint form." DOC received the requests and five business days later

responded with an outline of expected production dates in early April, 2012. Pursuant to

that schedule DOC responded individually to each of Mr. Kozol's requests. While DOC

staff were unable to locate any records on one of the requests (request number PDU­

18880), they did produce, with some redactions, files on the other 30 grievances,

including copies of the original grievance forms.

       Between March 25 and July 12,2013, Mr. Kozol and DOC exchanged a series of

letters in which Mr. Kozol accused DOC of silently withholding responsive records,

while DOC asked for proof of withholdings, and ultimately declined to provide any

additional records. 2 Then again on November 22, 2013, Mr. Kozol sent a letter to DOC

demanding the production of all "silently withheld responsive records" pertaining to

these and other PRA requests. He then filed suit on December 11, 2013 in Spokane

County, vaguely alleging a large number of non-specific PRA violations.

       The primary substance of his claims was that DOC failed to adequately respond to

his requests because it omitted the back side of all of the grievance forms, and that it

violated the PRA by failing to disclose any responsive documents on PDU-18880. The



       2 These letters are not in the record on appeal, and so their content is not clear.
They are vaguely described in Mr. Kozol's complaint, while in its answer the DOC
admits their existence and asserts that their content speaks for itself.

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No. 33163-6-III
Kozol v. Wash. State Dep't o/Corrs.


grievance forms at issue are two sided, containing space to write the substance of the

grievance on the front, with some instructional information on the back. Since the back

side contains only instructions, DOC does not retain copies of the back sides when the

grievance is scanned into its records system.

       During discovery, the DOC located and disclosed the grievance records responsive

to request PDU-18880. DOC had originally failed to locate the grievance after searching

its grievance database and contacting the statewide grievance coordinator. However, the

grievance had never been logged in either place, but was located at the Airway Heights

Corrections Center.

       DOC filed a show cause motion to dismiss, arguing that it had produced all

records, had performed an adequate search for PDU-18880, and that the litigation was

untimely. Mr. Kozol moved for a continuance to pursue more discovery and moved to

strike his communications with Mr. Leigh from the record. The trial court denied Mr.

Kozol's motions and granted the show cause motion to dismiss on the bases that DOC

had provided most records and had performed an adequate search for PDU-18880. Mr.

Kozol then timely appealed to this court.

                                       ANALYSIS

      Although the briefing raises several claims, we need only address two of them.

The two issues we address are whether the court erred in denying the continuance and




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Kozol v. Wash. State Dep 't ofCorrs. 



whether the trial court correctly dismissed the action. 3 We address those two concerns in

the stated order.

       Continuance

       CR 56(f) allows the trial court to order a continuance to allow further discovery

where it appears that the responding party, for good reason, cannot present facts essential

to its opposition to the motion. Review of a denial of a motion under CR 56(f) is for

abuse of discretion. Tellevik v. 31641 W Rutherford St., 120 Wn.2d 68,90, 838 P.2d 111

(1992). A court may deny such a motion where (1) the requesting party fails to offer a

good reason for the delay, (2) the requesting party does not state what evidence is

desired, or (3) the desired evidence will not raise a genuine issue of material fact. Id.

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

       Mr. Kozol argues that the continuance should have been granted to allow him to

discover if DOC used the back of the forms in any manner. His argument is not

responsive to the standards of CR 56(f) because the discovery would not have raised any

issues of genuine material fact concerning DOC's compliance with the PRA. The


       3 We do not reach the question of whether this action was timely filed. The
motion to strike is moot as those materials did not playa role in the trial court's decision
to grant the dismissal motion. Mr. Kozol also seeks attorney fees in this action.
However, since he is proceeding pro se, he could not have received attorney fees even if
he had prevailed. West v. Thurston County, 168 Wn. App. 162, 194-195,275 P.3d 1200
(2012); Mitchell v. Dep 't ofCorrs., 164 Wn. App. 597,608,260 P.3d 249 (2011).

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Kozol v. Wash. State Dep 't ofCorrs. 



questions presented by the show cause motion were whether DOC had provided what it

was supposed to provide and whether it looked hard enough for the document that was

belatedly provided. Whether or how the back of the grievance forms had been used when

they existed was not a matter of consequence to the motion.

       Mr. Kozol failed to present a valid reason for continuing the show cause motion.

Thus, the court had a very tenable reason for denying the motion. There was no abuse of

discretion.

       Show Cause Ruling

       Mr. Kozol argues that the court erred in granting the show cause motion,

contending primarily4 that DOC withheld records by not turning over the back side of the

grievance forms and that the belated production of PDU-18880 proved that DOC was in

violation of the PRA. His initial argument misconstrues what is a public record and the

second ignores the rules concerning review of missing records.

       Appellate review of a PRA case is de novo. RCW 42.56.550(3); City ofFed. Way

v. Koenig, 167 Wn.2d 341, 344, 217 P.3d 1172 (2009). Judicial review ofPRA disputes

typically is by way ofa show cause hearing. RCW 42.56.550(1).




       4 Mr. Kozol also presents other arguments that are not germane to the trial court's
ruling and will not be addressed.



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Kozol v. Wash. State Dep 't ofCorrs. 



       The PRA is a broadly worded mandate for disclosure of state government records.

To that end, the final paragraph of RCW 42.17 A.OO 1 declares in part that the provisions

of Initiative 276 "shall be liberally construed to promote ... full access to public

records." Government agencies must make their records available for inspection and

copying. RCW 42.56.070. A "public record" is broadly defined as "any writing

containing information relating to the conduct of government." RCW 42.56.010(3).

       However, whether 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. Sperr v. City ofSpokane, 123 Wn.

App. l32, l36-137, 96 PJd 1012 (2004). 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 the PRA. There can be no silent withholding of a document that no longer exists. The

trial court correctly concluded that there was no violation of the PRA.

       The remaining issue is whether DOC violated the PRA by its late disclosure of

PDU-18880. DOC did not originally produce the record because it could not find it. The

agency looked in the places where the grievance was supposed to be found. When an

agency does not find a record that should exist, the question for review is whether or not

the search was adequate. Neighborhood All. ofSpokane County v. County ofSpokane,




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Kozol v. Wash. State Dep't ofCorrs. 



172 Wn.2d 702, 719-720, 261 P.3d 119 (2011). The agency must look in the place where

the record "is reasonably likely to be found." ld. at 720.

       We agree with the trial court that the search here was adequate. The grievance

fonns are supposed to be scanned into the grievance records system and then destroyed.

The public disclosure officer for DOC checked the records system and then, when there

was no record for the grievance, contacted the statewide grievance coordinator to

determine if the record was located elsewhere. Neither officer knew of another location

where it would likely find the missing grievance.

      The fact that the record eventually was found does not establish that the agency's

search was not adequate. ld. at 719. Instead, the question is whether the search was

"reasonably calculated to uncover all relevant documents." ld. at 720. That was the case

here. The records officer checked the records system. When that proved unavailing, the

records officer checked with the statewide coordinator who likewise could not find it

anywhere. Neither official knew where else it could be located. A reasonable search

need neither be exhaustive or successful.

       We agree with the trial court that DOC looked in all the places the record should

have been. Nothing more was required of it.




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No. 33163-6-III
Kozol v. Wash. State Dep 't ofCorrs.


      The judgment is affinned.

      A majority of the panel has detennined 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: 





      Siddoway, C.J.



      Lawrence-Berrey, J.




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