Mitchell v. Washington Department of Corrections, No. 38767-1-II (Wash. App. 3/2/2010)
| Decision Date | 02 March 2010 |
| Docket Number | No. 38767-1-II.,38767-1-II. |
| Court | Washington Court of Appeals |
| Parties | KEVIN MICHAEL MITCHELL, Appellant, v. WASHINGTON DEPARTMENT OF CORRECTIONS, Respondent. |
Appeal from Thurston Superior Court Docket No: 08-2-01287-2. Judgment or order under review Date filed: 12/29/2008. Judge signing: Honorable H. Christopher Wickham.
Counsel for Appellant(s), Kevin Michael Mitchell, (Appearing Pro Se), #880933, Stafford Creek Corr Cntr, 191 Constantine Way, Aberdeen, WA, 98520.
Counsel for Respondent(s), Sara J. Olson, Attorney Generals Office, Po Box 40116, Olympia, WA, 98504-0116.
UNPUBLISHED OPINION
Kevin Michael Mitchell appeals the trial court's order granting sanctions to Mitchell following a show cause hearing on Mitchell's public records request to the Department of Corrections (Department). We hold that the trial court did not abuse its discretion in determining the amount of sanctions imposed against the Department. We affirm.
On May 2, 2007, Mitchell sent a letter to the public records coordinator at Stafford Creek Corrections Center, Sheri Izatt, asking to inspect his "written continuous chronological mail record." CP at 40. Mitchell further stated that the information he sought included the chronological mail record of items identified with him, and all documents, files, notes, memorandums, and e-mails pertaining to his mail records. He did not state the time period covered by the records request.
Izatt received Mitchell's request on May 7, 2007, and assigned it a tracking number, SCCC-947. Izatt responded by letter dated May 8, 2007, acknowledging Mitchell's request, and explaining that under Department policy inmates could only directly inspect their own central file and medical file. Since the requested documents were not in those files, Mitchell could not inspect them, but he could designate a non-incarcerated person to inspect such documents. The letter informed Mitchell that he could appeal the denial of his request. Izatt also provided Mitchell with an appeal form and instructions on how to proceed with an appeal.
Mitchell replied in a letter to Izatt, dated May 23, 2007, and received by the Department on May 29, asking that the requested records be emailed to a designated non-incarcerated person. On May 29, 2007, Izatt sent Mitchell a letter asking him to specify the dates of the mail logs that he sought. Mitchell responded by letter, dated June 14, 2007, and received by the Department on June 19, 2007, stating that he wished to "amend" his request, and obtain "ALL mail log entries to include incoming, outgoing and legal mail from January 9, 2007 to the present date [of June 14, 2007]." CP at 50.
In a letter to Izatt dated July 1, 2007, Mitchell submitted a second records request, this time seeking records related to selected mail logs regarding interception of his mail by the Department's Intelligence and Investigations Unit (I&I), from January 10, 2007, through July 1, 2007. This letter was forwarded to the Department's Public Disclosure Unit in Olympia for processing. The letter arrived at the public disclosure unit in Olympia on July 9, 2007, where it was processed and responded to by a public disclosure specialist, Gaylene Schave. Schave assigned this request tracking number PDU-655, and so informed Mitchell in a letter on July 16, 2007, five business days after Schave received Mitchell's second records request. Schave also informed Mitchell that the records he sought could not be delivered as e-mail attachments as he requested, that she was gathering copies of the requested mail logs, and that she would contact him within 15 business days.
Fifteen calendar days later, on July 31, 2007, Schave sent Mitchell a letter notifying him that there were two pages of incoming and outgoing mail logs responsive to his request, and that the copies would be mailed to him after the Department received payment for copying and postage. The letter also stated, "[There] are no documents responsive to the portion of your request for records of your mail going to the I&I Office, therefore none will be provided." CP at 56. The letter referenced only one tracking number, "PDU-655."1 CP at 56.
By letter dated September 10, 2007, and received at the Department's Public Disclosure Unit on September 13, Mitchell asked the Department to search the I&I records again, "to be absolutely certain there is no log of mail being routed to the I&I office." CP at 58. Five business days after receiving his letter, Schave responded that although I&I stated that there are no responsive records, another search would be conducted. This letter also noted that two pages of responsive documents would be mailed to Mitchell upon receipt of payment.
Schave sent a follow up letter (dated September 27, 2007) to Mitchell stating that she checked with "all facilities I&I and mail room staff," and that there were no logs of I&I, mail room staff, or anyone else intercepting Mitchell's mail. CP at 60. The letter stated, "Since no documents exist on this portion of your request, none will be provided." CP at 60 (emphasis added). The letter reiterated that two pages of incoming and outgoing logs (responsive to Mitchell's first request) had been collected and would be mailed to Mitchell upon receipt of payment.
On November 21, 2007, Mitchell remitted payment for the documents. Seven business days later, on November 30, 2007, Schave mailed to Mitchell two pages of incoming and outgoing mail logs showing activity from January through July of 2007.
On September 30, 2008, Mitchell moved for an order to show cause why he should not be awarded penalties for the Department's violations of the Public Records Act (PRA), alleging that the Department never responded to his request for documents under SCCC-947. The Department appeared and provided documentation that after paying for the records, Mitchell received the documents responsive to his amended first request. The Department's response included Schave's declaration, in which Schave averred that she was the public disclosure specialist who had written the unit's November 30 letter, which accompanied the two pages of mail logs, and all of the unit's previous letters to Mitchell that mentioned the two pages of available mail logs. Schave admitted that she inadvertently failed to include the tracking number SCCC-947 in each letter, although the two pages of mail logs addressed Mitchell's request designated by that tracking number. The two pages of mail logs in question included entries from January through July of 2007 and thus included the time period of both of Mitchell's requests, PDU-655 (January 10 through July 1 of 2007) and SCCC-947 (January 9 through June 14 of 2007). Schave also declared that there are no additional documents responsive to Mitchell's amended first request, SCCC-947.
The trial court ruled that although the Department had produced all responsive records to request SCCC-947, the Department's response was untimely, and the Department's delay was 42 days. In setting a penalty for that delay, the court concluded that the Department acted in good faith and the delay constituted simple negligence. The court therefore ordered the Department to pay a penalty of $5.00 per day for 42 days, plus costs. Mitchell appealed.
Mitchell challenges the trial court's determination in two ways. He contends that the court erred in ruling that the Department provided all records regarding his SCCC-947 request, and that the court erred in its penalty determination. We disagree with both contentions.
We review questions of law concerning the proper application of the PRA de novo. Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 430, 98 P.3d 463 (2004); Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994). We review a trial court's penalty determination under the PRA for an abuse of discretion. Yousoufian, 152 Wn.2d at 431.
The purpose of the PRA is to provide "full access to information concerning the conduct of government on every level . . . as a fundamental and necessary precondition to the sound governance of a free society." RCW 42.17.010(11). The public records portion of the act, RCW 42.56.001-.902, requires all state and local agencies to disclose any public record upon request, unless it falls within certain specific enumerated exemptions. Sperr v. City of Spokane, 123 Wn. App. 132, 136, 96 P.3d 1012 (2004); King County v. Sheehan, 114 Wn. App. 325, 335, 57 P.3d 307 (2002); RCW 42.56.070(1). The requested record must be made available "for public inspection and copying." RCW 42.56.070(1). The Department of Corrections is an "agency" subject to the act's provisions. RCW 42.56.010(1) ().
Public records subject to inspection under the act include (1) any writings (2) that contain information related to the "conduct of government or the performance of any governmental or proprietary function" and (3) that are "prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010(2); RCW 42.17.020(42). However, an agency has "no duty to create or produce a record that is nonexistent." Sperr, 123 Wn. App. at 136-37 (citing Smith v. Okanogan County, 100 Wn. App. 7, 13-14, 994 P.2d 857 (2000)). Moreover, just as the act "does not provide `a right to citizens to indiscriminately sift through an agency's files in search of records or information which cannot be reasonably identified or described to the agency,'" Sperr, 123 Wn. App. at 137 (quoting Limstrom v. Ladenburg, 136 Wn.2d 595, 605 n.3, 963 P.2d 869 (1998)), the act "does not authorize indiscriminate sifting through an agency's files by citizens searching for records that have been demonstrated not to exist." Sperr, 123 Wn. App. at 137 (emphasis added).
Mitchell's contention that the trial court erred in...
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