Delong v. Parmalee, 35469-1 -II

• Decision Date: 29 July 2010
• Docket Number: No. 35469-1 -II,Consolidated with 35561-2-II and 36933-8-II,35469-1 -II
• Court: Washington Court of Appeals
• Parties: LT. DELONG, SGT. AHRENS, SGT.,MCHAFFIE, SGT. BICK, SGT. FOULKES,SGT. BANNER, SGT. BLANKENSHIP, SGT.,MATHIEU, C/O PADGETT, C/O REAMES,C/O JUDD, C/O SANDNESS, C/O CORNISH,Respondents, v. INMATE PARMALEE, ALLAN DOC #793782, Appellant, v. KAREN BRUNSON; HAROLD CLARKE, Respondents. T. DeLONG, D. AHRENS, J. McHAFFIE, R. FOULKES, G. BANNER, K. BANNER, R. BLANKENSHIP, R. PADGETT, N. CORNISH, M. DEDMAN, S. DIIMMEL, G. SANDNESS, K. McKENNEY, E. RICHARDSON, C. RIDDLE, P. RIDDLE, G. OLEKAS, JR., L. LAVOIE, S. WEED, G. NEWTON, J. ERNST, v. ATTWOOD, S. MILSTEAD, S. TOOHEY, H. ROMERO, C.,ROENING, D. HEAWARD, B. DACUS, L.,SCROGGINS, D. TRACY, D. WINTERS, C.,NESBITT, R. O'NEEL, C. HATT, B. HATT,B. PEDERSON, J. SMITH, J. MASON, B.,McGARVIE, K. McTARSNEY, v. ADAMS, E. LEVERINGTON, J. REYES, L. SHEPHERD, C. RITTER, SR., S. VOGTMAN, B. McLEAN, R.,CHRISTENSEN, M. CHRISTENSEN, A.,MOSELEY, C. CURRINGTON, T.,GERMEAU, J. PALMER, J. IVEY, M. ERLENMEYER, M. KERRONE, J. BERRY, J. KUYKENDALL, K. RUSSELL, G. EPLING, R. LEONARD, J. PEARSON, T. PERRY, D. WEAVER, K. BOWEN, L. WACHENDORF, C. FRIESZ, A. SANDE, J. WASANKARI, S. HENDERSON, G.,BELLAMY, J. AKIN, F. AMSDILL, R. ARMACOST, A. BOE, R. CASE, J. IDES, D.,BUCHMANN, M. CUMMINGS, S. CUMMINGS, v. BUTTRAM, T. ESHOM, J. NAGY, G. NICHOLAS JR., T. JEROME, W. KEYS, S. SCHWENKER, H. SCHWENKER, B. SPRAGUE, M. SWISHER, R. CAULKINS, S. BROWN, D. DELEON JR., D. HARKINS, A. MILLER, A. DAVIS, J. WASNOCK, J.,KETTEL, J. THAYER, C. BONE, M.,SUKERT, R. NEIUKOOP, P. BLANTON, A.,HESS, R. CURRINGTON, D. TABER, D.,TEACHOUT, F. TEACHOUT, L. ADAMIRE,P. HEADLEY, C. TOWNE, T., McNAUGHTON, C. LARA, R. BINGHAM, G. SUKERT, E. REETZ, C. KLOCK, D. NORMAN, R. BROUSSARD, H. MULLEN, R. SCHIMETZ, N. PENCE, H. LEE, R. STEVENS, and H. NGUYEN,Respondents, v. DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, Respondent, v. ALLAN PARMELEE, Appellant. THE WASHINGTON STATE ,DEPARTMENT OF CORRECTIONS, Respondent, v. ALLAN W. PARMELEE, Appellant.

LT. DELONG, SGT. AHRENS, SGT., MCHAFFIE, SGT. BICK, SGT. FOULKES, SGT. BANNER, SGT. BLANKENSHIP, SGT., MATHIEU, C/O PADGETT, C/O REAMES, C/O JUDD, C/O SANDNESS, C/O CORNISH, Respondents,
v.
INMATE PARMALEE, ALLAN DOC #793782, Appellant,
v.
KAREN BRUNSON; HAROLD CLARKE, Respondents.
T. DeLONG, D. AHRENS, J. McHAFFIE, R. FOULKES, G. BANNER, K. BANNER, R. BLANKENSHIP, R. PADGETT, N. CORNISH, M. DEDMAN, S. DIIMMEL, G. SANDNESS, K. McKENNEY, E. RICHARDSON, C. RIDDLE, P. RIDDLE, G. OLEKAS, JR., L. LAVOIE, S. WEED, G. NEWTON, J. ERNST, v. ATTWOOD, S. MILSTEAD, S. TOOHEY, H. ROMERO, C., ROENING, D. HEAWARD, B. DACUS, L., SCROGGINS, D. TRACY, D. WINTERS, C., NESBITT, R. O'NEEL, C. HATT, B. HATT, B. PEDERSON, J. SMITH, J. MASON, B., McGARVIE, K. McTARSNEY, v. ADAMS, E. LEVERINGTON, J. REYES, L. SHEPHERD, C. RITTER, SR., S. VOGTMAN, B. McLEAN, R., CHRISTENSEN, M. CHRISTENSEN, A., MOSELEY, C. CURRINGTON, T., GERMEAU, J. PALMER, J. IVEY, M. ERLENMEYER, M. KERRONE, J. BERRY, J. KUYKENDALL, K. RUSSELL, G. EPLING, R. LEONARD, J. PEARSON, T. PERRY, D. WEAVER, K. BOWEN, L. WACHENDORF, C. FRIESZ, A. SANDE, J. WASANKARI, S. HENDERSON, G., BELLAMY, J. AKIN, F. AMSDILL, R. ARMACOST, A. BOE, R. CASE, J. IDES, D., BUCHMANN, M. CUMMINGS, S. CUMMINGS, v. BUTTRAM, T. ESHOM, J. NAGY, G. NICHOLAS JR., T. JEROME, W. KEYS, S. SCHWENKER, H. SCHWENKER, B. SPRAGUE, M. SWISHER, R. CAULKINS, S. BROWN, D. DELEON JR., D. HARKINS, A. MILLER, A. DAVIS, J. WASNOCK, J., KETTEL, J. THAYER, C. BONE, M., SUKERT, R. NEIUKOOP, P. BLANTON, A., HESS, R. CURRINGTON, D. TABER, D., TEACHOUT, F. TEACHOUT, L. ADAMIRE, P. HEADLEY, C. TOWNE, T., McNAUGHTON, C. LARA, R. BINGHAM, G. SUKERT, E. REETZ, C. KLOCK, D. NORMAN, R. BROUSSARD, H. MULLEN, R. SCHIMETZ, N. PENCE, H. LEE, R. STEVENS, and H. NGUYEN, Respondents,
v.
DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, Respondent,
v.
ALLAN PARMELEE, Appellant.
THE WASHINGTON STATE , DEPARTMENT OF CORRECTIONS, Respondent,
v.
ALLAN W. PARMELEE, Appellant.

No. 35469-1-II
Consolidated with 35561-2-II and 36933-8-II

Court of Appeals of Washington

July 29, 2010

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Quinn-Brintnall, J. This appeal concerns three separate decisions¹ of the Clallam and Thurston County Superior Courts regarding public disclosure requests that Allan Parmelee made under the Public Records Act (PRA), ch. 42.56 RCW. In all three cases, Parmelee argues that the superior courts erred when they found that Department of Corrections (DOC) employee photographs are excluded from the PRA under the privacy exemption.

In Mathieu v. Parmelee, Parmelee also argues that the superior court (1) violated his right to due process when it found that the photographs were excludable without first affording him a

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meaningful opportunity to participate in the proceedings and (2) erred when it found that Sergeant Laura Mathieu's personnel records, "critical" employment records, intelligence and investigation reports, and portions of her compensation records and training records were not subject to disclosure under the PRA.

In DeLong v. DOC, Parmelee further argues that (1) the petitioners' action should be dismissed because they failed to join him as a necessary party under CR 19(a), (2) the superior court erred when it refused Parmelee's request to intervene under CR 24, and (3) the superior court erred when it took judicial notice of the facts from Mathieu v. Parmelee in the DeLong v. DOC proceedings.

In DOC v. Parmelee, Parmelee contends that (1) the superior court improperly considered his proposed use of employee photographs when determining whether the documents were subject to disclosure under the PRA, (2) his intended use of the photographs cannot create a privacy right in the named DOC employees, and (3) the PRA's injunction statute, RCW 42.56.540, only permits the examination of a specific public record if that public record is otherwise exempt.

The PRA mandates that public records "shall" be available for public inspection and copying unless the record is specifically exempt from disclosure. RCW 42.56.070(1). The PRA statute does exempt from disclosure documents that, if released, would constitute an unreasonable invasion of privacy, RCW 42.56.050, and specific intelligence information compiled by law investigative, law enforcement, and penology agencies that is essential to effective law enforcement or for the protection of any person's right to privacy. Former RCW 42.56.240 (2005). In addition, the PRA provides that a trial court may enjoin the examination of a specific

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public record if the examination would (1) clearly not be in the public interest, (2) substantially and irreparably damage any person, or (3) substantially and irreparably damage vital government functions. RCW 42.56.540.

As an initial matter, in light of the plain language of the PRA, our Supreme Court's analysis in Livingston v. Cedeno, 164 Wn.2d 46, 186 P.3d 1055 (2008), and the fact that the legislature has declined to narrow the definition of those who may access public records under the PRA, we are constrained to hold that prison inmates, including those blatantly abusing the PRA, have standing to request records under the PRA.² Because the appellate record here is insufficient for us to do otherwise, we presume for purposes of this appeal only that the photographs DOC prepared to give Parmelee in response to his PRA request are public records relating to the conduct of government or proprietary function. And, despite DOC's argument to the contrary, we hold that in this case an individual's identification badge photograph is not exempt from disclosure under the privacy exemption because it is not the type of intimate, personal information the PRA intended to protect. But while Parmelee is correct that the PRA prohibits DOC from considering an individual's status as an inmate when determining if information is subject to disclosure under the PRA, we hold that a trial court may consider a PRA requestor's explicit and volunteered threat when deciding whether to grant a government employee's personal request for an injunction.

In Mathieu v. Parmelee, although the trial court did not violate Parmelee's right to due process, it erred when it found that Mathieu's personnel records, intelligence and investigation

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reports, and portions of her compensation records and training records were not subject to disclosure under the PRA. Mathieu's personnel records and her intelligence and investigation reports are subject to disclosure if they contain specific instances of misconduct. Mathieu's training records are also subject to disclosure unless they fall under a specific exemption. And information about a public employee's compensation, including vacation and sick leave pay, is subject to disclosure. Because our record does not contain the documents DOC compiled for Parmelee regarding Mathieu, remand is necessary to allow the trial court to review in camera the documents regarding Mathieu's personnel records, intelligence and investigation reports, and training records and determine whether Parmelee is entitled to these records.

In DeLong v. DOC, while Parmelee's request to intervene was properly denied as untimely, the trial court erred when it refused to join Parmelee as a necessary party because his participation was necessary to protect his interests under the PRA. And because the issues in Mathieu v. Parmelee and DeLong v. DOC, as well as the evidence on which the petitioners relied, was identical, the trial court did not err when it took judicial notice in DeLong v. DOC of the documentary evidence in Mathieu v. Parmelee.

Accordingly, as to Mathieu v. Parmelee, we are constrained to reverse the injunction against Parmelee because Mathieu was not named in his counterfeit sexual predator flyer and is unable to demonstrate that she was the victim of this explicit and volunteered threat. As to DeLong v. DOC, we must vacate for want of jurisdiction for failure to join Parmelee as a necessary party and remand to the trial court. Like Mathieu v. Parmelee, those DOC employees not named in Parmelee's counterfeit sexual predator flyer are not entitled to an injunction, but those DOC employees who were subject to this threat are entitled to injunctive relief. Thus, we

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remand all three cases to the trial court for further proceedings consistent with this opinion.

FACTS

Parmelee's Background

Parmelee is a Washington State inmate currently in the custody of DOC. Parmelee has written several books, including How to Win Prison Disciplinary Hearings, as well as numerous articles for national publications such as Prison Legal News and Prison Living. Parmelee frequently requests public records, ostensibly pertaining to his writing projects and activist work.

In 2004, a jury found Parmelee guilty of two counts of first degree arson for the firebombing of two automobiles belonging to attorneys opposing him in two separate civil legal actions. Parmelee fire-bombed the automobiles at the attorneys' respective residences. Prior to the first attack, Parmelee posted the attorneys' home addresses on a website he created to complain about court rulings in his custody and dissolution dispute with the victim's client, Parmelee's former wife. On that website, Parmelee "invited" other disgruntled fathers to pay the attorney victim "a visit." Clerk's Papers (CP) (Mathieu) at 324.

In addition, Parmelee's first criminal trial on the arson charges resulted in a mistrial because the superior court discovered that Parmelee possessed materials with discrete personal information about the jurors who had been...