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Washington Public Disclosure Act: DOC Employee Evaluations Unavailable Absent Misconduct

Washington Public Disclosure Act: DOC Employee Evaluations Unavailable
Absent Misconduct

The Court of Appeals of Washington, Division 2, held that absent
misconduct, a Washington Department of Corrections employee's personnel
records were not disclosable under the Public Disclosure Act (PDA), chapter
42.17 RCW.

Without alleging misconduct, William D. Bacon requested Stafford Creek
Correctional Unit Supervisor Dan Van Ogle's employee performance
evaluations pursuant to the PDA. Bacon's request was denied because he did
not cite specific instances of misconduct.'" Bacon subsequently sued, pro
se, the Washington Department of Corrections (DOC) for refusing to disclose
the requested information. The Superior Court of Grays Harbor County
"denied Bacon's request for an order to show cause," and later denied him
"'any further relief in this action."' Bacon appealed.

The Court of Appeals affirmed holding: 1) The DOC's one day delay in
responding to Bacon's request (over the general five business day rule for
providing a response) in order to clarify "his request and to accommodate
the Correctional Records Manager's shift schedule was reasonable" and
permissible under the FDA. 2) Failure to provide Bacon with a reasonable
estimate of the time it would take to respond to his request (it took 44
days) was inconsequential since the DOC provided him with the name,
telephone number, and address of a contact person. 3) Van Ogle's
performance evaluations were "exempt from disclosure because they
[contained] no specific instances of misconduct," RCW 42.17.020(36). 4) The
DOC did not violate its own policy by refusing to provide Van Ogle's
employee evaluations as, like the RCW, it also exempted "employee
evaluations from disclosure where there are no instances of misconduct...."
5) Bacon was not entitled to any fees as he did not prevail in the trial
court or on appeal. See: Bacon v. Department of Corrections, 2002 WL 1825427 (Wash. App. Div. 2)

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Related legal case

Bacon v. Department of Corrections

Bacon v. Washington Department of Corrections, 113 Wash.App. 1007, 113 Wash.App. 1007 (Wash.App.Div.2 08/09/2002)


[2] No. 27811-1-II

[4] August 9, 2002


[6] SOURCE OF APPEAL Appeal from Superior Court of Grays Harbor County Docket No: 002015255 Judgment or order under review Date filed: 10/17/2001 Judge signing: Hon. Gordon L. Godfrey

[7] Counsel OF Record Counsel for Appellant(s) William D. Bacon (Appearing Pro Se) #939371 P.O. Box 881000 Steilacoom, WA 98388Ë1000

[8] Counsel for Respondent(s) Ronald A. Gomes Asst Atty General PO Box 40116 Olympia, WA 98504-0116

[9] The opinion of the court was delivered by: J. Robin Hunt


[11] William D. Bacon appeals the trial court's ruling that the Department of Corrections (DOC) did not violate the Public Disclosure Act (Act) when it denied his request for disclosure of an employee's performance evaluations. Holding that absent misconduct, an employee's personnel records are not disclosable under the Act, we affirm.

[12] FACTS

[13] On October 31, 2000, Bacon requested disclosure of Stafford Creek Correctional Unit Supervisor Dan VanOgle's employee performance evaluations under the Public Disclosure Act, chapter 42.17 RCW. Bacon does not allege misconduct.

[14] On November 8, 2000, Correctional Records Manager, Sue Schuler, wrote Bacon that she was working on his request and 'once {she had} the disclosable information . . . {she would} make the arrangements for {him} to view the documents.' Clerk's Papers (CP) at 85.

[15] On December 12, 2000, DOC's Human Resource Manager, Sandra Deckard, denied Bacon's request, citing the Act's exemption for no 'specific instances of misconduct.' CP at 88, 110; RCW 42.17.310(1)(b). As Deckard explained in her letter to Bacon, VanOgle's performance evaluations 'meet{} or exceed{} expectations' and contain no instances of misconduct. CP at 89-109.

[16] On December 18, 2000, Bacon filed a complaint in superior court challenging DOC's denial. On July 31, 2001, the trial court denied Bacon's request for an order to show cause.

[17] On August 9, 2001, the court clarified its ruling, stating, '{The court is} satisfied that the {S}tate complied with appropriate and reasonable disclosure of {Bacon's} requested documents pursuant to RCW 42.17 . . . and {Bacon's} initial request for public disclosure.' CP at 128. The court also denied Bacon 'any further relief in this action.' CP at 128.

[18] On October 16, 2001, the trial court entered its final ruling. Bacon appeals.


[20] I. Standard of Review

[21] We review an agency action under the Act de novo. RCW 42.17.340(3).*fn1 Both parties agree that here, where the record on appeal consists solely of affidavits, memoranda of law, and other documentary evidence, we stand in the same position as the trial court. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994).

[22] II. Response Time

[23] A. Five Business Days

[24] Bacon argues that DOC had to provide a response to his request within five business days, citing RCW 42.17.320:

[25] Responses to requests for public records shall be made promptly by agencies . . . . Within five business days of receiving a public record request, an agency, . . . must respond by either (1) providing the record; (2) acknowledging that the agency . . . has received the request and providing a reasonable estimate of the time the agency . . . will require to respond to the request; or (3) denying the public record request. RCW 42.17.320 (emphasis added).

[26] The statute goes on, however, to provide:

[27] Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request. RCW 42.17.320 (emphasis added).

[28] DOC agrees that the Act requires it to respond timely to requests for public documents. It contends, however, that it did so here by responding on the sixth business day after receiving Bacon's request and that its one-day delay for clarification of his request and to accommodate the Correctional Records Manager's shift schedule was reasonable. We agree.

[29] B. Estimate

[30] Bacon argues that DOC's initial response should have included a reasonable estimate of the time it needed to respond. See RCW 42.17.320(2). The State responds that Bacon could have contacted the Correctional Records Manager for clarification or brought a motion for the State to define 'reasonable estimate of time.' RCW 42.17.320(2). We agree with Bacon that the statute appears to call for some type of time estimate -- for example, from 10 days to three weeks. But we also agree with the State that the trial court did not err in finding that DOC responded within a reasonable time and within its initial reasonable forecast. The statute requires DOC to provide a reasonable estimate of the time the agency will require to respond to the request, but not a specific time. See Ockerman v. King County Dept. of Dev. & Envtl. Servs., 102 Wn. App. 212, 6 P.3d 1214 (2000) (public records portion of Act does not require agency to provide written explanation of its reasonable time estimate when it does not provide the records within five days of the request).

[31] Here, although DOC did not specify the amount of time it would need to review Bacon's request, it did provide him with the name of a contact person, Ms. Schuler, as well as her address and her telephone number for additional inquiries. And DOC's letter to Bacon indicated that (1) the Records Manager was 'working on' his request, and (2) 'once' disclosable information was available, arrangements would be made to provide the information to Bacon. CP at 85. Nothing in the letter indicates that there would be a substantial delay. Rather, it appears that DOC did not know exactly how long it would take to locate and to review the requested records before disclosing them. If Bacon needed a specific time estimate, he could have contacted Schuler; apparently Bacon did not.

[32] Ultimately, DOC reviewed VanOgle's evaluations and denied Bacon's request 44 days later in a second letter of explanation dated December 12, 2000. RCW 42.17.320(3). The trial court did not err when it determined that DOC timely responded to Bacon's public disclosure request.

[33] III. Performance Evaluations Lacking Misconduct -- Exempt from Disclosure

[34] A. Exemption

[35] Bacon next contends that DOC violated the Act when it failed to disclose VanOgle's performance evaluations. DOC agrees with Bacon that an employee's performance evaluations are public records within the meaning of RCW 42.17.020(36)*fn2. But DOC argues and we agree that VanOgle's specific employee evaluations are exempt from disclosure because they contain no specific instances of misconduct. See Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993).

[36] It is well settled in this state that while 'balancing of the employee's privacy interest against the public interest' is not allowed under RCW 42.17.255,*fn3 the court must balance 'the public interest in disclosure against the public interest in the 'efficient administration of government.' Dawson, 120 Wn.2d at 798 (quoting RCW 42.17.010(11)). We agree with the trial court's balancing of these latter two public interests. In its administration of the correctional environment, DOC strives to maintain 'employee morale' and to foster 'candid evaluations' of the 'quality of the public employee performance{.}' Dawson, 120 Wn.2d at 799 (citations omitted). '{D}isclosure of {employees'} performance evaluations, which do not discuss specific instances of misconduct, is presumed to be highly offensive within the meaning of RCW 42.17.255.' Dawson, 120 Wn.2d at 797. Having reviewed in camera VanOgle's evaluations, we see no instances of misconduct; accordingly, we agree with the trial court that the evaluations are exempt from disclosure under the Act. Dawson, 120 Wn.2d at 797;*fn4 see supra note 3; see also DOC Policy 280.510(2)(a)(2).

[37] B. DOC Policy 280.510(2)(a)(2)

[38] Bacon next asserts that DOC violated its own policy when it failed to disclose VanOgle's records. We disagree.

[39] The relevant DOC policy provides:

[40] (2)(a) . . . .

[41] Not all information contained in the personnel evaluations and personnel records of employees is exempt from disclosure:

[42] (2) Release of information concerning public job performance includes release of employee performance evaluations in instances where 'specific instances of misconduct' concerning a specific employee are involved. Although 'specific instances of misconduct' has not been defined, these are not situations where employee shortcomings and praise are merely involved; but are situations where actual corrective or disciplinary actions occur. Where no specific instances of employee misconduct occur, then the request for disclosure should be denied unless the employee involved has authorized disclosure. DOC Policy 280.510(2)(a)(2); CP 31-32.

[43] This DOC policy follows the guidelines of RCW 42.17.020(36)*fn5 and RCW 42.17.255*fn6 in exempting employee evaluations from disclosure where there are no instances of misconduct, in that absent misconduct, an employee's performance evaluation is not of legitimate interest to the public. Again, the trial court did not err in ruling that VanOgle's evaluations were exempt from disclosure.

[44] IV. Fees

[45] Finally, Bacon asserts that he is entitled to statutory fees under RCW 42.17.340(4)*fn7 and fees on appeal under RAP 18.1(a) and (b). Because he has not prevailed in the trial court or on appeal, he is not entitled to any fees. Accordingly, we deny his request.

[46] Affirmed.

[47] A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

[48] We concur:

[49] Morgan, J.

[50] Quinn-Brintnall, J.

Opinion Footnotes

[51] *fn1 RCW 42.17.340(3) provides: Judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo. Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Courts may examine any record in camera in any proceeding brought under this section. The court may conduct a hearing based solely on affidavits.

[52] *fn2 'Public record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.' RCW 42.17.020(36).

[53] *fn3 A person's 'right to privacy,' 'right of privacy,' 'privacy,' or 'personal privacy,' as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records. RCW 42.17.255.

[54] *fn4 We decline Bacon's invitation to follow the narrow holding of Spokane Research & Def. Fund v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000). In that case, a nonprofit corporation sought to compel public disclosure of performance evaluation summaries prepared for a city manager. Division Three held that the performance evaluations of the City's chief executive officer, its leader and a public figure, were not protected from public disclosure by the employee privacy exemption. Spokane Research & Def. Fund, 99 Wn. App. at 457. In contrast, VanOgle is not a high profile public official. He was neither Stafford Creek's executive officer nor its leader.

[55] *fn5 See supra note 2.

[56] *fn6 See supra note 3.

[57] *fn7 RCW 42.17.340(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 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 less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record.