Bacolod v. State Department of Corrections
| Decision Date | 11 August 2020 |
| Docket Number | 53368-5-II |
| Court | Washington Court of Appeals |
| Parties | ERIC M. BACOLOD, Appellant, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent. |
UNPUBLISHED OPINION
This appeal arises from inmate Eric M. Bacolod's Public Records Act (PRA)[1] requests to the Department of Corrections (DOC) for alleged PRA violations related to three separate requests. Bacolod appeals the superior court's dismissal of his PRA claims, arguing that DOC violated the PRA when it (1) did not allow him to personally inspect electronic documents at the prison where he was incarcerated, (2) failed to conduct a reasonable search for a list of all inmates who downloaded songs from the album "Isis Makes a Porn" from the JPay, Inc. messaging system, during the time period of January 1, 2010, to the date of his request, and (3) failed to disclose or produce records in response to his request for every JPay message that had been rejected as sexually explicit by DOC and the corresponding mail rejection notice for a seven year period. Bacolod also objects for the first time on appeal to DOC s cost bill. Bacolod requests an award of appellate attorney fees.
The DOC argues that it did not violate the PRA because (1) it provided Bacolod with physical copies of the documents he wanted to review electronically and it does not have a duty to allow him to personally inspect the records at the prison where he is incarcerated, (2) it is not obligated to provide records that do not exist, and (3) Bacolod's request for sexually explicit JPay messages did not seek identifiable public records. Regarding its cost bill, the DOC argues that Bacolod has waived any objection because he did not object below or file a motion to reconsider the costs. DOC further argues that if Bacolod does not prevail on appeal, he is not entitled to an award of appellate attorney fees and costs.
We hold that DOC did not violate the PRA, reject Bacolod's untimely challenge to DOC's cost bill, deny his request for appellate fees and costs, and affirm the superior court's dismissal of his PRA claims.
This requirement is also outlined in DOC's Policy 280.510 Public Disclosure of Records. The term "central file" is a term that is used by the DOC "to refer to a physical file of documents with records related to an offender's incarceration." Clerk's Papers (CP) at 106-07. For individuals who are currently incarcerated their central files are maintained at the prison where they are housed.
II. Bacolod'sPRA Requests
CP at 128. This records request was assigned DOC tracking number PRU-47690.
After timely acknowledging Bacolod's records request, the DOC made records available to Bacolod. Bacolod refused to pay for the records because he insisted that he should be allowed to personally inspect the electronic version of the records. The DOC informed Bacolod that it could not facilitate electronic inspection because he was incarcerated and the records requested were not contained in his central file or medical file. After receiving no further correspondence from Bacolod on this request, the DOC administratively closed the records request for nonpayment.
The DOC's handling of this records request was consistent with its policy regarding inspection of electronic records. The DOC's process that allows inmates to inspect only physical copies of their central and medical files is intended to allow the DOC to respond to public records requests without interfering with its main function of supervising inmates and individuals on community custody. To allow review of any electronic file or other files that inmates may want to inspect would not allow the DOC to carry out its necessary functions. Additionally, allowing offenders direct access to electronic systems would violate the DOC's information technology policy as well as the State's information technology policy. Offenders are not given access to the internet and their contact with the outside world is carefully monitored because of concerns that inmates will attempt to contact victims or engage in illicit activity. Inmates' use of portable storage devices is also carefully monitored to reduce the risks to safety and security created by offenders accessing such technology. The DOC's public records procedures promote important security interests.
Despite the restrictions that are in place, the DOC has dealt with multiple situations in which offenders have used portable storage devices to attempt to compromise DOC computers. Such circumstances include a situation in 2018 where inmates were discovered with portable storage devices that contained hacking software and computer code writing programs that gave them the ability to defeat computer security protocols and download unauthorized media to JPay media players.
The DOC contracts with a private vendor, JPay, Inc., to provide services to offenders, including e-messaging, video visitation, and music downloads. Under the contract, JPay owns the recording media and that term is defined as the data gathered as a result of JPay's services. JPay owns all of the servers on which the data is stored. When the DOC has a problem with a JPay kiosk, the DOC contacts JPay and JPay sends a technician to the facility. Additionally, when an offender or family member has a problem with the JPay system they are referred to JPay.
The DOC receives a commission from JPay. This commission is set by the contract. Any commission paid to the DOC is paid into the Offender Betterment Fund. This fund provides support for offender activities. The DOC receives a monthly report of the commissions paid by JPay, but this report does not contain the names of individual songs or albums that any inmate downloads. Because the DOC's commission does not vary based on the name of the song or album, the DOC does not have any use for information about the specific songs downloaded by inmates.
On July 27, 2017, the DOC received a public records request from Bacolod that sought "[a] list of any and all offender's [sic] who have downloaded any individual songs of or the entire album titled, 'Isis Makes a Porn,' by Stephanie Love, from the WA State JPay system, during the time periods of January 1, 2010, to the present time and date of this request." CP at 140. This request was assigned DOC tracking number PRU-48397 and was assigned to Public Records Specialist Mara Rivera.
The DOC acknowledged Bacolod's records request within five days and sought clarification about whether Bacolod was seeking records from a specific facility. Approximately one month later, the DOC received a letter from Bacolod indicating that he would like any and all records from any DOC facility. The DOC acknowledged Bacolod's clarification of his request and began searching for responsive records.
On September 18, 2017, Rivera sent a routing slip to Shawn Coleman in Business Services at DOC headquarters asking staff to search for responsive records. On October 23, Rivera resent the routing slip to Julyette Prothero in Business Services because Shawn Coleman had been out on leave for a period of time. On that same date, Prothero forwarded the records request to Fiscal Services Analyst Karen Southwell also in Business Services. Southwell responded that Business Services would not have responsive records and after receiving a follow-up response from Prothero, Southwell clarified that the request should be run through DOC's investigations unit. Prothero forwarded Southwell's response to Rivera on the same day.
On October 25, Rivera sent a response to Prothero and stated that she had been notified that the DOC's Trust Accounting Manager Dan Lewis would be knowledgeable of the records being requested and that Lewis had provided records for requests similar to this in the past. Rivera asked that Prothero check with Lewis.
On October 30, Rivera sent a letter to Bacolod indicating that additional time was needed to respond to his records request and that further response would be provided by December 13 2017.
On November 1, Lewis responded to Prothero and copied Rivera. Lewis stated that he did not have access to the requested records. Lewis stated that he receives a monthly report of commissions paid by JPay and attached an example of what he receives to his response.
On November 6, Rivera sent a follow-up email asking Prothero and Lewis to confirm that there was no one else who would be able to provide the requested records. Lewis responded on the same day and said that he did not know whether investigations staff at DOC headquarters might be able to see the level of detail that was being requested and recommended that Rivera forward the request to Keith DeFlitch.[2] That same day Rivera sent an email to...
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