Opinion Information Sheet
| Docket Number: | 35469-1 |
| Title of Case: | Allan Parmelee, Appellant V. Laura Mathieu Et Al, Respondents |
| File Date: | 07/29/2010 |
| Appeal from Clallam Superior Court | |
| Docket No: | 06-2-00637-5 |
| Judgment or order under review | |
| Date filed: | 09/19/2006 |
| Judge signing: | Honorable Kenneth Day Williams, Gary Tabor, Brian Coughenour, William Knebes, |
| Authored by | Christine Quinn-Brintnall |
| Concurring: | David H. Armstrong |
| C. C. Bridgewater |
Counsel for Appellant(s) | |
| Hank L Balson | |
| Public Interest Law Group, PLLC | |
| 705 2nd Ave Ste 1000 | |
| Seattle, WA, 98104-1741 | |
| Michael Charles Kahrs | |
| Kahrs Law Firm PS | |
| 5215 Ballard Ave Nw Ste 2 | |
| Seattle, WA, 98107-4838 | |
Counsel for Respondent(s) | |
| Sara J Di Vittorio | |
| Attorney Generals Office | |
| Po Box 40116 | |
| Olympia, WA, 98504-0116 | |
| Daniel John Judge | |
| Attorney General's Office | |
| Po Box 40116 | |
| Olympia, WA, 98504-0116 | |
| Sgt. Gerald Banner (Appearing Pro Se) | |
| C/o Sgt. Gerald Banner | |
| Clallam Bay Corr Center | |
| 1830 Eagle Crest Way | |
| Clallam Bay, WA, 98326 | |
Amicus Curiae on behalf of Attorney General State of Washin | |
| Robert M. Mckenna | |
| Attorney General's Office | |
| Po Box 40100 | |
| Olympia, WA, 98504-0100 | |
| Maureen A. Hart | |
| Attorney at Law | |
| 1125 Washington St Se | |
| Po Box 40100 | |
| Olympia, WA, 98504-0100 | |
Amicus Curiae on behalf of Wa COAlition for Open Government | |
| William John Crittenden | |
| Attorney at Law | |
| 300 E Pine St | |
| Seattle, WA, 98122-2029 | |
| Patrick Denis Brown | |
| Attorney at Law | |
| 6112 24th Ave Ne | |
| Seattle, WA, 98115-7029 | |
Amicus Curiae on behalf of American Civilliberties Union of | |
| Peter Anthony Danelo | |
| Attorney at Law | |
| 2021 1st Ave Apt C14 | |
| Seattle, WA, 98121-3113 | |
| Joshua Bacon Selig | |
| Byrnes Keller Cromwell LLP | |
| 1000 2nd Ave Ste 3800 | |
| Seattle, WA, 98104-1062 | |
| Nancy Lynn Talner | |
| Attorney at Law | |
| 901 5th Ave Ste 630 | |
| Seattle, WA, 98164-2008 | |
| Melissa R. Lee | |
| Columbia Legal Services, Institutions Pr | |
| 101 Yesler Way Ste 300 | |
| Seattle, WA, 98104-2528 | |
Counsel for Other Parties | |
| Michael Charles Kahrs | |
| Kahrs Law Firm PS | |
| 5215 Ballard Ave Nw Ste 2 | |
| Seattle, WA, 98107-4838 | |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LT. DELONG, SGT. AHRENS, SGT. No. 35469-1 -II
MCHAFFIE, SGT. BICK, SGT. FOULKES,
SGT. BANNER, SGT. BLANKENSHIP, SGT.
MATHIEU, C/O PADGETT, C/O REAMES,
C/O JUDD, C/O SANDNESS, C/O CORNISH
(Consolidated with 35561-2-II
and 36933-8-II)
Respondents,
v.
INMATE PARMELEE, ALLAN DOC PUBLISHED OPINION
#793782, AFTER REMAND FROM THE
WASHINGTON SUPREME COURT
Appellant,
v.
KAREN BRUNSON; HAROLD CLARKE,
Respondents.
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
T. DeLONG, D. AHRENS, J. McHAFFIE, R.
FOULKES, G. BANNER, K. BANNER, R.
BLANKENSHIP, R. PADGETT, N.
CORNISH, M. DEDMAN, S. DIIMMEL, G.
SANDNESS, K. McKENNEY, E.
RICHARDSON, C. RIDDLE, P. RIDDLE, G.
OLEKAS, JR., L. LAVOIE, S. WEED, G.
NEWTON, J. ERNST, V. ATTWOOD, S.
MILSTEAD, S. TOOHEY, H. ROMERO, C.
ROENING, D. HEAWARD, B. DACUS, L.
SCROGGINS, D. TRACY, D. WINTERS, C.
NESBITT, R. O?NEEL, C. HATT, B. HATT,
B. PEDERSON, J. SMITH, J. MASON, B.
McGARVIE, K. McTARSNEY, V. ADAMS,
E. LEVERINGTON, J. REYES, L.
SHEPHERD, C. RITTER, SR., S.
VOGTMAN, B. McLEAN, R.
CHRISTENSEN, M. CHRISTENSEN, A.
MOSELEY, C. CURRINGTON, T.
GERMEAU, J. PALMER, J. IVEY, M.
ERLENMEYER, M. KERRONE, J. BERRY,
J. KUYKENDALL, K. RUSSELL, G.
EPLING, R. LEONARD, J. PEARSON, T.
PERRY, D. WEAVER, K. BOWEN, L.
WACHENDORF, C. FRIESZ, A. SANDE, J.
WASANKARI, S. HENDERSON, G.
BELLAMY, J. AKIN, F. AMSDILL, R.
ARMACOST, A. BOE, R. CASE, J. IDES, D.
BUCHMANN, M. CUMMINGS, S.
CUMMINGS, V. BUTTRAM, T. ESHOM, J.
NAGY, G. NICHOLAS JR., T. JEROME, W.
KEYS, S. SCHWENKER, H. SCHWENKER,
B. SPRAGUE, M. SWISHER, R. CAULKINS,
S. BROWN, D. DELEON JR., D. HARKINS,
A. MILLER, A. DAVIS, J. WASNOCK, J.
KETTEL, J. THAYER, C. BONE, M.
SUKERT, R. NEIUKOOP, P. BLANTON, A.
HESS, R. CURRINGTON, D. TABER, D.
TEACHOUT, F. TEACHOUT, L. ADAMIRE,
P. HEADLEY, C. TOWNE, T.
McNAUGHTON, C. LARA, R. BINGHAM,
G. SUKERT, E. REETZ, C. KLOCK, D.
NORMAN, R. BROUSSARD, H. MULLEN,
R. SCHIMETZ, N. PENCE, H. LEE, R.
STEVENS, and H. NGUYEN, 2
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
Respondents,
v.
DEPARTMENT OF CORRECTIONS OF
THE STATE OF WASHINGTON,
Respondent,
v.
ALLAN PARMELEE,
Appellant.
THE WASHINGTON STATE
DEPARTMENT OF CORRECTIONS,
Respondent,
v.
ALLAN W. PARMELEE,
Appellant.
Quinn-Brintnall, J. ? Having reconsidered our prior opinion, filed July 29, 2010, as
directed by a notation order of the Supreme Court that remanded the case for reconsideration in
light of RCW 42.56.565 and Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010),
we dismiss this appeal as moot.
Facts
This appeal concerns three consolidated cases in which Allan Parmelee, a prison inmate,
challenges injunctions preventing him from obtaining Department of Corrections (DOC) records
under the Public Records Act (PRA), ch. 42.56 RCW: DeLong v. Parmelee, No. 06-2-00637-5
3
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
(Clallam County Super. Ct., Wash. Sept. 19, 2006) (when referring to this case on appeal, we will
call it Mathieu v. Parmelee to avoid confusion with cause no. 06-2-00878-5); DeLong v. Dep?t of
Corr., No. 06-2-00878-5 (Clallam County Super. Ct., Wash. Nov. 2, 2006); and Dep?t of Corr. v.
Parmelee, No. 06-2-01406-2 (Thurston County Super. Ct., Wash. Jan. 29, 2007).
In all three cases, Parmelee argues that the superior courts erred in finding DOC employee
photographs excluded from the PRA under its privacy exemption. In addition, Parmelee argues in
Mathieu v. Parmelee1 that he did not have a meaningful opportunity to participate in the
injunction proceedings and that the trial court erred in finding DOC employment records
categorically exempt from disclosure under the PRA. In DeLong v. Department of Corrections,2
Parmelee argues that the injunction action should be dismissed because he was not joined as a
necessary party or allowed to intervene, and he challenges the trial court?s decision to take judicial
notice of the facts in Mathieu v. Parmelee. In Department of Corrections v. Parmelee,3 Parmelee
contends that the trial court improperly considered his intended use of the employee photographs
in determining whether they were subject to disclosure, and he also argues that the PRA
injunction statute, RCW 42.56.540, permits trial courts to enjoin only the disclosure of documents
that are otherwise statutorily exempt from disclosure.
Parmelee now concedes that recent developments in the law have undermined his ability to
obtain relief from any of the rulings challenged above.
Analysis
1 Mathieu v. Parmelee (cause no. 35469-1-II).
2 DeLong v. Dep?t of Corr. (cause no. 35561-2-II) (DeLong v. DOC).
3 Dep?t of Corr. v. Parmelee (cause no. 36933-8-II) (DOC v. Parmelee).
4
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
Effect of RCW 42.56.565 and Resulting Injunction
In 2009, the legislature enacted RCW 42.56.565. RCW 42.56.565(2) allows courts to
enjoin the ?inspection or copying of any nonexempt public record by persons serving criminal
sentences in state, local, or privately operated correctional facilities? if the court finds
(i) [t]he request was made to harass or intimidate the agency or its
employees;
(ii) Fulfilling the request would likely threaten the security of correctional
facilities;
(iii) Fulfilling the request would likely threaten the safety or security of
staff, inmates, family members of staff, family members of other inmates, or any
other person; or
(iv) Fulfilling the request may assist criminal activity.
RCW 42.56.565(2)(c). Courts may ?enjoin all or any part of a request? for public records in the
above quoted circumstances, and they also may enjoin future requests by the same requestor for a
reasonable period of time. RCW 42.56.565(4); Burt v. Dep?t of Corrections, 168 Wn.2d 828,
837 n.9, 231 P.3d 191 (2010). An agency is not liable for PRA penalties while an injunction
under this statute is in effect, including the time it is under appeal, regardless of the appeal?s
outcome. RCW 42.56.565(5).
The legislature added a provision to RCW 42.56.565 that took effect on July 22, 2011.
Laws of 2011, ch. 300, § 1. This new provision bars an award of penalties under RCW
42.56.550(4) to a person serving a criminal sentence in a state, local, or privately operated
correctional facility on the date of the public records request ?unless the court finds that the
agency acted in bad faith in denying the person the opportunity to inspect or copy a public
record.? RCW 42.56.565(1). In a second section of the bill, the legislature noted, ?This act
applies to all actions brought under RCW 42.56.550 in which final judgment has not been entered
5
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
as of the effective date of this section.? Laws of 2011, ch. 300, § 2. RCW 42.56.550(4)
otherwise requires trial courts to impose penalties for PRA violations. Kitsap Cy. Prosecuting
Attorney?s Guild v. Kitsap County, 156 Wn. App. 110, 118, 231 P.3d 219 (2010).
On November 13, 2009, the Thurston County Superior Court granted DOC, the Attorney
General?s Office (AGO), and other state agencies a five-year injunction against Parmelee under
RCW 42.56.565.4 The court enjoined Parmelee ?from inspecting, copying, or receiving records
not yet provided to him that are responsive to any and all PRA requests he has submitted to the
[DOC, AGO], or any other agency of the State of Washington.? Suppl. Br. of Appellant, Ex. A,
at 11. Under the injunction, no state agency has an obligation under the PRA ?to further search
for, preserve, or in any other way process records responsive to Mr. Parmelee?s PRA requests,
including all requests submitted to the [DOC and AGO] as of the date of this Order.? Suppl. Br.
of Appellant, Ex. A, at 12. Although the injunction prevents Parmelee from inspecting, copying,
or receiving records responsive to his pending requests, it states that it does not resolve the
injunction?s effect on claims for statutory penalties and/or costs pending in other superior or
appellate court actions between the parties.
DOC contends that the 2009 injunction renders this case moot. A case is moot when it
involves only abstract principles or questions, the substantive questions in the trial court no longer
exist, or a court can no longer provide effective relief. Spokane Research & Def. Fund v. City of
Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005). Parmelee appears to concede that the
4 Parmelee attaches a copy of the Thurston County order to his brief but has not made it part of
the record in this case. We take judicial notice of the order under RAP 7.3 (granting appellate
courts authority to perform all acts necessary or appropriate to secure the fair and orderly review
of a case). We have no record of an appeal from this order.
6
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
substantive issues he raises are moot, as he states that ?vacating the injunction in DOC v.
Parmelee and remanding the case for further proceedings likely will not result in DOC being
required to produce copies of the employee [identification] photos Mr. Parmelee requested.?
Suppl. Br. of Appellant at 7-8 n.1.5 He argues, however, that a remand is required so that the
trial court may determine the penalties and fees to which he is entitled under the PRA.
But if Parmelee is not entitled to the DOC records he requests, he is not entitled to
penalties. The PRA requires a party to show that he has the right to obtain the requested records
to recover penalties under RCW 42.56.550(4), and the 2009 injunction bars Parmelee from
obtaining DOC records. Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 809, 246
P.3d 768 (2011). Furthermore, the recent amendment to RCW 42.56.565(1) bars an inmate?s
recovery of PRA penalties unless the agency acted in bad faith. The 2009 injunction preventing
the production of the same documents Parmelee seeks here shows that the DOC did not deny
disclosure in bad faith, thereby foreclosing his recovery of penalties under the PRA.
Although we have previously stated that disclosure is a prerequisite for an award of
attorney fees under RCW 42.56.550(4), we qualify that statement here. See City of Lakewood v.
Koenig, 160 Wn. App. 883, 896, 250 P.3d 113 (2011). RCW 42.56.550(4) provides that
[a]ny 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 all
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.
5 The Washington Coalition for Open Government agrees in its amicus brief that the Thurston
County injunction will prevent Parmelee from obtaining the records he seeks in this case.
7
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
Under the first sentence of this provision, costs and attorney fees may be awarded for
vindicating ??the right to inspect or copy?? or ??the right to receive a response.?? Yakima County,
170 Wn.2d at 809 (internal quotation marks omitted) (quoting Sanders v. State, 169 Wn.2d 827,
860, 240 P.3d 120 (2010)). By contrast, penalties are authorized only for improper denials of the
?right to inspect or copy,? as specified in the second sentence of RCW 42.56.550(4). Sanders,
169 Wn.2d at 860. In Yakima County, the newspaper was entitled to costs and fees because the
county was equivocal about its possession of responsive records and, instead of identifying those
records, forced the paper to file a court action. 170 Wn.2d at 809. In Sanders, the State?s failure
to provide a brief explanation of the claimed exemptions added to the fees and costs imposed.
169 Wn.2d at 848.
Parmelee complained in the Mathieu v. Parmelee case that DOC?s response to his PRA
request was untimely, incomplete, and evasive. This is the only one of the three consolidated
cases in which he filed a PRA complaint. On appeal, Parmelee does not complain about the
timing or content of DOC?s response; his complaint concerns DOC?s failure to disclose the
records he requested because of the trial court?s permanent injunction. Consequently, we need
not remand for the determination of either costs or penalties, as neither award is justified here.
Because the Thurston County injunction entered under RCW 42.56.565 prevents us from
granting Parmelee the relief he seeks as a matter of law, we dismiss this appeal as moot.6
QUINN-BRINTNALL, J.
We concur:
6 This resolution renders unnecessary any discussion of Seattle Times.
8
Consol. Nos. 35469-1-II / 35561-2-II / 36933-8-II
ARMSTRONG, P.J.
BRIDGEWATER, J.P.T.
9