BACON v. WASHINGTON DEPT. OF CORRECTIONS, 27811-1-II (Wash.App. 8-9-2002)

No. 27811-1-II.The Court of Appeals of Washington, Division Two.
Filed: August 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Grays Harbor County, No. 002015255, Hon. Gordon L. Godfrey, October 17, 2001, Judgment or order under review.

Counsel for Appellant(s), William D. Bacon (Appearing Pro Se), #939371, P.O. Box 881000, Steilacoom, WA 98388-1000.

Counsel for Respondent(s), Ronald A. Gomes, Asst Atty General, P.O. Box 40116, Olympia, WA 98504-0116.

J. ROBIN HUNT, C.J.

William D. Bacon appeals the trial court’s ruling that the Department of Corrections (DOC) did not violate the Public Disclosure Act (Act) when it denied his request for disclosure of an employee’s performance evaluations. Holding that absent misconduct, an employee’s personnel records are not disclosable under the Act, we affirm.

FACTS
On October 31, 2000, Bacon requested disclosure of Stafford Creek Correctional Unit Supervisor Dan VanOgle’s employee performance evaluations under the Public Disclosure Act, chapter 42.17 RCW. Bacon does not allege misconduct.

On November 8, 2000, Correctional Records Manager, Sue Schuler, wrote Bacon that she was working on his request and `once [she had] the disclosable information . . . [she would] make the arrangements for [him] to view the documents.’ Clerk’s Papers (CP) at 85.

On December 12, 2000, DOC’s Human Resource Manager, Sandra Deckard, denied Bacon’s request, citing the Act’s exemption for no `specific instances of misconduct.’ CP at 88, 110; RCW 42.17.310(1)(b). As Deckard explained in her letter to Bacon, VanOgle’s performance evaluations `meet or exceed expectations’ and contain no instances of misconduct. CP at 89-109.

On December 18, 2000, Bacon filed a complaint in superior court challenging DOC’s denial. On July 31, 2001, the trial court denied Bacon’s request for an order to show cause.

On August 9, 2001, the court clarified its ruling, stating, `[The court is] satisfied that the [S]tate complied with appropriate and reasonable disclosure of [Bacon’s] requested documents pursuant to RCW 42.17 . . . and [Bacon’s] initial request for public disclosure.’ CP at 128. The court also denied Bacon `any further relief in this action.’ CP at 128.

On October 16, 2001, the trial court entered its final ruling. Bacon appeals.

ANALYSIS I. Standard of Review
We review an agency action under the Act de novo. RCW 42.17.340(3).[1]
Both parties agree that here, where the record on appeal consists solely of affidavits, memoranda of law, and other documentary evidence, we stand in the same position as the trial court. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994).

II. Response Time A. Five Business Days
Bacon argues that DOC had to provide a response to his request within five business days, citing RCW 42.17.320:

Responses to requests for public records shall be made promptly by agencies. . . . Within five business days of receiving a public record request, an agency, . . . must respond by either (1) providing the record; (2) acknowledging that the agency . . . has received the request and providing a reasonable estimate of the time the agency . . . will require to respond to the request; or (3) denying the public record request.

RCW 42.17.320 (emphasis added).

The statute goes on, however, to provide:

Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.

RCW 42.17.320 (emphasis added).

DOC agrees that the Act requires it to respond timely to requests for public documents. It contends, however, that it did so here by responding on the sixth business day after receiving Bacon’s request and that its one-day delay for clarification of his request and to accommodate the Correctional Records Manager’s shift schedule was reasonable. We agree.

B. Estimate
Bacon argues that DOC’s initial response should have included a reasonable estimate of the time it needed to respond. See RCW 42.17.320(2). The State responds that Bacon could have contacted the Correctional Records Manager for clarification or brought a motion for the State to define `reasonable estimate of time.’ RCW 42.17.320(2). We agree with Bacon that the statute appears to call for some type of time estimate — for example, from 10 days to three weeks. But we also agree with the State that the trial court did not err in finding that DOC responded within a reasonable time and within its initial reasonable forecast. The statute requires DOC to provide a reasonable estimate of the time the agency will require to respond to the request, but not a specific time. See Ockerman v. King County Dept. of Dev. Envtl. Servs., 102 Wn. App. 212, 6 P.3d 1214 (2000) (public records portion of Act does not require agency to provide written explanation of its reasonable time estimate when it does not provide the records within five days of the request).

Here, although DOC did not specify the amount of time it would need to review Bacon’s request, it did provide him with the name of a contact person, Ms. Schuler, as well as her address and her telephone number for additional inquiries. And DOC’s letter to Bacon indicated that (1) the Records Manager was `working on’ his request, and (2) `once’ disclosable information was available, arrangements would be made to provide the information to Bacon. CP at 85. Nothing in the letter indicates that there would be a substantial delay. Rather, it appears that DOC did not know exactly how long it would take to locate and to review the requested records before disclosing them. If Bacon needed a specific time estimate, he could have contacted Schuler; apparently Bacon did not.

Ultimately, DOC reviewed VanOgle’s evaluations and denied Bacon’s request 44 days later in a second letter of explanation dated December 12, 2000. RCW 42.17.320(3). The trial court did not err when it determined that DOC timely responded to Bacon’s public disclosure request.

III. Performance Evaluations Lacking Misconduct — Exempt from Disclosure A. Exemption
Bacon next contends that DOC violated the Act when it failed to disclose VanOgle’s performance evaluations. DOC agrees with Bacon that an employee’s performance evaluations are public records within the meaning of RCW 42.17.020(36)[2] . But DOC argues and we agree that VanOgle’s specific employee evaluations are exempt from disclosure because they contain no specific instances of misconduct. See Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993).

It is well settled in this state that while `balancing of the employee’s privacy interest against the public interest’ is not allowed under RCW 42.17.255,[3] the court must balance `the public interest in disclosure against the public interest in the `efficient administration of government.” Dawson, 120 Wn.2d at 798 (quoting RCW 42.17.010(11)). We agree with the trial court’s balancing of these latter two public interests. In its administration of the correctional environment, DOC strives to maintain `employee morale’ and to foster `candid evaluations’ of the `quality of the public employee performance[.]’ Dawson, 120 Wn.2d at 799 (citations omitted). `[D]isclosure of [employees’] performance evaluations, which do not discuss specific instances of misconduct, is presumed to be highly offensive within the meaning of RCW 42.17.255.’ Dawson, 120 Wn.2d at 797. Having reviewed in camera VanOgle’s evaluations, we see no instances of misconduct; accordingly, we agree with the trial court that the evaluations are exempt from disclosure under the Act. Dawson, 120 Wn.2d at 797;[4] see supra note 3; see also DOC Policy 280.510(2)(a)(2).

B. DOC Policy 280.510(2)(a)(2)
Bacon next asserts that DOC violated its own policy when it failed to disclose VanOgle’s records. We disagree.

The relevant DOC policy provides:

(2)(a)
. . . .
Not all information contained in the personnel evaluations and personnel records of employees is exempt from disclosure:
. . . .
(2) Release of information concerning public job performance includes release of employee performance evaluations in instances where `specific instances of misconduct’ concerning a specific employee are involved. Although `specific instances of misconduct’ has not been defined, these are not situations where employee shortcomings and praise are merely involved; but are situations where actual corrective or disciplinary actions occur. Where no specific instances of employee misconduct occur, then the request for disclosure should be denied unless the employee involved has authorized disclosure.

DOC Policy 280.510(2)(a)(2); CP 31-32. This DOC policy follows the guidelines of RCW 42.17.020(36)[5] and RCW 42.17.255[6] in exempting employee evaluations from disclosure where there are no instances of misconduct, in that absent misconduct, an employee’s performance evaluation is not of legitimate interest to the public. Again, the trial court did not err in ruling that VanOgle’s evaluations were exempt from disclosure.

IV. Fees
Finally, Bacon asserts that he is entitled to statutory fees under RCW 42.17.340(4)[7] and fees on appeal under RAP 18.1(a) and (b). Because he has not prevailed in the trial court or on appeal, he is not entitled to any fees. Accordingly, we deny his request.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: MORGAN, J., QUINN-BRINTNALL, J.