Libby Haines-marchel v. Dept. Of Corrections, State Of Wa ( 2014 )

EQ
COURT OF AP' E I S
DIVISION .
AM «' 00
IN THE COURT OF APPEALS OF THE STATE OF WASHIN110V0
DIVISION II
LIBBY HAINES- MARCHEL, No. 43700 -7 -II
Appellant, PUBLISHED OPINION
v.
STATE, DEPARTMENT OF
CORRECTIONS,
Respondent.
BJORGEN, J. — Libby Haines -Marchel, wife of inmate Brock Marchel, appeals an order
denying her motion for summary judgment and granting the Department of Corrections' cross -
motion for summary judgment. This summary judgment upheld redactions made by the
Department in documents requested by Haines -Marchel under the Public Records Act (PRA),
chapter 42. 56 RCW. The superior court found the redacted material was exempt from disclosure
under RCW 42. 56.240, because nondisclosure was essential to effective law enforcement and
protection of personal privacy and because disclosure would endanger individuals' lives or
physical safety.
On appeal, Haines -
Marchel contends that the superior court abused its discretion by
failing to consider all the materials she submitted, that the Department failed to show the claimed
exemptions apply to the redacted material, and that her legitimate interest in obtaining the
information outweighs the Department' s concerns. We hold that the superior court did not fail to
consider any submitted documents, but that a small portion of the redacted material is not exempt
No. 43700 -7 -II
from disclosure under RCW 42. 56. 240( 1) and should have been disclosed to Haines- Marchel.
The rest of the redacted material is exempt from disclosure. Consequently, we affirm in part,
reverse in part and remand for the superior court to enter an order requiring the Department to
disclose the material held not to be exempt from disclosure and to exercise its discretion in
awarding attorney fees and a penalty to Haines -Marchel under RCW 42.56. 550( 4).
FACTS
After Haines -Marchel visited Marchel at the Clallam Bay Corrections Center ( CBCC),
prison authorities subjected Marchel to a " dry cell search," an isolation and special supervision
procedure designed to determine whether an inmate has concealed contraband by ingesting it.
Clerk' s Papers ( CP) at 20 -31, 35. After three days in the dry cell, monitoring revealed no
contraband, and prison staff returned Marchel to his usual cell.
In response to a grievance he filed, Marchel received a copy of form DOC 05 -392,
describing the basis for the decision to subject him to the dry cell search, comprised of a
Confidential Information Report ( Report) on the front side and a Guide to the Evaluation of
Reliability of Informant Information ( Guide) on the back. The Report stated that three inmates,
whose identifying information had been redacted, had at various times informed the prison' s
intelligence and investigation unit that Marchel " was to be introducing narcotics to CBCC
through visitor [ Haines- Marchel], during a visit." CP at 42. The Report also contained " yes" or
no" answers to questions concerning the reliability of the unidentified informants. CP at 42.
The Guide contained various criteria prison officials use to evaluate informant tips, with the
scoring numbers entered by the preparer indicating the relative applicability of each criterion
under the circumstances presented. For example, for the criterion " Source Reliability,
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Authenticity," the preparer would choose from five levels ranging from "[ n] o doubt source has
direct access to information" to "[ s] ource unknown." CP at 43. The Guide also required the
preparer to check one of five levels of reliability for the informant and for the validity of the
content. Both the Report and the Guide relating to the dry cell search, filled out by department
official William Paul, were released to Marchel.
Haines -Marchel subsequently submitted a request under the PRA for documents
concerning the dry cell search, including " all information and documents received by internal
investigations ( I &I) that lead [ sic] to the belief of reasonable suspicion to place Marchel ... on
Dry Cell Watch." CP at 57. In response, Haines -Marchel received 43 pages of documents,
including a copy of the same document containing the Report and the Guide given to Marchel.
The copy sent to Haines -Marchel, however, was entirely redacted except for the titles,
Department logos, document numbers and identifying information, two lines of instructions to
the preparer on the Report, and a boilerplate statement on the Guide relating to disclosure.
Haines -Marchel appealed the redactions to the Department, which denied the appeal on
the ground that the documents were exempt from disclosure under RCW 42.56.240( 1) and ( 2).
She then filed suit in superior court to compel disclosure of some of the redacted material,
requesting costs, penalties, and attorney fees. CP at 5 - 17. In support of her motion for summary
judgment, she attached various documents, including the less- redacted version of the disputed
document provided to Marchel and various declarations, including her own and Marchel' s.
The Department answered Haines -Marchel' s motion and moved for summary judgment,
attaching declarations from CBCC officials William Paul and Denise Larson in support of its
argument that the redactions were appropriate. These declarations explained the potential
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dangers posed by releasing information concerning confidential informants and by disclosing the
Department' s criteria for evaluating tips from such informants. The Department also asserted
that Marchel had received the less- redacted versions in error.
After argument, the superior court reserved ruling because the judge had not been able to
review all the submitted materials. The court issued a letter opinion two weeks later denying
Haines- Marchel' s motion and granting summary judgment to the Department. The opinion
relied primarily on Paul' s declaration in finding the redactions appropriate under both RCW
42. 56. 240( 1) and ( 2). The court subsequently entered a written order to the same effect. Haines -
Marchel timely appeals.
ANALYSIS
I. STANDARD OF REVIEW AND GOVERNING LAW
We review summary judgments de novo and in that review perform the same inquiry as
the superior court. TracFone Wireless, Inc. v. Dep' t ofRevenue, 170 Wash. 2d 273, 280 -81, 242
P.3d 810 ( 2010). A court should grant summary judgment only if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.
CR 56( c). A material fact is one upon which the outcome of the litigation depends in whole or in
part. Atherton Condo. Apartment -Owners Ass 'n Bd. of Dir. v. Blume Dev. Co., 115 Wash. 2d 506,
516, 799 P.2d 250 ( 1990).
A party moving for summary judgment bears the burden of demonstrating that there is no
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genuine issue of material fact. Atherton, 115 Wash. 2d at 516. If the moving party satisfies its
burden, the nonmoving party must present evidence that demonstrates that material facts are in
dispute. Atherton, 115 Wash. 2d at 516. If the nonmoving party fails to do so, then summary
judgment is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash. 2d 16, 26, 109 P.3d
805 ( 2005).
The court must consider all facts, and the reasonable inferences from them, in the light
most favorable to the nonmoving party. Vallandigham, 154 Wash. 2d at 26; Atherton, 115 Wash. 2d
at 516. A court should grant summary judgment only if reasonable persons could reach but one
conclusion from all the evidence. Vallandigham, 154 Wash. 2d at 26.
Courts also review an agency' s denial of the opportunity to inspect or copy public records
under. the PRA de novo. RCW 42. 56. 550( 3). In reviewing such agency action, the superior
court " may conduct a hearing based solely on affidavits," RCW 42. 56. 550( 3), and
tjhe burden of proof shall be on the agency to establish that refusal to permit public
inspection and copying is in accordance with a statute that exempts or prohibits
disclosure in whole or in part of specific information or records.
RCW 42. 56. 550( 1). The PRA " is a strongly worded mandate for broad disclosure of public
records" that requires state agencies to disclose any public record upon request, unless the record
falls within certain specific exemptions. Prison Legal News, Inc. v. Dep ' t of Corr., 154 Wash. 2d
628, 635, 115 P.3d 316 ( 2005). A reviewing court must construe the PRA broadly and its
exemptions narrowly. Prison Legal News, 154 Wash. 2d at 636.
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II. REVIEW OF SUMMARY JUDGMENT PLEADINGS
As a threshold matter, Haines -Marchel argues first that the superior court' s letter opinion
of May 23, 2012 shows that it did not review all of her exhibits and affidavits, resulting in an
abuse of discretion. We disagree.
The letter opinion plainly shows that in the portions cited by Haines -Marchel, the court
was referring to evidence it had reviewed prior to the hearing on the summary judgment
motions:
Prior to considering verbal argument from the parties, the Court reviewed the court
file and was familiar with the pleadings therein. The Court had not, however,
reviewed the various exhibits attached to some of those pleadings. The Court
reviewed the electronic version of the court file and that version did not, for
whatever reason( s), contain the exhibits.
Clerk' s Papers ( CP) at 229. The superior court made clear that it reviewed all submitted
materials before deciding the motions. In particular, at the conclusion of the hearing the court
stated,
When I took the bench this afternoon ... my inclination was to conduct an in camera
review. That inclination was based upon the fact that I had not reviewed the
exhibits at issue here.
So I will take the time to look at these exhibits with a keen eye, but I wanted
to make certain that the issue was properly framed.
I am going to take it under advisement, issue a written ruling.
As a general rule, I am loath[] to take matters under advisement.
And again, I apologize for not having - I guess the lesson I have learned now
-
is to look at the physical court file, which I don' t like to do, because it is easier for
me to just look at it electronically.
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Verbatim Report of Proceedings ( VRP) at 44 -
49. Contrary to Haines -Marchel' s understanding,
then, the subsequent letter opinion in no way suggests that the superior court did not review all of
the documents submitted prior to making a decision.
In addition, the final written order by the superior court specifies that it reviewed:
1. Plaintiff' s Motion for Partial Summary Judgment, including the attached
Declarations of Michael C. Kahrs, Brock Marchel and Libby Haines -Marchel;
2. Defendant' s Response to Plaintiffs Partial Motion and Cross -Motion for
Summary Judgment, including the attached Declarations of William Paul and
Denise Larson;
3. Plaintiff' s Reply to Defendant' s Response to Plaintiff' s Partial Motion,
including the attached Declaration of Libby Haines - Marchel;
4. Plaintiff' s Response to Defendant' s Cross -Motion for Summary
Judgment;
5. Defendant' s Reply to Plaintiff' s Response to Defendant' s Cross -Motion
for Summary Judgment, including the attached Declaration of Denise Vaughan.
CP 232 -33. All of the documents Haines -Marchel contends the court did not consider appear, or
were attached to documents that appear, in that list.
The record shows that the superior court considered all the evidence submitted by the
parties in support of their motions for summary judgment. The court did not abuse its discretion
by failing to consider all material submitted.
III. THE PRA EXEMPTIONS
The superior court held that the redactions were proper under the exemptions to
disclosure found in RCW 42. 56. 240( 1) and ( 2). Because we agree that the redacted material was
exempt under RCW 42. 56. 240( 1), we do not reach whether it also was exempt under ( 2) of that
section.
RCW 42.56. 240( 1) exempts the following material from disclosure under the PRA:
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s] pecific intelligence information and specific investigative records compiled
by ... penology agencies ... the nondisclosure of which is essential to effective
law enforcement or for the protection of any person' s right to privacy.
The parties do not dispute that the Department qualifies as a penology agency or that it compiled
the records. Thus, the remaining issues are ( 1) whether the redacted information qualifies as
either specific investigative records or specific intelligence information, and ( 2) whether
redaction is essential to effective law enforcement or for the protection of any person' s right to
privacy.'
Records are "` specific investigative records ' if "'compiled as a result of a specific
investigation focusing with special intensity upon a particular party. ' Dawson v. Daly, 120
Wash. 2d 782, 792 -93, 845 P.2d 995 ( 1993) ( quoting Laborers Intl Union, Local 374 v. Aberdeen,
31 Wn. App. 445, 448, 642 P.2d 418 ( 1982)). The exemption in RCW 42. 56. 240( 1) applies to
all investigations "' designed to ferret out criminal activity or to shed light on some other
allegation of malfeasance. "' Sargent v. Seattle Police Dep' t, 179 Wash. 2d 376, 391, 314 P.3d
1093 ( 2013) ( quoting Koenig v. Thurston County, 175 Wash. 2d 837, 843, 287 P.3d 523 ( 2012)).
The material entered in both the Report and the Guide that discloses information about
the informants or the investigation was compiled as part of a specific investigation focusing on
potential criminal activity by both Marchel and Haines -Marchel. Thus, under both Daly and
Sargent this material would count as specific investigative records. In addition to the name and
identifying number of the informants, this material would include the description of the
information given by the informant, answers to the questions on the Report, the text entered on
1 Because our decision .
rests on whether the redacted material was essential to effective law
enforcement, we do not reach the question of privacy.
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the " Report subject" and " Date of occurrence" lines on the Guide, and all the numeric scores,
conclusions about reliability, and hand- printed notes on the Guide. CP at 43. Similarly, the
dates on both the Report and the Guide were compiled as the result of this specific investigation
into this specific alleged crime. They also qualify as specific investigative records under Daly
and Sargent. Daly, 120 Wash. 2d at 792 -93; Sargent, 179 Wash. 2d at 391.
The pre -printed text on either the Report or the Guide, however, would not qualify as
specific investigative records, since it was not compiled as a result of a specific investigation
focusing with special intensity upon a particular party. Dawson, 120 Wash. 2d at 792 -93. This
material would only be exempt under RCW 42.56.240( 1) if it qualifies as specific intelligence
information.
The meaning of "specific intelligence information" was plumbed in King County v.
Sheehan, 114 Wn. App. 325, 337, 57 P.3d 307 ( 2002), which examined whether a list of the full
names of King County police officers was specific intelligence information under the
predecessor of RCW 42. 56. 240. In the absence of a definition in the records statute, the court
noted the definition of "intelligence" in the Random House Unabridged Dictionary ( 1993) as
the gathering or distribution of information, especially secret information," or " information
about an enemy" or " the evaluated conclusions drawn from such information." Sheehan, 114
Wash. App. at 337. Except for those working undercover, the court held that a list of officers'
names was not specific intelligence information under these definitions. Sheehan, 114 Wash. App.
at 338 -39. Sheehan did not rule on whether information about how a police agency carries out
investigations qualifies as specific intelligence information.
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That issue was reached in Fischer v. State, Department of Corrections, 160 Wash. App.
722, 727 -28, 254 P.3d 824 ( 2011) and Gronquist v. State, Department of Corrections, 177 Wn.
App. 389, 400 -01, 313 P.3d 416 ( 2013), review denied, 180 Wash. 2d 1004 ( 2014), which held that
prison video surveillance recordings were exempt from disclosure under RCW 42. 56. 240( 1) as
intelligence information. Neither Fischer nor Gronquist rested its conclusion on the nature of
the activities shown on the tapes. Instead, the decisions relied on the information about
investigative methods that would be disclosed, such as which cameras were recording, which
were dummies, when cameras were off or on, their resolution and field of view, and the extent to
which they were controlled by the staff, knowledge which could help in their evasion. See
Fischer, 160 Wash. App. at 726; Gronquist, 177 Wash. App. at 399 -400.
Similarly, as shown by Paul' s uncontroverted declaration, information about how the.
Department evaluates the reliability and authenticity of informant tips could be used to better
mask false or deceptive information. Just as the surveillance tapes would disclose the
Department' s methods of surveillance, much of the pre- printed information on the forms would
disclose its methods of evaluating and responding to informants' tips. If the surveillance tapes
count as specific intelligence information for that reason, so would this pre -
printed material on
the Report and the Guide. Almost all the pre -printed text on both the Report and the Guide is of
this nature. On the Report, this information would include the pre -printed text asking for the
nature of the information given and the questions about the informant. On the Guide, this
information would include all pre -
printed text below the line marked " Premise" and above the
2
By pre -printed we mean the text on the forms other than the comments and answers entered by
DOC about a specific individual, as described in more detail in the Facts, above.
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line beginning " The contents of this document may be eligible for public disclosure,"
information going directly to the Department' s methods of evaluating and responding to
informants' tips. CP at 42. The content of this pre -
printed material in the Guide is described in
more detail in the Facts, above.
Having concluded this pre -printed material is intelligence information, the next question
is whether it is " specific" intelligence information as required by RCW 42. 56. 240( 1). This
material is plainly not specific in the sense required for the exemption of specific investigative
records, since it does not focus " with special intensity upon a particular party," as required by
Dawson, 120 Wash. 2d at 792 -93. Use of the same definition of "specific" in each context,
however, would ignore the divergent natures of the terms modified. As shown, under Fischer,
160 Wash. App. at 726 -28, and Gronquist, 177 Wash. App. at 399 -401, intelligence information can
include information about methods of investigation, while investigative records must focus on a
particular party. By their nature, the methods of investigation at issue here apply to all informant
tips in the prison. If information about general methods must focus on a particular individual, it
would never be exempt, contrary to both Fischer and Gronquist. Further, such a reading would
risk shrinking the scope of intelligence information to that of investigative records, reducing the
former to the superfluous. This would offend the canon of statutory construction that courts
should avoid interpretations of a statute that render certain provisions superfluous. See Whatcom
County v. City of Bellingham, 128 Wash. 2d 537, 546, 909 P.2d 1303 ( 1996). To avoid these
snares, the term " specific" in the exemption for specific intelligence information must be read to
require not that the information concern particular individuals, but that it disclose particular
methods or procedures for gathering or evaluating intelligence information. The pre -
printed text
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described above dealing with methods of evaluating informant statements meets this
requirement.
The remaining question, then, is whether the specific intelligence information or specific
investigative records described above are essential to effective law enforcement under RCW
42. 56. 240( 1). The Department argues that the redacted information is essential to effective law
enforcement for three reasons. First, if other inmates obtained the information entered on the
form, they could use it, alone or in combination with other knowledge, to deduce the identity of
and retaliate against the informants. Similarly, the Department contends that making the
information entered on the forms available to the public, even with identifying information
redacted, would have a " chilling effect" on potential informants, who would fear that their
enemies could nonetheless piece together the source of the tip using the unredacted information.
Br. of Resp' t at 22. Finally, the Department maintains that disclosure of the form itself, even
with no specific information entered on it, would reveal how the Department evaluates informant
tips, allowing inmates who wish to submit deceptive tips, falsely implicating others in
wrongdoing, to tailor their statements so that investigators would consider them reliable.
Haines -Marchel contends that "[ t] he [ D] epartment is fully capable of the minimal
redaction necessary to protect the identity and safety of the informant," and that the only
information that should be exempt from disclosure is the names and inmate numbers of the
informants. Br. of Appellant at 24 -25. Haines -Marchel points out that she is not an inmate, and
that the Department need not worry about inmates obtaining the document because the
Department censors inmates' incoming mail. She further argues that the Department' s concerns
are outweighed by her interest in discovering whether the Department arbitrarily accused her of
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committing a felony based on a convicted felon' s false and unreliable information. Finally,
Haines -Marchel argues that, because the Department' s own policy entitles an inmate subjected to
a dry cell search to a summary of the information giving rise to the reasonable suspicion, and
because CBCC officials actually released the form at issue here to Marchel, the Department
should not be allowed to withhold it.
The uncontroverted evidence submitted by the Department establishes that redaction of
the material found above to be either specific investigative records or specific intelligence
information is essential to effective law enforcement.3 Paul' s declaration shows that serious
attacks against inmates suspected of providing tips to authorities often occur and that inmates
often submit false reports intended to induce authorities to take action against other inmates. As
Paul points out, such details as the number of different informants, the date on which the form
was completed, and whether the information is " first hand," could reveal the identity of the
informant when combined with information from other sources. CP at 163. Further, even with
redactions, the fact that the form could be released at all would likely make potential informants
reluctant to come forward. See Cowles Publ' g Co. v. Pierce County Prosecutor' s Office, 111
Wn. App. 502, 509, 45 P.3d 620 ( 2002). Finally, Paul' s declaration establishes also that
disclosure of the pre -printed information on the forms about how the Department evaluates the
reliability and authenticity of informant tips could aid in disguising false or deceptive
information. Out of all possible indicia of reliability which investigators might use to evaluate
an informant' s tip, the knowledge of what information in a tip will be considered and how
3 Haines -Marchel did not submit evidence that the redacted material was not essential to
effective law enforcement. Thus, there is no genuine dispute as to this material fact.
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investigators will weigh that information could easily be valuable in crafting a false accusation.
As concealment of the methods of video surveillance was essential to effective law enforcement
in Fischer, 160 Wash. App. at 728, so concealment of the methods of examining and evaluating
informant tips is essential here.
Turning to Haines- Marchel' s other arguments, the Department' s surveillance of inmates'
mail would not necessarily prevent prisoner access to the information were it publicly available.
Someone could simply read the form to the prisoner over the phone or memorize the criteria and
relay them during a visit. Exempting the form from disclosure under the PRA may well be the
only way to keep its contents out of inmates' hands.
Similarly, the release of some of the redacted information to inmates subjected to dry cell
searches and the prior disclosure of the form to Marchel does not establish that keeping it
confidential is not essential to effective law enforcement. First, the Department points out that
the uncontested evidence shows that CBCC staff released the form to Marchel in error. Second,
the fact that an agency releases documents, whether through a records request or some other
process, does not by itself establish the absence of an exemption. See Sanders v. State, 169
Wash. 2d 827, 849 -50, 240 P.3d 120 ( 2010) ( " Nor do we believe that production of documents after
the requester files suit ipso facto admits that the initial withholding of the documents was
wrongful. ").
Next, Haines -Marchel' s assertion that her interest outweighs the Department' s is
irrelevant to the exemption at issue here. The authority she cites in support of this argument
deals with the statutory exemption for "[ p] ersonal information in files maintained for employees,
appointees, or elected officials of any public agency to the extent that disclosure would violate
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their right to privacy." RCW 42. 56. 230( 3). When an agency claims an exemption based on a
person' s right to privacy, the exemption applies only " if disclosure of information about the
person: ( 1) [ w]ould be highly offensive to a reasonable person, and ( 2) is not of legitimate
concern to the public." RCW 42. 56. 050. The legislature did not impose these requirements on
the exemptions of RCW 42. 56.240. Thus, the legitimacy of Haines -Marchel' s interest in
obtaining the form is simply not relevant.
Haines -Marchel argues also that Sargent held that RCW 42. 56. 240 does not exempt the
identities of witnesses from disclosure. Sargent, however, did not make such a broad ruling.
Rather, it held that "[ a] general contention of chilling future witnesses is not enough to exempt
disclosure." Sargent, 179 Wash. 2d at 395. Here, in contrast, Paul' s declaration establishes that
disclosure of information about prison informants would threaten their safety and inhibit future
informants from coming forward.
Finally, Haines -Marchel makes a persuasive argument that some of the information
redacted by the Department cannot be deemed essential to effective law enforcement under any
reasonable view. First, the Department does not specifically argue that the disclosure of
Marchel' s name and number to his wife, to himself, or to any other individual is somehow
essential to law enforcement. Similarly, the name of the crime or rule violation in the Report and
the pre -printed material in the Report inquiring into whether an infraction was written and how it
was resolved has no discernible relation to effective law enforcement. Finally, the Department
makes no argument that redacting Paul' s signature is essential to effective law enforcement.
Consequently, Marchel' s name and number in the Report, the name of the crime or rule
violation in the Report, the pre -printed material in the Report inquiring into whether an infraction
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was written and its results, and Paul' s signature on both the Report and the Guide do not fall
within any claimed exemption to disclosure.4 The redaction of this material, therefore, violated
RCW 42. 56. 070( 1), the principal disclosure requirement of the PRA.
Turning to the matter of remedies, our Supreme Court has made clear that
t]he fact that the requesting party possesses the documents does not relieve an
agency of its statutory duties, nor diminish the statutory remedies allowed if the
agency fails to fulfill those duties.
Neighborhood Alliance ofSpokane County v. Spokane County, 172 Wash. 2d 702, 727, 261 P.3d
119 ( 2011). Thus, even though Haines -Marchel already obtained the improperly withheld
material through Marchel, we must remand for entry of an order directing the Department to
disclose it to Haines -Marchel.
Another set of remedies available to those prevailing against an agency under the PRA is
announced in RCW 42. 56. 550( 4), which states:
a] ny person who prevails against an agency in any action in the courts seeking the
right to inspect or copy any public record ... shall be awarded all costs, including
reasonable attorney fees, incurred in connection with such legal action. In addition,
it shall be within the discretion of the court to award such person an amount not to
exceed one hundred dollars for each day that he or she was denied the right to
inspect or copy said public record.
A party prevails under this statute if " records should have been disclosed on request."
the
Spokane Research & Def. Fund v. City ofSpokane, 155 Wash. 2d 89, 103, 117 P.3d 1117 ( 2005).
Under RCW 42. 17. 340( 4), the predecessor to this statute, a party was deemed prevailing even
4 The Department does not argue that redaction of this material is needed to protect Marchel' s or
Paul' s right to privacy. The Department does argue in footnote 3 of its brief that the redactions
in general are needed to protect the informants' privacy because disclosure would place them in
danger. The Department, however, does not argue that disclosure of Marchel' s name or number,
the name of the crime or rule violation, the pre -printed material inquiring into whether an
infraction was written and its results, or Paul' s signature would place any informants in danger.
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though it succeeded on only one relatively minor violation. Citizens For Fair Share v. State,
Dep 't of Corr., 117 Wn. App. 411, 436 -37, 72 P.3d 206 ( 2003). The present statute is the same
as its predecessor as applicable to this issue. Therefore, Haines -Marchel must be deemed to have
prevailed under RCW 42. 56. 550( 4).
The amount of attorney fees and any penalty to be awarded to a prevailing party under
RCW 42. 56. 550( 4) is within the discretion of the superior court. See Neighborhood Alliance,
172 Wash. 2d at 728. An award of attorney fees " should relate only to that which is disclosed and
not to any portion of the requested documents found to be exempt ..." Limstrom v. Ladenburg,
136 Wash. 2d 595, 616, 963 P.2d 869 ( 1998) ( citations omitted). Thus, in determining the amount
of the attorney fees award, the superior court must take into account the relatively large share of
the redacted material that we hold was properly withheld. In determining the amount of the
penalty award, "' the existence or absence of [an] agency' s bad faith is the principal factor which
the trial court must consider.'" Yousoufian v. Office of Ron Sims ( Yousoufian V), 168 Wash. 2d
444, 460, 229 P.3d 735 ( 2010) ( quotingAmren v. City ofKalama, 131 Wash. 2d 25, 37 -38, 929
P.2d 389 ( 1997)). In setting the penalty award, the trial court must also consider the mitigating
and aggravating factors set out by the court in Yousoufian V, 168 Wash. 2d at 467 -68.
CONCLUSION
In the Report, the name and identifying number of the informants, the description of the
information given by the informants, the answers to the questions, and the date are specific
investigative records which are essential to effective law enforcement and are consequently
exempt from disclosure under RCW 42. 56. 240( 1).
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In the Guide, the " Report subject," " Date of occurrence," and " Date" entries and all the
numeric scores, conclusions about reliability, and hand -printed notes are specific investigative
records that are essential to effective law enforcement and are consequently exempt from
disclosure under RCW 42. 56. 240( 1). CP at 43.
On the Report, the pre -printed text asking for the nature of the information given and the
questions about the informant is specific intelligence information which is essential to effective
law enforcement and is consequently exempt from disclosure under RCW 42. 56. 240( 1). On the
Guide, all pre -printed text below the line marked " Premise" and above the line beginning " The
contents of this document may be eligible for public disclosure ..." is specific intelligence
information which is essential to effective law enforcement and is consequently exempt from
disclosure under RCW 42. 56. 240( 1). CP at 43.
However, Marchel' s name and number in the Report, the name of the crime or rule
violation in the Report, the pre -printed material in the Report inquiring into whether an infraction
was written and its results, and Paul' s signature on both the Report and the Guide do not fall
within any claimed exemption to disclosure. The redaction of this material violated RCW
42. 56. 070( 1).
We accordingly affirm in part, reverse in part and remand for the superior court to enter
an order requiring the Department to disclose the following to Haines -Marchel: Marchel' s name
and number in the Report, the name of the crime or rule violation in the Report, the pre -
printed
material in the Report inquiring into whether an infraction was written and its results, and Paul' s
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No. 43700 -7 -II
signature on both the Report and the Guide. On remand, the superior court shall also exercise its
discretion in awarding attorney fees and a penalty to Haines -Marchel under RCW 42. 56.550( 4).
We concur:
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