Parmelee v. Clarke

• Decision Date: 24 November 2008
• Docket Number: No. 60836-3-I.,60836-3-I.
• Citation: 148 Wn. App. 748,201 P.3d 1022
• Court: Washington Court of Appeals
• Parties: Allan PARMELEE, Appellant, v. Harold CLARKE, Respondent.

201 P.3d 1022

148 Wn. App. 748

Allan PARMELEE, Appellant, v. Harold CLARKE, Respondent.

No. 60836-3-I.

Court of Appeals of Washington, Division 1.

November 24, 2008.

Publication Ordered February 23, 2009.

Michael Charles Kahrs, Kahrs Law Firm PS, Seattle, WA, for Appellant.

Sara J. Olson, Daniel John Judge, Attorney General's Office, Olympia, WA, for Respondent.

BECKER, J.

¶ 1 Appellant Allan Parmelee, a Washington State inmate, sued to penalize the Department of Corrections for not timely responding to his requests for public records. The law permits an agency to designate a person to whom a request for records should be directed. Because Parmelee chose not to submit his requests to the designated person, the trial court properly dismissed his suit.

¶ 2 The first request at issue in Parmelee's suit is a letter he allegedly wrote to Leslie Swanson, a Department of Corrections staff member in the administrative segregation unit at the facility where he was incarcerated. Parmelee says he handed the letter directly to Swanson on February 9, 2005. A handwritten copy of it is attached to his complaint. The letter asks for various documents related to Parmelee's 2005 administrative segregation at the Washington State Reformatory.

¶ 3 The second request, for different documents, was made on February 25, 2005, in a letter Parmelee wrote to Susan Collins, a grievance coordinator at his facility. Collins had rejected two of his grievances, and the primary topic of the letter was Parmelee's response to Collins' rejections. The last paragraph of the three-page letter says, "Additionally, [if necessary, pursuant to the Public Disclosure Act, RCW 42.17] I request a copy of the written job description, duty designations or document(s) that explain and identify what your job duties are and/or involve."

¶ 4 Collins responded to Parmelee by letter dated March 1, 2005. She acknowledged receipt of the letter of February 25 and instructed Parmelee to submit his records request to the facility's public disclosure coordinator:

Lastly, your request for other than ... central file documents should be submitted on DOC form 05-066 to Nancy Watts, Public Disclosure Coordinator at MCC, as indicated in DOC 280.510, Public Disclosure of Records.

Parmelee did not submit a public records request to Nancy Watts.

¶ 5 On March 2, 2005, Parmelee appealed to Kay Wilson-Kirby, a Department appeals officer in Olympia. One topic of his appeal was Nancy Watts' denial of a different, unrelated public disclosure request. A second topic was Collins' letter of March 1 instructing him to submit his public disclosure requests to Nancy Watts. "I also appeal a separate PDA request dated 2-25-05, addressed to Susan Collins at WSR, where she says in her 3-1-05 letter to me I cannot make PDA requests through DOC staff — such as her."

¶ 6 Wilson-Kirby responded to Parmelee's appeal in a letter dated June 15, 2005, stating her conclusion that Parmelee's request of February 25, 2005 had been processed correctly.

¶ 7 Parmelee sued in June 2006. He alleged that the Department recklessly, negligently, and in bad faith violated the Public Records Act by failing to timely respond to and process his request of February 25, 2005 and by its failure to respond to his March 2, 2005 appeal. He also attached a handwritten copy of the letter he allegedly handed to staff member Leslie Swanson on February 9, 2005, requesting documents related to his administrative segregation. The complaint requested fees and costs, a $100 per day penalty, and an order compelling the Department to respond or provide the requested records.

¶ 8 After the Department received the complaint, Wilson-Kirby wrote a letter dated July 6, 2006 informing Parmelee that the Department had no record of the request he allegedly made in the letter of February 9, 2005. She asked that he identify the documents he wanted so that the request could be processed. In August 2006, Denise Vaughn, a public disclosure specialist with the Department, acknowledged the letter of February 25, 2005 and responded to it by providing a copy of the grievance coordinator's job description. In September 2006, Vaughn wrote acknowledging as "received via appeal process" the letter of February 9, 2005 that was attached to Parmelee's complaint. She provided seven documents in response to his request for records pertaining to his administrative segregation.

¶ 9 The Department moved for summary judgment on the basis that neither the February 9 letter nor the February 25 letter constituted a valid records request. The trial court orally granted the motion after the hearing and signed a final order that was filed on October 11, 2007. Parmelee moved for reconsideration. The trial court denied the motion. Parmelee appeals the summary judgment order and the order denying reconsideration.

¶ 10 The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court. Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Genie Industries, Inc. v. Market Transport, Ltd., 138 Wash.App. 694, 700, 158 P.3d 1217 (2007). Additionally, judicial review of challenged agency actions under the Public Records Act is de novo. O'Neill v. City of Shoreline, 145 Wash.App. 913, 187 P.3d 822, 825 (2008). The Public Records Act must be liberally construed. RCW 42.56.030.

¶ 11 Parmelee contends his requests complied with the requirements published by the Department in the Washington Administrative Code (WAC) and deserved timely responses.

¶ 12 The Public Records Act requires that agencies publish, for the benefit of the public, descriptions of their organization including the places at which and the employees from whom public records may be requested:

(1) Each state agency shall separately state and currently publish in the Washington Administrative Code and each local agency shall prominently display and make available for inspection and copying at the central office of such local agency, for guidance of the public:

(a) Descriptions of its central and field organization and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain copies of agency decisions;

(b) Statements of the general course and method by which its operations are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(c) Rules of procedure;

(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(e) Each amendment or revision to, or repeal of any of the foregoing.

RCW 42.56.040(1).

¶ 13 The Department published WAC 137-08 to ensure its compliance with the Public Records Act. WAC 137-08-010. At the time in question, the regulation provided that requests for any identifiable public record "may be initiated at any office of the department during normal business hours." Former WAC 137-08-060(1) (1986).

¶ 14 Parmelee points out that the term "office" is undefined. He contends that in the absence of a definition, there was no requirement to submit a records request to a particular person. Essentially, he contends the Department was obligated to respond to every request for public records delivered to any employee. If that is true, he made a valid public records request in the letter he allegedly delivered on February 9, 2005 to staff member Leslie Swanson, and also in the last paragraph of the letter he wrote to grievance coordinator Susan Collins on February 25, 2005.

¶ 15 But the regulation stated that written requests for public records would be handled by the designated public disclosure coordinator in each department. The public disclosure coordinator was responsible "for implementing the department's rules regarding disclosure of public records, coordination of staff in this regard, and generally insuring compliance by the staff with public records disclosure requirements." WAC 137-08-070. Each public disclosure coordinator was charged with responding to "written requests for disclosure of the department's nonexempt public records located in that office." WAC 137-08-080(1). In light of these specific provisions for designation of public disclosure coordinators, it would be absurd to construe the term "office" to mean every employee of the Department. The Department has numerous offices and institutions located throughout the state. It is more reasonable to read the regulation as requiring that requests be submitted to the person designated at each of the Department's locations to be responsible for responding to requests initiated at that location.

¶ 16 The Department also adopted an unpublished policy providing more particulars about how to request public records:

A. All requests for public records shall be made in writing, which includes FAX, electronic mail, or DOC 05-066 Request for Disclosure of Records to the designated PDC. The request shall include the following information:

1. Name and return address of the person requesting the record;

2. The date of the request;

3. The specific documents requested; and

4. Whether those specific public records have previously been or are currently being requested from the Department by the requestor, and if so, when and to whom the request was submitted.

B. Offender requests for copies of public records, other than their central file, shall be made in writing to the PDC at the facility where they are incarcerated or the region in which they are supervised. Offenders should complete DOC 05-066 Request for Disclosure Records.

C. An offender may request to inspect his/her central...