Cousins v. State

523 P.3d 884

Terry COUSINS, Appellant,

v.State of Washington and DEPARTMENT OF CORRECTIONS, Respondent.

No. 56996-5-II

Court of Appeals of Washington, Division 2.

Filed January 31, 2023

Joseph Robert Shaeffer, MacDonald Hoague & Bayless, 705 2nd Ave., Ste. 1500, Seattle, WA, 98104-1745, for Appellant.

Timothy John Feulner, Office of the Attorney General, 1125 Washington St., Se, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondent.

PUBLISHED OPINION

Maxa, J.

¶1 Terry Cousins appeals the trial court's grant of summary judgment in favor of the Department of Corrections (DOC) in her lawsuit against DOC under the Public Records Act, chapter 42.56 RCW (PRA).

¶2 In 2016, Cousins made a request under the PRA to DOC relating to her sister's death while her sister was incarcerated. DOC provided records to Cousins on an installment basis. DOC's letter attaching the seventh installment in January 2019 stated that the request was closed. Cousins believed that records were missing from the installments she received, and she continued to correspond with DOC. In November 2019, DOC reiterated that the request was closed.

¶3 In July 2020, Cousins contacted DOC about records that she believed should have been produced. DOC subsequently reopened the request and produced additional installments of records totaling over 1,000 pages.

¶4 Cousins filed a PRA action in January 2021, contending that DOC's actions in responding to her request violated the PRA. The trial court granted DOC's summary judgment motion, ruling that Cousins’ action was time barred by the PRA's one year statute of limitations.

¶5 In Dotson v. Pierce County , this court held that the PRA statute of limitations begins to run when an agency notifies the requester that the request is closed, even if the agency subsequently produces additional records. 13 Wash. App. 2d 455, 470-72, 464 P.3d 563, review denied , 196 Wash.2d 1018, 474 P.3d 1050 (2020). Cousins argues that we either should distinguish Dotson on the ground that DOC here actually reopened her request or disregard the holding in Dotson regarding the start of the limitations period. The court in Dotson also held that the discovery rule is inapplicable to PRA actions, id. at 472, 464 P.3d 563, and Cousins argues that we should disregard that holding.

¶6 We follow Dotson and hold that DOC's January 2019 letter closing the request started the limitations period and that the subsequent production of additional records did not start a new limitations period. Therefore, we hold that the statute of limitations bars Cousins’ PRA action because she did not file suit within a year after DOC closed the request. And we follow Dotson and hold that the discovery rule is inapplicable here. Accordingly, we affirm the trial court's grant of summary judgment in favor of DOC.

FACTS

Background

¶7 Renee Field was incarcerated in DOC custody beginning in February 2014. She died while in custody in March 2016. In July 2016, Cousins, Field's sister and personal representative of her estate, made a PRA request to DOC for all records regarding Field from January 1, 2014 to the present. DOC acknowledged the request and stated that it would review and gather the records.

Production of Records and Closing Letter

¶8 DOC produced the first installment of records in November 2016 and produced a second installment in April 2017. In May 2017, Cousins’ attorney wrote to Sheri Izatt, a public records specialist for DOC, noting several records that appeared to have been omitted in the first two installments. Izatt responded that the request was still open and that more records would be produced in future installments.

¶9 In July 2017, DOC produced a third installment of records that did not include the records that Cousins previously had referenced. DOC produced fourth, fifth, and sixth installments in December 2017, April 2018, and September 2018, respectively. None of the installments included the missing records that Cousins had referenced earlier.

¶10 On January 17, 2019, DOC produced the seventh installment. The letter enclosing the records stated that the request was "now closed." Clerk's Papers (CP) at 44.

Further Communications and Production

¶11 On January 22 and 23, 2019, Cousins exchanged emails with Izatt in which Cousins inquired about obtaining the records she had identified as missing after the second installment in May 2017. Izatt did not specifically respond to this inquiry. On February 1, Cousins emailed Izatt again about the missing records. Cousins did not receive a response from Izatt to this email. Cousins claimed that she called DOC over the next several months, but DOC did not return those calls. On October 14, she emailed Izatt and asked for a copy of her original request.

¶12 On October 29, Paula Terrell of DOC sent an email to Cousins responding to a voice mail message from Cousins. After a reply from Cousins, Terrell on November 4 responded with an email to Cousins stating that Cousins’ PRA request "is and remains closed." CP at 56. On November 14, Cousins emailed Terrell and indicated that not all requested records had been provided. On that same date, Terrell acknowledged the email and again explained that Cousins’ PRA request "is and remains closed." CP at 69. Terrell further stated that "[s]ince this request is closed," Cousins was required to submit a PRA request if she wanted to request additional records from DOC.

¶13 Cousins responded on November 15 that her request was closed "due to your agencies [sic] assumption that my request was completely filled." CP at 65. Cousins stated that her request was not complete and reiterated that she had not received all of the records previously identified. Terrell did not respond to this email.

¶14 Even though Cousins still had not received specific records that she had identified as missing since May 2017 and she knew that DOC had closed its file, she did not file suit against DOC at that time.

¶15 On July 7, 2020, almost 18 months after DOC had closed her request, Cousins sent an email to Terrell stating that she had not heard back regarding her "unfinished pdr request" and again stating that she had not received all the requested documents. CP at 537. She stated, "I am again requesting that you send me the remaining documents for my public disclosure request from 2016." CP at 537. Terrell sent Cousins an email that listed the five requested categories of records previously identified as missing and stated, "Department staff are currently identifying and gathering records responsive to your request." CP at 536. In an internal record, Terrell stated, "Received email from requestor stating she did not receive all responsive records; therefore, I re-opened the request and will conduct an additional search." CP at 590.

¶16 Cousins followed up with a request of 29 additional categories of records that she had not received. Terrell acknowledged receipt of the request for additional records, and stated, "Department staff are currently identifying and gathering records responsive to your request." CP at 551. In an internal record, Terrell stated, "Requestor has indicated she did not receive all records to her request. Therefore, an additional search will be conducted and request re-opened." CP at 590. In her deposition, Terrell confirmed that her July 2020 email responding to Cousins’ request for the missing records was a reopening of the original request.

¶17 DOC produced installments 8 through 16 from October 2020 through June 2021. In the June email containing installment 16, Terrell stated that this was the final installment and the request was closed. But DOC produced a 17th installment in August 2021. After Cousins’ emails in July 2020, DOC produced 10 additional installments consisting of over 1,000 pages of records.

Trial Court Proceedings

¶18 Cousins filed suit against DOC in January 2021, before DOC finished producing all the additional records. She sought disclosure of the records she requested in 2016 and statutory penalties, attorney fees, and costs under the PRA. Cousins alleged in her complaint that none of the later installments contained the additional categories of records she identified as missing in July 2020.

¶19 After some discovery, DOC moved for summary judgment based on the PRA's one year statute of limitations because DOC had closed Cousins’ request in January 2019.

¶20 Cousins opposed DOC's summary judgment motion, arguing that the statute of limitations period started again when DOC reopened her request in July 2020 or until the last record was produced in August 2021. In the alternative, Cousins argued that equitable tolling should apply because DOC handled her request in bad faith. Cousins also stated in a footnote that the discovery rule would be a better remedy than equitable tolling in a silent withholding case.

¶21 The trial court granted DOC's summary judgment motion. The court ruled that under Dotson , the statute of limitations began to run in January 2019 when DOC stated that the request was closed. Cousins appeals the trial court's grant of summary judgment in favor of DOC.¹

ANALYSIS

A. STANDARD OF REVIEW

¶22 The PRA is designed to provide for the broad disclosure of public records. Ekelmann v. City of Poulsbo , 22 Wash. App. 2d 798, 805, 513 P.3d 840 (2022). RCW 42.56.030 requires that the PRA be liberally construed in favor of disclosure unless disclosure is specifically exempt. Id. at 806, 513 P.3d 840.

¶23 We review an agency's action in responding to a PRA request de novo. Id. at 805, 513 P.3d 840. Summary judgment orders involving the PRA also are reviewed de novo. Id. When the record consists of only documentary evidence on PRA matters, we stand in the same position as the trial court. Id.

¶24 With a summary judgment motion, we view the evidence and apply all reasonable inferences in the light most favorable to the nonmoving party. Lavington v. Hillier , 22 Wash. App. 2d 134, 143, 510 P.3d 373, review denied , 200 Wash.2d 1010, 518 P.3d 212 (2022)....