Lack of “Serious Independent Analysis" of Exemptions Can Result in Finding of Bad Faith Under PRA

In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with public records request (PRA) under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the department of corrections' (DOC) justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to.

In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 42.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.

Only a few days before Adams filed his complaint alleging PRA violations, the Spokane County Superior Court held in Chester v. Department of Corrections that similar information, such as Washington State and FBI criminal rap sheets, were not exempt from disclosure under the PRA. Ten months later, the DOC filed a motion for show cause hearing against Adams, noting that it still intended to withhold 21 pages of Adams’s Washington and FBI rap sheets. The DOC claimed that disclosure would violate ACCESS use agreements. At the time, the DOC’s only support for this argument was the stated position of the Washington State Patrol and the FBI.

The trial court found the DOC’s justification insufficient to withhold disclosure. Upon questioning, the DOC could not point to any evidence that the ACCESS use agreement prohibited disclosure of the rap sheet information. The trial court also noted that the DOC had engaged in only a cursory investigation of the merits of its exemption justification, limiting its investigation to only a few short e-mail exchanges with state patrol and the FBI. The trial court ordered the disclosure of the rap sheet information and assessed penalties on the DOC for withholding the records in bad faith.

The DOC appealed, arguing that, standing alone, reliance on an invalid basis for nondisclosure was not sufficient for finding bad faith, as long as the basis was not “farfetched.” In support of this contention, the DOC argued that federal law prohibited them from disclosing certain information obtained from a federal criminal database (III System Information) to the individual who is the subject of that information. The court disagreed, noting a long line of cases that held that an individual is entitled to such information under the relevant federal authorities. The court also observed that the DOC both cited the wrong federal statues and misread the correct ones in a manner that was “inconsistent with longstanding federal law authorizing inmate access” to the inmate’s FBI criminal history information. The court found that the DOC justification or withholding the state criminal history information, WAC 446-20-090, was similarly indefensible, as this regulation concerned a right that was only supplementary to those contained in the PRA.

Although the court held that the burden was still on Adams to prove bad faith under RCW 42.56.565(1), the court affirmed the trial court’s finding that the DOC improperly withheld Adams’s criminal history information in bad faith by continuing to withhold Adams's records for more than 10 months after the analogous Chester decision was entered, and for failing to conduct its own independent verification of the validity of its exemption claims. The court awarded Adams his costs on appeal.