* Steven P. Kozol v. Washington State Dept. of Corrections

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FILED
JAN 122016
COURT OF APPEALS
DIVISION III
STATE OF WASHINGTON
By---
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STEVEN P. KOZOl, 	) 	No. 	33163-6-111
)
Appellant, 	)
)
v. 	) 	ORDER DENYING MOTION
) 	FOR RECONSIDERATION
WASHINGTON STATE DEPARTMENT 	) 	AND AMENDING OPINION
OF CORRECTIONS, 	)
)
Respondent. 	)
THE COURT has considered appellant's motion for reconsideration and the
answer thereto, and is of the opinion the motion should be denied. Therefore,
IT IS ORDERED, the motion for reconsideration of this court's decision of
December 1,2015, is hereby denied.
IT IS FURTHER ORDERED the opinion filed December 1, 2015, is amended as
follows:
The 2nd paragraph, 4th line on page 6 that reads:
While Mr. Kozol believes that the back side of the original grievance form
should exist, DOC proved otherwise.
shall be amended to include footnote 5 that reads:
There is some evidence that several of the physical complaint forms were
not destroyed until after Mr. Kozol's records requests. 	Regardless,
 	 	 	 	 	 	 	 	 	 	 	 	 	

because the back sides of those forms contained only boilerplate
instructions and were not substantively employed in the grievance
process, they were not records reasonably identifiable from Mr. Kozol's
requests for records on specific grievances. 	See Gendler v. Batiste, 174
Wn.2d 244, 252, 274 P.3d 346 (2012).
PANEL: 	Judges Korsmo, Siddoway, Lawrence-Berrey
FOR THE COURT:
~~,c~t9AURELSiDD0WAY 	{j
Chief Judge
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED
JAN 12 20t6
COURT OF APPEALS
DIVlS10NlU
STATE OF WASHINGTON	By___ _
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
STEVEN P. KOZOl, 	) 	No. 	33163-6-111
)
Appellant, 	)
)
v. 	) 	ORDER GRANTING MOTION
) 	TO PUBLISH OPINION
WASHINGTON STATE DEPARTMENT 	)
OF CORRECTIONS, 	)
)
Respondent. 	)
THE COURT has considered the respondent's motion to publish the court's
opinion of December 1, 2015, and the record and file herein, and is of the opinion the
motion should be granted. Therefore,
IT IS ORDERED, the motion to publish is granted. The opinion filed by the court
on December 1, 2015, shall be modified on page 1 to designate it is a published opinion
and on page 8 by deletion of the following language:
A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but it will be filed for public
record pursuant to RCW 2.06.040.
PANEL: Judges Korsmo. Siddoway, lawrence-Berrey
FOR THE COURT:
~t"~G5	RELSiDDOWAY 	(
Chief Judge
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED
DEC 	1,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STEVEN P. KOZOL, 	)
) 	No. 33163-6-111
Appellant, 	)
)
v. 	)
)
WASHINGTONSTATEDEPARTMENT 	) 	UNPUBLISHED OPINION
OF CORRECTIONS, 	)
)
Respondents. 	)
KORSMO, J. - 	Steven Kozol concocted a scheme in prison to make money off the
Public Records Act (PRA) with a former inmate who was out of prison. 	When the trial
court dismissed his action on show cause, he appealed to this court. 	We affirm.
FACTS
Mr. Kozol communicated with Aaron Leigh concerning a method of filing vague
PRA requests for documents that they knew the Department of Corrections (DOC) did
not maintain and then win awards for the failure of DOC to comply with the request. In
accordance with that plan, Mr. Kozol sent 31 1 separate PRA requests to DOC, each
1 Although only 29 of these appear in the record, there is no dispute that there
were in fact 31, and all subsequent correspondence shows requests for 31 specific
grievance numbers.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-II1
Kozol v. Wash. State Dep't ojCorrs.
requesting "any and all records for inmate/offender grievance # []. This includes the
original complaint form." DOC received the requests and five business days later
responded with an outline of expected production dates in early April, 2012. Pursuant to
that schedule DOC responded individually to each of Mr. Kozol's requests. While DOC
staff were unable to locate any records on one of the requests (request number PDU
18880), they did produce, with some redactions, files on the other 30 grievances,
including copies of the original grievance forms.
Between March 25 and July 12,2013, Mr. Kozol and DOC exchanged a series of
letters in which Mr. Kozol accused DOC of silently withholding responsive records,
while DOC asked for proof of withholdings, and ultimately declined to provide any
additional records. 2 Then again on November 22, 2013, Mr. Kozol sent a letter to DOC
demanding the production of all "silently withheld responsive records" pertaining to
these and other PRA requests. He then filed suit on December 11, 2013 in Spokane
County, vaguely alleging a large number of non-specific PRA violations.
The primary substance of his claims was that DOC failed to adequately respond to
his requests because it omitted the back side of all of the grievance forms, and that it
violated the PRA by failing to disclose any responsive documents on PDU-18880. The
2 These letters are not in the record on appeal, and so their content is not clear.
They are vaguely described in Mr. Kozol's complaint, while in its answer the DOC
admits their existence and asserts that their content speaks for itself.
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-III
Kozol v. Wash. State Dep't o/Corrs.
grievance forms at issue are two sided, containing space to write the substance of the
grievance on the front, with some instructional information on the back. 	Since the back
side contains only instructions, DOC does not retain copies of the back sides when the
grievance is scanned into its records system.
During discovery, the DOC located and disclosed the grievance records responsive
to request PDU-18880. DOC had originally failed to locate the grievance after searching
its grievance database and contacting the statewide grievance coordinator. However, the
grievance had never been logged in either place, but was located at the Airway Heights
Corrections Center.
DOC filed a show cause motion to dismiss, arguing that it had produced all
records, had performed an adequate search for PDU -18880, and that the litigation was
untimely. Mr. Kozol moved for a continuance to pursue more discovery and moved to
strike his communications with Mr. Leigh from the record. The trial court denied Mr.
Kozol's motions and granted the show cause motion to dismiss on the bases that DOC
had provided most records and had performed an adequate search for PDU-18880. Mr.
Kozol then timely appealed to this court.
ANALYSIS
Although the briefing raises several claims, we need only address two of them.
The two issues we address are whether the court erred in denying the continuance and
3
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-III
Kozol v. Wash. State Dep 't ofCorrs.
whether the trial court correctly dismissed the action.3 We address those two concerns in
the stated order.
Continuance
CR 56(f) allows the trial court to order a continuance to allow further discovery
where it appears that the responding party, for good reason, cannot present facts essential
to its opposition to the motion. Review of a denial of a motion under CR 56(f) is for
abuse of discretion. 	Tellevik v. 31641 W Rutherford St., 120 Wn.2d 68,90, 838 P.2d 111
(1992). A court may deny such a motion where (1) the requesting party fails to offer a
good reason for the delay, (2) the requesting party does not state what evidence is
desired, or (3) the desired evidence will not raise a genuine issue of material fact. 	Id.
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
State ex reI. 	Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Mr. Kozol argues that the continuance should have been granted to allow him to
discover if DOC used the back of the forms in any manner. His argument is not
responsive to the standards of CR 56(f) because the discovery would not have raised any
issues of genuine material fact concerning DOC's compliance with the PRA. The
3 We do not reach the question of whether this action was timely filed. 	The
motion to strike is moot as those materials did not playa role in the trial court's decision
to grant the dismissal motion. Mr. Kozol also seeks attorney fees in this action.
However, since he is proceeding pro se, he could not have received attorney fees even if
he had prevailed. 	West v. Thurston County, 168 Wn. App. 162, 194-195,275 P.3d 1200
(2012); Mitchell v. Dep 't ofCorrs., 164 Wn. App. 597,608,260 P.3d 249 (2011).
4
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-111
Kozol v. Wash. State Dep 't ofCorrs.
questions presented by the show cause motion were whether DOC had provided what it
was supposed to provide and whether it looked hard enough for the document that was
belatedly provided. Whether or how the back of the grievance forms had been used when
they existed was not a matter of consequence to the motion.
Mr. Kozol failed to present a valid reason for continuing the show cause motion.
Thus, the court had a very tenable reason for denying the motion. 	There was no abuse of
discretion.
Show Cause Ruling
Mr. Kozol argues that the court erred in granting the show cause motion,
contending primarily4 that DOC withheld records by not turning over the back side of the
grievance forms and that the belated production of PDU-18880 proved that DOC was in
violation of the PRA. His initial argument misconstrues what is a public record and the
second ignores the rules concerning review of missing records.
Appellate review of a PRA case is de novo. RCW 42.56.550(3); City of Fed. Way
v. Koenig, 167 Wn.2d 341, 344, 217 P.3d 1172 (2009). Judicial review ofPRA disputes
typically is by way ofa show cause hearing. RCW 42.56.550(1).
4 Mr. Kozol also presents other arguments that are not germane to the trial court's
ruling and will not be addressed.
5
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-111
Kozol v. Wash. State Dep 't ofCorrs.
The PRA is a broadly worded mandate for disclosure of state government records.
To that end, the final paragraph of RCW 42.17 A.OO 1 declares in part that the provisions
of Initiative 276 "shall be liberally construed to promote ... full access to public
records." Government agencies must make their records available for inspection and
copying. RCW 42.56.070. A "public record" is broadly defined as "any writing
containing information relating to the conduct of government." RCW 42.56.010(3).
However, whether or not a record should exist is a different question than whether
it does exist. The PRA only requires that access be granted to existent records, not
nonexistent records that one believes should exist. Sperr v. City of Spokane, 123 Wn.
App. l32, l36-137, 96 PJd 1012 (2004). 	While Mr. Kozol believes that the back side of
the original grievance form should exist, DOC proved otherwise. As DOC produced the
only part of the specified grievance forms that still existed, it complied with the dictates
of the PRA. There can be no silent withholding of a document that no longer exists. The
trial court correctly concluded that there was no violation of the PRA.
The remaining issue is whether DOC violated the PRA by its late disclosure of
PDU-18880. DOC did not originally produce the record because it could not find it. The
agency looked in the places where the grievance was supposed to be found. 	When an
agency does not find a record that should exist, the question for review is whether or not
the search was adequate. Neighborhood All. of Spokane County v. County of Spokane,
6
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-111
Kozol v. Wash. State Dep't ofCorrs.
172 Wn.2d 702, 719-720, 261 P.3d 119 (2011). The agency must look in the place where
the record "is reasonably likely to be found." ld. at 720.
We agree with the trial court that the search here was adequate. The grievance
fonns are supposed to be scanned into the grievance records system and then destroyed.
The public disclosure officer for DOC checked the records system and then, when there
was no record for the grievance, contacted the statewide grievance coordinator to
determine if the record was located elsewhere. Neither officer knew of another location
where it would likely find the missing grievance.
The fact that the record eventually was found does not establish that the agency's
search was not adequate. ld. at 719. Instead, the question is whether the search was
"reasonably calculated to uncover all relevant documents." ld. at 720. That was the case
here. The records officer checked the records system. 	When that proved unavailing, the
records officer checked with the statewide coordinator who likewise could not find it
anywhere. Neither official knew where else it could be located. A reasonable search
need neither be exhaustive or successful.
We agree with the trial court that DOC looked in all the places the record should
have been. Nothing more was required of it.
7
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33163-6-III
Kozol v. Wash. State Dep 't ofCorrs.
The judgment is affinned.
A majority of the panel has detennined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Siddoway, C.J.
Lawrence-Berrey, J.
8