IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
.o
(S3
CflO
trs
STEVEN L. CANHA, No. 73965-4-1
car*
-o
Appellant, TO O-n
en
3>-0rq
zx.
•xx"
DEPARTMENT OF CORRECTIONS, o
• *
-HO
O—;
an agency of the STATE OF UNPUBLISHED OPINION o
O 3=<
WASHINGTON,
FILED: April 25, 2016
Respondent.
Verellen, A.C.J. — A party relying on a discovery rule or equitable tolling to
oppose summary judgment based on a statute of limitations bears the burden of
establishing when the party first learned of the information giving rise to the cause of
action. Stephen Canha appeals the summary judgment order dismissing his claims
against the Department of Corrections arising out of two Public Records Act1 (PRA)
requests. He argues the discovery rule should apply to claims related to his PDU-
22455 request. Whether analyzed under a discovery rule or equitable tolling, Canha
fails to establish when he first learned the documents provided in PDU-22455 were not
responsive. Therefore, his claims related to that request are time barred. Canha also
fails to establish that the Department did not identify and produce all records he sought
in his PDU-24889 request.
Ch. 42.56 RCW.
No. 73965-4-1/2
We affirm.
FACTS
PDU-22455
On October 19, 2012, the Department received a public records request from
Canha, an inmate in the Department's custody:
I need information on inmate banking, specifically on the [mandatory]
inmate savings. Where are these funds deposited i.e. what bank what
account. I need a copy of the banking agreement between the
Department of Corrections and the bank for inmate specific funds. Is
there any [interest] earned on it for 2009 thru 2011 .[2]
A week later, the Department informed Canha that it had interpreted his request
as seeking records showing:
1. In which bank and which account inmate savings funds are deposited.
2. Banking agreement between [the Department] and the bank identified
in item one.
3. Amount of interest inmate savings accounts earned from January 1,
2009 thru December 31, 2011 J3'
In January 2013, the Department notified Canha that it had gathered two pages
responsive to which bank and to which account inmate savings funds were deposited
and the Department's banking agreement with that bank.
On February 12, 2013, the Department sent Canha a letter enclosing the
responsive documents, an exemption log, an exemptions section explaining the
redactions made in the records, and an appeal form. The letter informed Canha that
there were no responsive documents regarding his request for the amount of interest on
inmate savings accounts because the accounts were noninterest bearing. Canha did
2 Clerk's Papers (CP) at 43.
3 Id. at 45-46.
No. 73965-4-1/3
not receive these documents; the Department mailroom issued a "mail rejection notice,"
explaining that the mail was not allowed because it threatened the security and order of
the facility.4
On April 12, 2013, the Department received an appeal form from Canha. On
June 3, 2013, the Department responded that the documents provided to him were
responsive to his request, and that the redactions had been appropriately applied.
PDU-24889
On April 24, 2013, the Department received a letter from Canha with the heading
"RE: PDU-22455 & PDU-22386":
I am not seeking multiple copies of the requests.
I am seeking to [receive] the ones that have already been sent due to me
not [receiving] them.
They were [confiscated] by the [Department]. So I wish to pay for them
again and have them sent to another address please.[5]
The Department informed Canha that his request had been assigned tracking
number PDU-24889 as seeking records showing:
1. In which bank and which account inmate savings funds are deposited.
2. Records showing the banking agreement between [the Department]
and the bank identified in item one.
3. Amount of interest inmate savings accounts earned from January 1,
2009 thru December 31, 2011.
4. Information showing that offenders at CRCC have sent money from
their savings account to their immediate family members as according
4]diat110.
5 \± at 62. PDU-22386 is not directly addressed in this appeal. The record here
reflects the Department produced nine records responsive to that request. See id. at
72, 79-87.
No. 73965-4-1/4
to [the Department] policy 200.000 for medical needs of those family
members.'61
The Department stated it had "gathered 11 pages responsive to item numbers 1, 2, and
4" that would be sent upon payment.7 The Department also advised Canha to reply if
this interpretation of his request was incorrect.
In June 2013, after receiving payment for the records from a third party, the
Department requested Canha to provide the name and mailing address of a third party
so that it could send the responsive documents. Contrary to his April 24 letter, Canha
responded that he wanted the documents to be mailed directly to him.
In July 2013, the Department sent Canha the responsive documents, an
exemption log, an exemptions section explaining the redactions made in the records,
and an appeal form. Canha did not receive these documents. The Department
mailroom staff issued another "mail rejection notice," explaining that the mail was not
allowed because it contained information that could create a risk of violence or "physical
harm to any person."8
On April 15, 2014, Canha sued, challenging the Department's handling of his
PDU-22455 and PDU-24889 requests under the PRA. His complaint specifically
alleged the Department "breached its statutory duties" by:
Failing to produce non-exempt responsive records;
Failing to produce partially-exempt redactable responsive records;
Failing to disclose responsive records;
Redacting non-exempt responsive records; and
6 Jd, at 64.
7 jd, at 64-65.
8 Id. at 94.
No. 73965-4-1/5
Producing redacted records without an explanation as to how the
exemption applies.[91
The Department moved for summary judgment. The Department argued
Canha's claims relating to his PDU-22455 request were barred by the PRA's one-year
limitations period and that the Department had produced all the responsive records
relating to his PDU-24889 request. The trial court granted summary judgment,
dismissing all of Canha's claims.
Canha appeals.
ANALYSIS
PDU-22455
Canha argues the trial court erred in finding that his claims relating to his PDU-
22455 request were barred by the one-year statute of limitations because the discovery
rule should apply in this case. We disagree.
We review agency actions under the PRA de novo.10 We also review a summary
judgment order de novo, engaging in the same inquiry as the trial court.11 We view the
facts and all reasonable inferences in the light most favorable to the nonmoving party.12
Summary judgment is proper if there are no genuine issues of material fact.13 "A
material fact is one that affects the outcome of the litigation."14
9 Id at 6-7.
10 Neighborhood All, of Spokane County v. County of Spokane, 172 Wn.2d 702,
715,261 P.3d 119(2011).
11 \±
12 Fulton v. State. Dep't of Soc. & Health Servs., 169 Wn. App. 137, 147, 279
P.3d 500 (2012).
13 CR 56(c); Lowman v. Wilbur, 178 Wn.2d 165, 168-69, 309 P.3d 387 (2013).
14 Owen v. Burlington N. & Santa Fe R.R. Co.. 153 Wn.2d 780, 789, 108 P.3d
1220(2005).
No. 73965-4-1/6
A defendant moving for summary judgment "has the initial burden to show the
absence of an issue of material fact, or that the plaintiff lacks competent evidence to
support an essential element of [his] case."15 Ifthe defendant meets this initial showing,
then the inquiry shifts to the plaintiff to set forth evidence to support his case.16 The
evidence set forth must be specific and detailed.17 The responding plaintiff may not rely
on conclusory statements, mere allegations, or argumentative assertions.18 If the
plaintiff fails to establish the existence of an essential element that he bears the burden
of proving at trial, then summary judgment is warranted.19
A lawsuit challenging an agency's decision or action "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."20 A party relying on a discovery rule to oppose summary judgment
based on a statute of limitations bears the burden of establishing when the party first
learned of the information giving rise to the cause of action.21 To the extent that
Canha's arguments might implicate an equitable tolling theory based upon the mailroom
15 Sevbold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001).
16 Young v. Key Pharm.. Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989).
17 Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004).
18 CR 56(e); Vacova Co. v. Farrell, 62 Wn. App. 386, 395, 814 P.2d 255 (1991).
19 Young, 112 Wn.2d at 225.
20 RCW 42.56.550(6).
21 Clare v. Saberhagen Holdings, Inc.. 129 Wn. App. 599, 603, 123 P.3d 465
(2005); see also Phoenix Trading. Inc. v. Kavser, 2011 WL 3158416, at *9 (W.D. Wash.
July 25, 2011) (court order); Miles v. Shanghai Zhenhua Port Mach. Co.. Ltd., 2009 WL
5067513, at *4 (W.D. Wash. Dec. 17, 2009) (court order).
No. 73965-4-1/7
rejections, Canha had the same burden to establish when he first learned the
Department's responses were inadequate.22
The only information in the record about the contents of Canha's April 12, 2013
internal appeal is the Department's June 3, 2013 denial of that appeal. The
Department's June 3, 2013 response recites that Canha's internal appeal alleged a
failure to provide responsive documents. Canha did not provide the appeal form he
submitted. But he acknowledges his April 15, 2014 lawsuit relating to the PDU-22455
request alleges a failure to produce all responsive documents. Therefore, the internal
appeal is consistent with Canha knowing, by April 12, 2013, facts giving him notice that
the Department failed to provide responsive documents in the PDU-22455 production.
Moreover, Canha fails to establish any other date when he first learned the documents
provided in PDU-22455 were unresponsive. Whether analyzed under a discovery rule
or equitable tolling, the one-year statute of limitations accrued no later than April 12,
2013. We conclude the April 15, 2014 lawsuit for claims arising out of the PDU-22455
production is time barred.
PDU-24889
Canha argues the Department incorrectly interpreted his PDU-24889 request.
We disagree.
The PRA requires agencies to respond to requests for identifiable public
records.23 "The standard for an 'identifiable record' is whether an agency employee
22 Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 379, 223 P.3d 1172
(2009) (party asserting that equitable tolling of a statute of limitations should apply bears
the burden of proof); accord Benvaminov v. City of Bellevue. 144 Wn. App. 755, 767,
183P.3d 1127(2008).
23 RCW 42.56.080; Hangartner v. City of Seattle, 151 Wn.2d 439, 447-48, 90
P.3d 26 (2004).
No. 73965-4-1/8
could reasonably identify the records from the description the requestor gives."24 "At a
minimum, a person seeking documents under the PRA must identify or describe the
documents with sufficient clarity to allow the agency to locate them."25 "The PRA does
not 'require public agencies to be mind readers.'"26
Under the subject line "RE: PDU-22455 & PDU-22386" of his April 24, 2013
request, Canha indicated he was "not seeking multiple copies of the requests. I am
seeking to [receive] the ones that have already been sent due to me not [receiving]
them."27 A week later, the Department advised Canha it interpreted his request as
seeking records showing:
1. In which bank and which account inmate savings funds are deposited.
2. Records showing the banking agreement between [the Department]
and the bank identified in item one.
3. Amount of interest inmate savings accounts earned from January 1,
2009 thru December 31, 2011.
4. Information showing that offenders at CRCC have sent money from
their savings account to their immediate family members as according
to [the Department] policy 200.000 for medical needs of those family
members.[28]
Consistent with that interpretation, the Department provided the same two
records that had previously been provided in the PDU-22455 production. As to the
exemptions, the Department issued a joint exemption log collecting exactly the same
24 Wash. State Bar Ass'n. Public Records Act Deskbook: Washington's
Public Disclosure and Open Public Meetings Laws, § 5.1 at 5-4 (2d ed. 2014).
25 Lew v. Snohomish County, 167 Wn. App. 94, 98, 272 P.3d 874 (2012); Public
Records Act Deskbook §5.1 at 5-4.
26 Levy, 167 Wn. App. at 98 (quoting Bonamv v. City of Seattle, 92 Wn. App. 403,
409, 960 P.2d 447 (1998)).
27 CP at 62.
28 Id. at 64.
8
No. 73965-4-1/9
exemptions claimed in the PDU-22455 production. The Department also provided a
new appeal form.
Canha acknowledges his request was ambiguous. Still, he claims the PDU-
24889 production was deficient because the Department did not include precisely the
same exemption log and precisely the same appeal form that had been mailed to him in
the PDU-22455 production. But the Department gave Canha its interpretation of his
ambiguous request and asked him to respond if its interpretation was inaccurate.
Canha responded that he did not want the documents sent to a third party, but he did
not indicate that the Department's summary of the information he requested was
incorrect. He did not indicate that he wanted precisely the same exemption log and
precisely the same appeal form that had been provided on February 12, 2013 in PDU-
22455.
Based on this record, Canha fails to establish that the Department did not identify
and produce all records he sought in his request. To the extent Canha suggests the
Department conducted a new investigation before making the PDU-24889 production,
he provides no authority that engaging in such diligence violated the PRA, especially
when he received the two records previously produced in PDU-22455. The record
contains no facts supporting Canha's speculative theory that the Department must be
withholding a signed signature bank card and a deposit agreement.
Therefore, we conclude that the record reflects the Department complied with the
PRA.
No. 73965-4-1/10
Attorney Fees and Costs
The PRA entitles a prevailing party to "all costs, including reasonable attorney
fees."29 Because Canha is not a prevailing party, we deny his request for attorney fees
and costs.
We affirm.
WE CONCUR:
xX\r-$Q*H.
29 RCW 42.56.550(4).
10