Benitez v. Skagit Cnty.

CARLOS BENITEZ, JR., Appellant, v. SKAGIT COUNTY, Respondent.

No. 73626-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 18, 2016

UNPUBLISHED OPINION

DWYER, J. - Prison inmates are not entitled to an award of penalties for an agency's violation of the Public Records Act (PRA), chapter 42.56 RCW, unless the agency acted in bad faith. RCW 42.56.565(1). In this case, Skagit County conceded that it violated the Act, but argued that inmate Carlos Benitez was not entitled to penalties because he failed to demonstrate an issue of fact as to whether the County acted in bad faith. The superior court agreed with the County and awarded no penalties. We affirm.

I

In 2010, a jury convicted Benitez of numerous firearm and drug charges.¹ The court imposed a sentence of 368 months of imprisonment.

In March 2011, Benitez filed a postconviction motion, pursuant to CrR 4.7(h)(3), seeking access to discovery materials in his case That rule allowsdefense counsel to release a discovery file to a client "after making appropriate redactions which are approved by the prosecuting authority or order of the court." CrR 4.7(h) (3). The State opposed the motion, citing safety concerns for undercover officers associated with his prosecution. The State further argued that the requested documents would reveal strategies used in undercover and multiagency operations, and that Benitez had the ability to disseminate the materials both within and outside the prison. Noting Benitez's history of harassing and threatening conduct, the State maintained that redaction would not eliminate its concerns for the safety of the undercover officers. The State requested a protective order to prevent Benitez from obtaining the discovery file.

In May 2011, the superior court denied Benitez's motion, stating that releasing the records posed a "huge threat to the community and agency safety." See State v. Benitez, noted at 180 Wn. App. 1041, 2014 WL 1692450, at *1. In its order, the court noted that Benitez belonged to a gang engaged in a "sophisticated, ongoing drug and illegal weapons operation," and had connections outside of prison. The court concluded that releasing the records would reveal undercover strategies and would "disadvantage undercover officers, investigations, and the agencies involved." The court emphasized that "the most important concern . . . is for community and law enforcement safety and that the release of the discovery materials would pose a significant threat to the safety of [both.]"

On June 17, 2012, Benitez filed a request for public records with the Skagit County Interlocal Drug Enforcement Unit (SCIDEU). He sought the following documents from case "#09-TF048":

1. Any and all application(s) requesting search and seizure, and the warrant(s) associated with the request(s);

2. Any and all application(s) and/or authorization(s) to intercept and/or Record Private Conversation(s) or Communication(s)

3. Any transcript of any recorded Private Conversation and/or Communication(s)

On June 27, Detective L. Craig of the SCIDEU responded by letter, stating: "Additional time is needed to respond to your request. We currently anticipate being able to respond on or around July 24, 2012."

On July 24, Tom Molitor of the SCIDEU again notified Benitez that additional time would be needed to respond. He anticipated "being able to respond by August 3, 2012."

On August 6, Molitor informed Benitez that the first installment of records would be provided upon receipt of Benitez's payment for copying costs. The second installment would be ready on or about September 10, 2012. Molitor added that "we have not been able to locate any transcripts of any recorded private conversation and/or communications as requested in item number 3 of your request."

A few weeks later, Benitez received 28 pages of records. They included an October 2009 search warrant from SCIDEU case #09-TF048. The warrant authorized the search of a residence at 216 South Cherry Street in Burlington, Washington. The remaining documents pertained to Burlington PoliceDepartment case #09-B08117, and included an October 2009 search warrant for the same Burlington residence.

On August 21, Benitez informed Molitor by letter that only two of the 28 pages of records related to SCIDEU case #09-TF048. Benitez considered the Burlington search warrant records nonresponsive. He also stated:

Since you have provided the search warrant pertaining to case number SCIDEU # 09-TF048, all that is needed to complete that portion of my request, is that you provide the affidavit of probable cause in support of that warrant.

With respect to the "authorization to intercept and/or record Private Conversations or Communications," I have a Monthly Report Pursuant to RCW 9.73.230, submitted to the Administrator For The Courts, and signed by Detective Sgt. Chris Coglizer, stating that on 9/17/2009 under case # 09-TF048 @ 1809 hrs, an interception and recording was made. Please provide the authorization to intercept and record the conversation or communication as I have requested.

Finally, I have previously examined a transcript pertaining to the recorded conversation, and listened to the recording itself. If you cannot provide a transcript, please provide a copy of the cd recording.

I believe that my request is quite simple and clear, and I have given your agency sufficient time to provide the records. So I am asking that you provide these records at your earliest convenience.

On August 28, Molitor responded by letter, stating that "additional time is needed to respond to your letter dated August 21, 2012. We currently anticipate being able to respond by September 28, 2012."

On October 5, Molitor again informed Benitez that he needed additional time to respond. Molitor anticipated a response by October 22.

On October 8, Benitez complained to Molitor about the delays, stating:

Since I submitted my request, numerous "additional time is needed" estimates have been made without any reasonable explanation. Considering that there has been no explanation for the delays, I have respected your additional time estimates, yet I have not been provided with the records I have requested, with the exception of the non-responsive records.

. . . Please do not delay my request any longer and provide the records. If I do not receive the records or a response from you within 10 days I will . . . be filing a complaint for violations of . . . the Public Records Act.

On October 25, the prosecutor in Benitez's criminal action moved to clarify the court's May 2011 order denying Benitez's postconviction motion for discovery under CrR 4.7. The prosecutor stated that Benitez was attempting to obtain the same materials from other sources and asked the court to clarify the breadth of its May 2011 order.

The next day, the court entered amended findings and conclusions and a protective order "relating to any discovery materials, law enforcement reports and investigative materials in the possession of defense counsel, the prosecuting attorney or law enforcement." (Emphasis added.) In its amended findings, the court found that release of the discovery materials "would endanger the safety of undercover officers and agents, put undercover officers and agents at risk by revealing identifying information, and would be extremely detrimental, if not life threatening, to undercover officers." Benitez appealed this order.

On October 25, SCIDEU informed Benitez that it needed additional time to respond to his records request and set November 8 as the new response date.

On November 8, Molitor sent Benitez the following letter:

First off, we apologize if we misunderstood what you were seeking pursuant to your request[ ] dated August 21, 2012 and appreciate your clarification dated August 21, 2012 as [to] what you are specifically seeking. It is our understanding based upon your clarification [that] the remaining documents you are seeking are; (1) the probable cause statement supporting the search warrant pertaining to SCIDEU # 09-TF048; (2) the authorization signed by Sergeant Coglizer on 9/17/2012 to intercept and records communications in regards to SCIDEU # 09-TF048; and (3) a transcript of the actual conversations/communications that were recorded. If we have misunderstood your clarification please let me know.

In terms of your request for the Probable Cause Statement, I am providing you with the first page which is the actual Motion and Affidavit for Search Warrant, however I [am] unable to provide you with the actual Probable Cause affidavit. These 19 pages are exempt from disclosure pursuant to Court Orders signed by Judge Needy on March 23, 2011, May 25, 2011 and October 26, 2012 (enclosed) finding that release of this information would both hinder effective law enforcement and would jeopardize the personal safety of law enforcement and witness, Superior Court Criminal Rule 4.7, and RCW 42.56.240 (1) and (2).

In terms of the authorization to intercept communications signed by Sergeant Coglizer on 9/17/2012, these 3 pages are exempt from disclosure pursuant to Court Orders signed by Judge Needy on March 23, 2011, May 25, 2011 and October 26, 2012 finding that release of this information would both hinder effective law enforcement and would jeopardize the personal safety of law enforcement and witness, Superior Court Criminal Rule 4.7, and RCW 42.56.240 (1) and (2).

In terms of your request for a copy of the transcript of the actual conversation/communication that were recorded, this office is not in possession of a transcript of the recordings. We do have one CD containing a voice recording that is exempt from disclosure pursuant to Court Orders signed by Judge Needy on March 23, 2011, May 25, 2011 and October 26, 2012 finding that release of this information would both hinder effective law enforcement and would jeopardize the personal safety of law enforcement and witness, Superior Court Criminal Rule 4.7, and RCW 42.56.240 (1) and (2).

(Emphasis added.)

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