Production on a "Partial or Installment Basis" Also Means Just One Production

Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations?  Divisions I and II of the Washington Court of Appeals disagree. 

In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production.  In other words, a single production also means “the last production… on a partial or installment basis.”  A plain reading of the statute might suggest otherwise.  “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6). 

Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005. 

Yet, Division I concluded just that.  In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment.  There, the agency did not claim an exemption and produced only a single document.  Because a single production could not be an installment, Division I concluded that the statute did not apply.  

Prison Bars: Washington Court Finds Inmate's Public Records Lawsuit Time-Barred

A Washington State Court of Appeals recently held that an inmate’s public records lawsuit against the State of Washington Department of Corrections (“DOC”) was time-barred, and therefore properly dismissed. Johnson v. Wash. State Dep't of Corrections, Case No.40831-7-II, 2011 WL 5345375 (Wash. Ct. App. Nov. 8, 2011).

Inmate Robert Johnson's claim concerned the DOC’s Extended Family Visiting policy (“EFV”). The EFV policy allows an offender to receive private visits from family. Under early versions of the policy, inmates could participate in the EFV program only if they had a “positive prognosis of release”, that is if they would outlive their sentence. Johnson was ineligible for participation in the EFV program, and filed a complaint in federal district court in 2005. The DOC subsequently changed its policy as of June 8, 2006 (though not as a result of Johnson’s claims), eliminating the “positive prognosis of release” requirement.

In August 2006, Johnson sent a public records request to the DOC’s Public Disclosure Unit requesting information about the EFV policy revision. The DOC advised Johnson that the only responsive record was one email documenting approval of the policy change. Johnson received the record in early September, 2006. Over the next few months, Johnson submitted a duplicative public records request to various DOC Public Disclosure officers seeking the same information identified in his original request. After a series of searches and additional communications with the DOC, the Department sent Johnson a final letter on August 27, 2007, noting that Johnson had already received the sole responsive document, and that his request was considered closed. Over two years later, another requestor, Melinda Carter, sought the same information as Johnson. Carter was provided with nearly 300 pages of documents in response to her request.

In December 2009, Johnson filed a Public Records Act (“PRA”) action to compel production of records that the DOC ostensibly withheld. Johnson contended that the DOC violated the PRA by only disclosing a single email when he had requested all records pertaining to the EFV policy change. He cited Carter’s request and DOC’s 300-page response as evidence to support his claim. The superior court denied Johnson’s motion and dismissed his PRA action. The Court of Appeals affirmed, finding Johnson’s arguments were time-barred.

The PRA statute of limitations provides that a plaintiff must file an action within one year of either (1) an agency’s claim of exemption from disclosure requirements, or (2) an agency’s last production of a record on a partial or installment basis. RCW 42.56.550(6). Johnson claimed that the DOC had not produced a last record in this matter, since he had only received a single email. He believed there were many more documents available based on his knowledge of the quantity of documents provided to Carter. On this basis, he argued that the statue of limitations had not been triggered. The Court rejected this argument, finding that some statute of limitations applied – either the one year statute under the PRA, or the more generous two year “catch all” statute of limitations for civil actions. RCW 4.16.130. The latest that Johnson might have received the final DOC letter, dated August 27, 2007, would have been early September of 2007. He filed his request more than two years later, in December 2009. Under either statute of limitation, Johnson’s claim was time-barred.

An important note for both agencies and requestors alike, is that the PRA’s one year statute of limitations applies in narrow circumstances: when an agency has claimed an exemption, or after the last production of a record on a partial or install meant bases. If these two factors are not met, then the one year limitation under the PRA does not apply. The general two year “catch all” statute of limitations under RCW 4.16.130 applies instead. See Tobin v. Worden, 156 Wn. App. 507, 233 P.3d 906 (2010) .