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Zabala v. Okanogan County

Court of Appeals of Washington, Division 3

April 3, 2018

JUAN ZABALA, Appellant,
v.
OKANOGAN COUNTY, Respondent.

          FEARING, J.

         Juan Zabala sues Okanogan County for violations of the Public Records Act, chapter 42.56 RCW. Because RCW 70.48.100 exempts all records requested from disclosure under the records act, we affirm the trial court's summary judgment dismissal of the suit.

         FACTS

         Juan Zabala sent five requests for public records to Okanogan County. On March 24, 2016, Juan Zabala sent a request to the Okanogan County Sheriffs Office that sought:

any and all records related to recorded and/or monitored jail phone calls that were used in the prosecution of any crime by any of the Okanogan County Prosecutors Offices.

Clerk's Papers (CP) at 127. Zabala limited this request to phone calls originating from Okanogan, Chelan, and Douglas County's adult correctional facilities.

         On March 31, 2016, Juan Zabala sent a second request to the Okanogan County Sheriffs Office that did not contain any limitations, but instead demanded:

any and all records related to recordings of inmate phone calls from any [a]dult [c]orrectional [f]acility. This request includes but is not limited to all voicemail, e[-]mail, audio, notes, reports, transcripts, arguments, motions, briefs, memos, letters and any other record related to the same.

CP at 128. Celeste Pugsley, the Okanogan County jail public record's officer, timely responded to both requests asserting that Zabala did not request identifiable records that could be reasonably located. In Pugsley's declaration in support of Okanogan County's later motion to dismiss, she further declared that the jail did not possess the records requested and that Pugsley would need to obtain that information from the prosecutor's office.

         On April 5, 2016, Juan Zabala submitted a third and fourth request, with the fourth request sent four minutes after the third request. Both requests repeated the identical wording used in Zabala's first two requests, but this time Zabala directed the requests to the Okanogan County prosecuting attorney. Okanogan County Deputy Prosecuting Attorney Albert Lin replied to both requests in one e-mail on April 6. Lin stated that Zabala's requests did not identify records that could be reasonably located.

         Juan Zabala's counsel submitted a fifth request to the Okanogan County Prosecuting Attorney's Office on June 3, 2016. The request again sought recorded phone calls placed by adult inmates in Okanogan, Chelan, or Douglas County. Counsel also demanded transcripts or summaries made of any such recordings and asked for:

any records prepared by any employee of the Okanogan Prosecuting Attorney's Office that were later filed with any court or provided to any defense attorney that explicitly or implicitly mention such a phone call.

CP at 134. Counsel clarified, through an example, that an amended information adding a count of tampering with a witness, intimidating a witness, or violation of a no-contact order when the factual basis for the charge arose from such a phone call would be a responsive record. The request narrowed the scope of records sought to those created within the past three years and to only those records actually used in the context of criminal prosecution.

         Shauna Field, the office administrator for the Okanogan County Prosecuting Attorney's Office, attempted to locate records requested by Juan Zabala's counsel. In a declaration in support of Okanogan County's later motion to dismiss, Field described the search she conducted. Using the date range of three years and the types of crimes suggested in the fifth response, Field located 368 files. According to Field, each case handled by the prosecutor's office utilizes various types of investigative materials. Field further explained that the prosecutor's office does not have a way to track the specific types of materials, whether found in an electronic file or a physical file, used in each case. As a result, while Field could locate 368 files that matched the date range and crimes entered, she could not determine if the files responded to Juan Zabala's requests without manually examining the contents of every file.

         The Okanogan County prosecuting attorney responded to Juan Zabala's counsel's request, the fifth request, on June 4, 2016 claiming: (1) the request did not identify records that could be reasonably located, (2) the attorney work product exemption applied to some of the records sought, and (3) RCW 9.73.095(3)(b) exempts disclosure of recorded conversations from correctional facilities. On June 29, 2016, counsel sent a letter to the Okanogan County Prosecuting Attorney's Office citing disagreement with the prosecuting attorney's response. Counsel stated that he failed to understand how his original request lacked particularity and offered to remove the narrowed scope of only "those records that were actually used in the context of a criminal prosecution." CP at 80. The prosecuting attorney responded on July 5, 2016 by again stating that defense counsel's requests ...


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