Belenski v. Jefferson Cnty.

• Decision Date: 19 May 2015
• Docket Number: No. 45756–3–II.,45756–3–II.
• Citation: 187 Wash.App. 724,350 P.3d 689
• Court: Washington Court of Appeals
• Parties: Mike BELENSKI, Appellant, v. JEFFERSON COUNTY, a Washington State political subdivision, Respondent.

187 Wash.App. 724

350 P.3d 689

Mike BELENSKI, Appellant

v.JEFFERSON COUNTY, a Washington State political subdivision, Respondent.

No. 45756–3–II.

Court of Appeals of Washington, Division 2.

May 19, 2015.

Mike Belenski, Poulsbo, WA, Appearing Pro Se.

David W. Alvarez, Jefferson Co. Pros. Aty., Port Townsend, WA, Jeffrey Scott Myers, Law Lyman Daniel Kamerrer et al, Olympia, WA, for Respondent.

Opinion

JOHANSON, C.J.

¶ 1 In this Public Records Act (PRA)¹ case, Mike Belenski appeals a superior court order granting summary judgment in favor of Jefferson County (County). Belenski argues that the County was required to produce records in response to his requests for (1) the County's Internet access logs (IAL), (2) the electronic records he was seeking for which the County does not generate a backup, and (3) records and contact information relating to a former county employee.

¶ 2 We hold that (1) the County's IALs are subject to disclosure under the PRA because they contain information relating to the conduct of government and therefore are public records, but the PRA statute of limitations bars Belenski's claims relating to one of the IAL requests, (2) the County is not required to respond to Belenski's request for electronic records for which the County does not generate a backup because that request did not involve identifiable public records, (3) the County properly withheld records regarding its former employee under statutory exemptions, properly provided a brief explanation to support its claimed exemptions, and did not silently withhold records. Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTS

I. Background

¶ 3 The County provides an extensive network of computers, servers, and other technology for use by its employees. At any given time, there are over 300 county-owned personal computers (PCs) in service. The County's Information Service Department (IS) secures and maintains this infrastructure using firewall software known as “SonicWall” that, in conjunction with another program called “Viewpoint,” automatically generates information regarding contacts between county PCs and the Internet. The record of these contacts is known as an “Internet Access Log” (IAL)² or “System Log.” The default setting on the software saves this information for 13 months, with each new day deleting and replacing the oldest day. The purpose of providing Internet access to county employees is to give them “tools to perform their job tasks,” and network and Internet access is provided as a research and communication apparatus to assist in conducting county business. Clerk's Papers (CP) at 30.

¶ 4 Belenski made four separate PRA requests for records associated with Internet use by county employees.³ First, on September 27, 2010, Belenski requested the County's IAL from February 1, 2010 to September 27, 2010 (request # 1). The County responded on October 4 that it had no responsive records.

¶ 5 Second, on November 2, 2011, Belenski requested to inspect IALs from January 1, 2011 to November 1, 2011 (request # 2). As a result of Belenski's request, IS manager David Shambley discovered that there had been a catastrophic hard drive failure that affected the Viewpoint software. Shambley then informed Belenski that “[g]ood solid archive data” for the IALs was available from only November 10, 2011 forward but that the County had managed to salvage data on some sporadic dates which it would collect and provide. CP at 379. The County offered to permit Belenski to inspect the available IAL data “in their entirety,” but Belenski amended his request to seek electronic Copies instead of inspection. CP at 226. The County later provided Belenski a compact disc (CD) containing this information. The County considered the request fulfilled at this point, but Belenski considered the IAL data contained on the CD insufficient.

¶ 6 Third, on December 8, 2011, Belenski submitted a PRA request for “electronic copies of every electronic record for which Jefferson County [IS] does not generate a back up” (request # 3). CP at 40. The County responded, refusing to produce records because Belenski's request was not a request for “identifiable” public records pursuant to RCW 42.56.080.

¶ 7 Fourth, in August 2012, Belenski requested all records and contact information for a former IS employee (request # 4). The County responded, producing some partially redacted documents and providing Belenski with an exemption log for the records that it refused to produce based on the PRA's various privacy exemptions. Belenski argues that the County's response was inadequate because it did not contain brief explanations.

¶ 8 Belenski filed suit on November 19, 2012, alleging several causes of action and complaining of various deficiencies associated with the County's responses to his requests. Shortly thereafter, the County provided the “brief explanations” that Belenski claims were missing from request # 4.

II. Procedure

¶ 9 The County moved for summary judgment, arguing in part that (1) the statute of limitations bars Belenski's claim with respect to request # 1, (2) the IALs were not “public records” as defined by the PRA, and (3) in any event, the County had nevertheless satisfied Belenski's request # 2 by producing the CD. The County argued further that Belenski had not requested identifiable records in request # 3 and that the County had included proper exemption logs with regard to request # 4.

¶ 10 The superior court ruled that the County was entitled to summary judgment on Belenski's requests # 1, # 2, and # 3.⁴ After an in camera review, the superior court ruled that the County had properly withheld and redacted documents relating to request # 4. But the court found that the County had failed to provide brief explanations which entitled Belenski to recover his costs. The superior court dismissed Belenski's claims for requests # 1, # 2, and # 3 and awarded Belenski $434.99 as costs incurred resulting from request # 4. Belenski filed a motion for reconsideration, but the superior court declined to reconsider its earlier rulings. Belenski appeals these orders and the superior court's May 2013 memorandum.

ANALYSIS

I. Standard of Review

¶ 11 We review challenges to an agency action under the PRA de novo where, as here, the record consists of documentary evidence, affidavits, and memoranda. RCW 42.56.550(3) ; Resident Action Council v. Seattle Hous. Auth., 177 Wash.2d 417, 428, 327 P.3d 600 (2013). Similarly, we review summary judgment orders de novo, viewing the facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005). Trial courts properly grant summary judgment where the pleadings and affidavits show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When reviewing a grant of summary judgment, we consider solely the issues and evidence the parties called to the trial court's attention on the motion for summary judgment. RAP 9.12.

II. Public Records—Requests # 1 and # 2

¶ 12 Belenski argues that the IALs are public records pursuant to the PRA because the IALs are writings that contain information relating to the conduct of government that are retained by the County. The County responds that the IALs are not public records under the PRA because a nexus does not exist between the IALs and a government function. We agree with Belenski and hold that under the plain language of the PRA, the requested IALs are writings prepared and retained by the County that contain information relating to the conduct of government.⁵ We hold, however, that the County was not required to produce records in response to request # 1 because the PRA statute of limitations bars Belenski's claim regarding that request.

A. Legal Principles

¶ 13 The PRA is a “ ‘strongly worded mandate’ ” aimed at giving interested members of the public wide access to public documents to ensure governmental transparency. Worthington v. Westnet, 182 Wash.2d 500, 506, 341 P.3d 995 (2015) (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978) ). The statute's language “reflects the belief that the sound governance of a free society demands that the public have full access to information concerning the workings of the government.” Amren v. City of Kalama, 131 Wash.2d 25, 31, 929 P.2d 389 (1997). Accordingly, courts must avoid interpreting the PRA in a way that would tend to frustrate that purpose. Worthington, 182 Wash.2d at 507, 341 P.3d 995. The PRA “shall be liberally construed ... to promote this public policy and to assure that the public interest will be fully protected.” RCW 42.56.030.

¶ 14 Whether a document is a “public record” is a critical determination for the PRA's purposes because the Act applies only to public records. Dragonslayer, Inc. v. Wash. State Gambling Comm'n, 139 Wash.App. 433, 444, 161 P.3d 428 (2007). A public record is defined very broadly, encompassing virtually any record related to the conduct of government. O'Neill v. City of Shoreline, 170 Wash.2d 138, 147, 240 P.3d 1149 (2010).

¶ 15 RCW 42.56.010(3) sets forth the definition of “public record” for purposes of the PRA and provides in relevant part,

“Public record” includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

Accordingly, to constitute a public record under the PRA, a record must be (1) a writing (2) containing information relating to the conduct of government or the performance of a governmental or proprietary function and (3) prepared, owned, used, or retained by a state or local agency. Nissen v. Pierce County, 183 Wash.App. 581, 590, 333 P.3d 577 (2014), review granted, 182 Wash.2d 1008, 343 P.3d 759 (2015).

B. The IALs “Contain...