Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PERCY LEVY,                                 )       No. 66522-7-I
                                            )
                      Appellant,            )       DIVISION ONE
          v.                                )
                                            )
SNOHOMISH COUNTY,                           )       ORDER GRANTING MOTION
                                            )       TO PUBLISH OPINION
                      Respondent.           )
                                            )

       The respondent, Snohomish County, has filed a motion to publish opinion filed 

January 23, 2012, and appellant Percy Levy has filed an objection to the motion.  The 

court has determined that the motion should be granted.  Now, therefore,   it is 

       ORDERED that the opinion filed January 23, 2012, in the above-entitled case be 

published. 

       DATED this _____ day of March 2012.  

                                                    ______________________________
                                                                  Judge 

66522-7-I/2

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PERCY LEVY,                                 )       No. 66522-7-I
                                            )
                      Appellant,            )       DIVISION ONE
          v.                                )
                                            )
SNOHOMISH COUNTY,                           )       UNPUBLISHED OPINION
                                            )
                      Respondent.           )       FILED: January 23, 2012  
                                            )

       Lau, J.  --  Inmate Percy Levy filed this action alleging that Snohomish County 

unreasonably failed to comply with his request for documents under the Public Records 

Act (PRA), chapter 42.56 RCW.  Because the record establishes that the County 

promptly and fully complied with the PRA, the trial court properly dismissed Levy's 

action on summary judgment.  We therefore affirm.

                                                FACTS

       The relevant facts are undisputed.  On April 19, 2010, the Snohomish County 

Prosecuting Attorney's Office received a public records request from inmate Percy 

Levy:
              While pending trial back in 2002 (case #02-1-02453-4) my attorney 
       provided me with a statement made by my co-defendant Breena Johnson 
       (Martin).  The statement was made to Everett Detectives.
              I want a copy of that statement.

On the following day, April 20, 2010, David Wold, the designated public records 

specialist for the prosecutor's office, responded by letter to Levy's request.  Wold 

expressed his belief that the prosecutor's office had supplied Levy with all of Johnson's 

statements in response to a previous request.  Wold acknowledged that he could not 

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confirm the prior request because it had been purged in accordance with the office 

retention schedule, and he requested clarification:

       If you are seeking another interview by Everett Police that we have not provided, 
       our file apparently does not contain that record.  If you are missing the 
       statements we previously provided, and those statements are what you are now 
       seeking, please advise us and we will be happy to provide you with another 
       copy.

       On May 13, 2010, Wold received Levy's response, dated May 6.  Levy denied 

that he had ever requested or received any statements by Johnson.  Levy then 

broadened his request to include "any statement made by Ms. Johnson in regards to 

the 2002 crime where she was my codefendant."

       On the following day, May 14, Wold notified Levy that he had located two 

statements by Johnson -- (1) the 22-page statement she gave to police and (2) a 2-

page officer's summary of a few comments that Johnson made after taking a polygraph

test.  The letter detailed the various available formats and costs, including $8.07 for

copies of the two statements.

       Shortly after May 18, 2010, the prosecutor's office received two letters related to 

Levy's request for public records.  The first was from Diane Kennedy, who enclosed a 

money order for $8.07 on behalf of Levy "to cover the cost of the transcript he has 

requested." The second letter was from Levy, who disputed any need for clarification

of his original request.  He then asked for an explanation of why Johnson's statements 

"were not located the last time I requested them."

       On May 27, 2010, Wold mailed the 22-page statement to Levy, but inadvertently 

failed to include the 2-page officer summary.  On the same date, Wold also responded 

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to Levy's latest letter, explaining that he had requested clarification to make sure that 

he provided the correct document and to prevent any needless expense for records 

that were already received.

       Following e-mail exchanges with Diane Kennedy on June 16, 2010, Wold 

realized that he had failed to send Levy the 2-page officer summary.  On June 17, 

2010, he mailed Levy the officer summary and e-mailed a copy to Kennedy.

       In a letter dated June 24, 2010, Levy acknowledged receipt of the documents.  

Citing an alleged PRA violation, Levy expressed his willingness to settle the matter for 

$580 in lieu of litigation.

       On August 13, 2010, Levy filed this action against Snohomish County, alleging a 

violation of the PRA.  The County moved for summary judgment.  Concluding that there 

were no disputed facts, the trial court granted the motion on November 17, 2010.  The 

court denied Levy's motion for reconsideration on December 27, 2010.

                                        DISCUSSION

       Levy contends that the County violated the PRA by making an unnecessary 

request for clarification and failing to timely provide the requested records.  We 

disagree.

       The PRA mandates that agencies disclose any public record upon request, 

unless it falls within a specific, enumerated exemption.  Neighborhood Alliance of 

Spokane County v. County of Spokane, 172 Wn.2d 702, 715, 261 P.3d 119 (2011).  

We review agency actions under the PRA de novo.  RCW 42.56.550(3); Neighborhood 

Alliance, 172 Wn.2d at 715. We also review summary judgment orders de novo and 

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determine whether the supporting materials, viewed in the light most favorable to the 

nonmoving party, demonstrate "that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law."  CR 56(c); 

Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 243, 178 P.3d 981 (2008).

       Under the PRA, agencies must respond "promptly" to record requests.  

RCW 42.56.520.  At the time of Levy's request, RCW 42.56.520 required the County, 

within five business days, to (1) provide the requested record, (2) acknowledge receipt 

and provide a reasonable estimate when it would respond, or (3) deny the request and 

provide a written explanation for the action.  But agencies may request additional time 

"based upon the need to clarify the intent of the request . . . ." RCW 42.56.520(4).  

       Levy contends that the County's request for clarification unreasonably delayed 

its compliance with the PRA, in violation of the five-day time limit in RCW 42.56.520.  

He maintains that his original request was "objectively clear" and that clarification was 

therefore unnecessary.

       Levy originally requested a document that his attorney apparently showed him 

during a 2002 criminal trial.  As the County correctly notes, the request created an 

immediate uncertainty because the County had no objective method for determining 

what counsel had shown Levy.  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.  Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d 26 (2004).  

The PRA does not "require public agencies to be mind readers."  Bonamy v. City of 

Seattle, 92 Wn. App. 403, 409, 960 P.2d 447 (1998).

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       Moreover, the public records specialist also recalled having previously provided 

Levy with a statement by Johnson.  Because the specialist was unable to confirm that

prior request, he could reasonably have suspected that Levy was asking for either a 

different document or another copy of the previously provided document.  Levy's 

contradictory claims about the prior request underscore the uncertainty.  In his May 6, 

2010 letter, Levy flatly denied ever requesting or receiving any statements by Johnson.  

But in his May 18, 2010 letter, Levy requested information on where the two requested 

documents were "when I requested them a few years ago."  Under the circumstances, 

the County's request for clarification was warranted and reasonable.  

       Levy contends that the 59 days that elapsed from April 19, 2010, the day the 

County received his request, to June 17, 2010, when it mailed the 2-page officer 

summary, constituted an unreasonable delay.  But the great majority of this time 

involved mailing delays associated with Levy's incarceration.

       The record here establishes that the County responded without delay to every 

request or communication from Levy and his agent.  The County did not withhold 

documents or ignore or reject Levy's requests.  Rather, it timely disclosed, identified, 

and made available all relevant documents.  Although the County inadvertently failed to 

include the 2-page officer summary in the initial mailing, it rectified that omission within 

one business day of learning about it.  Because Levy has not demonstrated any 

violation of the PRA, the trial court properly dismissed his action on summary judgment.  

See Greenhalgh v. Dep't of Corr., 160 Wn. App.                                                  7

06, 248 P.3d 150 (2011).

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       Affirmed.

WE CONCUR:

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