In Francis v. Washington State Department of Corrections, Division II of the Court of Appeals held that the Department acted in bad faith by not conducting a reasonable search in response to an inmate public records request, awarding both penalties and costs. This is the second time in the past month that Division II has addressed the 2011 amendments to RCW 42.56.565, which now prohibits an award of PRA penalties to an inmate unless the responding agency acted in bad faith. See Gronquist v. Dep’t of Corrections (Oct. 29, 2013).
Unlike Gronquist, however, here the court found that DOC acted in bad faith. In particular, the court noted (1) a delayed response by the agency, (2) lack of strict compliance with PRA procedural requirements, (3) lack of proper training and supervision, (4) negligence or gross negligence, and (5) sufficient clarity in Francis’s request. In responding to the request, DOC spent no more than 15 minutes searching for the documents, which the court described as “almost a rubber-stamp situation.” Despite these findings, the court also found no recklessness or intentional noncompliance, no intentional hiding or misrepresentation, and no deceit on DOC’s part.
DOC’s primary argument was that bad faith, which is not defined in the PRA, requires some intentional, wrongful act. The court disagreed. After reviewing PRA and non-PRA cases discussing bad faith, as well as federal FOIA cases, the court determined that DOC’s proposed standard was untenable. The court also looked to legislative intent and the underlying purposes of the PRA in concluding that bad faith should be given a broader reading. While bad faith would not apply where an agency simply made a mistake in a record search or followed a legal position that is subsequently reversed, it would be liable if it failed “to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”
After the court of appeals affirmed the trial court’s determination of bad faith and its award of $4,495 in penalties, the court reversed the trial court’s refusal to award costs. Explaining that RCW 42.56.550(4) is a mandatory cost-shifting provision, the court held that Francis should have been awarded his costs as the prevailing party. The court also awarded Francis his costs on appeal.