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Washington Court Reverses Injunction Against Prisoner’s Public Records Requests

On July 29, 2010, the Washington State Court of Appeals affirmed that prisoners have standing to request records under Washington’s Public Records Act (PRA). The court also held that photographs of guards; personnel, compensation and training records; and intelligence and investigation reports were not exempt from disclosure. Finally, guards who were not named in a prisoner’s “counterfeit sexual predator flyer” were not entitled to an injunction, though prison employees “have the right to seek an injunction to protect their individual privacy rights when faced with an explicit and volunteered threat.”

Washington Department of Corrections (DOC) prisoner Allan Parmelee frequently requests public records under the PRA. Between July 2004 and August 2006, he “submitted 95 public disclosure requests” to the DOC, and prison officials claimed at the time that he had filed over 400 public records requests.

Parmelee wrote several letters to DOC officials “stating that he intends to misuse information that he receives about DOC staff,” the appellate court noted. “He also made comments that DOC staff have interpreted as thinly veiled threats against them and their families.”

Parmelee contacted DOC Secretary Harold Clarke on July 20, 2005, calling Clallam Bay Correctional Center (CBCC) Superintendent Sandra Carter “a man-hater lesbian.” He then wrote to Carter on October 8, 2005, informing her that he had sent investigators to photograph her home, interview her neighbors and post information about her on the Internet.

On March 16, 2006, Parmelee submitted a public records request seeking information about DOC Sergeant Mathieu and nine other employees, including their “(1) photograph, (2) performance reviews for the previous five years, (3) compensation records, (4) ‘critical’ employment records for the previous seven years, (5) administrative grievances and internal investigation records for the past five years, and (6) DOC sponsored training programs.” He later supplemented his request by seeking the same records for three other DOC employees.

On March 19, 2006, a letter Parmelee had written to Maxwell Tomlinson of Max Investigations was confiscated from his cell. He asked Tomlinson to obtain information about 20 DOC employees and post it on the Internet, including their “vehicle licenses, codes and pictures of them, their homes, and vehicles.”

Parmelee sent Superintendent Carter another letter on July 9, 2006, stating “that he had hired picketers to picket the homes of DOC employees” and to “hand out information brochures about DOC employees to the neighbors.”

Two days later, Parmelee was disciplined after he gave a female guard “a mock-up of a flyer” entitled “SEXUAL PREDITORS [sic] IN YOUR NEIGHBORHOOD.” The flyer listed the names of six DOC employees – Robert O’Neel, Carrol Riddle, Nathan Cornish, Jenny McHaffie, Michael Christensen and Carter – with spaces for the employees’ photographs to be inserted.

Parmelee allegedly told the guard, “These are the flyers that I am having printed and passed out tomorrow and if you don’t stay out of it your dead bitch will be on one of them.”

On July 19, 2006, Mathieu filed for an injunction in superior court in Mathieu v. Parmelee, asking the court to bar the DOC from disclosing her records to Parmelee. Mathieu’s petition named 12 other employees as parties, but they were dismissed from the action.

In response, numerous CBCC employees filed a second petition for an injunction in DeLong v. DOC, seeking to prevent the DOC from disclosing their records pursuant to Parmelee’s public records requests.

In Mathieu v. Parmelee, the DOC argued that injunctive relief should be granted to Mathieu “in light of Parmelee’s history of harassing behavior.” The court agreed and entered a permanent injunction on October 24, 2006, “enjoining the DOC from releasing documents relating to Mathieu, except for her training records for 24 months prior to Parmelee’s request, and records regarding her pay grade and pay scale.” The court “found that Parmelee submitted the requests to ‘gather information to harass, slander and endanger [Mathieu] and her family.’”

Parmelee attempted to intervene in DeLong on October 10, 2006 but the court never ruled on his motions. As in Mathieu v. Parmelee, the DOC did not oppose the injunction. Rather, the DOC argued “in favor of the injunction and against Parmelee’s attempt to intervene or join in the action.”

During an October 13, 2006 hearing in DeLong, “DOC counsel informed the ... court that Parmelee had requested to appear,” but “she objected because he was not a party to the action. The ... court declined to contact Parmelee because it did not believe that he was ‘necessary as a party to this action in its present configuration.’”

The court “then heard extensive argument ... detailing Parmelee’s harassment of DOC personnel,” and issued a permanent injunction identical to the injunction issued in Mathieu. Parmelee renewed his motion to intervene on November 6, 2006, but the “court denied the motion as untimely because it believed that Parmelee had a fair and full opportunity to litigate the issues in the Mathieu v. Parmelee matter.”

Between February 2005 and July 2006, Parmelee had “requested electronic photographic images of over 2,525 DOC employees.” He told a CBCC employee “that he intended to use the photographs on flyers labeling the employees as ‘sexual predators’ ... that he had prepared and planned to disseminate.”

On August 1, 2006 the DOC petitioned for an injunction in DOC v. Parmelee, seeking to enjoin disclosure of the 2,525 photographic images. While the case was pending, Parmelee sent a letter to Mark Kuzca, Associate Superintendent of the Washington State Penitentiary, stating “that he would be producing flyers labeling DOC employees as ‘homosexual predators.’” On January 19, 2007, the superior court enjoined disclosure of the photos.

Parmelee appealed in all three cases, and the Washington Court of Appeals consolidated the cases and issued a single opinion. The appellate court first rejected the state’s argument “that the PRA does not extend to incarcerated felons.” Although “the record amply supports the DOC’s claim that Parmelee’s request is a perverse abuse of the PRA,” the court found that it was “constrained to hold that prison inmates, including those blatantly abusing the PRA, have standing to request records under the PRA.”

This result was dictated by the plain language of the PRA, the Washington Supreme Court’s analysis in Livingston v. Cedeno, 164 Wn.2d 46, 186 P.3d 1055 (2008), and the fact that the legislature had twice declined to narrow the definition of persons seeking access to public records under the PRA.

The appellate court rejected Parmelee’s contention that the trial court had erred in considering his intended use of the requested records. Although the “DOC cannot consider an individual’s status as an inmate when determining whether the information is subject to disclosure under the PRA,” the Court of Appeals held that “the trial court could consider a PRA requestor’s explicit and volunteered threat when deciding whether an injunction is required to protect the rights of the government’s employees.”

The appellate court also found that the superior court had erred in holding that Mathieu’s photograph and other records were not subject to disclosure under the PRA. The Court of Appeals explained that it was “constrained to reverse the injunction against Parmelee because Mathieu was not named in his counterfeit sexual predator flyer and is unable to demonstrate that she was the victim of this explicit and volunteered threat.”

Likewise, in DeLong, the appellate court found that “those DOC employees not named in Parmelee’s counterfeit sexual predator flyer are not entitled to an injunction, but those DOC employees who were subject to this threat are entitled to injunctive relief.” The Court of Appeals further held that “the trial court erred when it refused to join Parmelee as a necessary party because his participation was necessary to protect his interests under the PRA.”

Thus, the injunction against Parmelee in Mathieu was reversed, and the Mathieu and DeLong cases were remanded to the trial court for further proceedings. See: DeLong v. Parmelee, 157 Wash.App. 119, 236 P.3d 936 (Wash.App.Div.2 2010).

Parmelee has a lengthy history of successful litigation against the Washington DOC related to public records requests, including obtaining damage awards when his requests were improperly denied. [See: PLN, Nov. 2010, p.36; Oct. 2010, p.46; May 2007, p.33].

The Washington legislature is currently considering two bills that would restrict prisoners’ ability to obtain public records and collect damages in public records cases. Attorney General Rob McKenna has claimed that around three-quarters of public records lawsuits are filed by prisoners, and opined they should not receive damages when their requests are improperly denied. “They should not be benefiting. Crime should not be paying in this way,” remarked State Sen. Mike Carrell.

Parmelee’s attorney, Michael Kahrs, disagreed, noting that “If the DOC is not penalized [for failing to produce public records], then where’s the downside for the department to basically obstruct all prisoner requests?”

The two bills, S.B. 5099 (allowing courts to enjoin prisoners’ public records requests) and S.B. 5025 (barring damage awards to prisoners in public records cases) remain pending in the state legislature. S.B. 5025 has already passed in the Senate.

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Related legal case

DeLong v. Parmelee