Gronquist v. Wash. St. Dep't of Corr.

557 P.3d 706

Derek E. GRONQUIST, Appellant/Cross Respondent,

v.WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent/Cross Appellant.

No. 58808-1-II

Court of Appeals of Washington, Division 2.

Filed October 15, 2024

Appeal from Thurston Superior Court, Docket No: 22-2-00514-6, Honorable Indu Thomas, Judge.

Anika Rubin Ades Macdonald Hoague & Bayless, P.S. 705 2nd Ave., Ste. 1500 Seattle, WA, 98104-1745, for Appellant/Cross Respondent.

Vanessa James Attorney General’s Office P.O. Box 40116 Olympia, WA, 98504-0116, for Respondent/Cross Appellant.

PUBLISHED OPINION

Cruser, C.J.

¶ 1 In October 2020, Derek Gronquist, at the time an inmate in the Department of Corrections (DOC), mailed a records request to DOC requesting invoices from a specific set of DOC contracted attorneys during a specified time period. DOC provided an estimated date of production of December 30, 2020, but extended this estimate twice, citing COVID-19 related delays. When DOC ultimately sent Gronquist records in March 2021, it included a large number of unresponsive records and failed to include all of the records that he had requested. Gronquist did not inform DOC that he was missing documents, but instead filed suit in March 2022 for violation of the Public Records Act (PRA).¹ DOC continued to produce responsive documents to Gronquist throughout litigation, with the final production occurring in February 2023.

[1] ¶ 2 Because Gronquist was incarcerated at the time of the records request, to recover penalties under the PRA, he is required to show not only that DOC violated the PRA, but also that it acted in bad faith in doing so. RCW 42.56.565(1). In an oral ruling in January 2023, the trial court found that DOC violated the PRA and acted in bad faith, and awarded Gronquist penalties amounting to over $450,000. Two weeks later, the court sua sponte reconsidered its decision, reversing its finding of bad faith after encountering a case from Division Three of this court, which it had not considered during its initial review of Gronquist’s case. Both parties now appeal. DOC argues that the trial court erred in finding that it violated the PRA and Gronquist argues that the trial court erred in finding that DOC did not act in bad faith.

[2] ¶ 3 We hold that DOC violated the PRA but did not do so in bad faith. DOC’s response was not timely, nor was its search adequate, so the trial court correctly found that it violated the PRA. However, a finding of bad faith requires an inmate requestor to show that the agency’s actions amount to more than negligence, which Gronquist has failed to do. Accordingly, we affirm the trial court’s ruling.

¶ 4 Because we agree with the trial court that DOC violated the PRA, and DOC failed to argue that Gronquist should not be entitled to the attorney fees he was awarded below even if it violated the PRA because Gronquist did not show that DOC acted in bad faith, we decline to reverse the attorney fees awarded below. However, because Gronquist failed to devote a separate section of his opening brief to this request, as required by RAP 18.1(b), we deny Gronquist’s request for attorney fees on appeal.

FACTS

I. Gronquist’s PRA Request

¶ 5 On October 3, 2020, Derek Gronquist mailed a PRA request to DOC, requesting "[a]ll invoices for payment of services submitted by contractors for the provision of legal services to prisoners under RCW 72.09.190 between July 1 and December 31, 2019." Clerk’s Papers (CP) at 46. The request went on to clarify that it sought "to determine the total amount of taxpayer funds paid to contractors of legal services for inmates (commonly referred to as ‘contract attorneys’) during the specified time period, and the specific services those contractors were seeking compensation for." Id. At the time of the request, Gronquist was incarcerated in a DOC facility in Walla Walla, and operated the Correctional Oversight Group, "a nonprofit corporation working to remedy waste, abuse, and harmful practices of the Department of Corrections." Id. at 2. Gronquist requested these records to investigate what he thought to be improper billing practices within DOC.

¶ 6 DOC received Gronquist’s letter on October 8, 2020, and assigned Public Records Specialist Donna Williams to manage the request. Upon receipt, a staff member entered the request in DOC’s records management software. When prompted to enter a brief description of the request, the staff member wrote "All invoices for payment of services submitted by contract attorneys for the provision of legal services to prisoners under RCW 72.09.190 between July 1, 2019 and December 31, 2019," but omitted the language pertaining to Gronquist’s purpose for requesting the records. Id. at 219. On October 12, Williams mailed a letter to Gronquist acknowledging the request and confirming this language. In this letter, Williams provided an estimated response date of December 30, 2020.

A. Initial Delays and Search

¶ 7 At the times relevant to this ease, DOC contract attorneys provided two forms to DOC to receive payment: a "Form A-19," or "an invoice voucher," which lists the total amount of hours worked, and a monthly report, which provides further details of the work performed. Id. at 151. DOC interpreted Gronquist’s request for "invoices" to be requesting only the A-19 forms. Id. at 219. The first documented activity on Gronquist’s request occurred on December 21, 2020, when Williams assigned the request to the internal department that stored the requested records, nine days before the estimated deadline. There is no record of any activity occurring between December 21 and December 30, when Williams sent another letter to Gronquist, stating that "[w]hile DOC remains open and operational, due to COVID-19 staffing and remote work, additional time is needed to complete your request. Therefore, we anticipate being able to provide you an installment within 29 business days; on or before February 11, 2020 [sic]."² Id. at 229. There is no record of any further activity on this request until February 11, 2021, when Williams sent Gronquist another letter, repeating the same language about COVID-19 staffing issues and further extending the estimated deadline to March 26, 2021.

¶ 8 On the same day that Williams sent the second extension letter, DOC performed the first documented search on this request. DOC assigned the task to a fiscal analyst, Steve Land, who recorded four hours searching his email, the file server, and DOC’s financial reporting system for "the attorneys he knew to provide legal services for incarcerated individuals." Id. at 678. Due to COVID-19 restrictions, Land was unable to search for the physical files in person, so he provided a list of records to pull from physical storage to two other department employees. These employees had to wait an unspecified amount of time for permission for onsite access, but ultimately provided the records they located to the public records administrative assistant, who uploaded the records into a shared drive for Williams’ review on March 23, 2021. Williams reviewed the records on March 24, 2021, and sent Gronquist a letter the same day to inform him that DOC would send him 242 pages of documents upon receipt of $47.05 for copies and postage. Gronquist sent payment on April 6, 2021, and requested that the records be sent to him at the penitentiary.

B. First Production of Records

¶ 9 Williams sent the first batch of records on April 20, 2021. The cover letter of this production stated, "If you wish to appeal my decision for redacting or withholding records in part or whole, you may do so by submitting the appeal portion of the form to the Public Disclosure Appeals Office," and noted that the request had been closed. Id. at 238. This initial production included 46 out of the 72 A-19 forms and 13 of the 72 monthly reports that were responsive to Gronquist’s request. The production also included 150 pages of documents that were not responsive to Gronquist’s request. Though DOC understood the request to be for A-19 forms, it included some monthly reports and other records in an effort to be more inclusive. Gronquist did not submit the included appeal form, nor did he contact DOC to inform them that he believed that the production was missing records or that some of the provided records were not responsive.

C. Subsequent Productions

¶ 10 DOC first learned that Gronquist considered its production incomplete when he filed suit in March 2022. During the litigation, DOC conducted additional searches for the records that Gronquist believed were missing, providing 21 additional A-19 forms and 51 monthly reports on June 30, 2022, and 3 more A-19 forms and monthly reports on September 6. In November 2022, Gronquist’s counsel identified two A-19 forms and five monthly reports that had not yet been produced. These final documents were produced on February 16, 2023, shortly after the trial court had issued an oral ruling imposing a penalty of $100 per day for these missing documents.

II. Procedural History

¶ 11 The trial court heard arguments from the parties on December 16, 2022. On January 20, 2023, the trial court issued an oral ruling finding that DOC violated the PRA and that it acted in bad faith. The trial court found that DOC made no efforts to locate documents responsive to Gronquist’s request between October 12 and December 30, 2020, and that there was "very little activity" on Gronquist’s request between December 30, 2020, and February 11, 2021. Verbatim Rep. of Proc. (VRP) (Jan. 20, 2023) at 5. The trial court concluded that the monthly reports were "clearly responsive" to the record request, but that while the initial estimate of December 30, 2020, was reasonable given the COVID-19 circumstances, the additional delays between December 2020 and March 2021 were not reasonable. Id. at 8. Thus, the trial court concluded that DOC violated the PRA, as its response was neither timely nor complete, and it was overinclusive. The trial court...