HUNT J. ROBIN, P.J.
George Bartz appeals the superior court's Order of Findings in his first Public Records Act (PRA)
George Bartz is an inmate in DOC custody who filed three public records requests with DOC under the PRA. He later filed two superior court complaints based on what he perceived to be DOC's incomplete or improper responses to his PRA requests. The superior court ruled that DOC had complied with Bartz's requests and that the statute of limitations barred his second complaint.
On June 12, 2009, Bartz filed his first public records request with DOC's Public Disclosure Unit (PDU), requesting six groups of documents relating to inmate personal clothing. Specifically, Bartz requested: (1) all documents "used by Eldon Vail, Secretary DOC, in his references to saving the Department `six figures' by taking away personal clothing from inmates"; (2) all documents relating to the maintenance costs of washing machines used by inmates for personal clothing; (3) all documents relating to projected cost increases of "doing laundry for inmates after personal clothing is taken"; (4) all documents that show the costs of laundry services for 2007 and 2008; (5) all documents that show actual or projected cost of providing inmates with "sweat shirts, sweat pants, [pajamas], night gowns, bathrobes, shorts and any other new clothing items the Department intends to issue inmates"; and (6) all documents that show the "proposed cost of fighting possible litigation due to the implementation of the proposed matrix change."
Twelve days later, on June 24, DOC assigned Bartz's PRA request tracking number PDU-7362. Approximately two weeks later, DOC sent Bartz a letter stating that it had gathered 250 pages for the first installment and that it would send these pages to Bartz once he sent the $52.07 payment. Bartz responded to DOC by letter on July 13, (1) taking exception to DOC's "piece-meal" response and high number of pages, (2) sending no money to pay for the copies ready in the first installment, and (3) explaining that he would "await [DOC's] response . . . and then submit the funds." CP at 64. DOC responded to Bartz's letter
Also on August 24, DOC sent Bartz a letter stating that, in response to the second half of his request, it had located 231 pages; DOC also asked for payment of $52.45. Bartz responded in a letter, complaining that the documents in his first installment were not complete, that they were full of duplicates, and that he would file a tort claim. Nevertheless, Bartz sent payment for the documents responding to the second half of his request, again complaining about the first installment and stating his intention to file a lawsuit. On September 9, DOC sent Bartz the second installment of the records, informing him that its response to his PRA request was complete.
Bartz uses glucosamine/chondroitin to relieve pain from osteoarthritis in his knees. In 2005, DOC stopped providing the glucosamine/chondroitin supplement to inmates. Despite DOC's response to Bartz's inquiries that glucosamine/chondroitin supplements would be added back to the inmate store at some point, it had not happened by fall 2009. On October 4, 2009, Bartz filed a second public records request with DOC about the availability of glucosamine/chondroitin in the inmate store, seeking: (1) "all documents, in the form of emails, faxes, letters, or [memos] dealing with the inclusion of the herbal supplement, [g]lucosamine/[c]hondroitin as a salable item by the [i]nmate [s]tores, under the jurisdiction of DOC, by any and all persons employed by DOC"; and (2) "all documents, in the form of emails, faxes, letters, [memos] or policies relating to the sale of `oils' by inmate stores." CP at 154.
DOC assigned this PRA request tracking number PDU-8623. DOC sent Bartz notice that it had located 66 pages of responsive records and that it would send the records once he sent payment of $15.61. Bartz sent payment on December 22, 2009; DOC sent the documents on January 4, 2010.
On January 8, Bartz sent a letter to DOC, (1) alleging that his second records request was incomplete because he had in his possession "emails" between two DOC employees
Two weeks after Bartz filed his second PRA request with DOC (October 4, 2009), he filed a third public records request on October 22, broadly outlining four groups of information that he sought about tort claims filed against DOC. Specifically, he requested (1) "all documents/forms relating to TORT claims filed by any inmate within DOC for the years 2007 to date of this letter, that relate to personal clothing claims"; (2) "all documents, in any form, that relate to the cost of the research done to validate TORT claims addressed in GROUP ONE, and the amount of compensation paid on all valid claims, if it is not listed on the claims form"; (3) information about "the total number of claims investigated under GROUP ONE. Documents relating to claims found invalid are not requested, nor wanted, just the number of claims investigated"; and (4) "the documentation concerning fees paid for [adjudication] of all valid TORT claims. Differentiate fees paid as to lawyers, by name, amount, and agency worked for or contract status." CP at 12. He also asked DOC to redact information to ensure no duplication of pages. On October 30, DOC assigned his claim tracking number PDU-8827.
Soon after, DOC sent a letter to Bartz, informing him that his request had generated 1,193 documents, some of which contained information about lawsuits and some of which did not; DOC asked Bartz to clarify whether he wanted only the lawsuit-related documents or all the documents. Bartz responded in a letter, clarifying that he did "not desire actual legal filings made in request for TORT claims, rather only the total number of claims filed during the period requested; budget numbers used to examine and research those claims; fees paid for adjudication and the names of lawyers and their affiliation those lawyers are associated with or law firms they belong to." CP at 93.
In a separate letter, DOC responded to Bartz that it did not track the information that he sought,
On January 31, Bartz sent an appeal to DOC, stating that the offered time frame did not comply with chapter 42.56 RCW. DOC responded on February 18, informing him that the five-business-day limit was only for acknowledgement of the request, not for fulfillment of the request. The letter told Bartz to expect further communication on or before March 4, 2010. Bartz received a letter on March 4, informing him that DOC needed another 15 business days for further review.
On March 9, DOC sent Bartz a letter notifying him that the 176 pages were ready and that it would send him the pages when he sent his payment of $40.10. The letter also informed Bartz that DOC would notify him when another installment was ready. On March 12, Bartz sent DOC a check for $40.10 (received by DOC on March 30). Bartz complained that the request would be in installments and again threatened to file a lawsuit. On April 6, DOC sent Bartz the 176 pages he requested.
Also on April 6, DOC sent a separate letter stating it was processing the second installment for Bartz's request and that would follow up with him within 35 business days. On May 24, DOC notified Bartz that it would send the second installment of 268 pages once Bartz paid $59.30. Bartz paid the $59.30 on May 30 and again complained about the length of the installment process. DOC sent the second installment of 268 pages on June 15, 2010, and informed Bartz that it would contact him about the third installment on or before July 22.
On July 16, DOC notified Bartz that a third installment of 328 pages requiring payment of $72.05 was available. This letter stated that additional records would be available in more installments, but DOC would not gather them until it received payment for the current installment. Bartz responded on July 20 with a letter claiming that these installments were not a reasonable delay allowed by chapter 42.56 RCW; he again threatened to take legal action. Bartz did not provide payment for this third installment and did not receive it.
On October 19, 2010, Bartz filed a motion for judicial review under the PRA,
On January 19, 2011, Bartz filed a complaint in Thurston County Superior Court, alleging that DOC had violated the PRA in responding to his first and third PRA requests (PDU-7362 and PDU-8827), Cause No. 10-2-02314-1. He asked the court to acknowledge that (1) DOC "failed to disclose part or all of GROUPS 1,3,4,5,6 and must complete these groups within 30 working days"; (2) "although DOC was notified of their short comings they failed to make any attempt to complete PDU-7362"; and (3) "DOC is delinquent and stipulate a penalty at the high end of the . .. monetary award stipulated in RCW 42.56, for each group of records not completed from the date of the last disclosure until such date as the records are produced, to the petitioners and court[']s satisfaction." CP at 17. DOC argued that Bartz had failed to show a violation of the PRA and that its response to his request amounted to bad faith. Bartz responded that DOC had violated the PRA in bad faith.
On March 24, Bartz filed a second complaint, alleging that DOC had violated the PRA in responding to his second request, PDU-8623, Cause No. 11-2-00712-7. DOC responded, arguing that (1) Bartz could not recover PRA penalties because his lawsuit was not necessary to obtain the requested records, (2) the statute of limitations barred Bartz's action, (3) Bartz failed to show that DOC's response amounted to bad faith, and (4) the court should dismiss his case with prejudice. In response, Bartz asked the court (1) to recognize that DOC had not disclosed all requested documents; (2) to recognize that DOC "acted with disregard for the intent of the PRA, even after being advised that the request was not complete"; (3) to recognize his attempt to settle with defense counsel; and (4) to award him money damages. CP at 29.
On July 22, the superior court conducted a show cause hearing for both cause numbers. At the end of this show cause hearing, the superior court ruled that DOC had reasonably complied with all of Bartz's PRA requests.
Bartz's first complaint, Cause No. 10-2-02314-1, addressed Bartz's first and third PRA requests (PDU-7362 and PDU-8827). For Bartz's first PRA request, PDU 7362, the superior court found that Bartz had received the requested six groups of documents in two installments, that he had not appealed, and that DOC had reasonably believed it had provided all responsive documents and closed the file.
Bartz's second complaint, Cause No. 11-2-00712-7, addressed his second PRA request (PDU-8623). The superior court found that (1) DOC had provided Bartz the two emails he had requested; (2) Bartz had received these emails before filing this complaint; (3) Bartz had refused to provide information to assist DOC in finding these emails; (4) his complaint "was not reasonably regarded as necessary to obtain the records" and "frivolous"; and (5) because Bartz had filed his action after the one-year statute of limitations, his action was time-barred. CP at 37.
The superior court also ruled that, because Bartz already possessed the two emails he sought from Rhonda Kerr, he could not sue DOC for failing to receive them in a PRA request and his second complaint was "frivolous." Verbatim Report of Proceedings (VRP) at 38. The court admonished Bartz for playing "hide the ball" by not cooperating with DOC, stating, "[H]is response that `I won't tell you what I really want you to give me,' is not appropriate. I think they fully responded to it. . . . He already had [the emails] and, further, I find it is time-barred so I will have to dismiss this action at this time." VRP at 38, 39. In addition to dismissing Bartz's second complaint with prejudice for failure to state a claim on which relief may be granted and as time-barred, the superior court (1) awarded statutory attorney fees of $200 to DOC as the prevailing party and (2) found his complaint "frivolous" for RCW 4.24.430 purposes. CP at 37.
Bartz appeals.
Bartz argues that the superior court erred in dismissing his second complaint. More specifically, he contends the superior court erred in ruling that his second complaint was unnecessary to obtain the records requested and that the statute of limitations barred his second complaint. We agree with Bartz that the second complaint was necessary to obtain the records requested, but we disagree that the superior court erred in ruling the statute of limitations barred Bartz's complaint. Thus, we affirm the superior court's dismissal of his second complaint as time barred and, alternatively, for failure to state a claim under CR 12(b)(6).
We review de novo a trial court's dismissal of an action. Johnson v. Dep't of Corr., 164 Wn.App. 769, 775, 265 P.3d 216 (2011), review denied, 173 Wn.2d 1032 (2012). We may affirm the trial court on any ground that the record supports. Johnson, 164 Wn. App. at 779 (citing Otis Hous. Ass'n v. Ha, 165 Wn.2d 582, 587, 201 P.3d 309 (2009)). "A trial court should grant a motion to dismiss pursuant to CR 12(b)(6) only `if it appears beyond a reasonable doubt that no facts exist that would justify recovery.'" Atchison v. Great W. Malting Co., 161 Wn.2d 372, 376, 166 P.3d 662 (2007) (quoting Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994)).
Bartz argues that the superior court erred in ruling (1) that RCW 42.56.550(6)
The PRA's statute of limitations requires a plaintiff to file an action within one year of either (1) an agency's claim of exemption from the PRA's disclosure requirements or (2) an agency's "`last production of a record on a partial or installment basis.'" Johnson, 164 Wn. App. at 775 (quoting RCW 42.56.550(6)). Because DOC did not claim a PRA exemption to Bartz's second PRA request (PDU-8623) as the basis for his second complaint, the first portion of the statute of limitations does not apply.
But rather than addressing the second portion of this statute of limitations, dealing with an agency's "last production of a record,"
The PRA anticipates disclosure of documents on an installment basis: RCW 42.56.550(6) provides that an agency's "last production of a record on a partial or installment basis" triggers the statute of limitations. Because Bartz received only one installment, it is not clear whether the second portion of RCW 42.56.550(6) applies. We addressed a similar situation in Johnson where the question was whether an agency's production of a single document triggered the running of the PRA's statute of limitations. Johnson, 164 Wn. App. at 777. We did not reach and decide the applicability of the PRA's statute of limitations to production of a single document because Johnson's claim was barred by a two-year catch-all statute of limitations, RCW 4.16.130. Johnson, 164 Wn. App. at 778.
Bartz filed his claim more than one year, but less than two years, after DOC's last disclosure under PDU-8623.
Division One of this court faced a similar fact pattern in Tobin v. Worden, 156 Wn.App. 507, 233 P.3d 906 (2010). Similar to Johnson, an agency provided a single document in response to Tobin's PRA request, without claiming exemptions. Tobin, 156 Wn. App. at 510. Division One held that the one-year statute of limitations was never triggered because the single document received was the "requested record in its entirety, not a partial production of a larger set of requested records." Tobin, 156 Wn. App at 514. The Tobin court ruled that "production of a record on a partial or installment basis" in RCW 42.56.550(6) could be construed to apply only to production of a record that is "part of a larger set of requested records." Tobin, 156 Wn. App. at 514 (quoting RCW 42.56.080).
DOC argues that (1) we should disagree with and reject Division One's holding in Tobin, (2) the logical conclusion is that the legislature intended single productions of records to "fall within the scope of `last production on a . . . partial basis'" for purpose of the PRA statute of limitations, and (3) we should hold that the one-year PRA statute of limitations barred Bartz's claim. Br. of Resp't at 16 (quoting RCW 42.56.550(6)). For further support, DOC cites case law favoring this interpretation.
The superior court also (1) ruled that because Bartz already possessed the two emails that he sought as part of his second PRA request before he filed his second lawsuit, the action was "not reasonably regarded as necessary to obtain the records"; and (2) dismissed Bartz's second complaint with prejudice for failure to state a claim on which relief may be granted. CP at 37. Bartz argues that this ruling contravenes Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 261 P.3d 119 (2011). DOC concedes that Bartz is correct.
We agree with the parties' characterization of part of the Supreme Court's decision in Neighborhood Alliance, holding "that the requesting party possesses the documents does not relieve an agency of its statutory duties, nor diminish the statutory remedies allowed if the agency fails to fulfill those duties." Neighborhood Alliance, 172 Wn.2d at 727. And we agree with the parties that the superior court erred in articulating Bartz's possession of the documents as the first basis for its ruling that Bartz's PRA request to obtain these documents from DOC was not necessary. But this agreement does not resolve the issue before us.
We hold that Neighborhood Alliance supports the superior court's dismissal of Bartz's complaint on its other articulated grounds, based on the following explanation:
Neighborhood Alliance, 172 Wn.2d at 727. As Neighborhood Alliance makes clear, it is an agency's failure to produce records properly that violates the PRA, regardless of what documents the requester possesses. Neighborhood Alliance, 172 Wn.2d at 727. Here, as we have already held, DOC did not fail to produce requested records.
On the contrary, the record shows that (1) DOC made multiple attempts to produce the requested records, even asking Bartz to provide specific names and dates for the emails he was seeking and performing another futile search when he refused to supply this information;
Furthermore, the superior court's second basis for dismissal, CR 12(b)(6), was also proper. Because Bartz failed to show that DOC had inadequately responded to his PRA request, he failed to establish a controversy in issue, making dismissal by the superior court with prejudice proper under CR 12(b)(6). Therefore, we affirm the superior court's dismissal with prejudice of Bartz's second complaint.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
The superior court also concluded that Bartz's second complaint was "frivolous" and, therefore, it constituted a frivolous complaint for purposes of RCW 4.24.430, which prohibits waiver of filing fees for prisoners seeking to file a third, or successive, frivolous PRA complaint.
At trial, DOC cited Daines v. Spokane County, 111 Wn.App. 342, 44 P.3d 909 (2002),
Bartz also argues that in his first complaint, Cause No. 10-2-02314-1, the superior court erred in finding that DOC complied with his three public records requests. He asserts that the records he received in response were incomplete, repetitious, and missing documents that he knew existed. This argument fails.
We review de novo challenges to agency actions under the PRA. Neighborhood Alliance, 172 Wn.2d at 715 (citing RCW 42.56.550(3)). On review, we take into account the PRA policy that free and open examination of public records is in the public interest, even if it may cause inconvenience or embarrassment. RCW 42.56.550(3).
The adequacy of an agency's records search is judged by a "standard of reasonableness, that is, the search must be reasonably calculated to uncover all relevant documents." Neighborhood Alliance, 172 Wn.2d at 720 (citing Weisberg v. U.S. States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "What will be considered reasonable will depend on the facts of each case." Neighborhood Alliance, 172 Wn.2d at 720 (citing Weisberg, 705 F.2d at 1351). Agencies are required to perform more than a perfunctory search and to follow obvious leads, as they are uncovered. Neighborhood Alliance, 172 Wn.2d at 720 (citing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). Based on the facts here, we hold that DOC reasonably complied with Bartz's PRA requests.
Bartz contends that in response to his first PRA request for six groups of information (PDU-7362), DOC did not provide complete responses for any of the requests and the information it did provide was full of repetitions and "bloat." Br. of Appellant at 3. The record shows otherwise that Bartz paid for and received a complete response in two installments to his first PRA request. When Bartz complained about duplications in DOC's response and threatened to file a lawsuit, DOC again responded, this time informing him that its previous response had been complete and that he had an option to appeal.
Bartz neither refuted DOC's assertion about having fulfilled his first PRA request nor filed an appeal; thus, DOC was free to assume that its second installment had fully addressed Bartz's concerns. In contrast, Bartz provided only bald assertions that DOC did not provide an adequate response to his first PRA request. Accordingly, we affirm the superior court's finding that DOC complied with Bartz's first PRA request.
Bartz next contends that DOC's response to his second PRA request was not complete because it failed to produce two emails between DOC staff that he alleged existed. We have already held that the statute of limitations barred his second complaint, which was based on this claim. Therefore, we do not consider the merits of this claim.
Bartz also contends, for the first time on appeal, that DOC's response to his third PRA request for tort claim information was "piecemealed in a time frame that would have taken at least 2 to 3 years to complete" and that the trial court erred in determining that this piecemeal response was consistent with the PRA's intent. Br. of Appellant at 3. This argument also fails.
The PRA allows the superior court to require an agency to show that its time estimate for responding to a PRA request is reasonable, placing the burden of proof on the agency. RCW 42.56.550(2) provides:
Contrary to Bartz's assertions, the record shows that DOC provided a reasonable estimate of time for its response to Bartz's request, based on the following circumstances: Within five business days of Bartz's third PRA request, DOC responded that, because his request had generated over 1,000 files, it needed clarification about what specific information Bartz was seeking. Five weeks after receiving clarification from Bartz, DOC's Public Disclosure Unit directed Bartz to its Office of Financial Management, which had records that were more responsive to his request. But the record does not show that Bartz contacted DOC's Office of Financial Management; instead, he responded to DOC that he wanted all of the documents that its Public Disclosure Unit had available. Six business days later, DOC responded with a letter informing Bartz that it would review the records for exemptions and then respond with the status of the request within 35 business days. When Bartz complained about this additional time, DOC informed Bartz about his right to appeal.
Bartz appealed, complaining about the time DOC needed to respond to his third PRA request. The DOC's Public Disclosure Appeals Office found the time frame appropriate and reasonable; it also told Bartz to expect further communication from DOC on or before March 4. On March 4, DOC informed Bartz that it would need 15 additional business days for further review. On March 9, DOC informed Bartz the documents had been reviewed and were ready for delivery.
Bartz sent his payment, and DOC sent the documents within a week. DOC prepared the second installment of documents and sent it within a week of receiving Bartz's next payment. DOC did not send Bartz a third installment because he did not send in the required payment.
Bartz complains generally about the length of the time it took DOC to respond; but he cites no authority for his assertion that DOC's installment delivery method or amount of time was unreasonable under the circumstances. On the contrary, the PRA specifically allows DOC to make records disclosures on a "partial or installment basis." RCW 42.56.550(6). Bartz does not show that DOC's installment response to this third PRA request was inadequate; instead, he baldly asserts that these responses were full of "bloat." Br. of Appellant at 3. Nor was he entitled to receive the third prepared installment because he did not pay the required copying and processing fee. For these reasons, we affirm the superior court's finding that DOC's response to Bartz's third PRA request was adequate.
Bartz argues that DOC acted in "bad-faith" when it failed to conduct a thorough search and failed to disclose fully all records, entitling him to compensation under the PRA. Br. of Appellant at 12. Having held that DOC's responses to Bartz's PRA requests were reasonable and adequate, we do not address this argument because he has not prevailed and he cannot show he is entitled to compensation for filing his PRA complaints under RCW 42.56.550(4).
We affirm the superior court's findings for DOC on Bartz's first complaint, affirm the superior court's dismissal with prejudice of Bartz's second complaint, and reverse the superior court's conclusion that Bartz's second complaint was frivolous and that it counted as a prior complaint under RCW 4.24.430.
MARYWAVE VAN DEREN, J. and C. C. BRIDGEWATER, J.P.T. concurs.
In his brief of appellant, Bartz claims that (1) DOC assigned this January 24, 2011 email request the tracking number PDU-14117, (2) he received two more groups of documents in response to his PRA request, and (3) the second batch contained the emails he sought. Because Bartz has not properly designated this letter and these emails as part of the record before us on appeal, we do not consider his arguments based on this alleged evidence outside the record before us. See RAP 9.6; 10.3(c); 10.3(a)(8) ("An appendix may not include materials not contained in the record on review without permission from the appellate court."); Witt v. Young, 168 Wn.App. 211, 214 n.5, 275 P.3d 1218 ("Although Witt attached a copy of her claim as an exhibit to her brief, . . . this document has not been included in the clerk's papers, and Witt's attachment is not properly before us."), review denied, ___ P.3d___ (2012).
The Legislature amended RCW 42.56.550 on July 22, 2011, but these amendments do not affect this provision or our resolution of the issues of this case. Laws of 2011, ch. 273, § 1.
(emphasis added). This section of the statute took effect July 22, 2011, the date of the bench trial. Laws of 2011, ch. 300, §§ 1-2.
