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                                                                                        2013 OCT 29
                                                                                                    P I " 9: 46
                                                                                        S TA     o     A


                                                                                              A1JEPE
                                                                                                                opt
                                                                                        BY
                                                                                                           y,


      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                DIVISION II

DEREK E. GRONQUIST,                                                       No. 42774 -5 - II


                                                                         consolidated with)




                                      Appellant,


        V.




STATE OF WASHINGTON, DEPARTMENT
OF CORRECTIONS,



                                                                          No. 43500 -4 -II
DEREK E. GRONQUIST,


                                      Appellant,


          V.                                                       PART PUBLISHED OPINION


STATE OF WASHINGTON, DEPARTMENT
OF CORRECTIONS,




          HUNT, J. —         Derek E. Gronquist appeals several superior court orders and findings

                                                   1
entered    in his Public Records Act (PRA) lawsuit. He argues that the superior court erred in ( 1)


limiting       the penalty   period   of   the Department   of   Corrections ( DOC)' s PRA violation and


awarding a penalty amount that was too small; and ( 2) concluding that the surveillance video


1
    Chapter 42. 56 RCW.
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



recordings     he   requested on      August 5, 2007,       were exempt       from disclosure      under    the PRA.     We


hold that RCW 42. 56. 565( 1) bars an award of PRA penalties to Gronquist because ( 1) he was


serving   a criminal sentence         in   a correctional   facility   when   he   made    his PRA     request   to DOC; ( 2)


the superior court found no bad faith in DOC' s inadvertent omission of one page from the

documents it produced in response to his PRA request; and ( 3) no final judgment had yet been

entered   in his PRA       action at   the time the legislature        enacted    this   prohibition   in 2011. We further


hold that the prison surveillance video recordings that Gronquist requested were exempt from

                                                                                   2
disclosure     under     RCW 42. 56. 240( 1).     Accordingly,       we affirm.



                                                            FACTS


                                               I. PRA REQUESTS To DOC


                                                A. July 30, 2007 Request

          On July 24, 2007, DOC inmate Derek E. Gronquist sent a PRA request to DOC seeking:

          1.    All [ DOC]          inmate identification badges /cards from undocumented alien
          workers employed by DOC' s Class II Industriesp] [....];
          2. All records demonstrating the payment of any wages, gratuities, or other forms
          of payment to undocumented alien workers employed by the DOC[ ....];
          3. All records revealing internal DOC communications and /or deliberations
          concerning the use of undocumented alien workers in DOC' s Industries program.

Clerk' s Papers ( CP)        at   252 -53.    Gronquist     clarified   that "`   undocumented alien worker "' meant




    any person who is not a [ U] nited [ S] tates citizen and who does not possess a current and valid

work     permit     or    similar   document authorizing            such   person      to be   employed    in the [ U] nited



2
    Because DOC did not cross -appeal the superior court' s award of a PRA penalty to Gronquist,
the propriety of this award is not before us in the instant appeal.

3 Neither Gronquist' s request nor the record explains what " DOC' s Class II Industries program"
encompasses.




                                                                2
No. 42774- 5- 11 ( consolidated with No. 43500 -4 -II)



 S] tates."    CP      at    253. DOC received this request on July 30. The next day, DOC responded that


it had no records to disclose in response to Gronquist' s request because DOC' s Class II

Industries program did not identify offenders by citizenship and citizenship was not a part of its

employment process.




                                                  B. August 9, 2007 Request


           On August 9, DOC received from Gronquist a second, unrelated PRA request to DOC


dated August 5, stating:

           I am requesting the following records concerning an assault and /or extortion
           attempt that happened to me at the Clallam Bay Correction[ s] Center on June 17,
           2007:
                        1.    All documents created in response to, or because of, this incident;


                       4.      The surv[ e] illance video of C -unit from 6: 00 a.m. to 2: 00 p.m. of June
            17, 2007;
                       5.      The surv[ e] illance video of the chow hall used for C -unit inmates on
           and for the [ b] reakfast meal on June 17, 2007;


                       9. The complete [ i]nternal [ i]nvestigations file.


CP    at   215 - 16.         In response to this request, on October 26, DOC staff ( 1) mailed Gronquist 96


pages of documents, from which 1 page was inadvertently missing; and ( 2) claimed that the

surveillance        video         recordings were          exempt       from   PRA     disclosure   under   former   RCW

42. 56. 420( 2) ( 2005), providing            a   brief   explanation    for this   claimed exemption.   On November 2,


the Stafford Creek Corrections Center intercepted this mail and withheld 39 pages of documents

                                                                                                4
and   11   photographs           in   accordance with     DOC'   s mail rejection     policy.




4 The record on appeal neither includes nor explains DOC' s mail rejection policy.


                                                                    3
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



           Eventually DOC released these intercepted documents to Gronquist during the discovery

process    in   an unrelated case.      Gronquist did not alert DOC about the single missing page from

the   96   pages     it had   provided.       When DOC later learned about the missing page through

Gronquist' s lawsuit, it located and supplied it to him.

                                                   H. JUDICIAL REVIEW


           On June 12, 2009, Gronquist filed a motion for judicial review under the PRA, asking the

superior    court    to   require   DOC to "      show     cause"    why " disclosure of requested public records


should not      be   compelled and sanctions         imposed" for DOC'          s alleged    PRA   violations.   CP at 429.


On July 27, Gronquist filed a complaint in superior court, claiming DOC had violated the PRA in

 1) failing to conduct an adequate search for records involving " undocumented alien workers ";

 2) withholding surveillance video recordings; and ( 3) improperly withholding one page from the

internal investigation        report.   CP   at   321.    Gronquist also alleged that Stafford Creek' s screening

and withholding of 39 pages and 11 photographs of his PRA documents violated the free speech

clause of the Washington Constitution, article I, section 5.


                           A. December 18, 2009 PRA Order, Findings, and Penalty

           On December 18, 2009, the superior court ruled that ( 1) DOC had violated the PRA by

inadvertently withholding one page of the documents it had provided in response to Gronquist' s

August 9, 2007 PRA            request; (   2) DOC'       s omission   had    not   been in bad faith; ( 3) Gronquist had


failed to request identifiable records when he requested information about undocumented alien


workers (    because "     records   in the form     requested      did   not exist ");   and ( 4) DOC properly withheld




                                                                M
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)


                                                                                                      5
surveillance       video       tapes   from disclosure             under    RCW 42. 56. 240( 1).           I CP    at    125.     For


inadvertently having withheld 1 page, the superior court ordered DOC to pay a PRA penalty of

    15 per day for 24 days, for a total of $260 to Gronquist.

             Arguing fraud, Gronquist later moved to vacate the superior court' s December 18 order.

The superior court denied this motion.


                                     B. Motion To Dismiss; January 3, 2011 Order

             On October 8, 2010, DOC moved to dismiss Gronquist' s PRA action under CR 12( b)( 6).

DOC      argued     that ( 1)       the superior court had resolved all of Gronquist' s PRA claims in its

December 18, 2009 show cause order; and ( 2) the superior court should dismiss Gronquist' s


remaining        art.   1, §    5   claim    as    a    matter     of   law because ( a) violations of the Washington


Constitution are not independently actionable torts, and (b) Gronquist had no protected interest in

receiving      uncensored mail         in   prison.      On January 3, 2011, the superior court granted the motion

in part and dismissed all of Gronquist' s PRA claims except his claim for injunctive relief from

DOC'     s    withholding       a   portion       of   his   incoming       mail " without      legitimate   peneological [       sic]




reasons."       I CP at 98 -99.


                                     C. Motion To Amend; February 27, 2012 Order

             On January 31, 2012, Gronquist moved for leave to file a second amended complaint,

restating his previously resolved and dismissed PRA claims, but adding an allegation that DOC

had    violated    the PRA       by failing       to   conduct an adequate search         for   records.   On February 27, the



5
    The legislature       amended      RCW 42. 56. 240 in 2010, 2012,              and   2013. LAWS of 2013,            ch.   315 § 2;
ch.    190 § 7;   ch.    183 § 1; LAWS of 2012,              ch.   88 § l; LAWS    of   2010,   ch.   266 § 2;   ch.   182 § 5.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
 current version of the statute.



                                                                        E
No. 42774 -5 - II (consolidated with No. 43500 -4 -1I)




superior    court (   1)   denied Gronquist' s motion as untimely; and ( 2) dismissed Gronquist' s sole

remaining     art.   I, § 5 claim with prejudice because he had stated in his memorandum that his art.

                                6
I, § 5   claim was , moot. ,,        Suppl. CP at 477.


          Gronquist        appeals   the   superior   court' s (      1)    December 18, 2009 findings and penalty

order; (   2) January 3, 2011 order granting in part and denying in part DOC' s motion to dismiss;

and ( 3) February 27, 2012 order denying Gronquist' s motion for leave to amend his complaint

and dismissing his remaining claims.

                                                        ANALYSIS


          I. RCW 42. 56. 565( 1) :         ABSENCE OF BAD FAITH BARS PRA PENALTY FOR PRISONER


          Gronquist challenges the amount of the superior court' s December 18, 2009 penalties.


He argues that the superior court lacked authority to reduce the penalty period for DOC' s

inadvertent late disclosure of 1 page of the 96 pages of documents it had provided in response to


his PRA      request.      We hold that RCW 42. 56. 565( 1) defeats this argument because ( 1) DOC did


provide him the missing page when it became aware of its inadvertent earlier omission from the

96   pages   it had timely      provided     in   response   to his         second   PRA   request; (   2) the superior court


expressly found that DOC had not acted in bad faith in having inadvertently omitted this page;




6
    See Gronquist' s       memorandum        in   support of   this        motion.   See also Gronquist' s related motion,
in which he stated that because he had since received the records that were the basis of his art. I,
    5 claim, injunctive relief was no longer necessary.

7 DOC does not cross -appeal the trial court' s imposition of PRA penalties, including the amount.
It challenges only Gronquist' s assertion that the trial court erred in calculating penalties that were
too low, or, in the alternative, that Gronquist' s claim is moot in light of RCW 42. 56. 565( 1).




                                                                Col
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



and ( 3) RCW 42. 56. 565( 1) prohibits an award of any PRA penalties to a prison inmate serving a

criminal sentence absent a showing of bad faith.$

          The question of whether the PRA authorizes a trial court to reduce the penalty period is a

question of   law,   which we review      de   novo.   Yousoufian v. Office of Ron Sims, 152 Wn.2d 421,
                                9
436, 98 P. 3d 463 ( 2004).          We look to a statute' s plain language to give effect to legislative

intent.   Lacey Nursing Ctr., Inc. v. Dep' t of Revenue, 128 Wn.2d 40, 53, 905 P. 2d 338 ( 1995).

When faced with an unambiguous statute, we derive the legislature' s intent from the plain

language    alone.   Waste Mgmt. of Seattle, Inc.       v.   Util. &   Transp. Comm' n, 123 Wn.2d 621, 629,

869 P. 2d 1034 ( 1994).


          RCW 42. 56. 565( 1) provides:


          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 the request for public records was made, unless the court finds
          that the agency acted in badfaith in denying the person the opportunity to inspect
          or copy a public record.




8
    Although neither party argues that RCW 42. 56. 565( 1) generally prohibits prisoners' receipt of
any PRA      penalties ( see   discussion later in this Analysis),       we may affirm the superior court on
any ground the record supports. State v. Costich, 152 Wn.2d 463, 477, 98 P. 3d 795 ( 2004).

9 The legislature' s 2005 recodification of the Public Disclosure Act,. chapter 42. 17 RCW, as the
Public Records Act,     chapter     42. 56 RCW, LAWS of 2005,           ch.   274, § 1, did not alter the pertinent
language     on which our      Supreme    Court   relied     in Yousoufian.      See former RCW 42. 17; RCW
42. 56. Accordingly, we refer to the PDA by its current title, the PRA.


                                                             7
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)


                            10
 Emphasis      added).           The legislature further          specified     that the     above subsection (      1) "     applies to all


actions brought under RCW 42. 56. 550 in which final judgment has not been entered as of the

effective     date   of   this   section [   July   22, 2011]."      LAWS       of   2011,    ch.   300, § 2 ( emphasis added).


          Generally, a " final judgment" is a judgment that ends all litigation, including appellate

review,   leaving        nothing for the       court        to do but to    execute    the judgment. Anderson & Middleton


Lumber Co.         v.    Quinault Indian Nation, 79 Wn.                     App.     221, 225, 901 P. 2d 1060 ( 1995) ( citing


Catlin   v.   United States, 324 U. S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 ( 1945)),                                          aff d, 130

Wn.2d 862, 929 P. 2d 379 ( 1996).                           But the legislature did not specify whether its statutory

reference     to   a "   final judgment" in the               comment      to   RCW 42. 56. 565( 1) encompasses this broad


concept of complete and final adjudication of an issue, including exhaustion of appellate review.

See In   re   Skylstad, 160 Wn.2d 944, 948 -49, 162 P. 3d 413 ( 2007) ( judgment becomes final " when


all litigation     on    the   merits ends,"    interpreting RCW 10. 30. 090 in criminal context).

          This       broad       interpretation        of "     final judgment"          is    consistent     with          several   recent


Washington           cases       addressing     RCW 42. 56. 565.                See Franklin County Sheriff' s Office v.

Parmelee, 175 Wn.2d 476, 481                        n. 5,    285 P. 3d 67 ( 2012) ( contemplating the superior court' s


application of RCW 42. 56. 565 on remand, notwithstanding its being enacted after the plaintiff

sought    interlocutory          review), cent.      denied, 133 S. Ct. 2037 ( 2013);               DeLong v. Parmelee, 164 Wn.

App.     781, 786 -87, 267 P. 3d 410 ( 2011) ( applying RCW 42. 56. 565( 1)                                   on appeal to bar an


inmate' s recovery of PRA penalties, notwithstanding its being enacted after the original trial),



to
     See Burt v. Washington State Department of Corrections, 168 Wn.2d 828, 837 n.9, 231 P. 3d
191 ( 2010) (      noting that legislature' s enacting of RCW 42. 56. 565 would " greatly curtail abusive
prisoner requests for public records ").




                                                                       N.
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



review   denied, 173 Wn.2d 1027 ( 2012).              We apply this generally accepted broad definition of

 final judgment" here.


         In 2011, while Gronquist' s PRA claims were awaiting appellate review, our legislature

promulgated     RCW 42. 56. 565( 1),            accompanied   by   a "   final judgment" limitation in the related


comment;     thus,   no "      final judgment" has    yet   been   entered     in his   action.   Gronquist is serving a

criminal    sentence.      And the superior court found no bad faith in DOC' s inadvertently omitting

one page from the documents it provided in response to Gronquist' s second PRA request. Thus,


RCW 42. 56. 565( 1) applies to bar his claim for PRA penalties. Holding that because Gronquist is

not statutorily entitled to any amount of PRA penalties, we do not further consider his argument

that the penalty amounts the            superior court awarded           him   were     too   small.   DOC did not cross


appeal this award, thus, we must leave the superior court' s PRA penalty intact.

                     II. SURVEILLANCE VIDEO RECORDINGS; STATUTORY EXEMPTION


         Gronquist next argues that the superior court erred in concluding that the surveillance

video    recordings       he   requested   on   August 9, 2007,      were      exempt     from disclosure.     Again, we


disagree.


         We liberally construe the PRA in favor of disclosure and narrowly construe its

exemptions.     RCW 42. 56. 030.           The PRA requires agencies to disclose any public record upon

request unless       an   enumerated exemption         applies.     Sanders v. State, 169 Wn.2d 827, 836, 240


P. 3d 120 ( 2010); RCW 42. 56. 070( 1).             The burden of proof is on the agency to establish that a

specific exemption applies.            Neighborhood Alliance of Spokane County v. County of Spokane,

172 Wn.2d 702, 715, 261 P. 3d 119 ( 2011).




                                                              0
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



          Gronquist' s August 9, 2007 PRA request sought " surveillance video of C -unit from 6: 00

a. m.   to 2: 00 p. m.    of   June 17, 2007"   and "   surveillance video of the chow hall used for C -unit


inmates     on and   for the [ b] reakfast   meal on     June 17, 2007."     CP     at   215 - 16.   In its response to


Gronquist' s show cause motion, DOC argued that the surveillance video recordings were exempt


under RCW 42. 56. 240, which provides:


          The following investigative, law enforcement, and crime victim information is
          exempt from public inspection and copying under this chapter:

                     1)   Specific intelligence information and specific investigative records
          compiled by investigative, law enforcement, and penology agencies, and state
          agencies vested with the responsibility to discipline members of any profession,
          the nondisclosure of which is essential to effective law enforcement or for the
          protection of any person' s right to privacy.

CP at 191.


          To demonstrate how nondisclosure of these surveillance videos is " essential to effective

law     enforcement, "    11 the DOC supplied the declaration of Richard Morgan, DOC' s Director of

Prisons.     Morgan       explained   that DOC'   s surveillance system    is ( 1) "[    o] ne of the most important

                                                                                            12
tools for maintaining the security           and   orderly   operation   of prisons,"            and (   2) "   an   essential




element of effective control of a population that is 100 [ percent] criminal in its composition and


is accustomed to evading detection and exploiting the absence of authority, monitoring, and

accountability"      13 as follows:




11 RCW 42. 56.240( 1).

12 CP at 290.

13 CP at 290.



                                                            10
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



             Since the resources are not available to accomplish 100 [ percent] surveillance at
             all times, it is mission critical that offenders and their cohorts not. know the
             capabilities and the limitations of DOC' s surveillance capabilities.


                          It is a significant advantage to have offenders uncertain as to what is being
             monitored, what is recorded, and what is in the field of view. Offenders will often
             use "   blind   spots" (   locations that have infrequent staff presence and no electronic
             surveillance)        to    commit    acts    of   violence     and   purveying      contraband.        In

             reconstructing        incidents     and     interviewing     offenders,   it has been found that
             incident location is        often chosen      due to   a perceived    lack    of surveillance.   In my
             expert opinion, surveillance, real or imagined, is a powerful deterrent to assaults
             and other problematic behaviors by offenders.

CP     at    290 -91.         Morgan      concluded, "      Providing offenders access to recordings of DOC

surveillance videos would allow them to accurately determine which areas are weak or devoid in

DOC'     s   ability to      capture    identities in the   aftermath of an       incident   or crime."   CP   at   291.   The


record contains no controverting evidence. 14
             Under RCW 42. 56. 240( 1),           an investigative, law enforcement, or penology agency must

have    compiled          the "[ s] pecific intelligence information and specific investigative records" that the


requester seeks.             Secondly, the agency must show that the " nondisclosure" of the information is

 essential      to    effective    law   enforcement."       RCW 42. 56. 240( 1).      Gronquist does not contend that


DOC is         not    a    law   enforcement     agency.       And, as Morgan explained, providing inmates with



14
  Gronquist cites Prison Legal News, Inc. V. Department of Corrections, 154 Wn.2d 628, 643,
115 P. 3d 316 ( 2005), to argue that DOC' s claiming exemption of disclosure of prison video
surveillance recordings is contrary to our general instruction to construe PRA exemptions
narrowly.            Prison Legal News, however, does               not control    here.     In Prison Legal News, DOC
attempted to withhold identifying information in public records related to medical misconduct
investigations in Washington prisons. 154 Wn.2d at 632. Examining the " specific investigative
records"       exemption of        former RCW 42. 17. 310( 1)( d) ( 2003), now codified as RCW 42. 56. 240( 1),
our Supreme Court held that DOC failed to meet its burden in proving that the redactions were
     essential   to    effective     law enforcement. "' Prison Legal News at 639. Here, as we note above,
DOC has          sustained        its burden in showing that nondisclosure is " essential to effective law
enforcement."




                                                                    11
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



access to recordings of DOC' s surveillance videos would allow prisoners to exploit weaknesses

in DOC' s      surveillance system.        As Division One      of our court   has held, " Intelligence information


provided       by   video   surveillance   systems ...       falls squarely within the core definitions of `law

enforcement, "'       thereby exempting surveillance video recordings from disclosure under RCW

42. 56. 240( 1).      Fischer   v.   Wash. State   Dep' t   of Corr.,   160 Wn. App. 722, 727 -28, 254 P. 3d 824

 2011),      review   denied, 172 Wn.2d 1001 ( 2011).              We hold, therefore, that the superior court did


not err in concluding that the surveillance video recordings Gronquist sought were exempt from

the PRA' s otherwise broad disclosure requirements.


             A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.


             Gronquist further argues that the superior court erred in ( 1) denying his motion to vacate

the December 18, 2009            show cause order; (     2) concluding that his July 30, 2007 PRA request did

not seek'     identifiable   public records; (     3) denying his motion to amend his complaint as untimely;

and (   4)   dismissing     his free   speech claim.     Gronquist also argues that DOC failed to conduct an


objectively reasonable search for records in response to his July 30, 2007 PRA request and that

RCW 72. 09. 530 is unconstitutionally              overbroad.      Holding that the superior court did not err and

refusing to consider unpreserved arguments Gronquist raises for the first time on appeal, we

affirm.



                                               III. MOTION TO VACATE


             Gronquist contends that the superior court abused its discretion in denying his motion to

vacate       the December 18, 2009        show cause order, which        decision, he   argues, "   was based upon the




                                                              12
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



untenable      conclusion       that the         previous `[   o] rder     was     correct,      in that video recordings are


categorically      exempt      from disclosure."          Second Amend. Br.                 of   Appellant     at   51 ( alteration in


original) ( quoting       CP   at   11).   We have just held that the trial court did not err in concluding that

the    surveillance   video     recordings were exempt under                  RCW 42. 56. 240( 1).             Because Gronquist


fails to articulate any other reason why the superior court' s decision was in error, we do not

further address this claim.


               IV. REQUEST FOR NONEXISTENT " UNDOCUMENTED ALIEN LABOR" RECORDS


                                           A. Unidentifiable Records Request


          Gronquist next argues that the superior court erred in its December 18, 200915 order when


it    concluded    that   his       July   30,    2007 PRA          request      for "[   a]   ll [ DOC]    inmate      identification

                                                                                                                                16
badges /cards from        undocumented alien workers employed                          by   DOC'    s   Class II Industries "        did


not seek "   identifiable"      public records.        Second Am. Br.            of   Appellant    at   22, 28. We disagree.


          The PRA requires agencies_to. respond to requests for only " identifiable public records."

RCW 42. 56. 080; see also Hangartner v. City of Seattle, 151 Wn.2d 439, 447 -48, 90 P. 3d 26

 2004).    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, 151 Wn.2d at 447 ( citing Wood v. Lowe, 102

Wn.     App.   872, 878, 10 P. 3d 494 ( 2000)). "              The [ PRA] does not require agencies to research or




15
      The Second Amended Br.                of    Appellant    at    28   refers   to the      superior    court' s "   December 18,
2007"     order.    We believe this to be a scrivener' s error and reference should be to the court' s
December 18, 2009 order.


      CP at 252.




                                                                     13
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



explain public        records,   but only to            make   those       records   accessible      to the   public."       Smith v.


Okanogan     County,         100 Wn.    App.   7, 12, 994 P. 2d 857 ( 2000) (              citing Bonamy v. City of Seattle,

92 Wn.     App.       403,    409, 960 P. 2d 447 ( 1998),                   review    denied, 137 Wn.2d              1012 ( 1999)).


Moreover,      an    agency has     no      duty   to   create or produce records             that   are nonexistent.         West v.


Wash: State       Dep' t   of Natural Res., 163 Wn.              App.      235, 242., 258 P. 3d 78 ( 2011), review denied,


173 Wn.2d 1020 ( 2012).


          Gronquist        argues   that    because DOC           Policy       330. 700     states   that DOC "       will identify

offenders who are citizens of other nations,"                    the superior court erred in finding that Gronquist' s

request   for "   undocumented alien workers"                  in DOC' s Class II Industries program did not seek

                                     17 .
identifiable     public records.            Second Am. Br. of Appellant at 24, 26 -27 ( quoting CP at 425).

There is    no      support    for this     claim       in law   or    in the   record.      Michael Holthe, Clallam Bay

Corrections Center' s Public Disclosure Coordinator, declared that after receiving Gronquist' s

July 30, 2007 request, he had inquired with the Class II Industries program manager, who

explained that Class II Industries did not identify offenders by citizenship and that such




17
  Contrary to Gronquist' s assertion, DOC' s identification of offenders by citizenship does not
suggest that DOC' s Class II Industries program similarly identifies its workers by their
citizenship.        Moreover, there is nothing further in the record to suggest that the superior court
erred   in concluding that "         records       in the form        requested      did   not exist."    CP    at   125 (   emphasis

added).




                                                                      14
No. 42774 -5 -II (consolidated with No. 43500 -4 -II)



classification was not part of                  its   employment process.      18 Thus, the record supports the superior

court' s    ruling that there           were no       identifiable   records   matching Gronquist'         s request.       We hold,


therefore, that the superior court did not err in ruling that Gronquist' s request had been for non-

existent, or unidentifiable, records.



                                        B.     Objectively Reasonable Search for Records

           In a related argument, Gronquist contends for the first time on appeal that DOC failed to

conduct an            objectively     reasonable search        for " undocumented        alien   labor"   records.    Second Am.


Br.   of   Appellant       at   29.    Because Gronquist failed to raise this issue below, we do not address it

on appeal.



                 An argument neither pleaded nor argued to the trial court cannot be raised for the first

time   on appeal."          Sourakli      v.   Kyriakos, Inc., 144 Wn.         App.   501, 509, 182 P. 3d 985 ( 2008) ( citing ,


Sneed      v.   Barna, 80 Wn.          App.     843, 847, 912 P. 2d 1035 ( 1996)).          Furthermore, we " may refuse to

review      any        claim    of    error    which    was   not   raised   in the trial   court."       RAP 2. 5(   a).    Because


Gronquist failed to raise this alleged error below, we decline to review it for the first time on

appeal.




18 Gronquist argues extensively that, because DOC has access to a variety of information about
its inmates, including citizenship, it could have compared each of its Class II Industries workers
against         its   other records      to    provide   Gronquist his       requested   information.       As we have already
explained, the PRA does not require any agency to create documents in response to PRA
requests.             See Smith, 100 Wn.          App.   at   12 ( " An important distinction must be drawn between a
request         for information         about public records and a request             for the   records    themselves. "); West,

 163 Wn. App. at 242 ( Agency has no duty to create or produce a record that is nonexistent).


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                                          V. MOTION TO AMEND COMPLAINT


          Gronquist next argues that the superior court erred in denying as untimely his request for

leave to amend his complaint to add a new PRA claim. Again, we disagree.

          We review for abuse of discretion a trial court' s ruling on a motion to amend the

complaint.      Caruso v. Local Union No. 690 ofInt' l Bhd. of Teamsters, 100 Wn.2d 343, 351, 670

P. 2d 240 ( 1983).      A trial court abuses its discretion if its decision is manifestly unreasonable or

based   on untenable grounds or reasons.                     State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482


P. 2d 775 ( 1971).      To amend a pleading after the opposing party has responded, the party seeking

to   amend must obtain          the trial   court' s   leave    or   the opposing party'    s consent.   CR 15( a).   A trial


court must grant       leave    freely " when justice          so requires."   CR 15( a).    But undue delay is a proper

ground    for   denying      leave to       amend.      Elliott v. Barnes, 32 Wn. App. 88, 92, 645 P. 2d 1136

 1982);   see also     Wilson    v.   Horsley, 137       Wn.2d 500, 507, 974 P. 2d 316 ( 1999) ( request to amend


on eve of trial supported denial of leave to amend).


          Here, Gronquist requested leave from the superior court to file a second amended


complaint on January 31, 2012, more than two and a half years after he filed his first amended

complaint and DOC filed its answer, and more than one year after the superior court dismissed

his remaining PRA               claims.      Moreover,         Gronquist has neither designated any record nor

identified in his brief any reason to show why the superior court erred in ruling that his motion to

amend was          untimely.     See RAP 10. 3(        a)(   6) ( 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). "     Such `[    p] assing treatment of an issue or lack of reasoned argument is

insufficient to      merit   judicial   consideration. "'            West v. Thurston County, 168 Wn. App. 162, 187,



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275 P. 3d 1200 ( 2012) (              alteration       in    original) (   quoting Holland v. City of Tacoma, 90 Wn. App.

533, 538, 954 P. 2d 290 ( 1998)).                     Thus, we do not further consider this unsupported argument.


                                                             VI. ART I, § 5 CLAIMS


           Gronquist next argues that Stafford Creek' s seizure of some of the PRA documents DOC


had    mailed        to    him     violated         his freedom         of   speech    contrary to         article   I, section 5 of the


Washington Constitution.                     He also argues for the first time on appeal that RCW 72. 09. 530 is


unconstitutionally overbroad. These claims fail.

                                             A. Mail Room Seizure Claim Abandoned


             It is    a   long -standing       rule    that   abandoned       issues   will not     be   addressed on appeal."             Green

                                                                                                                                     19
v.   Normandy             Park, 137 Wn.             App. 665, 688,           151, P. 3d 1038 ( 2007); RAP 2. 5(                a).         In his


memorandum in support of his motion requesting leave to amend his complaint, Gronquist

notified     the      superior      court      that    since    bringing      his   original     complaint     alleging his      art.      I, §   5


challenge, DOC had " produced the previously censored records at issue" and that the production
                                                                                   20
of   these   records rendered               his     art.   I, § 5   claim " moot. "             Suppl. CP    at    476, 477.     The record




19
     See   also    Peck      v.   Davies, 154 Wash. 559, 563, 283 P. 173 ( 1929);                            Gregory v. Peabody, 138
Wash. 591, 597, 244 P. 998 ( 1926); Buckeye                              Buggy       Co.   v.   Montana Stables, Inc., 43 Wash. 49,
51, 85 P. 1077 ( 1906);               Soderberg                                 Moore
                                                           Adver., Inc. v. Kent —            Corp., 11 Wn. App. 721, 737, 524
P. 2d 1355 ( 1974); Stratton                   v.   U.S. Bulk Carriers, Inc.,           3 Wn. App. 790, 793 - 94, 478 P. 2d 253
 1970).

20
     Gronquist        argues       that ( 1)    his first      amended complaint raised                 both " facial"   and " as         applied"

free   speech challenges, (                2) the     superior court         dismissed the " facial" challenge in response to
DOC'       s motion        to     dismiss,     and (   3) he     abandoned          only his "    as    applied"     challenge   as " moot."

Reply      Br.   of   Appellant       at   10 - 11.    But after a careful review of the record on appeal, we conclude
that Gronquist'           s characterization of             his first   amended complaint              is inaccurate: Gronquist alleged
that DOC' s censorship of public records " violate[ d] the Free Speech Clause of Article I, Section
5 of the Washington State Constitution." CP at 324. Contrary to his assertions on appeal, his
first amended complaint did not raise two separate free speech challenges.


                                                                             17
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shows that the superior court relied on Gronquist' s assertion that his claim was " moot" when it

dismissed his       art.   I, §    5 challenge and denied Gronquist' s motion requesting leave to amend his

complaint to add a new PRA claim that DOC failed " to locate, identify, and allow inspection of

records   relating to ...              staff   involvement in the    assault of         Mr. Gronquist."               Suppl. CP at 477.


Thus, there was no reason for the superior court to consider this claim further; similarly, there is

no   justiciable issue for             us to address   in this   appeal.   Holding that Gronquist abandoned his free

speech challenge below, we do not further consider Gronquist' s " facial" challenge on appeal.


                                       B. RCW 72. 09. 530 Constitutionality Claim Moot

          Gronquist also argues for the first time on appeal that that RCW 72. 09. 530, which


prohibits an       inmate'      s " receipt or possession of        anything that is determined to be                     contraband,"    is


unconstitutionally          overbroad.           Even assuming, without deciding, that Gronquist can raise this

argument in his reply brief, we disagree that he is articulating a " manifest constitutional error
                                                                                                           21
that may be        raised   for the first time         on appeal"   under       RAP 2. 5(      a)(   3),        especially in light of the

mootness of this claim. Reply Br. of Appellant at 12 ( citing RAP 2. 5( a)( 3)).

          As   a    general        rule,    Washington     appellate     courts     will      not     address "       moot   questions   or



abstract propositions."                Norman v. Chelan County Pub. Hosp. Dist. No. 1, 100 Wn.2d 633, 635,



21
     Moreover, Gronquist'               s   argumentthat     RCW 72. 09. 530 is unconstitutionally                          overbroad —   is
not   an " error"     that      was " manifest"        in any proceeding below; rather, it is a challenge to the
constitutionality the statute itself and not an error committed by the superior court. See State
                       of

v. Grimes, 165 Wn. App. 172, 187, 267 P. 3d 454 ( 2011), review denied, 175 Wn.2d 1010 ( 2012)

 for RAP 2. 5(       a)(   3)     to    apply,   an   appellant   must     show        both that ( 1)            the error implicates a
specifically identified            constitutional right, and ( 2)        the   error   is "   manifest,"          in that it had " practical
and    identifiable    consequences"              in the trial below).         Merely challenging the constitutionality of
the statute does not permit Gronquist to avail himself of RAP 2. 5( a)( 3)' s exception to the general
rule precluding review of issues not preserved below.



                                                                    wc
No. 42774 -5 -II (consolidated with No. 43500 - -II)
                                              4



673 P. 2d 189 ( 1983) ( quoting Sorenson                 v.   Bellingham, 80 Wn.2d 547, 558, 496 P. 2d 512

                                                                                     22
 1972)).      An    appeal    is   moot where   it   presents "   purely   academic "     questions and where "`   the



court cannot provide the basic relief originally sought, or can no longer provide effective relief."'

IBF, LLC       v.   Heuft, 141 Wn.      App.    624, 630 -31, 174 P. 3d 95 ( 2007) ( internal quotation marks


omitted) (    quoting Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 622, 45 P. 3d 627 ( 2002)).

Because Gronquist has since received the records that Stafford Creek seized in the mail room, we


cannot afford him any relief. Thus this issue is moot, and we need not further address it.

            We affirm.


            A majority of the panel having determined that this part of the 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.




                                                                  Hunt, J.




lviaxa, J.




22
     City   of Sequim    v.   Malkasian, 157 Wn.2d 251, 258, 138 P. 3d 943 ( 2006) ( internal quotation
marks omitted) (       quoting State v. Turner, 98 Wn.2d 731, 733, 658 P. 2d 658 ( 1983)).



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