Livingston v. Cedeno, 79608-4.

Citation164 Wn.2d 46,186 P.3d 1055
Decision Date03 July 2008
Docket NumberNo. 79608-4.,79608-4.
CourtWashington Supreme Court
PartiesMichael B. LIVINGSTON, Petitioner, v. Ruben CEDENO and Thomas D. McIntyre, Defendants, Department of Corrections, Respondent.

Duane Michael Swinton, Spokane, WA, Tracy N. Leroy, Baker Botts LLP, Houston, TX, for Petitioner.

Peter William Berney, Daniel John Judge, Attorney General's Office, Criminal Justice Division, Carol A. Murphy, Attorney General's Office, Olympia, WA, for Respondent.

Scott A.W. Johnson, Shelley Marie Hall, Aviva Kamm, Stokes Lawrence PS, Sarah A. Dunne, ACLU, Seattle, WA, Amicus Counsel for ACLU.

Scott A.W. Johnson, Shelley Marie Hall, Aviva Kamm, Stokes Lawrence PS, Seattle, WA, Amicus Counsel for Coalition for Open Government.

MADSEN, J.

¶ 1 Michael Livingston challenges a split Court of Appeals decision affirming the denial of his motion for a show cause hearing brought under the public disclosure act, chapter 42.17 RCW (now the public records act).1 In response to Livingston's public records request, the Department of Corrections (Department) copied and mailed departmental records to him at the correctional institution where he was then incarcerated. Upon arrival, the documents were intercepted as "contraband" under the mail policy applicable to all incoming and outgoing materials. Livingston contends the Department's action in barring his receipt of the documents violated the public records act. We hold the Department's application of the mail policy to its own public records did not violate the public records act, and we affirm the Court of Appeals.

FACTS

¶ 2 Michael Livingston filed a public disclosure request while incarcerated at the Olympic Corrections Center. Clerk's Papers (CP) at 56. He sought the training records of a corrections officer. Id. The Department confirmed receipt of the request and told Livingston it would give the officer a chance to file a privacy injunction.2 CP at 58. The officer did not object, so the Department's public disclosure officer copied and mailed the record to Livingston, who had been transferred to the Cedar Creek Corrections Center in the meantime. CP at 14, 60. When the records arrived at Cedar Creek, they were screened. Cedar Creek officials then withheld the records from Livingston under department Policy Directive No. DOC 450.100, which authorizes the Department to inspect and read all incoming mail to prevent offenders from receiving material that threatens the security and order of the facility. Livingston received a mail rejection form, explaining the superintendent did not permit department employee records to be released to inmates. CP at 63. The mail rejection form informed Livingston that unless he forwarded the rejected mail to a nonincarcerated person, the Department would either donate or destroy it.

¶ 3 Livingston filed an appeal. The Cedar Creek superintendent denied the appeal, stating he would not "allow an employees training record into the institution to be given to an inmate." CP at 66 (capitalization omitted). The Department's regional administrator denied Livingston's subsequent appeal, stating that when public disclosure documents "arrive in an institution's mailroom, mail policy comes into effect ... [and the] superintendent ... has the authority to restrict any item from entering [the facility]." CP at 6 (first alteration in original).

¶ 4 Livingston appealed this decision through the Department, which upheld it. CP at 65. He then filed a motion in Thurston County Superior Court, asking the Department to show cause for withholding the record. CP at 2. The trial court denied the motion. CP at 105. Livingston appealed, and a majority of the Court of Appeals affirmed, holding, "[t]he statute ... does not require agencies to guarantee disclosure or guarantee that mailed documents will be physically received by the person making the request." Livingston v. Cedeno, 135 Wash. App. 976, 980, 146 P.3d 1220 (2006).

ANALYSIS

¶ 5 The issue presented in this case is whether the Department violates the public records act when it copies and mails public records requested by an inmate, yet withholds the same records upon arrival under the mail policy applicable at a correctional institution.

¶ 6 It is well settled that a reviewing court interprets the disclosure provisions of the public records act liberally and the exemptions from disclosure narrowly. Hangartner v. City of Seattle, 151 Wash.2d 439, 450, 90 P.3d 26 (2004); see also former RCW 42.17.251 (1992); RCW 42.56.030. In general, an agency must disclose a public record unless a statutory exemption applies. Hangartner, 151 Wash.2d at 450, 90 P.3d 26; former RCW 42.17.260(1) (1997); RCW 42.56.070(1). Here, neither the Department nor the affected correctional officer invoked any statutory exemptions before the Department released and mailed the records to Livingston. Indeed, the Department contends it fulfilled its obligation under the statute when it approved the request and sent the record in the mail.

¶ 7 The Department argues its decision to intercept the requested public record is unrelated to the public records act. According to the Department, its authority to preclude Livingston's receipt of the record arises under RCW 72.09.530,3 which authorizes the secretary of the Department to read all incoming mail and to confiscate contraband arriving in the prison mail system. RCW 72.09.530 is the basis for Policy Directive No. DOC 450.100, which is designed to "prevent offenders from receiving ... contraband, or any other material that threatens to undermine the security and order of the facility, through the mail; and to prevent criminal activity." CP at 127. The Department points out that former RCW 42.17.260(1), which requires public agencies to make records available for inspection and copying, does not guarantee documents will be physically received by the person making the request.

¶ 8 Livingston claims it is not enough that the Department mailed the requested records. He argues the Department may not mail public records to an inmate and then withhold those same records absent a statutory exemption. He contends the Department's mail room policy is not an exemption that can be used to deny an inmate access to public records. To support his claims, Livingston cites to this court's decision in Brouillet v. Cowles Publishing Co., 114 Wash.2d 788, 791 P.2d 526 (1990), where we held that a regulation guaranteeing the confidentiality of certain records cannot serve as an exemption. He also points to WAC 44-14-06002(1), which provides, "[a]n agency cannot define the scope of a statutory exemption through rule making or policy."

¶ 9 We agree with Livingston that RCW 72.09.530, which authorizes the Department's mail policy, is not an exemption to disclosure under the public records act. However, we disagree that the Department's use of its mail policy—to confiscate materials that the Department determines "threatens to undermine the security and order of the facility"—violates the act. CP at 127. The public records act requires the department to release its records to the public. However, whether the Department must allow them inside a correctional facility is a distinct issue subject to different statutory obligations. Under RCW 72.09.530, the Department has broad discretion to deny entry of any materials it determines may threaten legitimate penological interests, without exception for public records.

¶ 10 Whenever possible, statutes must be read in harmony and each must be given effect. Tunstall v. Bergeson, 141 Wash.2d 201, 210, 5 P.3d 691 (2000); Publishers Forest Prods. Co. v. State, 81 Wash.2d 814, 816, 505 P.2d 453 (1973). The public records act and RCW 72.09.530 are aimed at two different concerns. The primary purpose of the public records act is to provide broad access to public records to ensure government accountability. To that end, each agency "shall make available for public inspection and copying" all nonexempt public records. RCW 42.56.070(1). Agencies must honor requests received by mail and may not "distinguish among persons requesting records." Former RCW 42.17.270 (1987); RCW 42.56.080.

¶ 11 The primary objective of the correctional system, on the other hand, is "to provide the maximum feasible safety" for the public, staff, and inmates. RCW 72.09.010(1).4 Accordingly, RCW 72.09.530 directs the Department to screen all incoming and outgoing materials and intercept any "contraband" in order to protect legitimate security concerns within the state penal institutions. "Contraband" is defined as "any object or communication" banned by the Department from any institution under its control. RCW 72.09.015(4).

¶ 12 In its capacity as an agency subject to the public records act, the Department must respond to all public disclosure requests without regard to the status or motivation of the requester. The statutory directive to screen incoming and outgoing mail does not relieve the Department of its obligation to disclose public records requested by an inmate. However, it does authorize the Department to decide whether those records will be permitted inside the institution. Acting in its custodial capacity to ensure the safety of inmates, staff, and the public, the Department may prohibit the entry into an institution of materials otherwise subject to disclosure under the public records act.

¶ 13 As the United States Supreme Court and this court have recognized, "many rights and privileges are subject to limitation in penal institutions because of paramount institutional goals and policies." State v. Hartzog, 96 Wash.2d 383, 391, 635 P.2d 694 (1981); see also Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In particular, considerable deference must be given to prison administrators to regulate communications between prisoners and the outside world. Thornburgh v. Abbott, 490 U.S. 401, 408, 109...

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