Benton Cnty. v. Zink

• Decision Date: 10 November 2015
• Docket Number: No. 32912–7–III.,32912–7–III.
• Citation: 361 P.3d 801
• Parties: BENTON COUNTY, a political subdivision of the State of Washington, Respondent, v. Donna ZINK, Appellant.
• Court: Washington Court of Appeals

361 P.3d 801

BENTON COUNTY, a political subdivision of the State of Washington, Respondent,

v.Donna ZINK, Appellant.

No. 32912–7–III.

Court of Appeals of Washington, Division 3.

Nov. 10, 2015.

Donna Zink (Appearing Pro Se), Mesa, WA, for Appellant.

Ryan K. Brown, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 Donna Zink threatened suit against Benton County for its decisions not to make electronic copies of paper records responsive to her public records request, and to charge her the outside vendor's cost to make such electronic copies. Benton County filed a declaratory action against Ms. Zink and moved for summary judgment, seeking confirmation that its decisions were lawful under the Public Records Act (PRA), chapter 42.56 RCW. The trial court granted Benton County's summary judgment motion and entered a declaratory judgment Ms. Zink appeals. We affirm the trial court's order and declarator judgment.

FACTS

¶ 2 In August 2013, Ms. Zink e-mailed a PRA request to the Benton County prosecutor's office “to review and/or copy all SSOSA [special sex offender sentencing alternative] forms as well as all victim impact statements filed and maintained anywhere in Benton County.” Clerk's Papers (CP) at 180. Over time, Ms. Zink's request was narrowed to records relating to convicted sex offenders and, in April 2014, she withdrew her request for any future victim impact statements. Benton County estimates that Ms. Zink's request will not be fulfilled until 2023.

¶ 3 This dispute stems from Ms. Zink's persistence on receiving all responsive documents from Benton County in electronic format. Under Benton County Code 5.14.100, if an electronic record “necessitates redaction due to an exemption, the County is under no obligation to provide the record electronically.” CP at 115. Further, Benton County Code 5.14.120(c) provides “[a]ny request for more than twenty-five (25) pages of documents ... may be sent by the County to a private copy shop for copying, in which case the fee shall be the actual charge imposed for copying.” CP at 118.

¶ 4 Shortly after making the request, Ms. Zink inquired into the cost of receiving the records in electronic format. Benton County responded:

We do not have the resources to copy all the original records (which will involve potentially thousands), redact them, and then scan them back into electronic form for you. The Mitchell^[1]court and Mechling^[[[[^2]court make clear such duplication of effort is outside the county's obligations under the PRA.

CP at 97. However, Benton County offered to accommodate Ms. Zink by having an outside vendor create electronic copies of the records for 25 cents per page. The 25 cents per page cost was the lowest of three outside vendor quotes. Under this method, the scanned-in electronic copies would be created on the outside vendor's server.

¶ 5 After discovering that some of the redacted paper copies of records she was receiving were also held in electronic format, Ms. Zink made it clear that she was requesting all records in electronic format and failure to provide the records in electronic format was “a violation of the PRA.” CP at 79. By the time of the trial court proceedings resulting in this appeal, Benton County had produced 91 records encompassing 561 pages. Of the 91 records, 66 were held by the Benton County prosecutor's office in paper format and 25 were held in electronic format. Moreover, 19 of the 25 electronic records required redaction of information exempt under the PRA.

¶ 6 In responding to Ms. Zink's request, the Benton County prosecutor's office has redacted the applicable 19 electronic records by hand and provided Ms. Zink with paper copies. The employee tasked with responding to Ms. Zink's request does not have access to software allowing electronic redaction, and would therefore have to “print the original electronic document, physically redact it and then scan the paper document and save it onto the County's server” in order to provide Ms. Zink with electronic copies. CP at 121. Benton County believes this “would result in the creation of data about that electronic document and consume storage space on the server.” CP at 128. The electronic records that do not need redaction have been provided to Ms. Zink in electronic format.

¶ 7 In November and December 2013, Ms. Zink e-mailed Benton County multiple times demanding, with thinly-veiled litigation threats, electronic copies of the records.

Benton County reiterated its outside vendor offer to Ms. Zink. In early January 2014, Ms. Zink e-mailed Benton County, “either send me the records as requested or wait until we go to court and find out if Benton County has the right to refuse to provide the requested records in electronic format as requested.” CP at 89 (bold in original). In late January 2014, rather than wait for potential per diem penalties to accumulate, Benton County filed a declaratory action seeking a court determination of its obligations under the PRA.

¶ 8 Benton County's declaratory action sought a judicial determination that:

(a) the Public Records Act does not mandate that a public agency create an electronic public record if it does not possess the public record in electronic form; (b) the Public Records Act does not mandate that a public agency create a second electronic record with respect to an electronic record it possesses but which must be redacted under the terms of the Public Records Act; and (c) if a public agency chooses to or is obligated to create an electronic record, the Public Records Act allows the agency to hire a third party vendor to create an electronic record from a public record that the agency does not possess electronically and/or from an electronic record that must be redacted and to charge the requestor the actual cost of creating an electronic record.

CP at 1. In her original answer, Ms. Zink sought PRA penalties against Benton County, but dropped that language in her second revised answer after she failed to pay the counterclaim filing fee. She subsequently told Benton County that she will “just file a motion for penalties if I win.” CP at 162.

¶ 9 Benton County moved for summary judgment. Ms. Zink responded with a lack of standing argument in a combined memorandum in opposition to summary judgment and a motion to dismiss Benton County's declaratory action. In October 2014, the trial court denied Ms. Zink's motion to dismiss, granted Benton County's motion for summary judgment, and entered a declaratory judgment in favor of Benton County.

¶ 10 The trial court determined that there was no genuine issue of material fact as to the following:

1. There is an existing dispute between the parties regarding the County's authority and obligations under Washington's Public Records Act (PRA), and such dispute is not hypothetical and can be determined by a declaratory judgment issued by this Court.

2. A justiciable controversy exists, and this Court's jurisdiction under RCW 7.24 has properly been invoked.

3. No other parties are necessary or indispensable parties to this action.

4. There are no disputed facts material to the issue of whether Benton County is authorized under the PRA to have scanning services performed by a third party and charge Ms. Zink the actual reasonable cost thereof.

5. Benton County obtained quotes from three vendors as to the cost of scanning services, and a charge of 25 cents per page was the lowest quoted and is reasonable.

6. The Public Records Officer for the Benton County Prosecutor's Office does not have software on her computer to enable her to electronically redact any of the documents responsive to her request.

7. To provide Ms. Zink with electronic versions of responsive documents that it possesses in paper form only or that it possesses in electronic form that must be redacted, the Prosecutor's Public Records Officer would need to create additional public records.

CP at 217–18.

¶ 11 Consequently, the trial court entered the following declaratory judgment in favor of Benton County;

1. Washington's Public Records Act (PRA), chapter 42.56 RCW, allows Benton County to hire a third party vendor to create electronic records from records it possesses only in paper form and from its electronic records that must be redacted and to charge Ms. Zink twenty-five cents per page or the actual cost, whichever is less, to have such electronic records created if she requests responsive documents be provided in electronic form.

2. The PRA does not require that Benton County create or pay someone to create additional records that the County possesses in paper form only; and

3. The PRA does not require that Benton County create or pay someone to create additional electronic records from records that the County possesses in electronic form, but that it appropriately redacts under the terms of the PRA.

CP at 220–21. Ms. Zink timely appealed the order granting Benton County's motion for summary judgment, the order denying her motion to dismiss, and the declaratory judgment itself.

ANALYSIS

1. Whether Benton County has standing to seek a declaratory judgment

¶ 12 Under the Uniform Declaratory Judgments Act, chapter 7.24 RCW (UDJA), “[a] person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity ... and obtain a declaration of rights, status or other legal relations thereunder.” RCW 7.24.020. The UDJA “is to be liberally construed and administered.” RCW 7.24.120. In order to decide an action for declaratory relief, a justiciable controversy must be present. To–Ro Trade Shows v. Collins,144 Wash.2d 403, 410–11, 27 P.3d 1149 (2001). Because the trial court determined that Benton County had standing as a matter of law, we view the evidence bearing on this issue in the light most favorable to Ms. Zink and the conclusions of law de novo. Seeid.at 410, 27 P.3d 1149(this court applies “the customary principles of appellate review”).

¶ 13 In order to have a...