SHAWN D. FRANCIS, Appellant/Cross-Respondent,
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent/Cross-Appellant.
Order File Date January 22, 2014
ORDER DENYING MOTIONS FOR RECONSIDERATION AND GRANTING MOTION FOR CLARIFICATION AND AMENDMENT OF OPINION
This matter was heard in oral argument on May 14, 2013. A published opinion was filed on November 19, 2013. Both parties have filed a motion for reconsideration. The State also filed a motion for clarification. After our review, it is hereby
ORDERED that the motions for reconsideration filed by Appellant/Cross-Respondent Shawn D. Francis and Respondent/Cross-Appellant Washington State Department of Corrections are hereby denied; it is further
ORDERED that the Respondent/Cross-Appellant's motion for clarification is granted, and the published opinion is amended as follows:
Page 17, line 17, after the word "reasonable, " the following footnote shall be added:
This is not to say that the failure to conduct a reasonable search or the failure to follow policies in a search by themselves necessarily constitutes bad faith. We hold below that, among other potential circumstances, bad faith is present under RCW 42.56.565(1) if the agency fails to conduct a search that is both reasonable and consistent with its policies. In determining reasonableness, we examine, among others, the circumstances discussed in Part V of this opinion.
IT IS SO ORDERED.
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) 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 abused its discretion in awarding a penalty at the low end of the statutory range. The 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.
Clerk's Papers (CP) at ll. 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 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.2d 444, 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 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 a"bused 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.
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.
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 of Pasco, 132 Wn.2d 450, 469, 938 . . P .2d 827 (1997) (noting that "[w]hether a party has failed to negotiate in good faith, although 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 of Labor & 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 ...