BOSS v. PENINSULA SCHOOL DISTRICT, 31784-2-II (Wash.App. 1-25-2005)

No. 31784-2-IIThe Court of Appeals of Washington, Division Two.
Filed: January 25, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No. 04-2-06237-9. Judgment or order under review. Date filed: 05/07/2004.

Counsel for Appellant(s), Randy Boss (Appearing Pro Se), Gig Harbor, WA.

Counsel for Respondent(s), Lester Jr Porter, Dionne Rorick, Seattle, WA, Evan Matthew Shapiro, Dionne Rorick, Seattle, WA.

VAN DEREN, J.

Randy Boss challenges the trial court’s dismissal of his claims that the Peninsula School District violated the Public Disclosure Act (PDA), chapter 42.17 RCW, by (1) not providing requested handouts even though they were not in the District’s possession, and (2) not providing a standard audible audiotape of a March 1, 2004 school board meeting. He asserts additional arguments that are outside the scope of a show cause motion under RCW 42.17.340. We affirm.

FACTS

Boss requested records from the District for a school board meeting held on March 1, 2004, to evaluate candidates seeking an open board position. Boss requested: (1) handouts that candidates provided to the board at the meeting; (2) an audiotape of the meeting; and (3) the candidates’ letters of interest. Six days later, the District responded that the audiotape and letters would be available to pick up at the District office on March 16, 2004. The District’s letter to Boss also informed him that `[t]he materials provided to the Board on March 1, 2004 are not in the District’s possession.’ Clerk’s Papers (CP) at 7.

Boss picked up the audiotape and candidate interest letters at the District office, but soon returned because the audiotape did not work in his car stereo. The District informed him that he could use the equipment at the District’s office to listen to the audiotape. Boss refused and left the tape at the District office. The District then mailed the tape to Boss.

Boss then filed a motion to show cause in superior court under RCW 42.17.340 that specifically requested `a standard audible audio tape recording of a public meeting of the Peninsula School District Board held on March 1, 2004.’ CP at 1. His show cause motion focused on the audiotape; however, his attached declaration mentioned the handouts presented to the Board from the candidates at the March 1 meeting.

At the show cause hearing, the District proffered affidavits from the four school board members and from two District employees who handled Boss’ public records request to support its assertion that the District did not possess the requested handouts. The District contended that it fully complied with the PDA by timely producing the audiotape and providing Boss access to equipment that could play the tape at the appropriate speed.

The court denied Boss’ show cause motion and dismissed his claims that the District violated the PDA. Boss then filed a motion for reconsideration. After a hearing, the court denied the reconsideration motion. Boss timely appealed.

ANALYSIS

Motion to Show Cause

We review de novo an agency’s actions challenged under the PDA. RCW 42.17.340(3); O’Connor v. Dep’t of Soc. Health Servs., 143 Wn.2d 895, 904, 25 P.3d 426 (2001). We liberally construe the PDA’s provisions to promote government accountability. Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998).

If a person does not receive an opportunity to review a requested public record, that person may file a motion to show cause under RCW 42.17.340(1) for an order requiring the agency to demonstrate why it denied the request. RCW 42.17.340. The agency bears the burden `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 specific information or records.’ RCW 42.17.340(1). But the PDA does not require an agency to explain, conduct research, or create a document that does not exist and is not in its possession. Smith v. Okanogan County, 100 Wn. App. 7, 12-14, 994 P.2d 857 (2000); see also Sperr v. City of Spokane, 123 Wn. App. 132, 133, 136-37, 96 P.3d 1012 (2004).

A. Handouts

Boss asserts that the District cannot satisfy the PDA by asserting it does not possess the requested handouts and also that the District failed to demonstrate that it did not possess the requested documents.[1]

But Boss fails to persuasively respond to the substantial evidence that the District simply does not possess the handouts. Six days after Boss requested the documents, the District replied that it did not possess them. Before the show cause hearing, the District’s attorney stated in a letter to Boss that the District did not possess the documents. Further, the District explained that it `tried to obtain these documents for [Boss] by asking the candidates to provide [the District] with additional copies of the documents,’ but it was unsuccessful. CP at 58. Finally, the District provided affidavits from the board members and District staff that verified that neither they nor the District possessed the requested materials.[2]

As the District’s counsel stated at the hearing regarding Boss’ motion for reconsideration, We are not trying to avoid our burden here [under the PDA]. We believe in open government. We believe we want to share any records that we have. We simply don’t have one. We have been trying for weeks now to explain that to Mr. Boss, that we can’t make documents reappear that we don’t have.

Report of Proceedings (May 7, 2004) at 18-19.

Boss emphasizes that RCW 42.17.260 requires agencies `make available for public inspection and copying all public records, unless the record falls within the specific exemptions.’ RCW 42.17.260(1). But an agency cannot violate the PDA when it provides substantial and persuasive evidence that it does not possess a requested document. A document which is not possessed by an agency is not, by definition, a public document.

B. Audiotape

Boss contends that in order to comply with the PDA, the District must provide an audiotape in a format that allows him to play the tape on a car or other standard tape player.

The PDA requires an agency to give `the fullest assistance’ in providing a person the opportunity to review a public record, but the statute does not require a specific format for an audiotape. RCW 42.17.290; see also Daines v. Spokane County, 111 Wn. App. 342, 350, 44 P.3d 909 (2002) (the court will not supervise an agency’s document retention policy).

The record demonstrates that the District fully assisted Boss with his public records request. It timely provided Boss the candidates’ letters of interest and an audiotape of the board meeting. Boss returned the tape when he learned that he did not have the equipment to play it and the District subsequently mailed it to him so that he had it in his possession. The District expressly provided Boss the opportunity to listen to the audiotape on its equipment. Contrary to Boss’ contention, the record does not demonstrate that the District imposed burdensome restrictions or required supervision to use its equipment. And nothing in the record supports Boss’ assertion that the District provided him with an audiotape compatible with his car stereo in response to a 2001 public records request.[3]

C. Additional Arguments

Boss asserts numerous arguments that are outside the scope of relief under his motion to show cause. In essence, Boss’ other contentions seek to use RCW 42.17.340 as an enforcement mechanism for his allegation of bad faith by the District for not satisfying his public records request. For example, Boss asserts that the District violated the Common School Code under RCW 28A.330.070 and that the school board members willfully violated the PDA. But the PDA provides for violation investigations and enforcement under RCW 42.17.360(5), .395, and .400, not in a private party’s show cause motion. Further, under RCW 42.17.400, Boss `can bring an action only if these authorities [attorney general or local prosecuting attorney] fail to act after receiving notice of possible violations.’ Vance v. Offices of Thurston County Comm’rs, 117 Wn. App. 660, 670, 71 P.3d 680
(2003), review denied, 151 Wn.2d 1013 (2004). We therefore decline to review the additional claims.

Finding no error, we affirm the trial court’s denial of Boss’ show cause motion and dismissal of his claims.

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.

MORGAN, J. and QUINN-BRINTNALL, C.J., concur.