The Washington Court of Appeals declined to decide what it called an “interesting and important issue” regarding an agency’s obligation under the Washington Public Records Act, Chapter 42.56 RCW (PRA), to obtain records from a third party in response to a public records request. Because the record and briefing on appeal left “unanswered factual questions,” the court vacated the trial court’s order granting summary judgment in favor of the Washington Department of Corrections (DOC).

In Baker v. Department of Corrections, No. 34967-5-III (Wash. App. June 29, 2017), a DOC inmate requested copies of negotiable financial instruments deposited by DOC into his inmate trust subaccount. With the assistance of Bank of America (BOA), DOC manages this internal trust accounting system to assist with inmate finances, such as an inmate’s court-imposed financial obligations. DOC scans the front and back of negotiable instruments (e.g., checks or money orders) with BOA’s proprietary software and transmits the digital images to BOA. The digital images are not stored on DOC’s system. DOC then destroys the paper copies of the negotiable instruments after a certain period of time.

Alleging DOC failed to provide him with some of the records he requested, Baker sued under the PRA. DOC argued that it was not required to retrieve records from BOA because the records were scanned using BOA’s proprietary software and were not in DOC’s possession. The trial court dismissed Baker’s PRA claim on summary judgment.

On appeal, the court began by acknowledging the growing complexity of managing public records in the digital age:

This appeal illustrates the complications resulting from handling and storing written documents in the computer era and Internet age. Instead of records resting in one physical file folder with one person overseeing the folder, the Internet scatters the records throughout cyberspace, no one person serves as a physical custodian of the records, and no one knows the extent and location of the records. Sometimes purported advances in efficiency complicate our lives.

Despite the court’s recognition that the case presented “an interesting and important issue,” the court concluded that, without certain key facts, it could not decide whether documents in BOA’s possession comprised records that DOC “prepared, owned, used, or retained” and that contained information relating to the conduct of government. For example, the record did not show whether BOA possessed the records Baker sought, BOA’s retention policy for the records at issue, or what records DOC actually produced to Baker. Summary judgment was therefore inappropriate prior to resolving these factual issues.

The court’s decision to reverse summary judgment in favor of DOC also serves as a reminder that agencies bear the burden of proving that any refusal to permit public inspection of records was proper under the PRA.