Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?

In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year.  See Laws of 2005, ch. 483, § 5; former RCW 42.17.410.  Actions for judicial review under RCW 42.56.550 now “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).  Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency.  This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).  There, the court held that the one-year statute of limitations barred all of the requestor’s claims. 

Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010).  In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.”  Id. at 514 (quoting RCW 42.56.080).  Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply. 

Division II disagreed with Tobin.  Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011).  After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.”  Id at 777.  The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event. 

In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue.  Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit.  Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.”  Id. at 537.  Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records.  The court declined to follow a literal reading of the statute because doing so would lead to absurd results.  Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in BartzSee 177 Wn.2d 1024 (2013).

With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions.  One of the plaintiff’s public records requests in  Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed.  The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period.  The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents.  Opinion at 14-15; see also id. at 18.  Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed.  Id. at 15. 

Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550.  At minimum, it raises doubt as to the continuing precedential value of Tobin.  The court cited Tobin as contrary authority in a footnote, but did not elaborate further.  Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin.  At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed.  Those deadlines are November 17 and 26, respectively. 


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) .