describing physical file from which documents were removed
How later courts described this case
- describing physical file from which documents were removed
Written by the judges who cited it.
The opinion
FILED
SEPTEMBER 1,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JAMES V. ADAMS, )
) No. 32012-0-111
Respondent and )
Cross Appellant, )
)
v. )
)
WASHINGTON STATE DEPARTMENT )
OF CORRECTIONS, ) PUBLISHED OPINION
)
Appellant. )
SIDOOWA Y, C.J. - Both parties to this Public Records Act (PRA)l dispute appeal
decisions of the Franklin County Superior Court, which concluded that the Washington
State Department of Corrections (DOC) improperly withheld records that inmate James
Adams requested from his offender file, acted in bad faith in doing so, and should pay a
penalty of$24,535. The DOC challenges the conclusion that it acted in bad faith. Mr.
Adams argues that the penalty awarded was insufficient and was arrived at without full
consideration of all of the relevant evidence.
The trial court found that the DOC's position that the documents were subject to
an exemption from disclosure was legally indefensible and that the DOC simply deferred
1 Chapter 42.56 RCW.
No. 32012-0-III
Adams v. Wash. State Dep't ofCorrections
to what it was being told by individuals with the Washington State Patrol, without
engaging in any critical analysis of its own. It found that the intentional bad faith
character of the DOC's decision to withhold the documents was further demonstrated by
the DOC's persistence, after a Spokane County Superior Court squarely rejected any
claim of exemption, in continuing to rely on views of the state patrol that it preferred over
the views of the court. We hold that "bad faith" for purposes of imposing penalties under
RCW 42.56.565(1) includes an agency's failure to engage in any serious independent
analysis of the exempt status of documents it withholds. For that reason, and because Mr.
Adams fails to demonstrate any error in his cross appeal, we affirm all of the decisions of
the trial court.
FACTS AND PROCEDURAL BACKGROUND
James Adams is incarcerated at the Coyote Ridge Corrections Center, a facility
operated by the DOC. In July 2011, Mr. Adams submitted a request to the corrections
center's records unit to review his inmate central file. Among other documents included
in an offender's central file is his criminal conviction record packet. That packet consists
of criminal history obtained from the Washington State Patrol and the Federal Bureau of
Investigation (FBI) at the time the inmate's fingerprint cards are forwarded following his
admission to DOC custody. It also includes updated information obtained as part of the
DOC's annual review thereafter. Updated information for the packet is obtained by
submitting the inmate's name and date of birth into ACCESS, an acronym for "A Central
2
No. 32012-0-III
Adams v. Wash. State Dep 't a/Corrections
Computerized Enforcement Service System," which is the Washington State Patrol's
telecommunications system providing linkage to law enforcement and other criminal
justice agencies. See WASHINGTON STATE PATROL,
http://www.wsp.wa.gov/crime/isbhome.htm (last visited Aug. 12,2015).
In response to Mr. Adams's record request, a corrections center records manager
reviewed his file and removed documents she believed were exempt from disclosure
under the PRA, including Mr. Adams' 23-page criminal conviction record packet. The
first two pages of Mr. Adams's packet were a Defendant's Case History Report. The
remaining 21 pages were printouts from ACCESS. The ACCESS printouts included
information on Mr. Adams from Washington State, from the FBI, and from the Interstate
Identification Index System, a "cooperative federal-state system for the exchange of
criminal history records." 28 C.F.R. §20.3(m).
The records manager completed a "Denial of Disclosure of Public Records" form
dated July 14, 2011, that stated in pertinent part:
1. TO: ADAMS, JAMES
2. YOUR REQUEST FOR DISCLOSURE OF THE RECORDS
IDENTIFIED BELOW HAS BEEN DENIED TO THE EXTENT AND
FOR THE REASON(S) SET FORTH BELOW.
SPECIFIC INTELLIGENCE AND OR INVESTIGATION RECORDS FBI
& SIIY RAP SHEETS; CCR PACKET
2 "SID" is the acronym for "state identification number."
3
No. 32012-0-III
Adams v. Wash. State Dep't o/Corrections
Clerk's Papers (CP) at 343. There was no identification of how many pages of
documents were being withheld or any more specific description of their contents.
When Mr. Adams reviewed the portion of his central file produced on that same
day, he was presented with the "denial of disclosure" form, which he signed. Later that
day, the records department sent Mr. Adams the following explanation for its
withholding:
EXEMPTION(S) II [sic]-FBI RAP AND WASHINGTON STATE RAP
SHEET-These records, consisting of the Federal Bureau of Investigation
Rap Sheet and/or the Washington Rap Sheet, are protected from disclosure
and have been withheld in their entirety per the following citations: ...
[citing 28 CFR § 513.1 1(a)(1), 28 CFR § 513.20(b), and RCW
4.56.070(1 )].
ld. at 289.
Mr. Adams appealed the withholding of his state and federal criminal information
to the DOC's Public Disclosure Appeals Office, arguing that he was exempt "from all of
the above-mentioned citations that would necessarily deny my review of my own FBI
and SID RAP Sheets." ld. at 404. The appeals office denied his appeal. It again cited 28
CFR § 513.11(a)(I), 28 CFR § 513.20(b) and RCW 4.56.070(1), quoting in part from
each, and also stated that "[nJon-conviction criminal history information is for law
enforcement use only, and restricted from dissemination under provisions of RCW
10.97.050 and 28 USC § 534 and 28 CFR Part 20." CP at 406. The denial letter
advised Mr. Adams to contact the WSP and the FBI directly, explaining that "these
4
No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections
entities can create and provide official copies of FBI Rap Sheets and Washington State
Rap Sheets, respectively." Id.
Commencement o/the PRA action
Mr. Adams commenced this action in Franklin County shortly thereafter, on
October 31, alleging that the DOC violated the PRA in responding to his request.
Three days before Mr. Adams filed his complaint, the Spokane County Superior
Court had entered a memorandum decision in an action entitled David Chester v.
Department o/Corrections, in which Mr. Chester "aUeg[ed] violations of [the PRA] as
several groups of public records (criminal rap sheets) belonging to [Mr. Chester] were
withheld from production and inspection or review during [his] central file reviews on
June 17,2010, and June 7, 2011." CP at 57 (Memorandum Opinion and Order, Cause
No. 11-2-00329-3 (Oct. 28, 2011)). At Mr. Chester's request, the court had reviewed in
camera a number of documents withheld from Mr. Chester by the DOC, including six
pages of Mr. Chester's own Washington State Patrol rap sheet dated April 2002, six
pages of his state patrol rap sheet dated May 2006, eight pages of his state patrol rap
sheet dated February 2002, and two pages of his FBI rap sheet dated April 2002.
The Spokane court's decision stated that "[a]fter an additional review of
potentially applicable exemptions, ... it does not seem that Plaintiffs [requested records,
WSP and] FBI rap sheets, are exempt under any provision." Id. at 59. The court ordered
5
No. 320 12-0-III
Adams v. Wash. State Dep't a/Corrections
the DOC to provide Mr. Chester with copies of his state and FBI rap sheets, among other
documents. The DOC moved for reconsideration, which the court denied in November.
Almost 10 months later, on September 4,2012, DOC filed a motion for a show
cause hearing to resolve Mr. Adams's PRA complaint. It conceded that it violated the
PRA by withholding the two-page Defendant's Case History report during Mr. Adams's
offender central file review the year before. But it argued that the remaining 21 pages of
documents had been withheld based on its signed user agreement with the state patrol and
its understanding that the state patrol (at least at one time) viewed dissemination of
ACCESS printouts to inmates as sanctionable misuse of the system.
The DOC filed declarations of the correctional records manager for the DOC and
the Coyote Ridge records supervisor that undercut its position in part, since they admitted
that the state patrol had "modified its position" with respect to state patrol rap sheets on
January 10,2012, and now took the position that the ACCESS use agreement was not
violated by allowing an offender to inspect his or her own Washington State rap sheet
information. According to the declarations, federal and out of state rap sheet information
remained nondisclosable.
The Coyote Ridge records supervisor further stated in her declaration that in light
of the state patrol's changed position, she had scheduled a time on August 23, 2012, for
Mr. Adams to review pages one through 11 of his packet, consisting of the Defendant's
Case History document and the Washington State portion of the ACCESS printout. She
6
No. 32012-0-III
Adams v. Wash. State Dep 't ofCorrections
stated that although Mr. Adams appeared at the scheduled time, he refused to review the
records.
In its motion to dismiss, the DOC persisted in arguing that it did not violate the
PRA in withholding ACCESS printouts because state and federal law prohibited it from
providing Mr. Adams's FBI and WSP rap sheets to him. It persisted in claiming that its
position was supported by requirements of the state patrol's ACCESS Standard
Procedures and its 2009 and 2011 user agreements, unsigned copies of which it provided
to the court.
Show Cause Hearing
The trial court found the DOC's justification for its withholding indefensibly
deficient. At the hearing of the show cause motion, it pointed out that DOC's legal
support for its position was limited to a state patrol records section manager's conclusory
declaration as to applicable law, regulation,.policy, and federal-state agreement. The
court stated it had been unable to locate a single document or legal citation provided by
DOC that prohibited the DOC from disseminating an offender's state patrol or FBI rap
sheet to that offender. The court asked the DOC's lawyer three times during the hearing
to draw the court's attention to any record evidence of an edict or agreement that
prohibited the offender from being provided with the ACCESS printouts. None was
identified.
7
No. 32012-0-III
Adams v. Wash. State Dep't ojCorrections
After hearing the parties' argument, the trial court serially addressed the state
patrol's ostensible authority on which the DOC relied in refusing to provide Mr. Adams
with the ACCESS printouts from his central file. It explained why each authority fell
short of supporting the DOC's withholding of the records. Finding no basis for
exemption, the trial court concluded that the DOC had violated the PRA.
The court found the record inadequate to determine whether the DOC withheld the
records in bad faith, warranting a penalty. It ordered the DOC to submit additional
briefing together with copies "of any and all agreements it may have" with the state
patrol, FBI, or other state or federal agencies regarding the information obtained through
ACCESS, "as well as any specific policies, manuals, or correspondence between the
agencies that substantiates the statements made in [the state patrol section manager's]
declaration [in support of the show cause motion]." CP at 292.
Penalty hearing
The DOC proved unable to produce any consequential additional support
substantiating its position. It produced none that predated its withholding of Mr.
Adams's records in July 2011.
It did produce electronic mail communication that began in December 2011, in
which representatives of the DOC sought clarification or support for its position from the
state patrol and FBI. A February 1 letter from the DOC's correctional records manager to
the Division Commander of the state patrol's Criminal Records Division stated that the
8
No. 32012-0-III
Adams v. Wash. State Dep't o/Corrections
DOC had withheld rap sheets based on unidentified "previous advice" and was "seek[ing]
clarification." CP at 270. Rather than discuss the PRA or any other applicable law, the
DOC employee simply asked the state patrol's division commander what he thought the
parties' user agreement required.
The Division Commander's response pointed out that the DOC had two
agreements with the state patrol. As to the first, the user agreement for ACCESS, the
Division Commander expressed no opinion on its dissemination provisions. As to the
second, a user agreement for fingerprint-based Washington rap sheets, the Division
Commander stated that for DOC to provide a copy of such a rap sheet to the rap sheet's
subject "would not breach the [automated fingerprint modification system] user
agreement with the WSP." Id. at 275.
With this scant support for the DOC's actions in hand, the trial court looked to the
mitigating and aggravating factors identified in Yousoufian v. Office 0/ Ron Sims, 168
Wn.2d 444,229 P.3d 735 (2010) (Yousoufian 2010) to aid assessment of the culpability
of an agency that has violated the PRA. Applying those factors, the court found no
statutory basis for the DOC's withholding ACCESS printouts from the subject of the
report, that the DOC's position was "legally indefensible," and that the agency's choice
to solicit the opinions of the state patrol and FBI rather than engage in its own critical
examination of applicable law (including failing to heed the decision in Chester)
demonstrated bad faith. It concluded that a substantial penalty was necessary to deter
9
No. 32012-0-III
Adams v. Wash. State Dep 't o/Corrections
future misconduct. It ultimately imposed a penalty of $35 per day from the date of Mr.
Adams's request to the date of the penalty hearing, for a total of$24,535.
Both Mr. Adams and the DOC moved for reconsideration. The requests for
reconsideration were denied. Both parties appeal.
ANALYSIS
The DOC filed the first notice of appeal and assigns error to the trial court's
finding that it acted in bad faith. Mr. Adams assigns error to the trial court's allocation of
the burden of proving bad faith to the record requester and to the trial court's alleged
failure to consider evidence relevant to the penalty. We first address the DOC's appeal
and then turn to Mr. Adams's.
DOC APPEAL
The DOC identifies three issues by segregating its actions on which the trial court
relied into three categories: (1) its actions in withholding the portion of the ACCESS
printouts that reflected information from the Interstate Identification Index (III) System,
(2) its actions in withholding the portion that reflected Washington State information, and
(3) its failure to heed the superior court decision in Chester. Br. of Appellant at 1-2.
After addressing the meaning of "bad faith" in this context and the standard of review, we
will address the issues as presented by the DOC.
The PRA "is a strongly-worded mandate for broad disclosure of public records."
Rental Hous. Ass'n o/Puget Soundv. City o/Des Moines, 165 Wn.2d 525, 535,199 P.3d
10
No. 32012-0-II1
Adams v. Wash. State Dep't ofCorrections
393 (2009) (citing Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127,580 P.2d 246 (1978)). It
requires that state and local agencies "produce all public records upon request unless a
specific PRA exemption or other statutory exemption applies." Robbins, Geller, Rudman
& Dowd LLP v. State, 179 Wn. App. 711, 719-20,328 P.3d 905 (2014); RCW
42.56.070(1). "[T]he agency claiming the exemption bears the burden of proving that the
documents requested fall within the scope of the exemption." Cowles Publ'g Co. v.
Spokane Police Dep't, 139 Wn.2d 472,476, 987 P.2d 620 (1999).
"When an agency withholds or redacts records, its response' shall include a
statement of the specific exemption authorizing the withholding of the record (or part)
and a brief explanation of how the exemption applies to the record withheld.'" City of
Lakewood v. Koenig, 182 Wn.2d 87, 94, 343 P.3d 335 (2014) (quoting RCW
42.56.210(3)). "The purpose of the requirement is to inform the requester why the
documents are being withheld and provide for meaningful judicial review of agency
action." Id. (citing Progressive Animal Welfare Soc. v. Univ. of Washington, 125 Wn.2d
243,270,884 P.2d 592 (1994) (PAWS II); Sanders v. State, 169 Wn.2d 827,846,240
P.3d 120 (2010)). It is improper under the PRA to provide exemption information in
such vague terms that "the burden [is] shifted to the requester to sift through the statutes
cited ... and parse out possible exemption claims." Lakewood, 182 Wn.2d at 95.
11
No. 32012-0-III
Adams v. Wash. State Dep't ofCorrections
Limitations on Inmate Recovery ofPenalties
As an inmate at the time he made his public record request, Mr. Adams is subject
to a limitation on penalties adopted by the legislature in 20 11. LAWS OF 2011, ch. 300,
§ 1. Under RCW 42.56.565(1),
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.
By adding the bad faith requirement, "the legislature increased the level of culpability
needed for an award to an inmate" from the expansive range of culpability that can give
rise to a penalty where the requester is not incarcerated. Faulkner v. Dep't ofCorrs., 183
Wn. App. 93, 105,332 P.3d 1136 (2014) review denied, 182 Wn.2d 1004 (2015).
Legislative committee reports suggest that the underlying bill was introduced as a
measure to "curb abuses by inmates." Id. "By incorporating the bad faith requirement,
the legislature allows penalties for inmates only when the conduct of the agency defeats
the purpose of the PRA and deserves harsh punishment." Id. at 106.
The DOC does not challenge the trial court's ruling that a PRA violation occurred
nor does it challenge the amount of the penalty arrived at by the court-it challenges only
the trial court's threshold finding that it acted in bad faith.
Two decisions by this court following the 2011 amendment ofRCW 42.56.565(1)
have considered what constitutes bad faith within the meaning ofthat provision. In
12
No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections
Francis v. State Department ofCorrections, 178 Wn. App. 42,54,313 P.3d 457 (2013),
review denied, 180 Wn.2d 1016 (2014), Division Two of our court rejected the DOC's
assertion that "an agency acts in bad faith only when it knows that it has responsive
records but intentionally fails to disclose them." Instead, it held 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." Id. at 63 n.5.
In Faulkner, this court held that bad faith in the PRA context "incorporates a
higher level of culpability than simple or casual negligence," and is "associated with the
most culpable acts by an agency." 183 Wn. App. at 103, 105. Accordingly, to establish
bad faith, an inmate "must demonstrate a wanton or willful act or omission by the
agency." Id. at 103. Citing Black's Law Dictionary 1719-720 (9th ed. 2009), the court
explained that "wanton" means "[u]nreasonably or maliciously risking harm while being
utterly indifferent to the consequences." Id at 103 (alteration in original) (internal
quotation marks omitted). And "wanton"
differs from reckless both as to the actual state of mind and as to the degree
of culpability. One who is acting recklessly is fully aware of the
unreasonable risk he is creating, but may be trying and hoping to avoid any
harm. One acting wantonly may be creating no greater risk of harm, but he
is not trying to avoid it and is indifferent to whether harm results or not.
Id. at 103-04 (internal quotation marks omitted) (quoting BLACK'S LAW DICTIONARY
1720 (9th ed. 2009».
13
No. 32012~0~III
Adams v. Wash. State Dep't a/Corrections
"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)." Francis, 178 Wn.
App. at 51~52.
The DOC does not assign error to the trial court's factual findings supporting its
determination of bad faith. Accordingly, these findings are verities on appeal. State v.
Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004). Whether those facts support its
conclusion that the DOC acted in bad faith, on the other hand, is a question of law that
this court reviews de novo. Faulkner, 183 Wn. App. at 101-2 (citing Francis, 178 Wn.
App. at 51-52).
The court made the following findings relevant to its conclusion that DOC acted in
bad faith:
• "DOC's explanation for noncompliance is not reasonable" [Finding
5];
• "[T]he DOC was not completely forthcoming in its initial
explanation as to why it was withholding the records, wherein it
stated there was a statutory basis for withholding the rap sheets,
when in fact there was no statutory basis for the DOC, the
Washington State Patrol or the FBI to withhold Mr. Adams'[s]
criminal records" [Finding 6];
• H[T]he Court finds DOC's position legally indefensible, that there is
no statute that prohibits the dissemination of rap sheets, either state
or federal, that the DOC was undaunted by this fact, that one
government agency cannot rely upon and point to another
14
No. 32012-0-III
Adams v. Wash State Dep 't ofCorrections
governmental agency where that governmental agency's decision
making process is clearly in error" [Finding 11];
• "[T]he Court finds that the DOC actions are clearly intentional and
in bad faith[;3 t]he DOC was not relying on any statutory exemption
or basis but simply relying upon the opinion of someone in another
agency, and prior to this case coming to this court, Judge Eitzen, of
the Spokane County Superior Court, under Cause No. 11-2-00329-3,
had already found the DOC in violation of the Act on these grounds"
[Finding 12];
• "The Court also finds that no indication that the [DOC] has filed an
interlocutory appeal or that it has filed a declaratory action. The
Court further finds bad faith where the DOC, a department within
the executive branch of government, has chosen to ignore decisions
made by the judicial branch regarding rap sheet dissemination.
[None oft]he DOC, the WSP []or the FBI are privileged to ignore
judicial decisions; [Finding 12];
• "[T]he Court finds that a substantial penalty is necessary, and, in
respect to the separation of powers issue, the executive branch of
government is required to follow the decisions that are properly
within the authority of the judicial branch of government. The Court
further finds that the existence of other legal remedies are available
to the DOC and that the DOC cannot simply ignor[ e] judicial
decisions as occurred herein" [Finding 16].
CP at 30-32.
With these undisputed findings in mind, we tum to the three issues as
identified by DOC.
3 As discussed, we treat "bad faith" as a conclusion of law. See Grundy v. Brack
Family Trust, 151 Wn. App. 557, 567,213 P.3d 619 (2009) (conclusions oflaw
mislabeled as findings of fact are reviewed as what they are, de novo).
15
No. 320 12-0-III
Adams v. Wash. State Dep't ofCorrections
Withholding ofInterstate Identification Index Criminal History
The DOC argues that standing alone, an agency's reliance on an invalid basis for
nondisclosure is not a basis for finding bad faith, although it concedes that reliance on a
'" farfetched'" basis for nondisclosure may result in such a finding. Br. of Appellant at
13 (quoting King County v. Sheehan, 114 Wn. App. 325, 357, 57 P.3d 307 (2002)).
While not assigning error to the trial court's finding that its position proved to be
indefensible, it provides a ten-page discussion of federal law (mostly federal regulations)
to show that the issue of whether federal law prohibits a state criminal agency from
disclosing rap sheet information on an inmate, to that inmate, "is not as simplistic as the
trial court held." Br. of Appellant at 13. In short, it seeks to show that its position was
not "farfetched."
The discussion begins with what the DOC views as its most defensible
withholding of documents: its withholding of ACCESS printouts reflecting information
from the III System. While it referred to all of the withheld documents as "rap sheets" at
the time of withholding, it now distinguishes information from the III System from what
it calls fingerprint-based rap sheets and contends that unlike fingerprint-based rap sheets,
III System information cannot be disseminated by a law enforcement agency to the
individual who is the subject matter of the information. It misconstrues federal rules that
not only permit, but require, that inmates have an opportunity to review their own
criminal history record information and a United States Supreme Court holding that
16
No. 320'12~0-III
Adams v. Wash. State Dep't ofCorrections
federal law only requires restricting third party access to a person's rap sheet
infonnation.
As the DOC concedes, 28 U.S.C. § 534(b) was the key provision on which the
state patrol mistakenly relied in concluding that providing criminal record information
from FBI-controlled systems to the subject of that infonnation was prohibited. 28 U.S.C.
§ 534(b) states that "[t]he exchange of records and infonnation authorized by subsection
(a)(4) of this section is subject to cancellation if dissemination is made outside the
receiving departments or related agencies."
Over 40 years ago, the director of the FBI announced rules under which the
subject of rap sheet information was free to obtain a copy of that infonnation maintained
by the FBI pursuant to 28 U.S.C. § 534. The rules were explained as follows:
By order dated September 24, 1973, the Attorney General of the United
States directed that the ... FBI[] publish rules for the dissemination of
arrest and conviction records to the subjects of such records upon request.
This order resulted from a detennination that 28 U.S.C. 534 does not
prohibit the subjects of arrest and conviction records from having access to
those records.
Department of Justice Order No. 556-73, 38 Fed. Reg. 32,806 (Nov. 28, 1973). The
announcement went on to explain that the rules would provide a procedure by which the
records could be obtained from the FBI. It also explained that it was able to announce the
rules without following rulemaking procedure under the federal Administrative
Procedure Act "because the material contained herein relates to the interpretation of 28
17
No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections
U. S.C. 534 as allowing the granting of an exemption to subj ects of identification
records," and "it is deemed in the public interest that there be no delay in the effective
date of availability of identification Records to the subjects thereof." Id.
Sixteen years later, the United States Supreme Court discussed the FBI's position
in Department ofJustice v. Reporters Committeefor Freedom ofthe Press, 489 U.S. 749,
109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989), the seminal authority on 28 U.S.C. § 534 that
the trial court relied upon in concluding that the DOC had violated the PRA. In
Reporters Committee, the Supreme Court considered whether subsection 534(b) made the
FBI's criminal history information exempt from disclosure under the federal Freedom of
Information Act (FOIA), 5 U.S.C. § 552. Three steps in the Supreme Court's reasoning
and its holding are fatal to DOC's argument that 28 U.S.C. § 534(b) prohibited it from
providing Mr. Adams with copies of his FBI rap sheets.
In Reporters Committee, a news reporter and an association ofjournalists
requested FBI rap sheets of members of a family associated with organized crime. The
district court for the District of Columbia found that the records were exempt from
disclosure under FOIA; the Court of Appeals of the District of Columbia reversed in a
split decision and then denied rehearing en banc, with four judges dissenting. The U.S.
Supreme Court then granted certiorari.
The Supreme Court's decision recounted the history of the FBI's collection and
sharing of rap sheet information, observing that before 1957, the Department of Justice,
18
No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections
as a matter of executive policy, had generally treated rap sheets as confidential. 489 U.S.
at 752. Consistent with that basic policy of treating the records as confidential, Congress
in 1957 amended the criminal information statute to include the non-dissemination
language presently provided by 28 U.S.C. § 534(b). Id. The Court then discussed the
FBI's historical exception "allow[ing] the subject of a rap sheet to obtain a copy," as
reflected in former 28 CFR §§ 16.30-16.34 (1988). Id. It characterized "the FBI's policy
of granting the subject of a rap sheet access to his own criminal history" as "consistent
with its policy of denying access to all other members of the general public." 489 U.S. at
771. Thus at the first step-its historical analysis-the Supreme Court pointed out the
FBI's view that 28 U.S.C. § 534 did not prevent the subject of a rap sheet from obtaining
a copy.
The Court went on to discuss FOIA, which identifies nine categories of documents
that are exempt from its broad disclosure requirements. In the District of Columbia
Circuit Court of Appeals' decision in the Reporters Committee case, it had held that
Exemption 3,4 which applies to documents that are specifically exempted from disclosure
by another statute, did not apply, because 28 U.S.C. § 534 did not qualifY as a statute
4 Exemption 3 is codified at 5 U.S.C § 552(b)(3).
19
No. 320 12-0-III
Adams v. Wash. State Dep't a/Corrections
'" specifically'" exempting rap sheets from disclosure. Reporter's Comm. For Freedom
o/Press v. Dep't o/Justice, 259 U.S. App. D.C. 436,816 F.2d 730,734 (1987) rev'd on
other grounds, 489 U.S. 749 (1989).5 While the petitioners abandoned reliance on
Exemption 3 in the Supreme Court, the Court's opinion made the passing observation
that 28 U.S.C. § 534(b) was "perhaps not specific enough to constitute a statutory
exemption under FOIA Exemption 3." 489 U.S. 765 & n.17.
The U. S. Supreme Court instead analyzed Exemption 7(C) under FOIA, which
excludes records or information compiled for law enforcement purposes, "but only to the
extent that the production of such [materials] ... could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).6
Thus, at the second step of its analysis-identifying the pertinent FOIA exemption-the
5 The Circuit Court observed:
The government's contention that [28 U.S.C. § 534(b)], which authorizes
the Attorney General to stop exchanging information with a particular
governmental entity if that entity discloses the information, brings the
statute within Exemption 3 is unpersuasive. Subsection (b) does not speak
to the Attorney General's authority to disclose or refuse to disclose to the
public; only by implication does it even address the recipient agency's
authority to disclose to the public.
816 F.2d at 735 (emphasis omitted).
6 The Court observed that Exemption 6, codified at 5 U.S.C. § 552(b)(6), and
which protects "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy," was also arguably
applicable, but having found the broader Exemption 7 to apply, found "no occasion" to
address the application of Exemption 6. 489 U.S. at 755 n.7, 762 n.l2.
20
No. 320l2-0-III
Adams v. Wash. State Dep 't ofCorrections
Supreme Court relied on an exemption that applies only when privacy is invaded.
Privacy is not invaded when an individual reviews records that are only about himself.
The Court then identified the Privacy Act of 1974, codified at 5 U.S.C. § 552a, as
supporting the conclusion that a privacy interest can inhere in the nondisclosure of
compiled computerized information. 489 U.S. at 766. It described the Privacy Act as
"provid[ing] generally that '[n]o agency shall disclose any record which is contained in a
system of records ... except pursuant to a written request by, or with the prior consent
of, the individual to whom the record pertains. '" Id. (emphasis added) (some alterations
in original) (quoting 5 U.S.C. § 552a(b). At this third stage of analysis--deciding
whether disclosure of compiled computerized information can violate privacy-the
Supreme Court relied on an analogous nondisclosure statute that allows disclosure of a
record to the individual to whom the record pertains.
Finally, the holding of the decision reflected an intentional distinction between the
subject of the rap sheet and a third party. It said,
Accordingly, we hold as a categorical matter that a third party's request for
law enforcement records or information about a private citizen can
reasonably be expected to invade that citizen's privacy.
489 U.S. at 780 (emphasis added).
We agree with the trial court that by no reasonable reading does Reporters
Committee suggest that the DOC was justified in withholding Mr. Adams's FBI
rap sheet information from him.
21
No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections
The DOC nonetheless points to a supposed federal regulatory distinction between
disclosing criminal history information it obtains through a fingerprint card-based request
to the FBI and information it obtains through a name and date of birth request through the
III System.
What came to be called the Interstate Identification Index System, a system that
links federal and state criminal records systems, became operational through the FBI's
National Crime Information Center (NCIC) in 1983. See James Jacobs & Tamara Crepit,
The Expanding Scope, Use, and Availability o/Criminal Records, 11 N.Y.V. 1. LEGIS. &
PUB. POL'y 177, 181 (2007-08), and historical materials cited therein. "The III enables
the FBI to direct searchers to the states containing records on the subject of the search"
and for this reason "is called a 'pointer system'-it tells law enforcement officials which
states have criminal history record information on a particular subject and allows
searchers to obtain this information directly from the state repository where the
information is located." Id. at 182 (footnote omitted). The terms "Interstate
Identification Index" and the shorthand "III System" were first reflected in federal
regulation in 1999, when the Department of Justice adopted a final rule amending its
regulations to expand access to federal criminal history record information to some
private entities and some noncriminal justice governmental agencies; to acknowledge
access to such information by the National Instant Criminal Background Check System
(NICS) under the Brady Handgun Violence Prevention Act of 1993; and at the same time
22
No. 32012-0-111
Adams v. Wash. State Dep't ofCorrections
to "modernize language to ensure that the regulations accurately reflect current FBI
practices [and] names of systems and programs." Federal Bureau of Investigation,
Criminal Justice Information Services Division Systems and Procedures, 64 Fed. Reg.
52,223, 52,229 (Sept. 28, 1999) (Attorney General Order No. 2258-99).
The DOC correctly observes that the federal regulations in Title 28, chapter 1, part
20 of the Code of Federal Regulations govern the access issue under federal law. 28
C.F.R. § 20.34 addresses the procedure by which "an individual may obtain a copy of his
III System record" and states that the individual's "III System record ... is available to
that individual for review" so long as he has a criminal record supported by fingerprints
that have been entered in the III system. 28 C.F.R. pt. 20 app., § 20.34 cmt. The DOC
does not dispute that Mr. Adams has a criminal record supported by fingerprints entered
in the III System.
28 C.F.R. § 20.34 also sets forth a procedure by which an inmate may request that
a law enforcement agency obtain a copy of his III System record for his review:
Procedure. 1. All requests for review must be made by the subject of
the record through a law enforcement agency which has access to the III
System. That agency within statutory or regulatory limits can require
additional identification to assist in securing a positive identification.
2. If the cooperating law enforcement agency can make an identification
with fingerprints previously taken which are on file locally and if the FBI
identification number of the individual's record is available to that agency,
it can make an on-line inquiry through NCIC to obtain his III System
record, or, if it does not have suitable equipment to obtain an on-line
response, obtain the record from Clarksburg, West Virginia, by mail. The
individual will then be afforded the opportunity to see that record.
23
No. 32012-0-II1
Adams v. Wash. State Dep 't o/Corrections
3. Should the cooperating law enforcement agency not have the
individual's fingerprints on file locally, it is necessary for that agency to
relate his prints to an existing record by having his identification prints
compared with those already on file in the FBI, or, possibly, in the state's
central identification agency.
4. The subject of the requested record shall request the appropriate
arresting agency, court, or correctional agency to initiate action necessary
to correct any stated inaccuracy in his record or provide the information
needed to make the record complete.
28 C.F.R. pt. 20 app., § 20.34) cmt.
Another regulation under part 20 requires that any state wishing to have access to
federal criminal information must submit a Criminal History Record Information Plan
that includes operational procedures that "[i]nsure the individual's right to access and
review of criminal history record information maintained for purposes of accuracy and
completeness" by instituting procedures that allow individuals to review, "without undue
burden" "any criminal history information about the individual." 28 C.F.R. §
20.21 (g)(l).
The DOC fails to explain why these are not the controlling federal regulations. It
directs our attention instead to 28 C.F.R. § 16.30, which provides a different but non-
exclusive procedure through which an inmate can obtain criminal history information. It
directs us to regulations that impose sanctions for an agency's misuse of information and
for an agency's improper dissemination of information in violation of28 U.S.C. §
534(b}-but without any companion authority suggesting that providing an inmate with
III System information is misuse or improper dissemination.
24
No. 32012-0-111
Adams v. Wash. State Dep 't o/Corrections
DOC also points to provisions of 28 C.F .R. §§ 513.11 and 513.20. 28 C.F.R. §
513.1I(b), in particular, requires requests for III System information to be directed to the
FBI. But subsections 513.11 and 513.20 are part of chapter V of Title 28, dealing with
the federal "Bureau of Prisons, Department of Justice." The regulations address how an
"inmate" may obtain such records, with "inmate" defined for purposes of the chapter to
mean "all persons in the custody of the Federal Bureau of Prisons or Bureau contract
facilities." 28 C.F.R. § 500.I(c). They discuss records in an "institution's" files, with
"institution" defined for purposes of the chapter to mean "a U.S. Penitentiary" or one ofa
list of other federal correctional facilities. 28 C.F .R. § 500.1 (d). The regulations have no
application to Mr. Adams or to records in his central file at Coyote Ridge.
None of the federal regulations identified by the DOC is inconsistent with
longstanding federal law authorizing inmate access to his or her FBI criminal history
information.
Finally, the DOC cites Sargent v. Seattle Police Department, 179 Wn.2d 376, 399,
314 P.3d 1093 (2013), as somehow establishing that "[a]t the time, [the DOC's] was a
reasonable interpretation of both state and federal law." Br. of Appellant at 20. It
apparently relies on Sargent's holding that the Seattle Police Department properly
withheld 44nonconviction criminal history" information from the subject of the
information, who failed to support the request with an assertion that the information was
inaccurate or incomplete. 179 Wn.2d at 399-400. The police department's withholding
25
No. 32012-0-111
Adams v. Wash. State Dep 't ofCorrections
was supported by a provision of the Washington State Criminal Records Privacy Act,
chapter 10.97 RCW, which required such an assertion. 7 Mr. Adams's request was not for
non conviction criminal history information and does not present the issue addressed in
Sargent.
The trial court did not err in concluding that the DOC's position as to federal law
was indefensible.
Withholding ofState Criminal History Information
The State offers a more abbreviated defense of its withholding of Mr. Adams's
state criminal history information. The only legal authority that the DOC argues
supported its mistaken but allegedly good faith withholding of Mr. Adams's state rap
sheet information is WAC 446-20-090, which provides individuals with a right to review
their criminal history information for a reasonable fee. The regulation was not
promulgated under the PRA, but under chapter 10.97 RCW, the Washington State
Criminal Records Privacy Act. It creates a right that is in addition to, not a substitute for,
Mr. Adams's rights under the PRA.
7 "At the time of the show cause hearing, the [act] provided that '[n]o person shall
be allowed to retain or mechanically reproduce any nonconviction data except for the
purpose of challenge or correction when the person who is the subject ofthe record
asserts the beliefin writing that the information regarding such person is inaccurate or
incomplete.' Former RCW 10.97.080 (2010)." Sargent, 179 Wn.2d at 400 (emphasis
added) (alteration in original) (footnote omitted).
26
No. 320 12-0-III
Adams v. Wash. State Dep't ofCorrections
Beyond that, the DOC argues only that the state patrol formerly took the position
that Washington State criminal history information was exempt from the PRA under
RCW 10.97.050 and RCW 10.97.080, and DOC employees feared they would violate the
agency's user agreement with the patrol and lose access to information if the DOC did
not abide by the patrol's interpretation. It does not challenge the trial court's conclusion
that the state patrol's reading of those provisions (a reading the patrol has abandoned)
was indefensible. It argues instead that "[a]s the WSP is vested with the authority to
administer all operating phases of ACCESS and the Washington Crime Information
Center which encompasses the records which are the subject ofRCW 10.97, the
Department was reasonable to rely on the WSP's position." Br. of Appellant at 22.
Under the PRA, "[t]he agency must shoulder the burden of proving that one of the
[A]ct's narrow exemptions shields the records it wishes to keep confidential." Brouillet
v. Cowles Publ'g Co., 114 Wn.2d 788, 794, 791 P.2d 526 (1990) (court was precluded
from deferring to education board's regulation guaranteeing confidentiality of records,
and had to decide for itself whether the PRA exempted those records from disclosure).
Even if the DOC's user agreement had prohibited it from providing inmates with access
to their records (and it did not), "an agency's promise of confidentiality or privacy is not
adequate to establish the nondisclosability of information; promises cannot override the
requirements of the disclosure law." Hearst v. Hoppe, 90 Wn.2d 123, 137, 580 P.2d 246
27
No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections
( 1978); WAC 44-14-06002( 1) ([a]n agency agreement or promise not to disclose a record
cannot make a disclosable record exempt from disclosure).
The DOC had no right to rely on the position of the state patrol or on the terms of
any interagency agreement in determining whether the requested records were exempt
from disclosure under the PRA.
The Chester Decision
Finally, the DOC contends that the trial court erred when it relied on the DOC's
actions following the Chester decision as a basis for concluding that the agency acted in
bad faith. It argues that Chester presented different facts and a request for only
fingerprint-based records, not an III System record. We have already rejected the DOC's
argument that the III System character of a criminal history record makes it non
disclosable to an inmate by the DOC.
The DOC only halfheartedly argues that Mr. Chester's case is distinguishable,
pointing out that he was also complaining of withholding of his medical records and other
information not at issue in Mr. Adams's case. It cannot and does not dispute that in Mr.
Chester's case it withheld similar criminal history record information relying on the same
legal authority that it relied upon in the trial court here: principally 28 U.S.C. § 534 and
RCW 10.97.080. The Spokane County Superior Court's memorandum decision
explained why neither statute applied, discussed Reporters Committee, and squarely and
directly ruled that rap sheet information in the possession ofthe DOC is not exempt from
28
No. 32012-0-III
Adams v. Wash. State Dep 't ofCorrections
disclosure under the PRA. Yet the DOC did not stop to reconsider its exemption claim.
It continued in its dealings with Mr. Adams to follow the discredited view of the state
patrol rather than the reasoned ruling of the Spokane court.
The ruling in Chester came four months after the initial withholding of Mr.
Adams's records and nine months before the DOC relented as to about a third ofthem. 8
What the trial court appears to have found most significant about the DOC's refusal to
heed the Chester decision is that it forecloses any argument by the DOC that it simply
didn't realize there was a problem with the legal position it had taken. The trial court
reasonably viewed the DOC's actions as illustrating its indifference to whether it was
withholding records improperly.
CROSS APPEAL
Burden ofproof
Mr. Adams contends that the trial court erred in imposing the burden on him of
proving bad faith under the newly enacted RCW 42.56.565(1). He argues that the burden
8 In passing, the DOC argues that its attempt to present 11 pages of Mr. Adams's
records for his review in August 2012, only to have Mr. Adams refuse to review them,
demonstrates the absence of bad faith on its part. But this was still incomplete disclosure,
it occurred seven months after the state patrol had taken the position that these documents
could be released, and it does not negate the fact that the claim of exemption was never
seriously examined in the first place. At most, it could bear on the period for which
penalties were imposed-but since the DOC continued to withhold the majority of the
ACCESS printouts, it was within the trial court's discretion to disregard the belated
attempt at partial disclosure for that purpose as well.
29
No. 32012-0-II1
Adams v. Wash. State Dep 't ofCorrections
of proof under the PRA is "in all instances" on the offending agency, citing RCW
42.56.550. Br. of Resp'tlCross Appellant at 30. That statute provides that the burden of
proof shall be on the agency "to establish that refusal to permit public inspection and
copying in accordance with a statute that exempts or prohibits disclosure," RCW
42.56.550(1), and to establish that "the estimate [of time to respond] provided is
reasonable," RCW 42.56.550(2). It does not address the burden of proving any other
matters.
Mr. Adams has no basis for claiming error, since the issue of bad faith was
resolved in his favor. We note, however, that generally it is a plaintifrs burden to prove
the elements necessary to recovery. Baldwin v. Sisters ofProvidence, 112 Wn.2d 127,
135, 769 P.2d 298 (1989). Accordingly, in Faulkner, we held that an inmate must
establish bad faith. Faulkner, 183 Wn. App. at 103. The trial court did not err.
Consideration ofYousoufian 2010 factors
Mr. Adams next assigns error to the trial court's failure in the penalty hearing to
consider on the record the Yousoufian 2010 factor of the size of the DOC and the
inadequacy of the DOC's records denial sheet. He argues that both should have been
considered in fixing the amount of the penalty.
Under RCW 42.56.565( I), the court must make a threshold determination that the
agency acted in bad faith in denying a record requester the opportunity to inspect or copy
a public record. If that threshold showing is made, the statute contemplates that the trial
30
No. 32012-0-111
Adams v. Wash. State Dep 't ofCorrections
court will then exercise its discretion under RCW 42.56.550(4) "to award ... an amount
not to exceed one hundred dollars for each day that he or she was denied the right to
inspect or copy [the requested] record."
In Yousoufian 2010, our Supreme Court outlined a multi factor analysis to
"provide[] guidance to trial courts, more predictability to parties, and a framework for
meaningful appellate review," identifYing seven mitigating factors and nine aggravating
factors to be considered by a court in imposing a penalty under the PRA. 168 Wn.2d at
468. The ninth aggravating factor was "a penalty amount necessary to deter future
misconduct by the agency considering the size ofthe agency and the facts of the case."
Jd. (emphasis added). In announcing the multifactor analysis for arriving at an
appropriate penalty, the Yousoufian 2010 court "emphasize[d]" that
[t]he factors may overlap, are offered only as guidance, may not apply
equally or at all in every case, and are not an exclusive list of appropriate
considerations. Additionally, no one factor should control. These factors
should not infringe upon the considerable discretion of trial courts to
determine PRA penalties.
Yousoufian 2010, 168 Wn.2d at 468. A trial court nonetheless abuses its discretion ifit
fails entirely to conduct its penalty analysis within the Yousoufian 2010 framework.
Sargent, 179 Wn.2d at 398.
We review a trial court's determination ofa proper PRA penalty for abuse of
discretion. Yousoufian v. Office ofRon Sims, 152 Wn.2d 421,430-31, 98 P.3d 463
(2004) (Yousoufian 2004). Under this standard, a trial court's decision will only be
31
No. 32012-0-II1
Adams v. Wash. State Dep't o/Corrections
reversed if its decision "is manifestly unreasonable or based on untenable grounds or
reasons." Yousoufian 2010, 168 Wn.2d at 458. "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.'"
Francis, 178 Wn. App. at 65 (quoting 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 2010, 168 Wn.2d at 458-59 (internal
quotation marks omitted).
Here, the trial court conducted its penalty analysis within the Yousoufian 2010
framework and made the following finding as to the ninth aggravating factor:
[D]eterrence of future misconduct; the Court finds that a substantial penalty
is necessary, and, in respect to the separation of powers issue, the executive
branch of government is required to follow the decisions that are properly
within the authority of the judicial branch of government. The Court
further finds that the existence of other legal remedies are available to the
DOC and that the DOC cannot simply ignor[e] judicial decisions as
occurred herein, therefore this factor is present.
CP at 12. It imposed a per-day penalty of$35 based on its finding of two mitigating
factors and three aggravating factors. ld. at 13.
Mr. Adams has not demonstrated that the trial court failed to consider the DOC's
SIze. The court explicitly addressed the need to impose a penalty amount necessary to
deter future misconduct by the agency. In making a judgment about the amount
32
No. 32012-0-111
Adams v. Wash. State Dep't o/Corrections
necessary to deter future misconduct, the trial court would necessarily have considered
the size of the agency-likely under Yousoufian 2010, which it was following, but in any
event as a matter of common sense. It was not required to place its thought process on
the record. While Mr. Adams believes that a $24,535 penalty is insufficient to deter the
DOC given the size of its operating budget, he has not shown that the trial court abused
its discretion in arriving at that amount.
Mr. Adams also contends that the trial court erred in failing to consider the
inadequacy of the DOC's records denial sheet, which he claims fell short of the
requirements ofRCW 42.56.201(3). Under that statute,
Agency responses refusing, in whole or in part, inspection of any public
record shall include a statement of the specific exemption authorizing the
withholding of the record (or part) and a brief explanation of how the
exemption applies to the record withheld.
RCW 42.56.210(3). As Mr. Adams points out, in reviewing the Yousoufian 2010 factors,
the trial court did not explicitly find any failure by the DOC to comply with the PRA's
procedural requirements.
The trial court unquestionably considered the deficiency of the DOC's
identification of a basis for exemption, however-that deficiency was a principal basis
for its finding that the DOC acted in bad faith. But it is apparent that the trial court
differentiated between compliance with procedural requirements inform, and compliance
with procedural requirements in substance. As a matter of form, the Coyote Ridge
33
No. 32012-0-111
Adams v. Wash. State Dep 't o/Corrections
records department provided Mr. Adams with a contemporaneous log on which it
disclosed that it was withholding some documents, provided some description of what
they were, and provided citations to statutes and regulations as the asserted basis for its
withholding.
The court chose to address the substantive inadequacy of the DOC's explanation
elsewhere in its written and oral rulings. It found that aggravating factors four and five-
the "unreasonableness of any explanation for noncompliance by the agency" and
"negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the
agency"-both justified an increased penalty. 168 Wn.2d at 468. The court did not
overlook the DOC's failure to identify an exemption that actually justified its
withholding.
Because the trial court adequately considered each of the Yousoufian 2010 factors,
it did not abuse its discretion in its assessment of penalties.
Cost request
Mr. Adams devotes a section of his brief to his entitlement to costs on appeal
under RCW 42.56.550(4), RAP I 8.1 (b), and RAP 14.3(b). RCW 42.56.550(4) provides
that all costs shall be awarded to "[a]ny person who prevails" in an action under the PRA.
Because Mr. Adams has prevailed he is entitled to all costs reasonably incurred in
litigating the appeal subject to compliance with RAP 18.I(d).
34
No. 32012-0-II1
Adams v. Wash. State Dep 't ofCorrections
Affinned.
WE CONCUR:
Brown, J.
35