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Haines-Marchel v. Dep't of Corr.

Court of Appeals of Washington, Division 2

September 16, 2014

Libby Haines-Marchel, Appellant ,
The Department of Corrections, Respondent

Appeal from Thurston Superior Court. Docket No: 11-2-02736-5. Judge signing: Honorable James J Dixon. Judgment or order under review. Date filed: 06/14/2012.

Libby Haines-Marchel, pro se.

Robert W. Ferguson, Attorney General, and John C. Dittman, Assistant, for respondent.

Authored by Thomas R Bjorgen. Concurring: Jill M Johanson, Lisa Worswick.


Page 100

[183 Wn.App. 659] Bjorgen, J.

¶ 1 Libby Haines-Marchel, wife of inmate Brock Marchel, appeals an order denying her motion for summary judgment and granting the Department of Corrections' (Department) cross-motion for summary judgment. This summary judgment upheld redactions made by the Department in documents requested by Haines-Marchel under the Public Records Act (PRA), chapter 42.56 RCW. The superior court found the redacted material was exempt from disclosure under RCW 42.56.240, because nondisclosure was essential to effective law enforcement and protection of personal privacy and because disclosure would endanger individuals' lives or physical safety.

¶ 2 On appeal, Haines-Marchel contends that the superior court abused its discretion by failing to consider all the materials she submitted, that the Department failed to show the claimed exemptions apply to the redacted material, and that her legitimate interest in obtaining the information outweighs the Department's concerns. We hold that the superior court did not fail to consider any submitted documents, but that a small portion of the redacted [183 Wn.App. 660] material is not exempt from disclosure under RCW 42.56.240(1) and should have been disclosed to Haines-Marchel. The rest of the redacted material is exempt from disclosure. Consequently, we affirm in part, reverse in part, and remand for the superior court to enter an order requiring the Department to disclose the material held not to be exempt from disclosure and to exercise its discretion in awarding attorney fees and a penalty to Haines-Marchel under RCW 42.56.550(4).

Page 101


¶ 3 After Haines-Marchel visited Marchel at the Clallam Bay Corrections Center (CBCC), prison authorities subjected Marchel to a " dry cell search," an isolation and special supervision procedure designed to determine whether an inmate has concealed contraband by ingesting it. Clerk's Papers (CP) at 20-31, 35. After three days in the dry cell, monitoring revealed no contraband and prison staff returned Marchel to his usual cell.

¶ 4 In response to a grievance he filed, Marchel received a copy of form DOC 05-392, describing the basis for the decision to subject him to the dry cell search, comprised of a confidential information report (Report) on the front side and a guide to the evaluation of reliability of informant information (Guide) on the back. The Report stated that three inmates, whose identifying information had been redacted, had at various times informed the prison's intelligence and investigation unit that Marchel " was to be introducing narcotics to CBCC through visitor [Haines-Marchel], during a visit." CP at 42. The Report also contained yes or no answers to questions concerning the reliability of the unidentified informants. CP at 42. The Guide contained various criteria prison officials use to evaluate informant tips, with the scoring numbers entered by the preparer indicating the relative applicability of each criterion under the circumstances presented. For example, [183 Wn.App. 661] for the criterion " Source Reliability, Authenticity," the preparer would choose from five levels ranging from " [n]o doubt source has direct access to information" to " [s]ource unknown." CP at 43. The Guide also required the preparer to check one of five levels of reliability for the informant and for the validity of the content. Both the Report and the Guide relating to the dry cell search, filled out by department official William Paul, were released to Marchel.

¶ 5 Haines-Marchel subsequently submitted a request under the PRA for documents concerning the dry cell search, including " all information and documents received by internal investigations (I& I) that lead [sic] to the belief of reasonable suspicion to place Marchel ... on Dry Cell Watch." CP at 57. In response, Haines-Marchel received 43 pages of documents, including a copy of the same document containing the Report and the Guide given to Marchel. The copy sent to Haines-Marchel, however, was entirely redacted except for the titles, department logos, document numbers and identifying information, two lines of instructions to the preparer on the Report, and a boilerplate statement on the Guide relating to disclosure.

¶ 6 Haines-Marchel appealed the redactions to the Department, which denied the appeal on the ground that the documents were exempt from disclosure under RCW 42.56.240(1) and (2). She then filed suit in superior court to compel disclosure of some of the redacted material, requesting costs, penalties, and attorney fees. CP at 5-17. In support of her motion for summary judgment, she attached various documents, including the less-redacted version of the disputed document provided to Marchel and various declarations, including her own and Marchel's.

¶ 7 The Department answered Haines-Marchel's motion and moved for summary judgment, attaching declarations from CBCC officials William Paul and Denise Larson in support of its argument that the redactions were appropriate. These declarations explained the potential dangers posed by releasing information concerning confidential [183 Wn.App. 662] informants and by disclosing the Department's criteria for evaluating tips from such informants. The Department also asserted that Marchel had received the less-redacted versions in error.

¶ 8 After argument, the superior court reserved ruling because the judge had not been able to review all the submitted materials. The court issued a letter opinion two weeks later denying Haines-Marchel's motion and granting summary judgment to the Department. The opinion relied primarily on Paul's declaration in finding the redactions appropriate under both RCW 42.56.240(1) and (2). The court subsequently entered a written order to the same effect. Haines-Marchel timely appeals.

Page 102


I. Standard of Review and Governing Law

¶ 9 We review summary judgments de novo and in that review perform the same inquiry as the superior court. TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 280-81, 242 P.3d 810 (2010). A court should grant summary judgment only if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c). A material fact is one upon which the outcome of the litigation depends in whole or in part. Atherton Condo. Apt.-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).

¶ 10 A party moving for summary judgment bears the burden of demonstrating that there is no genuine issue of material fact. Atherton, 115 Wn.2d at 516. If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute. Atherton, 115 Wn.2d at 516. If the nonmoving party [183 Wn.App. 663] fails to do so, then summary judgment is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

¶ 11 The court must consider all facts, and the reasonable inferences from them, in the light most favorable to the nonmoving party. Vallandigham, 154 Wn.2d at 26; Atherton, 115 Wn.2d at 516. A court should grant summary judgment only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham, 154 Wn.2d at 26.

¶ 12 Courts also review an agency's denial of the opportunity to inspect or copy public records under the PRA de novo. RCW 42.56.550(3). In reviewing such agency action, the superior court " may conduct a hearing based solely on affidavits," RCW 42.56.550(3), and

[t]he burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

RCW 42.56.550(1). The PRA " is a strongly worded mandate for broad disclosure of public records" that requires state agencies to disclose any public record upon request, unless the record falls within certain specific exemptions. Prison Legal News, Inc. v. Dep't of Corr., 154 Wn.2d 628, 635, 115 P.3d 316 (2005). A reviewing court must construe the ...

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