Department of Corrections v. McKee, 071117 WACA, 34436-3-III
| Opinion Judge | Lawrence-Berrey, A.C.J. |
| Party Name | DEPARTMENT OF CORRECTIONS, Petitioner, v. JEFFREY R. MCKEE, Respondent. |
| Judge Panel | WE CONCUR: Korsmo, J. Pennell, J. |
| Case Date | July 11, 2017 |
| Court | Washington Court of Appeals |
Lawrence-Berrey, A.C.J.
In 2009, the legislature enacted RCW 42.56.565 to address abusive requests for public records by persons serving criminal sentences. This statute authorizes courts to enjoin such persons from inspecting or copying nonexempt public records if the court finds that one of four situations applies. See RCW 42.56.565(2)(c)(i)-(iv). At issue in this case is the situation where "[t]he request was made to harass or intimidate the agency or its employees." RCW 42.56.565(2)(c)(i).
Jeffrey McKee is an inmate in the custody of the Washington State Department of Corrections (the Department). Since 2006, he has submitted at least 336 requests to the Department under the Public Records Act (PRA), chapter 42.56 RCW, including 61 requests between December 2014 and February 2016. The Department sought a preliminary injunction under RCW 42.56.565 to enjoin Mr. McKee from filing further requests. It argued RCW 42.56.565(2)(c)(i) applies when an inmate makes prolific records requests for the purpose of suing the agency and profiting financially. The trial court disagreed and interpreted this provision as being limited to situations in which inmates seek the private information of agency employees to harass those employees. The trial court therefore generally denied the Department's request for an injunction.
We consider the plain meaning of RCW 42.56.565(2)(c)(i), factors contained in RCW 42.56.565(3) and the legislative history of the statute. These considerations lead us to hold that an inmate's request or requests for public records may be enjoined under RCW 42.56.565(2)(c)(i) if the request or requests are burdensome and made for financial gain. Because the facts set forth by the Department permit the trial court to enter a preliminary injunction under this standard, we reverse the trial court and remand for further proceedings consistent with this opinion.
FACTS
In 2005, Mr. McKee was convicted in King County of two counts of first degree rape while armed with a firearm. State v. McKee, 141 Wn.App. 22, 25, 167 P.3d 575 (2007). In July 2005, he entered the Department's custody. In March 2006, he was transferred to a privately operated prison in Arizona. While in the Arizona prison, Mr. McKee was cellmates with a man named Matthew Silva. At some point, Mr. McKee was transferred back to Coyote Ridge Corrections Center in Washington.
Mr. McKee began sending public records requests to the Department. By 2009, he had submitted at least 85 requests. In late 2008 and early 2009, he made five separate requests for the records relating to the Department's contract with the private Arizona prison, four of which he sent on the same day. One month later, he again sent multiple requests on the same day.
In 2011, Mr. McKee submitted 60 records requests to the Department. In 2012, he submitted 79. In 2013, he submitted 51. One day, he submitted three separate requests seeking "every public records request received" by the Department for three different months. Clerk's Papers (CP) at 938, 940, 942. He also requested records relating to the women he had raped at gunpoint. See McKee, 141 Wn.App. at 28-29. He also requested records related to any investigation of his former Arizona cellmate, Mr. Silva.
Mr. McKee began filing lawsuits against the Department related to his PRA requests. He filed lawsuits in Franklin County, Spokane County, Thurston County, and in federal court. Mr. McKee employed his sister's company, Paralegal Services of Washington, to facilitate his lawsuits and PRA activity. This company would serve papers, type and forward correspondence, and send payments on Mr. McKee's behalf related to the cost of copying documents.
In one of his lawsuits, Mr. McKee alleged the Department violated the PRA by denying his "request to view his inmate Central File." CP at 852. He attached a Department form to his complaint called a "CLASSIFICATION HEARING NOTICE/APPEARANCE WAIVER, " which advised that he had a right to view his offender file. CP at 855.
In 2011, the Department settled three of these lawsuits with Mr. McKee for $9, 500. But by 2013, Mr. McKee was the plaintiff in 12 active PRA lawsuits against the Department. In November 2013, the Department and Mr. McKee entered into another settlement agreement. As part of the agreement, the Department agreed to pay Mr. McKee $80, 000. In exchange, Mr. McKee agreed to dismiss the 12 pending lawsuits, withdraw his outstanding PRA requests, not request any records created prior to the agreement, and refrain from submitting any other requests for one year. Mr. McKee also agreed to not submit requests through third parties during this one-year period.
Around this time, Mr. McKee's former cellmate, Mr. Silva, had been released from prison and was living in Shoreline, Washington. In December 2013, shortly after entering into the settlement agreement, Mr. McKee attempted to mail two letters to Mr. Silva's address in Shoreline. Mailroom staff at the prison screened these letters and brought them to the Department's attention.1
In the first letter, Mr. McKee proposed the idea of having a recently released former inmate file PRA requests, so there would be "no bad faith requirement when we file suit." CP at 1005. He also proposed having this person request inmate news media, as "News Media are some of the higher PRA payouts, " which would lead to "profit." CP at 1005. He also stated he would try to get the prison to issue him infractions and put him in segregation, "which will create more PRA suits." CP at 1005. He suggested contacting other individuals to "pitch the idea of us litigating PRA suits through them." CP at 1005. He also suggested starting a paralegal company so inmates could charge money for copies. The company would also conduct legal research, as the prison did not allow sufficient access to the library for PRA cases.
Mr. McKee further stated he "just did a PRA suit for this guy over his central file records." CP at 1006. He discussed discovery practices and negotiation tactics to generate larger settlement offers. For example, he said he would request a discovery conference and tell the Department he intended to depose witnesses, which usually prompted a settlement offer. He then gave instructions to request prison telephone logs and stated that, "You should make some quick cash on this PRA case." CP at 1006. He also gave instructions to request inmate central files, stating the Department would "withhold your FBI/WSP Rap Sheets which you are entitled to. That is what Chester won $100, 000 for and Adams won $25, 000.00 for." CP at 1006.
The second letter was similar to the first. Mr. McKee stated he had an "exhalent [sic] case" involving prison telephone logs. CP at 1147. He described how he had requested the records relating to the Department's contract with the private Arizona prison, and then "settled for $20, 000.00 within 3 months." CP at 1147. He gave instructions to make these requests "[t]hen sue them under the PRA. It should bring you some quick cash." CP at 1147.
During the one-year period following the settlement agreement, Mr. McKee encouraged others to submit PRA requests and also encouraged them to sue the Department over those requests. He instructed his sister how to request the prison telephone logs. When her request was denied, he instructed her how to appeal, and told her the proper language to use. He also instructed her to file a lawsuit, which she did.
Mr. McKee also assisted other individuals with requests and lawsuits relating to the prison telephone logs. In early 2014, the Department received PRA requests from at least seven different Coyote Ridge inmates relating to the telephone logs. Multiple inmates filed lawsuits. The complaints, interrogatories, and requests for production in these lawsuits were identical to filings in Mr. McKee's lawsuits.
In a deposition, one of these inmates acknowledged that Mr. McKee told him about the prison telephone logs, and also told him he could make a PRA request and file a lawsuit. He further acknowledged Mr. McKee helped him submit the request, and also drafted and typed the complaint. He agreed to pay Mr. McKee if his lawsuit was successful.
One of Mr. McKee's former cellmates, Karl Tobey, started a paralegal company after he was released from prison. The inmates would use this company to copy documents for their lawsuits. The inmates would then file cost bills to recoup these expenses, seeking amounts between $378 and $ 1, 911.
In November 2014, the one-year period in which Mr. McKee could not submit PRA requests expired. Around this time, he requested to inspect his central file and also requested all records in his offender file "persuant [sic] to the classification notice/appearance waiver." CP at 844. The Department asked him to clarify his request. He never responded to the Department and filed a lawsuit. The trial court found the Department did not violate the PRA and this court affirmed. See McKee v. Wash. State Dep't of Corr., No. 33876-2-III (Wash.Ct.App. Aug. 16, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/338762_unp.pdf.
On December 1, 2014, the Department received two requests from Mr. McKee. He sought all telephone logs from his inmate account since 2011. He also sought his risk assessments, which were at issue in another inmate's PRA lawsuit against the Department.
On December 5, the Department received four more requests from Mr. McKee. Between December 2014 and December 2015, he submitted 54 requests, many of which he submitted in batches on the same day. In one request, he sought "all...
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