McKee v. Wash. State Dep't of Corr.
| Decision Date | 16 August 2016 |
| Docket Number | No. 33876-2-III,33876-2-III |
| Court | Washington Court of Appeals |
| Parties | JEFFREY MCKEE, Appellant, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, a subdivision of the STATE OF WASHINGTON, Respondent. |
FEARING, C.J. — Coyote Ridge Correctional Center inmate Jeffrey McKee filed suit alleging violations of the Public Records Act, chapter 42.56 RCW. The trial court dismissed the suit. We principally affirm the trial court, but remand the case for the trial court to review one claim.
Jeffrey McKee resides at Connell's Coyote Ridge Corrections Center. On November 10, 2014, Coyote Ridge Classification Counselor Andrea Husky summoned McKee into her office and asked him to sign a document entitled "Classification Hearing Notice/Appearance Waiver." The correction facility's Facility Risk Management Team periodically conducts a classification hearing to update an offender's security ranking. A signature on the document confirms the prisoner's notice of the hearing time. Jeffrey McKee signed the document and requested from Husky a copy of the document. Andrea Husky told McKee that he must seek a copy from the Washington Department of Corrections Public Disclosure Unit in Olympia.
On November 24, 2014, Jeffrey McKee submitted to Coyote Ridge Corrections Center a Request for Disclosure of Records on a public records request form prepared by the Department of Corrections. He requested more than the notice and waiver form he signed on November 10. On the records request form, McKee checked the box next to "I request to inspect my central file." Clerk's Papers (CP) at 38. The law does not define or describe an incarcerated offender's "central file." The central file includes, among other documents, the offender's criminal conviction record packet. That packet, in turn, contains the offender's criminal history as obtained from the Washington State Patrol and the Federal Bureau of Investigation at the time of the offender's admission to Department of Corrections' custody and updated information about the offender generated as part of the department's annual reviews. The department also refers to the central file as an "offender file" or an "offender central file." CP at 28.
In his November 24 request for public records, Jeffrey McKee also hand wrote:
I am requesting "a review of all pertinent official records in the offender file" pursuant to the classification notice/appearance waiver DOC form 05-794 for my November [Facility Risk Management Team] meeting.
CP at 38. Dena Leaverton, a Coyote Ridge records technician, handled the request. She later testified that she did not understand what McKee intended by "' pertinent official records.'" CP at 29. Leaverton returned McKee's request to McKee the following day with the response:
CP at 37-38. Leaverton's response also contained a handwritten note that read: "If you want more than this one document please re-kite for central file review." CP at 38. A kite is a written communication within the prison.
On December 1, 2014, Classification Counselor Andrea Husky again summoned Jeffrey McKee to her office and asked him to sign another Classification Hearing Notice/Appearance Waiver for a classification hearing on December 3. The appellate record contains a copy of this notice and waiver, but not the notice and waiver signed by Jeffrey McKee on November 10. We do not know if the notice and waiver signed on November 10 was also for a December 3 hearing or an earlier hearing. The December 1 notice and waiver read, in part: "You have the right to submit a written request for areview of all pertinent official records in the offender file through the Records Manager, using DOC 05-066 Request for Disclosure of Records." CP at 119.
On December 1, 2014, Jeffrey McKee completed and submitted to Coyote Ridge a request for disclosure of records on a form prepared by the Department of Corrections. The December 1 request echoed the November 24 request. In the December 1 request, McKee sought his "central file." CP at 41. He also wrote:
Per the classification hearing notice/appearance waiver I signed today I am requesting "a review of all pertinent official records in the offender file" prior to my 12/3/14 FRMT meeting/review. Thank you.
CP at 41. Dena Leaverton, the Coyote Ridge records technician, received the request on December 3. Leaverton again stamped the following response:
On December 28, 2014, Jeffrey McKee prepared a third records request that he sent to the Department of Corrections Public Disclosure Unit in Olympia. The third request was the first request he sent to Olympia. The public disclosure unit received the request on January 5, 2015. The request was in the form of a letter rather than contained on the Department of Corrections records request form. The December 28 request read:
By this letter and pursuant to the Public Records Act I am requesting to "a review of all pertinent official records in the offender file" pursuant to DOC form 05-066 related to the 1/24/14 FRMT notice I received on or about 11/24/14 and on or about 12/1/14.
Department of Corrections Public Disclosure Specialist Cary Nagel handled Jeffrey McKee's December 28 request. On January 6, 2015, Nagel sent a response to McKee that read in part:
Jeffrey McKee never responded to Cary Nagel's request for clarification. According to McKee, he refrained from replying because Nagel's letter was confusing, Nagel's request for clarification was puzzling since McKee parroted the department's own language of "pertinent official records," and McKee hoped to inspect all records during the later central file review in Connell. CP at 116.
Cary Nagel also contacted Coyote Ridge Corrections Center and scheduled an appointment for Jeffrey McKee to review his central file. In turn, Dena Leaverton sent McKee a notice that the department would schedule him for a review of his central file within thirty business days. On January 22, 2015, Jeffrey McKee reviewed his central file. McKee then noticed the file contained no criminal rap sheets. According to McKee, the file clerks, with whom McKee met, told him that the produced file did not include his electronic file. McKee asked if the produced file included records pertinent to the November 10 or December 1 notices of hearing. Each clerk indicated she did not know.
During the January 22 records review, the Department of Corrections provided Jeffrey McKee an exemption log that identified documents redacted or withheld. Redactions included the names of McKee's rape victims found in his judgments and sentences and in the appellate decision affirming a conviction. The department also withheld e-mail sent between "Bowman and Brooks" from December 20, 2010 to January 6, 2011. CP at 47. The department asserted that the attorney-client privilege exempted the e-mail.
Jeffrey McKee sued the Department of Corrections. He alleged violations of the Public Records Act for the failure to respond to his requests, the withholding of records, the failure to provide an exemption log justifying the withholding of records, improper redaction of documents, and the department acting in bad faith.
The Department of Corrections brought a motion asking "for an order determining whether there has been a violation of the Public Records Act (PRA) pursuant to RCW 42.56.550." CP at 1. The department captioned its motion as a "motion to show cause," and the motion's legal argument impliedly contended that the court should conduct a show cause hearing. CP at 1. In support of the motion, the department filed declarations of Public Records Officer and Compliance Manager Teresa Pernula, Dena Leaverton, and Cary Nagel. In its motion, the department alternatively argued that it committed no violation of the Public Records Act, any violation was without bad faith, and any bad faith violation merited only nominal penalties.
Jeffrey McKee did not object to the trial court conducting a show cause hearing. McKee analyzed the Department of Corrections' motion as if it was a summary judgment motion. McKee did not file a countervailing motion. Jeffrey McKee did not seek a hearing with live testimony.
The trial court entertained oral argument in support of and in opposition to the Department of Corrections' motion for show cause. Neither party sent this court a transcript of the oral argument.
The trial court granted the Department of Corrections' motion and dismissed the case with prejudice. In granting the motion, the trial court entered the following findings of fact:
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