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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

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PRISON LEGAL NEWS, INC., a Washington
non-profit corporation,

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Plaintiff,

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v.
W ASH!NGTON ST ATE DEPARTMENT OF
CORRECTIONS,

II
Defendant.

~~~~~~~~-=....:;==~:..:;__~~~

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No.
COMPLAINT FOR DISCLOSURE OF
PUBLIC RECORDS

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PARTIES
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1.

Plaintiff. Plaintiff, The Prison Legal News ("PLN") is a Washington non-profit

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corporation, qualified to do business in the State of Washington, with its main office in Seattle,
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newspaper reaches all 50 states and 23 countries worldwide.

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2.

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Defendants. Defendant Washington State Department of Corrections ("DOC") is

a public agency with its main office in Olympia, Washington. Airway Heights Corrections

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Center and the Washington State Reformatory are correctional institutions operated by the DOC.

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COMPLAINT - 1
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FIRST CAUSE OF ACTION

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First Request for Public Records. In the summer of 1998, the Spokane

3 Spokesman-Review published an article alleging that since the 1993 opening of the Airway
4 Heights Corrections Center, 18 employees had quit or been fired for being "compromised" or
5 having an improper relationship with an inmate, and that seven of those employees had left
6 Airway Heights since December I 997. On or about October 6, 1998, Paul Wright, reporter and
7 editor for PLN, prepared and sent a written request to the superintendent of Airway Heights
8 Corrections Center ("AHCC"), requesting "a copy of all memos, reports, Employee Conduct
9 Reports or similar documents, concerning the following incidents: Any AHCC staff members
1o that have been disciplined, investigated, criminally charged or have resigned based on allegations
11 of: introducing contraband to the institution; engaging in inappropriate relationships with
12 prisoners; stealing or misappropriating prisoner mail and/or property; and las tly, for unlawfully
13 extending prisoners release dates." In the letter, Wright specifically stated that the request was
14 pursuant to RCW 42. I 7, the Public Disclosure Act.
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4.

Requested Documents arc Public Records. RCW 42.17.020(36) defines "public

16 record" to include:
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[A]ny writing containing information relating to the conduct of
government or the performance of any govenunental or proprietary
function prepared, owned, used or retained by any state or local
agency regardless of physical form or characteristics.

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20 The records requested are records relating to complaints and investigations of improper conduct
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by publ ic officials and govenunent agents in the course of performing their duties- dearly

22 records relating to the conduct of govenunent and performance of a governmental or proprietary
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function. The records are further prepared, owned, used, and retained by the DOC, a state

24 agency. The documents in question are therefore public records to be made available for
25 inspection and copying under RCW 42.17.260, which provides:
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COMPLAINT - 2
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(1) Each agency, in accordance with published rules, shall make
available for public inspection and copying, all public records
unless the record falls within [a specific exemption] ... To the
extent required to prevent an unreasonable invasion of personal
privacy interests protected by RCW 42.17.3 10 and 42.17.355, an
agency shall delete identifying details in a manner consistent with
RCW 42.17.310 and 42 .1 7 .315 when it makes available or
publishes any public record; however, in each case, the
justification for the deletion shall be explained fully in writing.

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S.

Failure to Respond Promptly. PLN was entitled to promptness and the

agency's fullest assistance and most timely possible action on PLN's request. RCW 42.17.290,
.320. The DOC was required to respond to PLN's request no later than 5 business days
following the request by either denying or producing the record. RCW 42.17.320. More than 5
days-indeed, more than three weeks-passed before the agency even responded to Mr. Wright,
at which point the DOC did not provide any records or explain why they were being withheld,
but instead initiated a long and tortured exchange of correspondence that delayed the disclosure
of records for months.
(a) The Administrative Program Manager and Public Disclosure Officer for AHCC, Cly
Evans, replied to Mr. Wright on October 28, 1998, acknowledging that the DOC had received
the public disclosure request as of October 12, 1998. Mr. Evans refused to indicate what , if any,
documents were responsive to Mr. Wright's request, or the specific statutory exemptions (if any)
being claimed. Instead, Mr. Evans characterized the request as so "vague, general, and
sweeping" as to be "overly burdensome." No records were provided.
(b) In Mr. Wright's response to Mr. Evans on November 3, 1998, Mr. Wright reiterated
his request that the DOC infonn him of what documents or materials were responsive to his
request and explain what exemption tl1e agency claimed applied. Mr. Wright reiterated that his
request pertained to specified acts of employee misconduct, and that this information would
surely be available in some centralized record, filing, or database. Mr. Wright even suggested
several starting places available to Mr. Evans, such as quarterly reports that each institution

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COMPLAINT - 3
F:IDOCS\99181764100006PLO.OOC
Seattle

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compiles pursuant to Department of Personnel Policy 400.300, the Intelligence and Investigation

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Program, which mandates a listing of staff resignations and the reasons therefor.
(c) On December 15, 1998, more than two months after PLN's request, Mr. Evans wrote
to Mr. Wright, stating: "We are reviewing material that we feel falls within the parameters of
your request. We are also consulting with an AAG to help us clearly identify what parts of the
material are discloseablc, and what parts arc not discloseable." Mr. Evans concluded, "We
expect to have further response to you by 1/ 15/99."
(d) On December 27, 1998, Mr. Wright wrote to the DOC Public Disclosure
Coordinator, Steve Rawlins, infonning him of Mr. \Vright's correspondence with Mr. Evans and
the failure of the agency to provide an adequate response to Mr. Wright's request, and asking
Mr. Rawlins to confirm that Mr. Evans' non-response was the final agency action on that
request.
(e) On January 6, 1999, Eldon Vail, an assistant deputy secretary of the DOC Office of
Correctional Operations, responded to Mr. Wright's 12/27/98 letter by stating that his request "is
being researched and processed," and urging him to "continue to work with the authorities at
Airway Heights" to have the request processed.

(f) On January 18, 1999, Mr. Wright responded to the 1/6/99 leuer from Mr. Vail,
reiterating that he had yet to receive an adequate response to his initial PDA request of early
October 1998.
(g) On January 22, 1999, Mr. Wright received a leller from Mr. Evans that indicated
Airway Heights had identified cases responsive to the request, and that he expected to have the
material ready by March 1, 1999. The letter also stated that the agency would be notifying the
employees involved "to allow them their right to seek a protective order."

(h) On January 31, 1999, Mr. Wright responded to Mr. Evans' 1122199 lener reiterating
that the DOC was grossly out of compliance with the PDA 's requirement of promptness.

26

COMPLAINT - 4
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(i) On March 10. 1999, Mr. Evans wrote that he had compiled the documents requested

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by Mr. Wright, incorrectly referring to Mr. Wright's PDA request as having been ''dated January
3 1, 1999," when in fact the initial PDA request was submitted nearly four months earlier. Yet
Mr. Evans still did not enclose any responsive documents with this letter, insteud stating that the
documents were "being forwarded to the Attorney General 's Office for their review and
approval." The letter also stated that the employees in question were told of Mr. Wright's
request so that they could seek a protective order in court. No protective orders were
subsequently sought.

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G) On March 25, 1999, Mr. Wright responded to Mr. Evans· 3/10/99 le11er, inforrning
him that the DOC still had not identified which records were being disclosed or the bases, if any,
for withholding any responsive documents.

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(k) On April 12, 1999, Mr. Evans replied, aue1npting to defend the delay in the agency's
PDA response but still not providing the documents. The letter states that "(r)cdaction has been
done on all documents under authority of 42.17.310 l(b) (d) (c) and (u)," but docs not specify
what documents are being produced or any reason that those redactions are authorized by the
statutes cited.

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(I) On April 26, 1999, more than six months after Mr. Wright's initial request, the DOC
produced two records consisting of72 heavily redacted pages, without explaining whether there
were any other responsive documents that were being withheld as exempt from public disclosure,
the statutory basis for any such withholding, or the statutory basis for the redactions. Mr. Evans
had earlier admitted that he received PLN's request on October 12, 1998; therefore, the DOC
should have provided PLN with an adequate response or the records by October 17, 1998. The
DOC has violated RCW 42.17.320 by delayi ng its response to PLN in excess of six months. The
DOC has yet to provide remaining responsive documents believed to be in existence.

25
26

COMPLAINT - 5
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(m) On May 1, 1999, Mr. Wright informed the DOC that the redactions, and the failure

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oftbe DOC to disclose documents concerning other employees whom Mr. Wright had reason to
believe left AHCC because of misconduct, were in violation of the PDA.

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(n) On May 17, l 999, the DOC wrote to Mr. W1ight, citing the exemptions being
claimed in support of the agency's redaction of material in the two records that were disclosed
three weeks earlier, but not providing any basis for applying the cited exemptions to the
information at issue. For the next six weeks, Mr. Wright engaged in correspondence with the
DOC in which the DOC refused to provide unredacted versions of the two records disclosed or to
substantiate its withholding of other records .

IO
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(o) Even 15 months following Mr. Wright's initial request, the infom1ation sought by
PLN continues to be of legitimate public concern. These issues of misconduct within a state
correctional facility are of high importance to the readers of PLN, particularly given the scant
coverage of these issues by daily newspapers.

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for "Vithbolding. The DOC has failed to disclose all records responsive to PLN' s request. PLN
has reason to believe that from December 1997 to the time of PLN' s request, at least 18
employees were terminated or resigned from Airway Heights Corrections Center because of
being "compromised" or having inappropriate relationships with inmates. See June 17, l 998
Spokesman-Review article, attached as Exhibit A to Wright Deel. Since PLN's request was
from 1995 to 1998, there should have been at least ! 8 and in all likelihood even more records
responsive to Mr. Wright's request. Yet the DOC produced only two records and has not
acknowledged the existence of any others, much Jess alleged a PDA exemption under which they
were entitled to be withheld.

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Refusal to Make Public Record Available or Provide Adequate Explanation

7.

Unlawful Redaction and Failure to Properly Segregate. The DOC has not

explained or establ ished why the redacted information is exempt under RCW 42.17.31 O(l)(b) or

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COMPLAINT - 6
F:\OOCS\99\81764\00006PLO. DOC
Seattle

Davis \\'right Tremaine LLP
LAW0Ff1C::t:S

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(d). The agency is not pennitted to make dozens of redactions under a "blanket" exemption but
must specify which statutory exemption applies to which redaction. The DOC has also violated
RCW 42. 17.310(2), which imposes a duty on the part of the agency to segregate, and to release
all portions of a record that arc not exempt.
(a).

Exemption of RCW 42.17.3 10(1 )(b) Does Not Apply. The DOC has 1101

established that disclosure of the infonnation it redacted would violate any employee's right to
privacy. Under the PDA, a person's privacy is violated "only if disclosure of infonnation about
the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate
concern to the public." RCW 42.17.255. Not only did DOC redact the names of the tenninated
employees, but also it redacted names of investigating officers, witnesses, and even pronouns,
making the documents largely unintelligible. Because the matters at issue are those in which
misconduct was actually found , the DOC has no basis for withholding the names of the
wrongdoers and investigating officers. Specific acts of misconduct of government employees
arc matters of legitimate public concern and the release of such infonnation can never violate
one's right to privacy. Furthermore, some of the details redacted from the records are now a
matter of public knowledge. because PLN could literally see through some of the DOC's
anempted redactions.
(b)

Investigative Reoort Exemption Does Not Applv. RCW 42.17.310(1 )(d) exempts

from disclosure only information the nondisclosure of wl1ich is essential to effective law
enforcement. The records in question concern closed investigations for wh ich administrative, if
not criminal, action has already been taken against the prison employees. Blanket redaction of
certain categories, without any showing that the nondisclosure of specific infonnation is tmJy
essential to effective law enforcement, is not allowed by the PDA.
(c)

Victim/Complaint Privacy Exemption Does Not Applv. The DOC cannot show

that RCW 42.17.3 lO(l)(e), which exempts only that information "revealing the identity of

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COMPLAINT - 7
l':IDOCS\99\8 1764\00006PLD.DOC
Sconlc

Dnvis \\'right Tre-maine LLP
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persons who are witnesses to or victims of crime or who fi le complaints ... if disclosure would

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endanger any person' s life, physical safety, or property," applies to this request. As such, the
citation by Mr. Evans to this statute in his 4/12/99 letter is without merit.

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( d)

Residential Addresses and Residential Telephone Numbers Exemption Does Not

AJ:m!y. PLN has not requested such information. As such, the citation by Mr. Evans to
RCW 42.17.3 lO(l)(u) in his 4/12/99 letter is not a basis for withholding documents or redacting
the information that the DOC redacted.

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SECOND CAUSE OF ACTION

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aware in June 1999 ofa telemarketing venture that, although ovmed and run by a private
company, employed as many as 30 prisoners and operated at a state prison. Thjs venture was
being discontinued, and the reasons for its discontinuance were and are of legitimate concern to
the public. On behalf of PLN, Mr. Wright made a PDA request by writing to the superintendent
of the Washington State Refonnatory (" WSR") on Jm1e 27, 1999, seeking "all documents,
memorandums, investigative reports, contracts and any other written material pertaining to
Washington Marketing Group and their departure from WSR." The request was forwarded to
the DOC 's Correctional Industries division.

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Second Request for Public Records. As editor of PLN, Mr. Wright became

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Requested Records Are Public Records. RCW 42.17.020(36) defines "public

record" to include:

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[A ]ny \Wiling containing information relating to the conduct of
government or the performance of any governmental or proprietary
function prepared, owned, used or retained by any state or local
agency regardless of physical form or characteristics.

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The records sought by PLN regarding the Washington Marketing Group tulquestionably relate to
the operation of the DOC in its contracting with private entities for the use of prisoner labor.

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COMPLAINT - 8
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Seattle

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The records are further prepared. owned, used or retained by the DOC, a state agency, or by

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WSR, the institution within that agency. They arc, therefore, public records.
10.

Failure to Respond Promptly. The DOC was required to respond to PLN

request no later than 5 business days by either denying or producing the record.
RCW 42. 17.320. The DOC received PLN's request on June 29, 1999 and forwarded it to
Howard Yarbrough of the Office of Correctional Operations, Correctional Industries. On August
2, 1999, more than a month after PLN's request, the DOC sent Mr. Wright a bill for
photocopying but did not identify which records were being produced or the exemptions, if any,
for redacting any partS of those records. On September 17, 1999, the DOC finally produced
responsive records, but redacted "the information for private citizens and businesses" without
giving any further explanation. The DOC violated RCW 42.17.320 by delaying its response to
PLN and by conti nuing to refuse to provide an adequate response.

11.

Unlawful Reda ction and Failure to Properly Segregate. On September 23,

1999, Mr. Wright responded to Mr. Yarbrough with a letter spec ifically requesting that the
agency substantiate the reasons for its withholding of the redacted information. Mr. Wright also
stated that he was 1101 seeking the addresses of people or businesses that the DOC had redacted,
but that the 11ames of people and businesses in the documents should be disclosed. The DOC
never responded. The DOC has never attempted to explain why disclosure of the redacted
information would be "highly offensive to a reasonable person" a11d "not of legitimate concern
to the public" so as to justify redaction. Nor has the DOC even cited RCW 42.17.310, let alone
the specific exemption within 42.17.3 10(1) that it claims applies here. The DOC has thus
unlawfully withheld the redacted information and, as a result, violated RCW 42.17.3 10(2), which
imposes a duty on the part of the agency to segregate, and to release all portions of a record that
arc not exempt.

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COMPLAINT - 9
F:\OOCS\99\81764\00006PLD.DOC
Scoulc

O:ivls \\'right Trl.!mainc LLP
L AW OFFICES

1600 C•11niry Sq11u• • UOI fuunh Avt.nuc
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THIRD CAUSE OF ACTION

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Fees CoUcctcd for Photocopying of Public Records. RCW 42.17.3 00 allows

reasonable fees to be charged for inspection and copying of records, as "established and
published by the agency." The DOC has promulgated a specific regulation which provides that
the DOC's copying fee is 20 cents per page:

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(2) The department shall collect a fee of twenty cents per page plus
postage to reimburse itself for the cost of providing copies of
public records.

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WAC 137-08- 110(2) ( 1999). Despite this provision, the DOC charged PLN a fee of 35 cents per
page for the requests for public di sclosure of records referenced above in the First and Second
Causes of Action.

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Refund Requested and Agency Delay. In early October 1999, Mr. Wright

inquired about a refund. The Public Disclosure Officer responded by assuring Mr. Wright that
the Department would reimburse him 15 cents per copy for requests made during the past three
years. On January 9, 2000, Mr. \Vright responded with the specific requests, number of copies,
and amount overcharged during 1999, totaling $19.55. The DOC has failed to respond to this
refund request. As such, the DOC is in violation of RCW 42.1 7 .300 and WAC 137-08-110(2).

JUDICIAL REVIEW AND BASIS FOR RELIEF

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Right to Judicial Review. RCW 17.42.340 provides that any agency action

denying access to public records for inspection and copying is subject to judicial review by a
show cause motion:
(1) Upon the motion of any person having been denied an
opportunity to inspect or copy a public record by an agency, the
superior court in the county in which a record is maintained may
require the responsible agency to show cause why it has refused to
allow inspection or copying of a specific public record or class of
records. The burden of proof shall be on the agency to establish
that refusal to permit public inspection and copying is in
accordance with a statute that exempts or prohibits disclosure in
whole or in part of the specific informati on or records.

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COMPLAINT - 10
f :ll>OCS\99\8 I764\00006PLD.OOC
Seattle

Davis Wright Tremaine UP
LAW Ofr 1ces
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Century Square •

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Fourlh .'\venue

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RCW 42.17.340(1).
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RCW 42. 17.340 also states that the court shall not defer to any determination made by

3 the agency, but shall review the matter de novo. In addition, the court may examine any record
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ill camera and the court must take into account the public policy in favor of disclosure.
(3)... Courts shall take into account the policy of this chapter that
free and open examination of public records is in the public
interest, even though such examination may cause inconvenience
or embarrassment to public officials or others. Courts may
examine any record ill camera in any proceeding brought under
this section.

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Right to Attorney's Fees and Costs. RCW 42.17.340(4) provides that any

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person who prevails against an agency in any action seeking the right to inspect or copy any

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public record shall be awarded all costs, including reasonable attorneys' fees. PLN is entitled to

12 recover such reasonable costs and attorneys' fees incurred in bringing this cause of action.
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Statutory Penalty. Finally, RCW 42.17.340(4) provides that the court has

14 discretion to award the person who prevails against an agency an amowlt not to exceed $I 00.00
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for each day that he was denied the right to inspect or copy a public record. The DOC has

16 exercised bad faith in refusing to comply with the PDA in its actions on PLN's requests. To
17 deter future willful violations of the PDA by this agency, the Court should award PLN the
18 maximwu statutory penalty of$100 per record for each day PLN has been denied the right to

19 inspect or copy responsive and non-exempt records.
P.RAYER FOR RELIEF

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WHEREFORE, PLN prays for judgment against the DOC as fo llows:

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FIRST CAUSE OF ACTION
I.

Declaration that that the DOC failed to respond promptly to PLN's Airway

Heights request for records, thus violating RCW 42.17.320;

2.

Declaration that the DOC violated RCW 42.17.260 by failing to produce all

26 responsive and non-exempt records.

COMPLAINT • 11
F:IDOCS\99\81764100006PLO.DOC
Scanle

Davis \Vright Tremaine LLP
LA'4'0FFICES

:i«I C1n1ury Square · uo1 Founh A~·cn11e
Suul1, W11h1naion 'llUl· l6lll
(206)6ll·JUO · Fa:c(l06)62t·7titt

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3.

Declaration that the DOC violated RCW 42.17.260 by unlawfolly redacting

responsive and non-exempt material from the records it produced.
4.

Order that all responsive records be made immediately available to PLN for

inspection and copying;

5.

Order that the records already produced must be made immediately available to

PLN for inspection and copying in unredacted form;
6.

An award to PLN of all costs, including reasonable attorneys' fees, incurred in

connection with its action as provided in RCW 42.17.340(4);
7.

An award to PLN of$100.00 per day per document for each day that PLN has

been denied the right to inspect or copy the requested records since October I 7, I 998;

8.

Any other relief the Court deems j ust and proper for this cause of action;

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SECOND CAUSE OF ACTION
9.

Declaration that that the DOC failed to respond promptly to PLN' s Co1Tectional

Industries request for records, thus violating RCW 42. 17 .320;
I 0.

Declaration that the DOC violated 42.17 .260 by unlawfully redacting responsive

and non-exempt material from the records it produced;
11.

Order that the records produced must be made immediately available to PLN for

inspection and copying in unredacted form;
12.

An award to PLN of all costs, including reasonable attorneys' fees, incurred in

com1ection with its action as provided in RCW 42.17.340(4);

13.

An award to PLN of$100.00 per day per document for each day that PLN has

been denied the right to inspect or copy the requested records since July 4, 1999;
14.

Any other relief the Court deems just and proper for this cause of action;

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COMPLAINT - 12
F:\DOCS\99\B 1764\00006PLD.DOC
Seanle

Davis \\'right Trt-maine l.J..P
LAW0fFI C£S

:606 Century Squ.-rc · 1 ~01 fOl.lflh A~·en\lt

Se.:ude, Wuhi-sioe 91101·16111

(206)622·}1 SO · F.i."-: (l-06) 62l•16119

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THIRD CAUSE OF ACTION

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charging 35 cents per page for copying public records and failing to refund the difference;

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promising such reimbursement;
17.

Order requiring that the DOC reimburse PLN the amount ofSJ9.55, based upon

an overcharging of 15 cents per page for 129 copies.

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Declaration that the DOC is estopped from refusing to reimburse PLN for

amounts overcharged, based upon the letter from the agency's public disclosure officer

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Declaration that the DOC violated RC\V 42.17.300 and \VAC 137-08-1 10(2) by

18.

An award to PLN of all costs, including reasonable attorneys' fees, incurred in

connection with its action as provided in RC\V 42.17.340(4);

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19.

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Any other relief the Court deems just and proper for this cause of action.

DATED this 2"d day of March, 2000.

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Davis Wright Tremaine LLP
Attorneys for Plaintiff Prison Legal News,
Inc., d/b/a Prison Legal News

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~lh. ~~

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B Y ~~~~~~~~~~~~~~
David M. Bowman
WSBA #28523
Shelley Hall
WSBA #28586

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COMPLAINT - 13
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Seattle

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l.AWOPPICes
2600 Cc:11t1.11y Sq1.11ro • U OI Fourth Avtn.vie

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