Opinion Information Sheet
| Docket Number: | 42478-9 |
| Title of Case: | George Bartz, Appellant V. Doc, Respondent |
| File Date: | 02/12/2013 |
| Appeal from Thurston Superior Court | |
| Docket No: | 10-2-02314-1 |
| Judgment or order under review | |
| Date filed: | 08/19/2011 |
| Judge signing: | Honorable Christine a Pomeroy |
| Authored by | J. Robin Hunt |
| Concurring: | Marywave Van Deren |
| C. C. Bridgewater |
Counsel for Appellant(s) | |
| George Bartz (Appearing Pro Se) | |
| Doc #985210 | |
| Monroe Corrections Center | |
| PO Box 888 | |
| Monroe, WA, 98272 | |
Counsel for Respondent(s) | |
| Candie M Dibble | |
| Office of the Attorney General | |
| 1116 W Riverside Ave | |
| Spokane, WA, 99201-1194 | |
| Ohad Michael Lowy | |
| Attorney General's Office | |
| Po Box 40116 | |
| Olympia, WA, 98504-0116 | |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
GEORGE BARTZ, No. 42478-9-II
Appellant,
v.
STATE OF WASHINGTON DEPARTMENT
OF CORRECTIONS PUBLIC DISCLOSURE
UNIT,
Respondent.
Consolidated With
No. 42485-1-II
GEORGE BARTZ,
Appellant,
v.
STATE OF WASHINGTON DEPARTMENT
OF CORRECTIONS PUBLIC DISCLOSURE
UNIT,
PUBLISHED IN PART OPINION
Respondent.
Hunt, P.J. ? George Bartz appeals the superior court?s Order of Findings in his first
Public Records Act (PRA)1 complaint and its Findings and Order of Dismissal in his second PRA
1 Ch. 42.56 RCW.
Consolidated Nos. 42478-9-II and 42485-1-II
complaint. He argues that the superior court erred in ruling that (1) the Department of
Corrections (DOC) had complied with his public records requests, (2) his second complaint was
unnecessary to obtain the information requested, (3) the PRA?s statute of limitations barred his
second complaint, and (4) his second complaint was a ?frivolous? action for the purposes of RCW
4.24.430.2 He further argues that the superior court erred in dismissing with prejudice his second
complaint. We affirm the superior court?s findings related to Bartz?s first complaint and its
dismissal of his second complaint. But we reverse the superior court?s determination that his
second complaint was ?frivolous? and that it was a ?strike? for purposes of RCW 4.24.430.3
Clerk?s Papers (CP) at 37.
FACTS
George Bartz is an inmate in DOC custody who filed three public records requests with
DOC under the PRA. He later filed two superior court complaints based on what he perceived to
be DOC?s incomplete or improper responses to his PRA requests. The superior court ruled that
DOC had complied with Bartz?s requests and that the statute of limitations barred his second
complaint.
I. PRA Requests
A. First Request
2 The parties and trial court refer to this as ?Substitute House Bill 1037,? since codified as RCW
4.24.430.
3 We accept DOC?s concession that Bartz?s second complaint was not a frivolous action under
RCW 4.24.430, which disallows waiver of a filing fee for a prisoner?s third frivolous PRA-based
complaint.
2
Consolidated Nos. 42478-9-II and 42485-1-II
On June 12, 2009, Bartz filed his first public records request with DOC?s Public
Disclosure Unit (PDU), requesting six groups of documents relating to inmate personal clothing.
Specifically, Bartz requested: (1) all documents ?used by Eldon Vail, Secretary DOC, in his
references to saving the Department ?six figures? by taking away personal clothing from inmates?;
(2) all documents relating to the maintenance costs of washing machines used by inmates for
personal clothing; (3) all documents relating to projected cost increases of ?doing laundry for
inmates after personal clothing is taken?; (4) all documents that show the costs of laundry services
for 2007 and 2008; (5) all documents that show actual or projected cost of providing inmates with
?sweat shirts, sweat pants, [pajamas], night gowns, bathrobes, shorts and any other new clothing
items the Department intends to issue inmates?; and (6) all documents that show the ?proposed
cost of fighting possible litigation due to the implementation of the proposed matrix change.?4 CP
at 9.
Twelve days later, on June 24, DOC assigned Bartz?s PRA request tracking number PDU-
7362. Approximately two weeks later, DOC sent Bartz a letter stating that it had gathered 250
pages for the first installment and that it would send these pages to Bartz once he sent the $52.07
payment. Bartz responded to DOC by letter on July 13, (1) taking exception to DOC?s ?piece-
meal? response and high number of pages, (2) sending no money to pay for the copies ready in the
first installment, and (3) explaining that he would ?await [DOC?s] response . . . and then submit
the funds.? CP at 64. DOC responded to Bartz?s letter5 by offering to deduct $18.09 from the
4 Except for a reference to ?offender personal property matrix? in a letter from DOC to Bartz, the
record neither defines nor provides further context for the term ?matrix change.? CP at 63.
5 The letter from DOC indicates the deduction is for PDU-7361, but the context makes clear that
3
Consolidated Nos. 42478-9-II and 42485-1-II
outstanding balance on his claim (PDU-7362), leaving $33.98 as the total owed. Bartz then sent
DOC a check for $33.98, which DOC received on August 24. That same day, DOC sent Bartz
the first installment of the requested records.
Also on August 24, DOC sent Bartz a letter stating that, in response to the second half of
his request, it had located 231 pages; DOC also asked for payment of $52.45. Bartz responded in
a letter, complaining that the documents in his first installment were not complete, that they were
full of duplicates, and that he would file a tort claim. Nevertheless, Bartz sent payment for the
documents responding to the second half of his request, again complaining about the first
installment and stating his intention to file a lawsuit. On September 9, DOC sent Bartz the second
installment of the records, informing him that its response to his PRA request was complete.
B. Second Request
Bartz uses glucosamine/chondroitin to relieve pain from osteoarthritis in his knees. In
2005, DOC stopped providing the glucosamine/chondroitin supplement to inmates. Despite
DOC?s response to Bartz?s inquiries that glucosamine/chondroitin supplements would be added
back to the inmate store at some point, it had not happened by fall 2009. On October 4, 2009,
Bartz filed a second public records request with DOC about the availability of
glucosamine/chondroitin in the inmate store, seeking: (1) ?all documents, in the form of emails,
faxes, letters, or [memos] dealing with the inclusion of the herbal supplement,
[g]lucosamine/[c]hondroitin as a salable item by the [i]nmate [s]tores, under the jurisdiction of
DOC, by any and all persons employed by DOC?; and (2) ?all documents, in the form of emails,
DOC meant to refer to PDU-7362.
4
Consolidated Nos. 42478-9-II and 42485-1-II
faxes, letters, [memos] or policies relating to the sale of ?oils? by inmate stores.? CP at 154.
DOC assigned this PRA request tracking number PDU-8623. DOC sent Bartz notice that
it had located 66 pages of responsive records and that it would send the records once he sent
payment of $15.61. Bartz sent payment on December 22, 2009; DOC sent the documents on
January 4, 2010.
On January 8, Bartz sent a letter to DOC, (1) alleging that his second records request was
incomplete because he had in his possession ?emails? between two DOC employees6 that were not
included in the documents he had received, and (2) complaining that he also had received some
duplicate documents. CP at 165. DOC responded, asking Bartz to supply the names of the staff
and the dates of the missing emails so it could perform a search. Bartz refused to provide any
identifying information about the staff or the requested emails. On January 28, DOC responded
to Bartz again by setting out his request and informing him that, although the email strings he
possessed had similar information, the pages were not duplicates. According to DOC, it did not
receive any more contact from Bartz about this request.7
6 These emails were not part of the superior court record designated on appeal. Instead, Bartz
presents them for the first time as ?Exhibit A,? attached to his reply brief on appeal, which he
refers to as ?Plaintiff?s Response to Defendant?s Brief.?
7 In his response to DOC?s answer to his complaint filed the following year, however, Bartz
attached a letter addressed from him to DOC dated January 24, 2011. In this letter, Bartz
apparently made an additional request under the PRA for all emails between ?R. Kherr,
pharmacist (spelling of the last name may be wrong) and other DOC staff members within the
Department of Corrections for the years 2005 [through] 2010, concerning the subject;
glucosamine/chondroitin.? CP at 35. But nothing in the record shows that DOC received this
request or, if it did receive it, how DOC responded to this request. At the show cause hearing,
also the following year, Bartz testified that the emails to which he referred in this January 24,
2011 letter were between Rhonda Kerr and other staff and that after he directed DOC to Rhonda
Kerr, he received the requested emails and other records from DOC. But Bartz did not introduce
5
Consolidated Nos. 42478-9-II and 42485-1-II
C. Third Request
Two weeks after Bartz filed his second PRA request with DOC (October 4, 2009), he
filed a third public records request on October 22, broadly outlining four groups of information
that he sought about tort claims filed against DOC. Specifically, he requested (1) ?all
documents/forms relating to TORT claims filed by any inmate within DOC for the years 2007 to
date of this letter, that relate to personal clothing claims?; (2) ?all documents, in any form, that
relate to the cost of the research done to validate TORT claims addressed in GROUP ONE, and
the amount of compensation paid on all valid claims, if it is not listed on the claims form?; (3)
information about ?the total number of claims investigated under GROUP ONE. Documents
relating to claims found invalid are not requested, nor wanted, just the number of claims
investigated?; and (4) ?the documentation concerning fees paid for [adjudication] of all valid
TORT claims. Differentiate fees paid as to lawyers, by name, amount, and agency worked for or
contract status.? CP at 12. He also asked DOC to redact information to ensure no duplication of
pages. On October 30, DOC assigned his claim tracking number PDU-8827.
Soon after, DOC sent a letter to Bartz, informing him that his request had generated 1,193
these emails as exhibits in the show cause hearing.
In his brief of appellant, Bartz claims that (1) DOC assigned this January 24, 2011 email
request the tracking number PDU-14117, (2) he received two more groups of documents in
response to his PRA request, and (3) the second batch contained the emails he sought. Because
Bartz has not properly designated this letter and these emails as part of the record before us on
appeal, we do not consider his arguments based on this alleged evidence outside the record before
us. See RAP 9.6; 10.3(c); 10.3(a)(8) (?An appendix may not include materials not contained in
the record on review without permission from the appellate court.?); Witt v. Young, 168 Wn.
App. 211, 214 n.5, 275 P.3d 1218 (?Although Witt attached a copy of her claim as an exhibit to
her brief, . . . this document has not been included in the clerk?s papers, and Witt?s attachment is
not properly before us.?), review denied, ___ P.3d___ (2012).
6
Consolidated Nos. 42478-9-II and 42485-1-II
documents, some of which contained information about lawsuits and some of which did not; DOC
asked Bartz to clarify whether he wanted only the lawsuit-related documents or all the documents.
Bartz responded in a letter, clarifying that he did ?not desire actual legal filings made in request
for TORT claims, rather only the total number of claims filed during the period requested; budget
numbers used to examine and research those claims; fees paid for adjudication and the names of
lawyers and their affiliation those lawyers are associated with or law firms they belong to.? CP at
93.
In a separate letter, DOC responded to Bartz that it did not track the information that he
sought,8 but it offered to send what documents it had. Bartz replied, asking for the documents
available from DOC and a bill for the records. On January 12, 2010, DOC responded that it had
176 pages that needed reviewing for possible PRA exemptions and that Bartz would receive more
information about the status of his request within 35 business days. Bartz replied on January 15,
unsatisfied with the 35 business days quoted; he threatened legal action if DOC did not follow the
?statute.? CP at 102. DOC responded on January 27, reiterating that the documents needed
reviewing for possible redactions; DOC also provided Bartz with an address if he wished to
appeal.
On January 31, Bartz sent an appeal to DOC, stating that the offered time frame did not
comply with chapter 42.56 RCW. DOC responded on February 18, informing him that the five-
8 This DOC letter also explained that Bartz might be able to obtain this requested information
from its Office of Financial Management (OFM), for which DOC provided the address. The
record, however, does not show whether Bartz made such a PRA request to the OFM for the
information he had sought from DOC or that the OFM ever received such a request and provided
documents to Bartz.
7
Consolidated Nos. 42478-9-II and 42485-1-II
business-day limit was only for acknowledgement of the request, not for fulfillment of the request.
The letter told Bartz to expect further communication on or before March 4, 2010. Bartz
received a letter on March 4, informing him that DOC needed another 15 business days for further
review.
On March 9, DOC sent Bartz a letter notifying him that the 176 pages were ready and that
it would send him the pages when he sent his payment of $40.10. The letter also informed Bartz
that DOC would notify him when another installment was ready. On March 12, Bartz sent DOC
a check for $40.10 (received by DOC on March 30). Bartz complained that the request would be
in installments and again threatened to file a lawsuit. On April 6, DOC sent Bartz the 176 pages
he requested.
Also on April 6, DOC sent a separate letter stating it was processing the second
installment for Bartz?s request and that would follow up with him within 35 business days. On
May 24, DOC notified Bartz that it would send the second installment of 268 pages once Bartz
paid $59.30. Bartz paid the $59.30 on May 30 and again complained about the length of the
installment process. DOC sent the second installment of 268 pages on June 15, 2010, and
informed Bartz that it would contact him about the third installment on or before July 22.
On July 16, DOC notified Bartz that a third installment of 328 pages requiring payment of
$72.05 was available. This letter stated that additional records would be available in more
installments, but DOC would not gather them until it received payment for the current installment.
Bartz responded on July 20 with a letter claiming that these installments were not a reasonable
delay allowed by chapter 42.56 RCW; he again threatened to take legal action. Bartz did not
8
Consolidated Nos. 42478-9-II and 42485-1-II
provide payment for this third installment and did not receive it.
9
Consolidated Nos. 42478-9-II and 42485-1-II
II. Procedure
On October 19, 2010, Bartz filed a motion for judicial review under the PRA,9 asking the
superior court to require DOC (1) to show cause why it had ?refused to provide? full responses to
his first and third public records requests (PDU-7362 and PDU-8827) in a timely manner and why
it had sent duplicates, blank pages, and unrelated information; and (2) to pay him for each day it
had failed to comply with chapter 42.56 RCW beyond the five days allowed and all costs,
including reasonable attorney fees. CP at 3.
A. Complaints
On January 19, 2011, Bartz filed a complaint in Thurston County Superior Court, alleging
that DOC had violated the PRA in responding to his first and third PRA requests (PDU-7362 and
PDU-8827), Cause No. 10-2-02314-1. He asked the court to acknowledge that (1) DOC ?failed
to disclose part or all of GROUPS 1,3,4,5,6 and must complete these groups within 30 working
days?; (2) ?although DOC was notified of their short comings they failed to make any attempt to
complete PDU-7362?; and (3) ?DOC is delinquent and stipulate a penalty at the high end of the . .
. monetary award stipulated in RCW 42.56, for each group of records not completed from the
date of the last disclosure until such date as the records are produced, to the petitioners and
court[?]s satisfaction.? CP at 17. DOC argued that Bartz had failed to show a violation of the
9 RCW 42.56.550(1) provides:
Upon the motion of any person having been denied an opportunity to inspect or
copy a public record by an agency, the superior court in the county in which a
record is maintained may require the responsible agency to show cause why it has
refused to allow inspection or copying of a specific public record.
The Legislature amended RCW 42.56.550 on July 22, 2011, but these amendments do not affect
this provision or our resolution of the issues of this case. Laws of 2011, ch. 273, § 1.
10
Consolidated Nos. 42478-9-II and 42485-1-II
PRA and that its response to his request amounted to bad faith. Bartz responded that DOC had
violated the PRA in bad faith.
On March 24, Bartz filed a second complaint, alleging that DOC had violated the PRA in
responding to his second request, PDU-8623, Cause No. 11-2-00712-7. DOC responded,
arguing that (1) Bartz could not recover PRA penalties because his lawsuit was not necessary to
obtain the requested records, (2) the statute of limitations barred Bartz?s action, (3) Bartz failed
to show that DOC?s response amounted to bad faith, and (4) the court should dismiss his case
with prejudice. In response, Bartz asked the court (1) to recognize that DOC had not disclosed
all requested documents; (2) to recognize that DOC ?acted with disregard for the intent of the
PRA, even after being advised that the request was not complete?; (3) to recognize his attempt to
settle with defense counsel; and (4) to award him money damages. CP at 29.
B. Show Cause Hearing
On July 22, the superior court conducted a show cause hearing for both cause numbers.
At the end of this show cause hearing, the superior court ruled that DOC had reasonably complied
with all of Bartz?s PRA requests.
1. First complaint (Cause No. 10-2-02314-1)
Bartz?s first complaint, Cause No. 10-2-02314-1, addressed Bartz?s first and third PRA
requests (PDU-7362 and PDU-8827). For Bartz?s first PRA request, PDU 7362, the superior
court found that Bartz had received the requested six groups of documents in two installments,
that he had not appealed, and that DOC had reasonably believed it had provided all responsive
documents and closed the file.10 For Bartz?s third PRA request, PDU-8827, the superior court
11
Consolidated Nos. 42478-9-II and 42485-1-II
found that Bartz had received the first two installments and that he had not yet received the third
installment because he had not paid for it; therefore, DOC did not have to send the records. The
superior court ruled that DOC had complied with both Bartz?s first and third PRA requests (PDU-
7362 and PDU-8827), and it awarded DOC $200 in statutory attorney fees.
2. Second complaint (Cause No. 11-2-00712-7)
Bartz?s second complaint, Cause No. 11-2-00712-7, addressed his second PRA request
(PDU-8623). The superior court found that (1) DOC had provided Bartz the two emails he had
requested; (2) Bartz had received these emails before filing this complaint; (3) Bartz had refused
to provide information to assist DOC in finding these emails; (4) his complaint ?was not
reasonably regarded as necessary to obtain the records? and ?frivolous?; and (5) because Bartz
had filed his action after the one-year statute of limitations, his action was time-barred. CP at 37.
The superior court also ruled that, because Bartz already possessed the two emails he
sought from Rhonda Kerr, he could not sue DOC for failing to receive them in a PRA request and
his second complaint was ?frivolous.? Verbatim Report of Proceedings (VRP) at 38. The court
admonished Bartz for playing ?hide the ball? by not cooperating with DOC, stating, ?[H]is
response that ?I won?t tell you what I really want you to give me,? is not appropriate. I think they
fully responded to it. . . . He already had [the emails] and, further, I find it is time-barred so I will
have to dismiss this action at this time.? VRP at 38, 39. In addition to dismissing Bartz?s second
complaint with prejudice for failure to state a claim on which relief may be granted and as time-
10 More specifically, the superior court ruled that because DOC had received no further
communication from Bartz about his first PRA request and had filed a different PRA request
(PDU-8827 on tort claims), DOC acted reasonably in thinking it had answered the request fully.
12
Consolidated Nos. 42478-9-II and 42485-1-II
barred, the superior court (1) awarded statutory attorney fees of $200 to DOC as the prevailing
party and (2) found his complaint ?frivolous? for RCW 4.24.430 purposes. CP at 37.
Bartz appeals.
ANALYSIS
Dismissal of Bartz?s Second Complaint
Bartz argues that the superior court erred in dismissing his second complaint. More
specifically, he contends the superior court erred in ruling that his second complaint was
unnecessary to obtain the records requested and that the statute of limitations barred his second
complaint. We agree with Bartz that the second complaint was necessary to obtain the records
requested, but we disagree that the superior court erred in ruling the statute of limitations barred
Bartz?s complaint. Thus, we affirm the superior court?s dismissal of his second complaint as time
barred and, alternatively, for failure to state a claim under CR 12(b)(6).
A. Standard of Review
We review de novo a trial court?s dismissal of an action. Johnson v. Dep?t of Corr., 164
Wn. App. 769, 775, 265 P.3d 216 (2011), review denied, 173 Wn.2d 1032 (2012). We may
affirm the trial court on any ground that the record supports. Johnson, 164 Wn. App. at 779
(citing Otis Hous. Ass?n v. Ha, 165 Wn.2d 582, 587, 201 P.3d 309 (2009)). ?A trial court should
grant a motion to dismiss pursuant to CR 12(b)(6) only ?if it appears beyond a reasonable doubt
that no facts exist that would justify recovery.?? Atchison v. Great W. Malting Co., 161 Wn.2d
372, 376, 166 P.3d 662 (2007) (quoting Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755,
881 P.2d 216 (1994)).
13
Consolidated Nos. 42478-9-II and 42485-1-II
B. Statute of Limitations Dismissal
Bartz argues that the superior court erred in ruling (1) that RCW 42.56.550(6)11, the
applicable one-year statute of limitations, barred his second complaint and (2) that this statute
?should be narrowly confined to ensure that persons get timely and appropriate responses to their
requests.? CP at 37. We disagree.
The PRA?s statute of limitations requires a plaintiff to file an action within one year of
either (1) an agency?s claim of exemption from the PRA?s disclosure requirements or (2) an
agency?s ??last production of a record on a partial or installment basis.?? Johnson, 164 Wn. App.
at 775 (quoting RCW 42.56.550(6)). Because DOC did not claim a PRA exemption to Bartz?s
second PRA request (PDU-8623) as the basis for his second complaint, the first portion of the
statute of limitations does not apply.
But rather than addressing the second portion of this statute of limitations, dealing with an
agency?s ?last production of a record,?12 Bartz appears to argue that the statute of limitations did
not prevent his claim because DOC did not provide him with a ?detailed privilege log.? Br. of
Appellant at 9. For authority, he cites Rental Hous. Ass?n of Puget Sound v. City of Des Moines,
which held that, for PRA statute of limitations purposes, an exemption claim exists only after an
agency produces a privilege log to a requesting party. 165 Wn.2d 525, 538-39, 199 P.3d 393
(2009). Rental Hous. Ass?n does not control here13 because DOC claimed no exemptions and,
11 Changes to RCW 42.56.550 not affecting the resolution of the issues of this case took effect on
July 22, 2011, the date of the bench trial. Laws of 2011, ch. 273, § 1.
12 RCW 42.56.550(6).
13 The Court found PRA violations in Rental Hous. Ass?n because the City of Des Moines had
withheld several documents, claiming exemptions in response to a PRA request. But it did not
14
Consolidated Nos. 42478-9-II and 42485-1-II
thus, Bartz?s case involved no exemption logs.14
The PRA anticipates disclosure of documents on an installment basis: RCW 42.56.550(6)
provides that an agency?s ?last production of a record on a partial or installment basis? triggers
the statute of limitations. Because Bartz received only one installment, it is not clear whether the
second portion of RCW 42.56.550(6) applies. We addressed a similar situation in Johnson where
the question was whether an agency?s production of a single document triggered the running of
the PRA?s statute of limitations. Johnson, 164 Wn. App. at 777. We did not reach and decide
the applicability of the PRA?s statute of limitations to production of a single document because
Johnson?s claim was barred by a two-year catch-all statute of limitations, RCW 4.16.130.
Johnson, 164 Wn. App. at 778.
Bartz filed his claim more than one year, but less than two years, after DOC?s last
disclosure under PDU-8623.15 Thus, we must decide whether (1) Bartz?s action was time-barred
because DOC triggered the one-year statute of limitations, RCW 42.56.550(6), with its
production of one installment of documents; or (2) Bartz?s action was not time-barred because
provide a log outlining its exemptions. Rental Hous. Ass?n, 165 Wn.2d at 528-29.
14 Bartz?s argument that the statute of limitations will never begin tolling until an agency supplies
an exemption log also ignores the second half of RCW 42.56.550(6), which focuses on the last
production of a record. Contrary to RAP 10.3(a)(6), Bartz provides no argument about why this
second portion of the statute of limitations does not apply. Therefore, we do not further address
this argument. See Watson v. Maier, 64 Wn. App. 889, 899, 827 P.2d 311 (1992) (?Assignments
of error lacking argument or citation to authority will not be considered by the Courts of
Appeals.?).
15 DOC sent the records in one installment on January 4, 2010. Bartz did not file his complaint
until March 24, 2011.
15
Consolidated Nos. 42478-9-II and 42485-1-II
there is no statute of limitations that applies to a PRA action based on an agency?s production of a
single installment. Following our reasoning in Johnson, we reject the second alternative because
it would be an absurd result to conclude that the legislature intended no statute of limitations for
PRA actions involving the production of a single volume of documents. Johnson, 164 Wn. App.
at 777; see also Cannon v. Dep?t of Licensing, 147 Wn.2d 41, 57, 50 P.3d 627 (2002) (?This
court will avoid a literal reading of a provision if it would result in unlikely, absurd, or strained
consequences.?) It would also be absurd to conclude that the legislature intended to create a
more lenient statute of limitations for one category of PRA requests in light of its 2005 deliberate
and significant shortening of the time for filing a claim from five years, under the old Public
Disclosure Act,16 to one year, under the PRA.17
Division One of this court faced a similar fact pattern in Tobin v. Worden, 156 Wn. App.
507, 233 P.3d 906 (2010). Similar to Johnson, an agency provided a single document in response
to Tobin?s PRA request, without claiming exemptions. Tobin, 156 Wn. App. at 510. Division
One held that the one-year statute of limitations was never triggered because the single document
received was the ?requested record in its entirety, not a partial production of a larger set of
requested records.? Tobin, 156 Wn. App at 514. The Tobin court ruled that ?production of a
record on a partial or installment basis? in RCW 42.56.550(6) could be construed to apply only to
production of a record that is ?part of a larger set of requested records.? Tobin, 156 Wn. App. at
16 Former RCW 42.17.410 (2005) provided: ?Any action brought under the provisions of this
chapter must be commenced within five years after the date when the violation occurred.?
17 In 2005, the legislature amended RCW 42.56.550 to include section six, superseding former
RCW 42.17.410. Laws of 2005, ch. 483, § 5.
16
Consolidated Nos. 42478-9-II and 42485-1-II
514 (quoting RCW 42.56.080).18
DOC argues that (1) we should disagree with and reject Division One?s holding in Tobin,
(2) the logical conclusion is that the legislature intended single productions of records to ?fall
within the scope of ?last production on a . . . partial basis?? for purpose of the PRA statute of
limitations, and (3) we should hold that the one-year PRA statute of limitations barred Bartz?s
claim. Br. of Resp?t at 16 (quoting RCW 42.56.550(6)). For further support, DOC cites case
law favoring this interpretation.19 We agree. Rather than following Division One?s holding in
Tobin, we adhere to our reasoning in Johnson: The legislature intended that the PRA?s one-year
statute of limitations would apply to PRA requests completed by an agency?s single production of
records. Johnson, 164 Wn. App. at 777. Although a literal reading of RCW 42.56.550(6) does
not encompass documents disclosed in a single production, we need not follow a literal reading of
a statute if it would yield an absurd result. Cannon, 147 Wn.2d at 57. On the contrary, we
reiterate that we avoid readings that lead to absurd results. Cannon, 147 Wn.2d at 57.
Accordingly, under Johnson, we hold that the PRA one-year statute of limitations barred Bartz?s
second complaint and, therefore, the superior court properly dismissed it with prejudice as
untimely.
18 The Tobin court did not mention the two-year catch-all statute of limitations that we discussed
in Johnson. Tobin filed her PRA request on June 2, 2005. She filed her complaint more than two
years later on August 27, 2007. Tobin, 156 Wn. App. at 510, 512. But it is unclear from the
opinion when Tobin received the requested documents; so we cannot know whether she filed her
complaint within two years of receiving the document.
19 ?The ?obvious? purpose of such statutes is to set a definite limitation on the time available to
bring an action, without consideration of the merit of the underlying action.? Br. of Resp?t at 13
(citing Dodson v. Continental Can Co., 159 Wash. 589, 596, 294 P. 265 (1930)).
17
Consolidated Nos. 42478-9-II and 42485-1-II
C. CR 12(b)(6) Dismissal
The superior court also (1) ruled that because Bartz already possessed the two emails that
he sought as part of his second PRA request before he filed his second lawsuit, the action was
?not reasonably regarded as necessary to obtain the records?; and (2) dismissed Bartz?s second
complaint with prejudice for failure to state a claim on which relief may be granted. CP at 37.
Bartz argues that this ruling contravenes Neighborhood Alliance of Spokane County v. Spokane
County, 172 Wn.2d 702, 261 P.3d 119 (2011). DOC concedes that Bartz is correct.
We agree with the parties? characterization of part of the Supreme Court?s decision in
Neighborhood Alliance, holding ?that the requesting party possesses the documents does not
relieve an agency of its statutory duties, nor diminish the statutory remedies allowed if the agency
fails to fulfill those duties.? Neighborhood Alliance, 172 Wn.2d at 727. And we agree with the
parties that the superior court erred in articulating Bartz?s possession of the documents as the first
basis for its ruling that Bartz?s PRA request to obtain these documents from DOC was not
necessary. But this agreement does not resolve the issue before us.
We hold that Neighborhood Alliance supports the superior court?s dismissal of Bartz?s
complaint on its other articulated grounds, based on the following explanation:
[T]he remedial provisions of the PRA are triggered when an agency fails to
properly disclose and produce records, and any intervening disclosure serves only
to stop the clock on daily penalties, rather than to eviscerate the remedial
provisions altogether.
Neighborhood Alliance, 172 Wn.2d at 727. As Neighborhood Alliance makes clear, it is an
agency?s failure to produce records properly that violates the PRA, regardless of what documents
18
Consolidated Nos. 42478-9-II and 42485-1-II
the requester possesses. Neighborhood Alliance, 172 Wn.2d at 727. Here, as we have already
held, DOC did not fail to produce requested records.
On the contrary, the record shows that (1) DOC made multiple attempts to produce the
requested records, even asking Bartz to provide specific names and dates for the emails he was
seeking and performing another futile search when he refused to supply this information;20 and (2)
DOC responded promptly21 to every letter Bartz sent involving this PRA request. Bartz did not
establish that DOC withheld any responsive records. Therefore, Neighborhood Alliance does not
require reversal and remand.
Furthermore, the superior court?s second basis for dismissal, CR 12(b)(6), was also
proper. Because Bartz failed to show that DOC had inadequately responded to his PRA request,
he failed to establish a controversy in issue, making dismissal by the superior court with prejudice
proper under CR 12(b)(6). Therefore, we affirm the superior court?s dismissal with prejudice of
Bartz?s second complaint.
A majority of the panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder shall be filed for public record
in accordance with RCW 2.06.040, it is so ordered.
D. Not ?Frivolous?
The superior court also concluded that Bartz?s second complaint was ?frivolous? and,
20 Moreover, Bartz did not provide the superior court with the emails he had purportedly sought
from DOC and that he alleged existed.
21 The longest period Bartz waited for a response (not including mailing time) was 11 days, only 6
of which were business days.
19
Consolidated Nos. 42478-9-II and 42485-1-II
therefore, it constituted a frivolous complaint for purposes of RCW 4.24.430, which prohibits
waiver of filing fees for prisoners seeking to file a third, or successive, frivolous PRA complaint.22
CP at 37. Bartz argues, and DOC concedes, that the superior court erred when it found his
second complaint ?frivolous.? We accept DOC?s concession.
At trial, DOC cited Daines v. Spokane County, 111 Wn. App. 342, 44 P.3d 909 (2002),23
in which Division Three of this court held that the former Public Disclosure Act did not provide
relief to a plaintiff who had the records ?in hand? before the lawsuit was filed. Daines, 111 Wn.
App. at 348. Although the superior court did not explicitly mention Daines, it apparently relied
on this decision when it explained that Bartz already had the emails he requested before filing his
complaint and, consequently, ruled that his lawsuit was ?frivolous.? VRP at 38. Since the
superior court?s reliance on Daines, however, the law has changed. In Neighborhood Alliance,
the Washington Supreme Court (1) rejected Division Three?s analysis and expressly overruled
Daines and (2) held instead that possession of the documents by the requesting party does not
relieve the agency of its duties under the PRA to provide such requested documents.
Neighborhood Alliance, 172 Wn.2d at 727. DOC?s concession comports with this recent
decision by our Supreme Court; therefore, we reverse the superior court?s ruling that Bartz?s
22 RCW 4.24.430 provides:
If a person serving a criminal sentence . . . seeks leave to proceed in state court
without payment of filing fees in any civil action or appeal against . . . a state or
local governmental agency[,] the court shall deny the request for waiver of the
court filing fees if the person has, on three or more occasions while incarcerated or
detained in any such facility, brought an action or appeal that was dismissed by a
state or federal court on grounds that it was frivolous or malicious.
23 Overruled by Neighborhood Alliance, 172 Wn.2d at 727.
20
Consolidated Nos. 42478-9-II and 42485-1-II
second complaint was frivolous and we hold that it does not count as a frivolous complaint for
RCW 4.24.430 purposes.
First Complaint; Superior Court Findings
Bartz also argues that in his first complaint, Cause No. 10-2-02314-1, the superior court
erred in finding that DOC complied with his three public records requests. He asserts that the
records he received in response were incomplete, repetitious, and missing documents that he
knew existed. This argument fails.
A. Standard of Review
We review de novo challenges to agency actions under the PRA. Neighborhood Alliance,
172 Wn.2d at 715 (citing RCW 42.56.550(3)). On review, we take into account the PRA policy
that free and open examination of public records is in the public interest, even if it may cause
inconvenience or embarrassment. RCW 42.56.550(3).
The adequacy of an agency?s records search is judged by a ?standard of reasonableness,
that is, the search must be reasonably calculated to uncover all relevant documents.?
Neighborhood Alliance, 172 Wn.2d at 720 (citing Weisberg v. U.S. States Dep?t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983)). ?What will be considered reasonable will depend on the facts
of each case.? Neighborhood Alliance, 172 Wn.2d at 720 (citing Weisberg, 705 F.2d at 1351).
Agencies are required to perform more than a perfunctory search and to follow obvious leads, as
they are uncovered. Neighborhood Alliance, 172 Wn.2d at 720 (citing Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). Based on the facts here, we hold that DOC
reasonably complied with Bartz?s PRA requests.
21
Consolidated Nos. 42478-9-II and 42485-1-II
B. DOC Responses to PRA Requests
1. First PRA request
Bartz contends that in response to his first PRA request for six groups of information
(PDU-7362), DOC did not provide complete responses for any of the requests and the
information it did provide was full of repetitions and ?bloat.? Br. of Appellant at 3. The record
shows otherwise that Bartz paid for and received a complete response in two installments to his
first PRA request. When Bartz complained about duplications in DOC?s response and threatened
to file a lawsuit, DOC again responded, this time informing him that its previous response had
been complete and that he had an option to appeal.
Bartz neither refuted DOC?s assertion about having fulfilled his first PRA request nor filed
an appeal; thus, DOC was free to assume that its second installment had fully addressed Bartz?s
concerns. In contrast, Bartz provided only bald assertions that DOC did not provide an adequate
response to his first PRA request. Accordingly, we affirm the superior court?s finding that DOC
complied with Bartz?s first PRA request.
2. Second PRA Request
Bartz next contends that DOC?s response to his second PRA request was not complete
because it failed to produce two emails between DOC staff that he alleged existed. We have
already held that the statute of limitations barred his second complaint, which was based on this
claim. Therefore, we do not consider the merits of this claim.
3. Third PRA Request
Bartz also contends, for the first time on appeal, that DOC?s response to his third PRA
22
Consolidated Nos. 42478-9-II and 42485-1-II
request for tort claim information was ?piecemealed in a time frame that would have taken at least
2 to 3 years to complete? and that the trial court erred in determining that this piecemeal response
was consistent with the PRA?s intent. Br. of Appellant at 3. This argument also fails.
The PRA allows the superior court to require an agency to show that its time estimate for
responding to a PRA request is reasonable, placing the burden of proof on the agency. RCW
42.56.550(2) provides:
Upon the motion of any person who believes that an agency has not made a
reasonable estimate of the time that the agency requires to respond to a public
record request, the superior court in the county in which a record is maintained
may require the responsible agency to show that the estimate it provided is
reasonable. The burden of proof shall be on the agency to show that the estimate
it provided is reasonable.
Contrary to Bartz?s assertions, the record shows that DOC provided a reasonable estimate
of time for its response to Bartz?s request, based on the following circumstances: Within five
business days of Bartz?s third PRA request, DOC responded that, because his request had
generated over 1,000 files, it needed clarification about what specific information Bartz was
seeking. Five weeks after receiving clarification from Bartz, DOC?s Public Disclosure Unit
directed Bartz to its Office of Financial Management, which had records that were more
responsive to his request. But the record does not show that Bartz contacted DOC?s Office of
Financial Management; instead, he responded to DOC that he wanted all of the documents that its
Public Disclosure Unit had available. Six business days later, DOC responded with a letter
informing Bartz that it would review the records for exemptions and then respond with the status
of the request within 35 business days. When Bartz complained about this additional time, DOC
23
Consolidated Nos. 42478-9-II and 42485-1-II
informed Bartz about his right to appeal.
Bartz appealed, complaining about the time DOC needed to respond to his third PRA
request. The DOC?s Public Disclosure Appeals Office found the time frame appropriate and
reasonable; it also told Bartz to expect further communication from DOC on or before March 4.
On March 4, DOC informed Bartz that it would need 15 additional business days for further
review. On March 9, DOC informed Bartz the documents had been reviewed and were ready for
delivery.
Bartz sent his payment, and DOC sent the documents within a week. DOC prepared the
second installment of documents and sent it within a week of receiving Bartz?s next payment.
DOC did not send Bartz a third installment because he did not send in the required payment.
Bartz complains generally about the length of the time it took DOC to respond; but he
cites no authority for his assertion that DOC?s installment delivery method or amount of time was
unreasonable under the circumstances. On the contrary, the PRA specifically allows DOC to
make records disclosures on a ?partial or installment basis.? RCW 42.56.550(6). Bartz does not
show that DOC?s installment response to this third PRA request was inadequate; instead, he
baldly asserts that these responses were full of ?bloat.? Br. of Appellant at 3. Nor was he entitled
to receive the third prepared installment because he did not pay the required copying and
processing fee. For these reasons, we affirm the superior court?s finding that DOC?s response to
Bartz?s third PRA request was adequate.
C. Alleged Bad Faith
Bartz argues that DOC acted in ?bad-faith? when it failed to conduct a thorough search
24
Consolidated Nos. 42478-9-II and 42485-1-II
and failed to disclose fully all records, entitling him to compensation under the PRA. Br. of
Appellant at 12. Having held that DOC?s responses to Bartz?s PRA requests were reasonable and
adequate, we do not address this argument because he has not prevailed and he cannot show he is
entitled to compensation for filing his PRA complaints under RCW 42.56.550(4).24 For similar
reasons, we need not address his argument that RCW 42.56.565(1)25 is unfair.
We affirm the superior court?s findings for DOC on Bartz?s first complaint, affirm the
superior court?s dismissal with prejudice of Bartz?s second complaint, and reverse the superior
court?s conclusion that Bartz?s second complaint was frivolous and that it counted as a prior
complaint under RCW 4.24.430.
Hunt, P.J.
We concur:
24 RCW 42.56.550(4) provides:
Any person who prevails against an agency in any action in the courts
seeking the right to inspect or copy any public record or the right to receive a
response to a public record request within a reasonable amount of time shall be
awarded costs, including reasonable attorney fees, incurred in connection with
such legal action. In addition, it shall be within the discretion of the court to award
such person an amount not to exceed one hundred dollars for each day that he or
she was denied the right to inspect or copy said public record.
25 RCW 42.56.565(1) provides:
A court shall not award penalties under RCW 42.56.550(4) to a person
who was serving a criminal sentence in a state, local, or privately operated
correctional facility on the date the request for public records was made, unless the
court finds that the agency acted in bad faith in denying the person the
opportunityto inspect or copy a public record.
(emphasis added). This section of the statute took effect July 22, 2011, the date of the bench
trial. Laws of 2011, ch. 300, §§ 1-2.
25
Consolidated Nos. 42478-9-II and 42485-1-II
Van Deren, J.
Bridgewater, J.P.T.
26