                                                                                                                            r I! ED
                                                                                                                  COURT OF APPEALS
                                                                                                                     DI V1 S'nq 1.1

                                                                                                              2013II    4
                                                                                                                            I9 AM        37
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                                              S     Z          AS' '   G TON
                                                   DIVISION II                                                BY
                                                                                                                                  Y
SHAWN D. FRANCIS,                                                                    No. 42712 -5 - II


                      Appellant /
                                Cross -
                                      Respondent,                                PUBLISHED OPINION


         V.



WASHINGTON STATE DEPARTMENT OF
CORRECTIONS,




         BJORGEN, J. —        Shawn D. Francis, an inmate in the custody of the Washington State

Department       of   Corrections ( Department), sued the Department after he discovered that it had


failed to   provide     documents   responsive     to   a   Public Records Act ( PRA) 1     request he had made

while incarcerated at the McNeil Island Corrections Center. The superior court granted summary

judgment in Francis' s favor on the issue of liability after the Department admitted that it had

failed to provide documents responsive to the request. The court awarded Francis a monetary

penalty near the low end of the statutory range, based on a determination that the Department

acted in bad faith, but denied Francis' s costs.


          Francis timely appeals the penalty amount and denial of costs, arguing that the trial court
                                                                                                          2
abused    its discretion in awarding       a   penalty   at   the low   end of   the statutory   range.       The




1 Ch. 42. 56 RCW.

2 Francis also argued in his opening brief that he was entitled to attorney fees and that the
Department' s cross -appeal was untimely. In his reply brief, Francis properly concedes that ( 1) in
light   of our   decision in West   v.    Thurston   County, 169        Wn.   App.   862, 282 P. 3d 1150 ( 2012), he is

not entitled to attorney fees, and ( 2) because November 11, 2011 was Veteran' s Day, the
Department' s         cross -appeal was   timely filed.
No. 42712 -5 -II



Department cross -appeals the trial court' s penalty award, arguing that the court erroneously

interpreted the bad faith requirement of RCW 42. 56. 565 and that the court' s findings did not

support its determination that the Department acted in bad faith.


         Because the factors considered by the trial court are relevant to bad faith, and the trial

court' s findings support both the bad faith determination and the penalty amount, we affirm the

trial court' s summary judgment and award of the penalty to Francis. Because the PRA' s cost-

shifting provision is mandatory, we reverse the trial court' s denial of Francis' s request for costs

and remand for an award of the reasonable costs Francis incurred in litigating his claim, both in

the trial court and on appeal.


                                       FACTS AND PROCEDURAL HISTORY


         On June 19, 2009, Francis sent a letter to Brett Lorentson, a public disclosure specialist


with the Department, requesting

         any and all documents related to any reason and /or justification for the reason
         why inmates at [ McNeil] are not allowed to retain fans and hot pots in their cells,
         as well as any policy that may be in place to substantiate such restrictions on these
         items.

                                       3
Clerk' s Papers ( CP)       at   11.       Lorentson sent Francis a letter promising to identify and gather

responsive records and respond on or before July 30, 2009.

         On July 10 Lorentson provided Francis with 15 pages of documents via e -mail, stating

that "[ s]   ince   all responsive records      have been   provided,   this   request   is   closed."    CP   at   115.   The


documents       consisted of     the Department'     s   policy 440. 000   with attachments.             According to this



3
    Francis alleged below that the McNeil staff who denied him the use of these items, which he
had previously purchased through the Department, cited a policy that they refused to produce
and that Francis could not find in the prison library.

                                                             2
No. 42712 -5 -II



policy, inmates at McNeil and other minimum- or medium -security facilities were permitted a

fan   and, " as authorized    by facility,"   a   hot   pot.   CP   at   31 - 32.   None of the documents provided


related to any prohibition against fans or hot pots.

         In November 2009, however, another inmate showed Francis documents concerning

McNeil' s policy prohibiting fans and hot pots. Francis subsequently filed suit in Pierce County

Superior Court, alleging a violation of the PRA and requesting statutory penalties. Over the

course of the litigation, the Department provided Francis with additional documents, both


through Lorentson and in response to Francis' s discovery requests. On February 28, 2011,

Francis received a copy of the policy in effect at the time of his request.

         On June 7, 2011, Francis moved for summary judgment. The Department conceded that

it had violated the PRA, but disputed the penalty amount Francis had proposed. The trial court

granted Francis' s motion for summary judgment as to liability, reserving judgment as to the

penalty amount until a later hearing.

         Prior to the hearing on the penalty amount, a new law took effect prohibiting awards of

PRA penalties based on record requests made by incarcerated persons, unless the court finds

 that the agency     acted   in bad faith." Former RCW 42. 56. 565 ( 2009),              amended by LAWS of

2011,   ch.   300, §§ 1, 2. The trial court ruled that this restriction applied to Francis' s case, found


bad faith by the Department, and awarded Francis a penalty. In doing so, the court applied the

aggravating and mitigating factors articulated by our Supreme Court for setting the amount of

PRA penalties in Yousoufian V, 168 Wn.2d444, 466 -68, 229 P. 3d 735 ( 2010).


         In particular, the trial court relied on a " Public Disclosure Routing Slip" that Francis

obtained through discovery. An official at McNeil had signed the routing slip form, which


                                                               3
No. 42712 -5 -II



states, "   I verify that I have conducted a thorough staff search and I report that I do not have any

responsive     documents in   regards   to this   request."       Br. of Appellant at Ex. A. The form allows


the preparer to check boxes indicating which of 17 record storage locations were searched, but

no boxes were checked on Francis' s form. Besides signing the form, the preparer wrote only the

number " 15" in a blank space, indicating that all staff at McNeil spent no more than 15 minutes

searching for the documents. Br. of Appellant at Ex. A.

            Although the trial court found no agency dishonesty, recklessness, or intentional

noncompliance, it found that a number of aggravating factors, including the Department' s

 negligence or gross negligence,"        supported a determination of bad faith. Report of Proceedings


 RP) at 8. However, because the trial court also found a number of mitigating factors present, it

imposed a penalty near the low*end of the statutory range, adopting the Department' s

recommendation. The court also denied Francis' s request for costs.


            Francis timely appeals, asserting that the trial court abused its discretion in awarding a

penalty at the low end of the scale despite finding bad faith and in denying Francis costs. The

Department cross -appeals, arguing that the trial court erred in finding bad faith.

                                                    ANALYSIS


            The Department raises arguments in its cross -appeal that, if correct, preclude any penalty

award to Francis. We therefore first address the Department' s cross -appeal, then turn to the


issues raised in Francis' s appeal.




                                                              M
No. 42712 -5 -II


                                    I. THE DEPARTMENT' S CROSS APPEAL


         The Department contends that under RCW 42. 56. 565( 1) a determination of bad faith


requires that the agency have committed some intentional, wrongful act. The Department also

asserts that the trial court erred because it erroneously applied the aggravating and mitigating

factors articulated by our Supreme Court in Yousoufian V, 168 Wn.2d at 466 -68, which factors

 were   designed for the      sole purpose of    determining     the   amount of penalties under   the PRA,"   not




for the purpose of finding bad faith sufficient to entitle an incarcerated person an award of

penalties under    the PRA. Br. of     Resp' t   at   12 ( emphasis    omitted).   We hold that under the rules


of statutory construction and the case law ( 1) a determination of bad faith under RCW

42. 56. 565( 1) does not require commission of some intentional, wrongful act, and ( 2) the trial

court' s determination that the Department acted in bad faith was correct without regard to the


Yousoufian V factors. We therefore affirm the trial court' s bad faith determination and its award


of a penalty.


                                            II. STANDARD OF REVIEW


         The Department does not challenge the trial court' s grant of summary judgment on the

issue of whether a PRA violation occurred. We thus limit our review to the trial court' s award of


a   statutory penalty   and   the underlying bad faith determination. RAP 2. 4( a).          Whether an agency

acted in bad faith under the PRA presents a mixed question of law and fact, in that it requires the

application of   legal   precepts ( the   definition   of "bad   faith ") to factual circumstances ( the details of


the PRA violation).      See Pasco Police Officers' Ass' n v. City ofPasco, 132 Wn.2d 450, 469, 938

P. 2d 827 ( 1997) ( noting that "[   w]hether a party has failed to negotiate in good faith, although




                                                            5
No. 42712 -5 -II



involving   a substantial    factual   component,   is   a mixed question of   law   and   fact. "); Tapper v.


Emp' t Sec. Dep' t, 122 Wn.2d 397, 402 -03, 858 P.2d 494 ( 1993).

        Where an appellant does not assign error to a trial court' s factual findings, we consider


those findings   verities.   Yousoufian V, 168 Wn.2d at 450 ( citing Davis v. Dep' t ofLabor &

Indus., 94 Wn.2d 119, 123, 615 P. 2d 1279 ( 1980)).               Here, the Department assigns error only to

the trial court' s determination that the agency acted in bad faith, not to any of the underlying

findings on which the court below based that determination. Thus, we accept as true the facts on


which the trial court relied in finding bad faith, but we review de novo the trial court' s

conclusion that those facts establish bad faith.


        Finally, when findings of fact are not clearly articulated and distinguished from

conclusions of law, we exercise discretion in determining what facts the trial court actually

found. Tapper, 122 Wn.2d          at   406 ( citing Kunkel   v.   Meridian Oil, Inc., 114 Wn.2d 896, 903, 792


P. 2d 1254 ( 1990)).   To supplement a trial court' s written findings of fact, we may look to

consistent language in the trial court' s oral opinion. Tyler v. Grange Ins. Ass' n, 3 Wn. App. 167,

171, 473 P. 2d 193 ( 1970) (     citing Vacca v. Steer, Inc., 73 Wn.2d 892, 441 P.2d 523 ( 1968)).

        III. THE BAD FAITH REQUIREMENT FOR PRA AWARDS TO INCARCERATED PERSONS


        RCW 42. 56. 565( 1) mandates that


         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 bad faith in denying the person the opportunity to inspect
        or copy a public record.




                                                            2
No. 42712 -5 - II



The PRA does        not   include   a   definition   of "bad   faith," and we know of no court that has yet


interpreted the meaning of the bad faith requirement in the context of penalty awards based on

PRA requests by incarcerated persons.

          The trial court' s written order states only that it "determined bad faith by applying the

sixteen    Yousoufian V mitigating          and   aggravating factors to the facts         of this case."   CP at 188 -89.


The court' s oral ruling, however, makes clear that it looked at those factors only as " guidance in

determining     what   bad faith actually is."        RP at 4. The trial court found a number of facts that


tend to   support a   finding   of   bad faith, specifically ( 1) delayed         response    by   the agency; ( 2) lack of


strict compliance with       PRA        procedural requirements; (       3) lack of proper training and supervision;

 4) "   negligence or gross negligence ";         and ( 5) sufficient clarity in Francis' s request. RP at 5 -8.

The court also described the McNeil records request routing slip as " almost a rubber -stamp

situation where you put in 15 minutes, don' t tell anybody what you looked at or looked for and

then send the routing slip on."            RP at 6. Despite these findings, the trial court explicitly found no

 recklessness or      intentional       noncompliance," no "        intentional   hiding   or misrepresentation," and




no " deceit" on the part of the Department. RP at 6, 7, 9.


           In support of its argument that a determination of "bad faith" under RCW 42. 56. 565( 1)


requires an intentional, wrongful act, the Department directs our attention to three sources of


authority: (    1) precedents discussing bad faith as a factor in determining the amount of PRA

penalties; (   2) Washington cases discussing bad faith in other contexts; and ( 3) federal cases

discussing     bad faith in the     context of    the Federal Freedom of Information Act (FOIA). We



consider each in turn.




                                                                7
No. 42712 -5 -II



a.           PRA Cases Addressing Bad Faith


             The Department asserts that precedents addressing PRA penalty amounts hold that an

agency acts in bad faith only when it knows that it has responsive records but intentionally fails

to   disclose them, citing Yousoufian                 v.   King County   Exec. ( Yousoufian I),     114 Wn. App. 836, 853,

60 P. 3d 667 ( 2003),           rev'   d   on other grounds,     152 Wn.2d 421, 98 P. 3d 463 ( 2004) ( Yousoufian II);


King County         v.   Sheehan, 114 Wn.            App.   325, 356 -57, 57 P. 3d 307 ( 2002). These precedents do


not support the Department' s assertion.


             Although it distinguished cases where " the government agency knew it had responsive

records      that   should      have been disclosed, but purposely failed to disclose them," the Yousoufian I


court explicitly agreed with the trial court that King County' s response to Yousoufian' s request

was " not a good          faith   effort."        Yousoufian I, 114 Wn.      App.   at   853. It then reversed the award


and remanded with instructions to determine an appropriate penalty above the statutory

minimum, stating that the minimum penalty " should be reserved for instances of less egregious

agency conduct, such as those instances in which the agency has acted in goodfaith."

Yousoufian I, 114 Wn.              App.      at   854 ( emphasis   added).    Thus, contrary to the Department' s

reading      of   the   case,   the Yousoufian I court         considered    the   County    to have   acted   in " bad faith,"   or



                                                     4
at   least   shown a      lack    of good     faith, even though it found no intentional misconduct. Sheehan,


114 Wn. App. at 356 -57, held that the County' s refusal to disclose the full names of all its police

officers violated the PRA, but did not involve bad faith. In finding an absence of bad faith, the

court noted the County' s motivation to protect the safety and privacy of its officers and that its



4 Whether a lack of good faith equates to bad faith presents an interesting question, one which we
need not consider           here.
No. 42712 -5 -II



arguments were " not so        farfetched      as   to   constitute    bad faith."   Sheehan, 114 Wn. App. at 356 -57.

The court also contrasted the facts of its case with those in American Civil Liberties Union v.

Blaine School District No. 503, 95 Wn.                   App.   106, 111 - 15, 975 P. 2d 536 ( 1999), where " it was


clear that the agency did not act in good faith" because the school district' s refusal to disclose the

requested records was motivated by a desire " to avoid the cost and inconvenience of complying."

Sheehan, 114 Wn. App. at 356 ( citing Blaine Sch. Dist. No. 503, 95 Wn. App. at 111 - 15).

           Sheehan' s citation to Blaine does not imply a ruling that only the intentional refusal to

disclose known responsive records can constitute bad faith. Rather, Blaine simply strengthened

Sheehan' s holding by showing that the obvious bad faith in Blaine was not in play in Sheehan.

In fact, Sheehan' s reliance on the motivation of the County and the plausibility of its arguments

directly shows its view that bad faith may be present, even though the intentional wrongdoing of

Blaine is not. Thus, Sheehan tends to undermine the Department' s argument rather than support


it.


b.         Other Washington Cases Addressing Bad Faith


           The Department next cites cases involving equitable _ wards of attorney fees and a case
                                                               a

involving a will contest to support its position that a finding of bad faith here should require

proof of an intentional, wrongful act. A court may make an equitable fee award based on

      s] ubstantive   bad faith,"   the Department points out, only when " a party intentionally brings a

frivolous     claim, counterclaim, or         defense     with   improper    motive."    Rogerson Hiller Corp. v. Port

of Port Angeles, 96 Wn.             App.   918, 929, 982 P. 2d 131 ( 1999).          Similarly, we have held that

contesting     a will   in bad faith involves "` actual or constructive fraud' or a ` neglect or refusal to


fulfill   some   duty ... not prompted by an honest mistake as to one' s rights or duties, but by some


                                                                   C
No. 42712 -5 - II



interested    or sinister motive. "'       In re Estate ofMumby, 97 Wn. App. 385, 394, 982 P. 2d 1219

 1999) (    quoting Bentzen v. Demmons, 68 Wn. App. 339, 349 n. 8, 842 P. 2d 1015 ( 1993)).

            The Department' s argument from these cases has a number of flaws. First, it omits


certain portions of these precedents that tend to erode its argument. Notably, the Department

omits reference to the discussion of other types of bad faith in Rogerson. See Rogerson, 96 Wn.

App.   at   928.   In the equitable fee award context, procedural bad faith may also involve " obstinate

conduct that necessitates legal action to enforce a clearly valid claim or right" or " vexatious

conduct      during     the litigation."   Union Elevator &    Warehouse Co., Inc. v. State ex rel. Dep' t of

Transp.,     152 Wn.      App.   199, 211, 215 P. 3d 257 ( 2009). Here, the trial court' s findings suggest


that the Department          engaged   in " obstinate   conduct,"   specifically, refusing to conduct a

reasonable search despite a legitimate request, which required Francis to sue to obtain the


records.




            Second, under the characterization of bad faith set out above from Mumby, the will

contest case the Department cites, the trial court' s findings here appear to support its

determination that the Department acted in bad faith. That is, the trial court' s findings support


the inference that the Department neglected to fulfill its duty to conduct a reasonable search

because of its own interest in avoiding expense and inconvenience. See Mumby, 97 Wn. App. at

394.


            Finally, Washington precedent allows a broader conception of bad faith in other contexts,

recognizing        a   distinction between " intentional    misconduct" and "   bad faith." See In re Marriage


ofJames,       79 Wn. App. 436, 441, 903 P. 2d 470 ( 1995) (          noting that " the trial court must first

make a specific finding that the parent has acted in bad faith or committed intentional


                                                             0
No. 42712 -5 -II



misconduct ") (emphasis added).           Furthermore, over a century ago, our Supreme Court, in

interpreting a statute governing the certification of a statement of facts on appeal, recognized that

gross negligence could rise to the level of bad faith:


             The statement should be stricken in the first instance only where it is manifest that
             the party proposing it has been guilty of badfaith or such gross negligence as will
             amount to badfaith: [ t] he remedy should not be invoked where there has been an


             attempt in good faith to comply with the statute.

State   v.   Steiner, 51 Wash. 239, 240 -41, 98 Pac. 609 ( 1908) (            emphasis added).




             Francis directs our attention to the discussion of bad faith that appears in Black' s Law


Dictionary, excerpted from a comment to the Restatement ( Second) of Contracts. The comment

illustrates the difficulties that defining bad faith poses, but establishes that, at least in a

contractual relationship, demonstrating bad faith does not require evidence of an intentional,

wrongful act:



             Good faith   performance.     Subterfuges and evasions violate the obligation of good
             faith in performance even though the actor believes his conduct to be justified.
             But the   obligation goes   further:    badfaith may be overt or may consist of inaction,
              and fair dealing may require more than honesty. A complete catalogue of types of
              bad faith is impossible, but the following types ...   have been recognized in
             judicial decisions:   evasion of the spirit of the bargain, lack of diligence and
             slacking off,willful rendering     of   imperfect      performance, [ etc.].




RESTATEMENT ( SECOND)            OF   CONTRACTS § 205       cmt.      d ( emphasis   added) (   quoted in part in


BLACK' S LAw DICTIONARY 159 ( 9th              ed.   2009)).    Thus, at least where a party owes some duty

analogous to a contractual obligation, negligence or gross negligence suffices to support a


finding of bad faith. The cumulative message of these precedents is that in multiple areas

outside of the PRA, bad faith does not require a showing of intentional wrongful conduct.




                                                               11
No. 42712 -5 -II



C.        FOIA Cases Addressing Bad Faith


          Finally, the Department invites us to look to federal FOIA cases in interpreting the bad

faith   provision   in RCW 42. 56. 565( 1).   The Department argues that, under FOIA, an agency' s

delay in providing records does not indicate an absence of good faith and that subsequent

production does not prove that an agency' s initial search was unreasonable or conducted in bad

faith. For several reasons, this argument does not persuade.


          Most importantly, Washington courts do not consider FOIA cases in interpreting PRA

provisions that do not correspond to analogous FOIA provisions. Kleven v. City ofDes Moines,

111 Wn.     App.    284, 291, 44 P. 3d 887 ( 2002). For example, our Supreme Court declined to


consider FOIA cases in assessing attorney fee awards under the PRA because FOIA' s attorney

fee provision is discretionary while the PRA' s provision is mandatory. Amren v. City ofKalama,

131 Wn.2d 25, 35, 929 P. 2d 389 ( 1997). Unlike the PRA, the FOIA does not have a bad faith


requirement for awarding penalties to incarcerated requestors: in fact, FOIA does not have a

statutory penalty provision. Neighborhood Alliance v. Spokane County, 172 Wn.2d 702, 717,

261 P. 3d 119 ( 2011).      Thus FOIA cases have no bearing on the meaning of bad faith in this

appeal.



          Were we to consider FOIA cases relevant to the analysis, however, the cases cited in its

brief do not support the Department' s argument. First, the Department points out that federal

 courts presume agencies act in good faith until evidence of bad faith overcomes the presumption.

 Br. of Resp' t at 14 ( citing United States Dep' t ofState v. Ray, 502 U.S. 164, 179, 112 S. Ct. 541,

 116 L. Ed. 2d 526 ( 1991)).      While correct, the assertion does not affect the present appeal


 because the trial court clearly placed the burden of establishing bad faith on Francis.


                                                       12
No. 42712 -5 - II



            The Department further relies on a FOIA case to assert that " delay in the production of

documents,      even after   the litigation   commenced, ` cannot     be said to indicate an absence of good


faith. "'   Br. of Resp' t at 14 ( quoting Goland v. Cent. Intelligence Agency, 607 F. 2d 339, 355

 1978)).     The brief selectively quotes the authority, however, in a way that obscures the intended

meaning. The opinion actually holds that " the [ agency' s] delay alone cannot be said to indicate

an absence of good      faith." Goland, 607 F.2d      at   355 (   emphasis added).   In no manner does this


prohibit basing a finding of bad faith on delay, along with other evidence. To the contrary,

Goland' s holding treats delay as a proper consideration in assessing bad faith.

            Similarly, the fact that subsequent production of responsive documents does not prove

the initial search unreasonable or in bad faith does not establish that subsequent production has

no bearing at all on whether an agency performed a good -faith search. Thus, to the extent FOIA

precedents have any relevance here, they indicate that the Department' s delay in disclosing

plainly responsive documents in its possession supports the trial court' s determination of bad

faith.


            Contrary to the Department' s assertions, the discussions of bad faith in cases considering

the amount of PRA penalties, in cases from other areas of Washington law, and in federal FOIA

cases, do not establish that a finding of bad faith under RCW 42. 56. 565( 1) requires evidence of

an intentional, wrongful act. If anything, these cases suggest that actions short of intentional

wrongdoing in performing a record search may establish bad faith.




                                                           13
No. 42712 -5 -II



             IV. STATUTORY INTERPRETATION OF THE PRA' s BAD FAITH REQUIREMENT


         In the absence of a statutory definition or controlling case law, we turn to principles of

statutory   construction      to determine the      contours of     bad faith in RCW 42. 56. 565( 1).      In


interpreting a statute, we try to determine and give effect to the legislature' s intent. State v.

Budik, 173 Wn.2d 727, 733, 272 P. 3d 816 ( 2012) ( citing                 State v. Ervin, 169 Wn.2d 815, 820, 239

P. 3d 354 ( 2010)).     First, we consider the statute' s plain meaning by looking at the text of the

provision at   issue,   as well as "`      the context of the statute in which that provision is found, related


provisions, and      the statutory    scheme as a whole."'          Ervin, 169 Wn.2d at 820 ( quoting State v.

Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005)).                   If a provision nonetheless remains


susceptible to two or more reasonable interpretations, it is ambiguous; and we then consider


  the legislative history of the statute and the circumstances surrounding its enactment to

determine legislative intent. "'           Budik, 173 Wn.2d at 733 ( quoting Rest. Dev., Inc. v. Cananwill,

Inc., 150 Wn.2d 674, 682, 80 P. 3d 598 ( 2003)).


          As our discussion above demonstrates, the plain meaning of the words used by the

legislature does not tell us whether a court must find an intentional, wrongful act on the part of


the agency in       order   to find bad faith     under   RCW 42. 56. 565( 1).    We must therefore look


elsewhere to ascertain the legislative intent.


          At first glance, the intent of the legislature that imposed the bad faith requirement for

PRA     awards   to incarcerated      requestors might seem clear         from the title   of   the   bill: " AN ACT


Relating to making requests by or on behalf of an inmate under the public records act ineligible

for   penalties."    LAWS     OF   2011,   ch.   300, SUBSTITUTE S. B. 5025, 62nd       Leg., Reg.      Sess. ( Wash.




                                                               14
No. 42712 -5 -II



2011).    Yet the fact that the law nonetheless provides for penalties on a finding of bad faith

shows that it did not make inmates ineligible for penalties under all circumstances.


          The legislative history illuminates the reason for this approach. As originally introduced,

the bill precluded all penalty awards based on requests from or on behalf of incarcerated persons.

S. B. 5025, 62nd        Leg., Reg.   Sess. ( Wash. 2011).           Public testimony on the bill, however, included

concerns that the " bill would effectively end all public records requests by prisoners because an

agency    will   face   no penalties      for   not   complying."        S. B. REP. on SB 5025, 62nd Leg., Reg. Sess.

 Wash. 2011).       The bill that ultimately passed reflected these concerns by allowing penalties for

bad faith   actions     by    agencies.    SUBSTITUTE S. B. 5025, 62nd Leg., Reg. Sess., ch. 300 ( Wash.

2011).    Thus, the legislature plainly intended to afford prisoners an effective records search,

while insulating agencies from penalties as long as they did not act in bad faith.

          In construing the PRA, we must " look at the Act in its entirety in order to enforce the

law' s   overall purpose."        Rental Hous. Ass' n ofPuget Sound v. City ofDes Moines, 165 Wn.2d

525, 536, 199 P. 3d 393 ( 2009). We must consider, then, the legislative intent behind the PRA


penalty scheme and the Act as a whole.

          Our Supreme Court has described the PRA                        as a "`   strongly worded mandate for broad

disclosure    of public records. "'         Yakima County v. Yakima Herald -
                                                                           Republic, 170 Wn.2d 775, 791,

246 P. 3d 768 ( 2011) ( quoting Soter                 v.   Cowles Publ' g Co., 162 Wn.2d 716, 731, 174 P. 3d 60


 2007)) ( internal       quotations omitted). "             The purpose of the PRA is to ` ensure the sovereignty of

the people and the accountability of the governmental agencies that serve them' by providing full

access    to information concerning the                conduct of government."          Kitsap County Prosecuting

Attorney' s      Guild   v.   Kitsap County,      156 Wn.       App.     110, 118, 231 P. 3d 219 ( 2010) ( quoting   Amren


                                                                    15
No. 42712 -5 - II



v.   City   ofKalama,       131 Wn.2d 25, 31, 929 P. 2d 389 ( 1997)).    The purpose of the penalty scheme

is to " discourage improper denial of access to public records and [ promote] adherence to the


goals and procedures" of the statute. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 140, 580 P.2d 246

 1978).      The PRA " shall be liberally construed and its exemptions narrowly construed to

promote this public policy" and to protect the public interest. RCW 42. 56. 030; City ofFederal

Way v. Koenig, 167 Wn.2d 341, 344 -45, 217 P. 3d 1172 ( 2009).

            The strict interpretation of the bad faith requirement urged by the Department runs

contrary to these policies and to the intent of the legislature that added the bad faith exception to

the proposed ban on penalty awards to incarcerated requestors. As many scholars and jurists

have observed, it is notoriously difficult to prove agency intent, particularly from inside a prison

cell. See, e. g., Farmer v. Brennan, 511 U.S. 825, 841, 114 S. Ct. 1970, 128 L. Ed. 2d 811 ( 1994)

 noting in the Eighth Amendment context that " considerable conceptual difficulty would attend

any    search     for the   subjective state of mind of a governmental   entity "); BRITTANY GLIDDEN,


Necessary Suffering ?: Weighing Government and Prisoner Interests in Determining What Is

Cruel       and   Unusual, 49 Am. GRIM. L. REv. 1815, 1835 -37 ( 2012) ( discussing     various sources).

Were we to accept the Department' s interpretation, agencies could safely respond to record

requests from incarcerated persons with cursory or superficial searches, knowing that inmates

would find it difficult to determine whether records were overlooked and all but impossible to

produce admissible evidence of wrongful intent. This runs directly counter to the legislative

intent to provide prisoners a reasonable and effective records search, discussed above.


             Furthermore, such a narrow reading is not necessary to prevent abuse of the PRA by

incarcerated        persons.    Where an agency has proper procedures in place, it may avoid penalties


                                                         16
No. 42712 -5 - II



under the PRA by simply following them in a reasonable manner. In addition, the PRA already

allows agencies to obtain expedited injunctions against attempts by prisoners to abuse it. RCW

42. 56. 565( 2).


         Finally, we must liberally construe the PRA to effect its purposes. The PRA provides

that



          t]he people of this state do not yield their sovereignty to the agencies that serve
         them.   The people, in delegating authority, do not give their public servants the
         right to decide what is good for the people to know and what is not good for them
         to know.   The people insist on remaining informed so that they may maintain
         control over the instruments that they have created. This chapter shall be liberally
         construed and its exemptions narrowly construed to promote this public policy
         and to assure that the public interest will be fully protected.

RCW 42. 56. 030.


         The legislative   history   of   RCW 42. 56. 565( 1),   its statutory context, and the purposes of

the PRA and this particular provision require a broader reading of the term " bad faith" than the

Department proposes. To be more consistent with these sources of authority, we hold that,failure

to conduct a reasonable search for requested records also supports a finding of "bad faith" for

purposes of awarding PRA penalties to incarcerated requestors. This standard does not make an

agency liable for penalties to incarcerated persons simply for making a mistake in a record

search or for following a legal position that was subsequently reversed. In addition to other

species of bad faith, an agency will be liable, though, if it fails to carry out a record search

consistently with its proper policies and within the broad canopy of reasonableness.




                                                         17
No. 42712 -5 -II



         V. THE DEPARTMENT' S BAD FAITH IN RESPONDING TO FRANCIS' S PRA REQUEST


         The Department argues that the trial court erred by applying the aggravating and

mitigating factors our Supreme Court articulated in Yousoufian V to the question of bad faith.

The Department notes that the Yousoufian V court laid out those factors for the " sole purpose of


determining the amount" of PRA penalties, and that many of the factors " encompass concepts

well   beyond the historical definition       of `bad     faith."'   Br. of Resp' t at 12.

         We may affirm the trial court on any grounds supported by the record. In re Marriage of

Rideout, 150 Wn.2d 337, 358, 77 P. 3d 1174 ( 2003).                  Because the record in this appeal clearly

discloses a cursory search and delayed disclosure well short of even a generous reading of what

is reasonable under the PRA, we do not decide whether the Yousoufian V factors apply to the

determination of bad faith in this context.


         In support of its conclusion that the Department acted in bad faith, the trial court


specifically found ( 1)     a   delayed   response   by   the Department,     even after     Francis filed   suit; (   2)


lack   of compliance with       PRA   procedural requirements; (         3) lack of proper training and

supervision; ( 4)   "   negligence or gross negligence ";          and ( 5) sufficient clarity in Francis' s request.

RP at 5 -8. All of these are logically relevant to the reasonableness of the Department' s actions

and its bad faith.5

          The evidence before the trial court showed that McNeil staff spent no more than 15


minutes considering Francis' s request and did not check any of the usual record storage

locations. Absent any countervailing evidence showing justification, this evidence shows that


5 See State v. Ortiz, 119 Wn.2d 294, 302, 831 P. 2d 1060 ( 1992) on relevance of compliance with
procedures to question of good faith.


                                                              18
No. 42712 -5 -II



the Department did not act in good faith.6 Furthermore, the title of one of the documents

ultimately   produced   by the   Department, " Personal   Property   for Offenders,"   by itself establishes

the document' s likely relevance to Francis' s request, which was reasonable and specific.

Nonetheless, the Department instead sent Francis documents plainly not responsive to his

request.7 Furthermore, the Department did not produce the relevant policy until eight months

after Francis filed suit. On these facts, the court below did not err in finding bad faith.

        The trial court' s unchallenged findings of fact are verities on appeal and, alternatively,

are based on substantial evidence in the record. These findings support the conclusion that the


Department acted in bad faith. We therefore affirm the trial court' s ruling that Francis is entitled

to a penalty award based on this bad faith.

                                          VI. FRANCIS' S APPEAL


        Francis argues that the trial court erred in awarding a penalty near the bottom of the

statutory range and in denying his request for costs. Because the PRA grants considerable

discretion to trial courts in setting penalty awards, the court below properly considered the

relevant factors set forth by our Supreme Court, and the amount is reasonable under the

circumstances, we affirm the trial court' s penalty award. Because the PRA cost -shifting

provision is mandatory, however, we remand with instructions to award Francis the reasonable

costs he incurred in litigating this matter.




6 We do not hold that 15 minutes or any other specific length of a records search conclusively
shows an absence of good faith.

7
 Francis had requested documents concerning the prohibition against fans and hot pots, but the
Department initially provided a copy of a policy permitting the disputed items.
                                                     19
No. 42712 -5 -II



a.         The Trial Court' s Discretion To Set the Penalty Amount


           We review a trial court' s determination of PRA penalty amounts for abuse of discretion.

Yousoufian V, 168 Wn.2d at 458. Under this standard, we will reverse only if the trial court' s

 decision is manifestly       unreasonable or         based   on untenable grounds or reasons.       Yousoufian V.


168 Wn.2d       at   458 ( citing Mayer      v.   Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006)).


A court acts on untenable grounds if the record does not support its factual findings, and it acts

for untenable reasons if it uses " an incorrect standard, or the facts do not meet the requirements

of   the   correct standard."   State   v.   Rundquist, 79 Wn.      App.   786, 793, 905 P. 2d 922 ( 1995).    A trial


 court' s decision is manifestly unreasonable if the court, despite applying the correct legal

standard to the supported facts, adopts a view that no reasonable person would take."

Yousoufian V, 168 Wn.2d          at   458 -59 ( quoting Mayer, 156 Wn.2d          at   684) ( internal quotation


marks omitted).




            While " bad faith is the principal factor" a trial court must consider in setting PRA

awards,




            a simple emphasis on the presence or absence of the agency' s bad faith does little
            more than to suggest what the two poles are on the penalty range and is
            inadequate to guide the trial court' s discretion in locating violations that call for a
            penalty somewhere in the middle of the [ statutory] range.

Yousoufian V, 168 Wn.2d at 460, 461 n.7 ( quoting Yousoufian v. Office ofRon Sims, 137 Wn.

App. 69,      78 -79, 151 P. 3d 243 ( 2007)) ( Yousoufian III) (internal         quotation marks omitted).         Trial


courts must also consider the importance of the information to the public at large, whether the

violation caused foreseeable economic loss to the requestor, and deterrence of future agency

misconduct. Yousoufian V, 168 Wn.2d at 461 -63.




                                                               20
No. 42712 -5 -II



            Here, the trial court expressly considered all 16 Yousoufian V factors, including the

Department' s degree of culpability, the public importance and time sensitivity of the matter, any

economic loss to Francis, and the amount necessary to deter future violations. The trial court

found ( 1) "   no recklessness or      intentional   noncompliance"     on   the   part of   the Department; ( 2) that



the matter was not especially time -sensitive or of great public importance, but of interest to only

a restricted class of        incarcerated   persons; (   3) that Francis sustained no actual personal economic


loss; and ( 4) that " the penalty amount is sufficient to put [ the Department] on notice that this

kind   of   delay   is   not acceptable."   RP at 5, 7, 9. Although near the bottom of the range, the


penalty imposed was more than the statutory minimum.

            Because it applied the correct legal standard, the trial court did not act for untenable

reasons. Because evidence before it supported the findings of facts, and the findings properly

supported the penalty determination, the court did not act on untenable grounds. With the

court' s findings and the evidence to support them, a reasonable person could conclude that a


  4, 495 penalty satisfies the requirements of the PRA and is consistent with the Yousoufian V

factors. We hold that the trial court did not abuse its discretion, and we affirm the penalty

amount.




b.          The Trial Court' s Refusal To Award Francis Costs


            We review PRA cost awards under the same abuse of discretion standard discussed

above. Kitsap County Prosecuting Attorney' s Guild, 156 Wn. App. at 120. The PRA contains a

broadly worded, mandatory cost -shifting provision:

                         Any person who prevails against an agency in any action in the courts
            seeking the right to inspect or copy any public record or the right to receive a
            response to a public record request within a reasonable amount of time shall be
            awarded all costs ...      incurred in connection with such legal action.

                                                              21
No. 42712 -5 -II



RCW 42. 56. 550( 4) (     emphasis added).               A party prevails if " records should have been
                                                                              the

immediately      disclosed    on request."          Spokane Research &         Def.Fund v. City ofSpokane, 155

Wn.2d 89, 103, 117 P. 3d 1117 ( 2005).


          Here, neither party disputes that the Department should have disclosed the records to

Francis, but the trial court still denied Francis' s request for costs. The trial court explained its


reasoning only     by   stating, " I   should add a footnote that, based on the award that I' m giving, I' m

not   going to include    costs   in that." RP           at   11.   However, the amount of the penalty has no bearing

on a   prevailing party'   s right     to   costs.    See RCW 42. 56. 550( 4) ( " In    addition [ to all costs],   it shall


be   within   the discretion   of   the     court   to   award such person"      statutory   penalties.) ( emphasis




added).



          The Department directs our attention to a case where we held that a trial court did not


abuse its discretion in limiting an inmate' s costs to clerk' s fees and postage because the trial

court found that the inmate had used the PRA " as a vehicle [ for] personal profit through false,

inaccurate, [   and]   inflated   costs."      Br. of Resp' t at 20 ( citing Mitchell v. Wash. State Inst. ofPub.

Policy,   153 Wn.      App.   803, 830, 225 P. 3d 280 ( 2009)).              That case is inapposite because the trial


court   here expressly found Francis'               s request "     legitimate," did not discuss the reasonableness of


any specific amounts, and denied Francis' s request entirely rather than merely limiting it.

          The Department also argues that Francis is not entitled to costs because he did not submit


a cost bill to the trial court. According to CR 54( d),

           i] f the party to whom costs are awarded does not file a cost bill or an affidavit
          detailing disbursements within 10 days after the entry of the judgment, the clerk
          shall tax costs and disbursements pursuant to CR 78( e).




                                                                     22
No. 42712 -5 - II



CR 78(    e),   in turn, only allows limited types of costs if "the party to whom costs are awarded"

fails to file a cost bill within the same 10 -day period. As just noted, the trial court did not award

costs   to Francis.       Therefore,      neither of     these   provisions applies    to him   at   this   point.   Further, we


have held that "[        a] bsent clear language to the contrary, we will not mechanically apply CR 78( e)

to   deprive    a   litigant   of costs   to   which   he is justly   entitled."   Mitchell, 153 Wn. App. at 823.

          Francis      was entitled       to an award of costs under RCW 42. 56. 550( 4), and he was under no



duty to file a cost bill when the court denied him costs. We therefore reverse the denial of costs

and remand with instructions to award Francis his reasonable costs incurred in litigating this

matter.



C.        Costs on Appeal


          Francis also requests costs on appeal. A PRA penalty award in the trial court supports an

award of costs or attorney fees on appeal. See Yousoufian V, 168 Wn.2d at 470. Francis has

complied with the procedural requirements of RAP 18. 1 and prevails on his claim that he was


entitled to costs below. We therefore award Francis the reasonable costs he incurred in this

appeal.



                                                 VII. SUMMARY OF HOLDINGS


          We affirm the trial court' s rulings on summary judgment that the Department acted in

bad faith and that Francis is entitled to a penalty award under the PRA. We hold that the trial

court did not abuse its discretion in setting the amount of the penalty award and uphold that

amount. We reverse the trial court' s denial of costs to Francis and remand with instructions to


award him reasonable costs incurred in litigating this matter. Finally, we award Francis the




                                                                   23
No. 42712 -5 -II



reasonable costs he incurred in this appeal.




                                                       M ,
                                                                   JV-
                                               6

                                                   BJC' ZGEN, J,
                          C

    concur
       I,J.     C1 71 1



       AR, J.




                                               24
