2005 Wash. App. LEXIS 1834, *

JOHN R. BERG, Appellant, v. STATE OF WASHINGTON, Respondent.

54104-8-I (consolidated with 54880-8-I)

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2005 Wash. App. LEXIS 1834


July 25, 2005, Filed

OPINION


PER CURIAM. A violation of the Public Disclosure Act is not committed in bad faith if it results from negligence or reliance on a colorable, but ultimately invalid, justification for nondisclosure. In this appeal from a judgment awarding penalties for violations of the Act, John Berg contends the superior court erred in concluding that the Department of Corrections did not act in bad faith when it violated the Act. He also contends the court erred in denying his request for additional attorney's fees and costs.

Because the Department's violations were the result of negligence or reliance on colorable justifications for nondisclosure, the superior court did not err in concluding there was no bad faith. The court erred, however, in denying some of Berg's fees and costs. Accordingly, we affirm in part and reverse and remand in [*2] part.

FACTS

In September 2002, John Berg requested that the Department of Corrections disclose certain records relating to his friend Micah Miller, an inmate at the Monroe Correctional Complex. The vast majority of the documents were disclosed. Over the next 15 months, Berg repeatedly requested but either did not receive, or received redacted versions of, a small portion of the documents.

In May 2003, Berg filed the present action alleging violations of the PDA, RCW 42.17.320, and bad faith on the part of the Department. Berg sought $100.00 per day in damages plus all costs and attorney's fees.

In October 2003, the superior court ordered the Department to produce for in camera review both unredacted and redacted copies of all documents requested by and provided to Berg.

In December 2003, the Department produced the records but stated that "the record could not be recreated regarding the redactions of documents Mr. Berg received in the chronological order disclosed. Therefore, all documents responsive to the request have been compiled in unredacted form only." The Department conceded that all but two of the requested documents were subject [*3] to disclosure, stating:

The only documents that are exempt from disclosure are the LSI-R Risk Assessment and the RMI Identification Worksheet, both exempt under federal copyright law, 17 U.S.C. sec. et seq, and under a specific exemption, RCW 42.17.310(1)(d) [exempting "Specific intelligence information and specific investigative records . . . the nondisclosure of which is essential to effective law enforcement. . ."].



The Department argued that there was no Washington case addressing whether copyrighted material in the possession of a public agency is exempt from disclosure under the Public Disclosure Act. It claimed that the LSI-R and RMI Identification Worksheet were copyrighted forms used for risk assessment and that disclosure of those forms could reduce their effectiveness because inmates could tailor their answers to provide the most optimistic assessment of their risk of reoffense. The Department further argued that both were used to anticipate future criminal activity and therefore fell within the statutory exemption for specific intelligence information. 1

FOOTNOTES

1 RCW 42.17.310(1)(d).


[*4] In an oral ruling entered January 23, 2004, the superior court found that the Department had wrongfully withheld documents for 477 days, but concluded the withholding was not done in bad faith:

One of the things the record establishes here is that the requests have gone through many different hands in terms of different records and different requests and different efforts to comply. There's been foot dragging all the way around by the State.

I'm not finding that there is bad faith by the State because some of this is a bit complicated, but it certainly was a very disjointed effort at response.

The court imposed a penalty of $25.00 per day, or $11,925.00, for the failure to disclose documents between October 3, 2002, and January 23, 2004. The court also awarded Berg $9,577.38 in attorney's fees and $191.75 in costs through January 9, 2004.

The court rejected the Department's contention that the LSI Risk Assessment and RMI Identification Worksheet were exempt from disclosure. It noted that the Department did not dispute Berg's allegation that the RMI form was available on an Internet cite for the Washington State Institute of Public Policy. The court found that any [*5] copyright protection in the documents was outweighed by inmates' constitutional rights, but agreed "that providing disclosure of that which may then be subject to further disclosure to everyone in the institution is a concern that is well-founded." As for the "specific intelligence" exemption, the court concluded as follows:

I certainly agree that there are cases where the disclosure of information about reporting parties or particularly sensitive information or intelligence information about criminal activity or criminal associates . . ., certainly would warrant judicial protection. I don't find there's a sufficient showing here with respect to these records. While it may be argued and I accept the notion that the completion of these risk management assessment tools and the designation may fall within the ambit of intelligence information, it is not of the same nature of criminal intelligence information as would be occurring, for example, in an undercover drug investigation . . . .

The court ruled that Berg and his counsel could inspect the LSI and RMI documents and ordered Berg's counsel to provide a status report in 60 days. The court entered a written order on [*6] March 8, 2004.

Both parties moved for reconsideration. Berg asked the court to reconsider its finding that the Department had not acted in bad faith. The Department requested reconsideration of several portions of the court's ruling, including the wording of the findings relating to the LSI and RMI assessments.

On May 18, 2004, the court issued a letter ruling on reconsideration and subsequently reduced that ruling to an order. The court amended its findings in accordance with the Department's argument, but did not alter its award. As to bad faith, the court's letter ruling stated:

I've not been able to evaluate what was redacted from various records in relation to good faith or bad faith. I have reviewed the balance of Mr. Magneson's argument, which he has supported by references to various documents or conduct. It is not bad faith to redact portions of a record that are felt to place an employee at risk of harm or retaliation, even if that decision happens to be erroneous. Despite the delays in producing records, even after the Court order of October 3, 2003, I still [d]o not find that the late disclosures or nondisclosures were motivated by bad faith.



On May 6, 2004, Berg [*7] moved for a review hearing regarding the Department's compliance with the court's March 8, 2004, order. Berg alleged the Department had failed to provide inspection and copying of a 5 x 7 card until April 12, 2004, and requested additional daily penalties, attorney's fees, and costs.

On May 24, 2004, the court denied Berg's motion for additional attorney's fees, stating:

I don't think that the delay since the last order was entered in terms of the disclosure of materials or particularly the 5 by 7 card . . . was occasioned by the Department. Much of that delay was delay in getting an appropriate form of an order entered and, thereafter, delay in getting an appointment where the original card was maintained so that it could be viewed.

I don't find that is an action on the part of the State in terms of delay . . . that would warrant an award of additional penalties or attorney fees. And much of the attorney fees, I think, occasioned here were incurred incidental to the motion for reconsideration which was, for the most part, denied.

Berg moved for reconsideration, which the court denied. He appeals.

DECISION

I.

Berg contends the court's conclusion that the Department [*8] did not act in bad faith is supported by inadequate findings and is contrary to the evidence. Whether the Department acted in bad faith is a mixed question of law and fact. 2 We review the court's findings regarding the actions and intent of Department personnel for substantial evidence. 3 Whether those findings demonstrate bad faith is a question of law we review de novo. 4

FOOTNOTES

2 Cf. Tapper v. State Employment Sec. Dep't, 122 Wn.2d 397, 403, 858 P.2d 494 (1993).

3 Tapper, 122 Wn.2d at 403.

4 Id.


In this context, "bad faith" exists when the State knows it has records that should be disclosed, but intentionally, and without justification, fails to disclose them. 5 Negligence does not demonstrate bad faith. 6 Nor does reliance on an invalid basis for nondisclosure, so long as the basis is not "farfetched" 7 or asserted with knowledge of its invalidity. 8

FOOTNOTES

5 See Yousoufian v. Office of Ron Sims, 114 Wn. App. 836, 853, 60 P.3d 667 (2003), aff'd in part & reversed on other grounds in part, 152 Wn.2d 421, 98 P.3d 463 (2004). [*9]

6 Id.

7 King County v. Sheehan, 114 Wn. App. 325, 357, 57 P.3d 307 (2002).

8 Yousoufian, 114 Wn. App. at 852.


In his filings below and on appeal, Berg listed a number of acts and omissions that he claimed demonstrated bad faith. They included the erasure and/or destruction of records, invalid or omitted reasons for nondisclosure, false statements regarding knowledge of a document's location, delays in responding to Berg's requests, and silent redaction of documents without notification. Without directly addressing most of these arguments, the court concluded that the Department was not motivated by bad faith. Berg contends the court erred in failing to specifically address each of the alleged instances of bad faith in its findings, and in concluding that they did not demonstrate bad faith. We disagree.

Although more specific findings regarding bad faith would have assisted our review, it is clear from the court's oral and written rulings that it concluded the violations were either the result of negligence or intentional conduct motivated by [*10] erroneous, but colorable, justifications for nondisclosure. The record supports those conclusions. Most of the requested documents were disclosed early on, and while several of the reasons cited by the Department for nondisclosure were invalid, they were not so farfetched as to amount to bad faith. 9 The record discloses no "smoking gun" or desire on the part of the Department to "hide some dark secret." 10 Nor does it appear that the violations were due simply to "the cost and inconvenience of complying." 11 Rather, like the violations we addressed in Yousoufian, it appears the violations here resulted from "poor training, failed communication, and bureaucratic ineptitude." 12

FOOTNOTES

9 We note that the Department's claimed copyright exemption was partially valid because while copyright protections do not preclude inspection, they do preclude unauthorized copying, which Berg requested. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 267, 884 P.2d 592 (1994). In addition, the Department's alternative exemption for "specific intelligence" presented a colorable basis for nondisclosure. [*11]

10 Yousoufian, 114 Wn. App. at 853.

11 King County v. Sheehan, 114 Wn. App at 356.

12 Yousoufian, 114 Wn. App. at 853.


Berg argues that a "smoking gun" existed in evidence that the presentence investigation report was intentionally withheld and/or redacted because of safety concerns for the report's author. He alleges that the author made false statements about him in the report and then withheld and/or redacted the PSI in order to cover up those fabrications. But nothing in the record supports these allegations. And the court implicitly found that the PSI author's reluctance to release the PSI was motivated by concerns for her safety. The record supports that finding.

Berg also argues that the safety concerns were groundless, and therefore there was no good faith basis for redaction or nondisclosure. We disagree. The PSI report was highly critical of Berg, his relationship with the defendant, and his arguments at the defendant's sentencing for an exceptional sentence below the standard range. The report emphasized Berg's psychological [*12] control over the defendant, whose criminal history included a conviction for attempted arson and an assault. In these circumstances, we cannot say that the PSI author's safety concerns were groundless. The trial court correctly concluded that "[i]t is not bad faith to redact portions of a record that are felt to place an employee at risk of harm or retaliation, even if that decision happens to be erroneous." 13 We emphasize, however, that while such conduct is not bad faith, it is subject to penalties absent a legitimate statutory exemption.

FOOTNOTES

13 King County v. Sheehan, 114 Wn. App. at 357 (desire to protect police officers' safety, although not a valid reason for nondisclosure, was "not so farfetched as to constitute bad faith.").


Finally, Berg contends the superior court erred in failing to compare the redacted and unredacted versions of various documents in camera before deciding whether the Department acted in bad faith. Berg points out that in its letter ruling denying reconsideration, [*13] the court stated it had "not been able to evaluate what was redacted from various records in relation to good faith or bad faith." 14 He also points out that in its oral decision, the court concluded that this evaluation was moot once the Department conceded there were no valid exemptions for all but two of the documents. Berg contends the court was obligated to undertake that evaluation and was mistaken when it concluded the evaluation was moot. Berg misreads the record.

FOOTNOTES

14 It is unclear from this statement whether the court in fact evaluated some of the redactions for bad faith.


In its oral ruling, the court explained that the purpose of the in camera review had been to determine "whether various redactions were appropriate or inappropriate." Once the State conceded that there were no valid exemptions for all but two of the requested documents, the court concluded that the in camera comparison of the redacted and unredacted documents was moot. The record supports that conclusion. The order to show [*14] cause expressly stated that the in camera review was to "determine whether the redactions comply with the statute." Berg's motion to show cause asked the court to review the redactions in camera "so that the Court may determine whether the so-called redactions comply with the law[.]" It was not until his motion for reconsideration that he requested in camera comparison of the redacted and unredacted documents on the issue of good or bad faith. 15

FOOTNOTES

15 In his briefing in this court, Berg states that he repeatedly requested comparison of the redacted and unredacted documents for bad faith, but he cites only to documents filed on reconsideration.


In any case, any error in failing to conduct or complete the evaluation was harmless. Berg's argument is that the Department acted in bad faith because it intended to cover up false statements about him in the PSI and other documents. But the record, including the unredacted and redacted documents, contains no evidence of false statements. To the extent Berg claims [*15] the evaluation would have revealed additional circumstantial evidence of bad faith in the form of unjustified redactions, we conclude such evidence would have been cumulative of the evidence already before the court and would not have affected the court's decision on the issue of bad faith.

II.

Berg next contends the court erred in denying his motion for additional penalties, attorney's fees, and costs. Although we find no error in the court's denial of penalties, we agree that Berg is entitled to additional fees and costs.

Berg requested additional penalties for nondisclosure of a 5 x 7 card from January 23, 2004, when the court made its oral ruling, to April 12, 2004, when the documents were disclosed. In denying that request, the court concluded that the Department's delay in disclosing the card was due to delay in reducing the court's tentative oral ruling 16 of January 23 to the March 8 written order, and, thereafter, to Berg's "delay in getting an appointment where the original card was maintained so that it could be viewed." The record supports these findings.

FOOTNOTES

16 Oral rulings are not final until reduced to a written order. State v. Martinez, 76 Wn. App. 1, 3-4 n.3, 884 P.2d 3 (1994), review denied, 126 Wn.2d 1011, 892 P.2d 1089 (1995).


[*16] The Department provided Berg a copy of the card prior to the March 8, 2004 hearing. Because the copy did not show the backside of the card, the court ordered inspection and copying of the front and back. On March 22, 2004, Berg visited the Monroe Correctional Center and was told they had a copy of both sides of the card, but the original was located in Shelton. On April 12, 2004, Berg viewed the original card in Shelton. Nothing in the record evidences any noncompliance by the Department following the court's order. The court did not err in denying the motion for additional penalties.

Berg also requested $3,657.50 in attorney's fees and $55.52 in costs incurred between January 9, 2004, and May 4, 2004. RCW 42.17.340(4) provides that "[a]ny person who prevails" in an action under the Public Disclosure Act "shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action." The trial court correctly noted that most of the additional fees and costs were incurred in preparing Berg's largely unsuccessful motion for reconsideration. Since neither party substantially prevailed on reconsideration, those fees and costs [*17] were properly denied. 17

FOOTNOTES

17 See Smith v. Okanogan County, 100 Wn. App. 7, 994 P.2d 857 (2000) (when there is no prevailing party, neither party is entitled to fees); O'Connor v. Dep't of Soc. & Health Servs., 143 Wn.2d 895, 911, 25 P.3d 426 (2001) (fees awardable if party prevails on principal issue).


Berg's fee request, however, also included $1767.50 in fees incurred from January 13 through March 8, 2004, in preparation for the March 8 presentation of the court's written order. The court had not previously considered these fees. In its January 23, 2004 ruling, the court only considered and awarded fees through January 9, 2004. 18 The fees and costs incurred between January 9 and March 8 were necessary to obtain the final order awarding Berg relief. Accordingly Berg was entitled to an award for those fees and costs under RCW 42.17.340(4).

FOOTNOTES

18 In his original request for attorney's fees and costs, dated January 13, 2004, Berg requested fees and costs through January 9 and specifically requested that the court reserve assessment of additional attorney's fees and costs.


[*18] Last, Berg requests fees and costs on appeal. RCW 42.17.340(4) requires an award of fees and costs on appeal to "[a]ny person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record . . . ." 19 Because the Department prevailed on one of the major issues on appeal and Berg only partially prevailed on the other, Berg is not a prevailing party and is not entitled to fees and costs on appeal. 20

FOOTNOTES

19 Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d at 271.

20 See Smith v. Okanogan County, 100 Wn. App. at 24.


Affirmed in part and reversed and remanded in part.

FOR THE COURT:

Agid, J.

Coleman, J.

Baker, J.