Livingston v. Cedeno

¶1 Michael Livingston challenges a split Court of Appeals decision affirming the denial of his motion for a show cause hearing brought under the public disclosure act, chapter 42.17 RCW (now the Public Records Act).1 *49In response to Livingston’s public records request, the Department of Corrections (Department) copied and mailed departmental records to him at the correctional institution where he was then incarcerated. Upon arrival, the documents were intercepted as “contraband” under the mail policy applicable to all incoming and outgoing materials. Livingston contends the Department’s action in barring his receipt of the documents violated the Public Records Act. We hold the Department’s application of the mail policy to its own public records did not violate the Public Records Act, and we affirm the Court of Appeals.

FACTS

¶2 Michael Livingston filed a public disclosure request while incarcerated at the Olympic Corrections Center. Clerk’s Papers (CP) at 56. He sought the training records of a corrections officer. Id. The Department confirmed receipt of the request and told Livingston it would give the officer a chance to file a privacy injunction. 2 CP at 58. The officer did not object, so the Department’s public disclosure officer copied and mailed the record to Livingston, who had been transferred to the Cedar Creek Corrections Center in the meantime. CP at 14, 60. When the records arrived at Cedar Creek, they were screened. Cedar Creek officials then withheld the records from Livingston under department Policy Directive No. DOC 450.100, which authorizes the Department to inspect and read all incoming mail to prevent offenders from receiving material that threatens the security and order of the facility. Livingston received a mail rejection form, explaining the superintendent did not permit department employee records to be released to inmates. CP at 63. The mail rejection form informed Livingston that unless he forwarded the rejected mail to a *50nonincarcerated person, the Department would either donate or destroy it.

¶3 Livingston filed an appeal. The Cedar Creek superintendent denied the appeal, stating he would not “allow an employees [’] training record into the institution to be given to an inmate.” CP at 66 (capitalization omitted). The Department’s regional administrator denied Livingston’s subsequent appeal, stating that when public disclosure documents “arrive in an institution’s mailroom, mail policy comes into effect [and the] superintendent . . . has the authority to restrict any item from entering [the facility].” CP at 6 (first alteration in original).

¶4 Livingston appealed this decision through the Department, which upheld it. CP at 65. He then filed a motion in Thurston County Superior Court, asking the Department to show cause for withholding the record. CP at 2. The trial court denied the motion. CP at 105. Livingston appealed, and a majority of the Court of Appeals affirmed, holding, “The statute . . . does not require agencies to guarantee disclosure or guarantee that mailed documents will be physically received by the person making the request.” Livingston v. Cedeno, 135 Wn. App. 976, 980, 146 P.3d 1220 (2006).

ANALYSIS

¶5 The issue presented in this case is whether the Department violates the Public Records Act when it copies and mails public records requested by an inmate, yet withholds the same records upon arrival under the mail policy applicable at a correctional institution.

¶6 It is well settled that a reviewing court interprets the disclosure provisions of the Public Records Act liberally and the exemptions from disclosure narrowly. Hangartner v. City of Seattle, 151 Wn.2d 439, 450, 90 P.3d 26 (2004); see also former RCW 42.17.251 (1992); RCW 42.56.030. In general, an agency must disclose a public record unless a statutory exemption applies. Hangartner, 151 Wn.2d at *51450; former RCW 42.17.260(1) (1997); RCW 42.56.070(1). Here, neither the Department nor the affected correctional officer invoked any statutory exemptions before the Department released and mailed the records to Livingston. Indeed, the Department contends it fulfilled its obligation under the statute when it approved the request and sent the record in the mail.

¶7 The Department argues its decision to intercept the requested public record is unrelated to the Public Records Act. According to the Department, its authority to preclude Livingston’s receipt of the record arises under RCW 72.09.530,3 which authorizes the secretary of the Department to read all incoming mail and to confiscate contraband arriving in the prison mail system. RCW 72.09.530 is the basis for Policy Directive No. DOC 450.100, which is designed to “prevent offenders from receiving . . . contraband, or any other material that threatens to undermine the security and order of the facility, through the mail; and to prevent criminal activity.” CP at 127. The Department points out that former RCW 42.17.260(1), which requires public agencies to make records available for inspection and copying, does not guarantee documents will be physically received by the person making the request.

¶8 Livingston claims it is not enough that the Department mailed the requested records. He argues the Department may not mail public records to an inmate and then withhold those same records absent a statutory exemption. He contends the Department’s mail room policy is not an *52exemption that can be used to deny an inmate access to public records. To support his claims, Livingston cites to this court’s decision in Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990), where we held that a regulation guaranteeing the confidentiality of certain records cannot serve as an exemption. He also points to WAC 44-14-06002(1), which provides, “An agency cannot define the scope of a statutory exemption through rule making or policy.”

¶9 We agree with Livingston that RCW 72.09.530, which authorizes the Department’s mail policy, is not an exemption to disclosure under the Public Records Act. However, we disagree that the Department’s use of its mail policy — to confiscate materials that the Department determines “threatens to undermine the security and order of the facility” — violates the act. CP at 127. The Public Records Act requires the department to release its records to the public. However, whether the Department must allow them inside a correctional facility is a distinct issue, subject to different statutory obligations. Under RCW 72.09.530, the Department has broad discretion to deny entry of any materials it determines may threaten legitimate penological interests, without exception for public records.

¶10 Whenever possible, statutes must be read in harmony and each must be given effect. Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000); Publishers Forest Prods. Co. v. State, 81 Wn.2d 814, 816, 505 P.2d 453 (1973). The Public Records Act and RCW 72.09.530 are aimed at two different concerns. The primary purpose of the Public Records Act is to provide broad access to public records to ensure government accountability. To that end, each agency “shall make available for public inspection and copying” all nonexempt public records. RCW 42.56.070(1). Agencies must honor requests received by mail and may not “distinguish among persons requesting records.” Former RCW 42.17.270 (1987); RCW 42.56.080.

¶11 The primary objective of the correctional system, on the other hand, is “to provide the maximum feasible safety” *53for the public, staff, and inmates. RCW 72.09.010(1).4 Accordingly, RCW 72.09.530 directs the Department to screen all incoming and outgoing materials and intercept any “contraband” in order to protect legitimate security concerns within the state penal institutions. “Contraband” is defined as “any object or communication” banned by the Department from any institution under its control. RCW 72.09.015(4).

¶12 In its capacity as an agency subject to the Public Records Act, the Department must respond to all public disclosure requests without regard to the status or motivation of the requester. The statutory directive to screen incoming and outgoing mail does not relieve the Department of its obligation to disclose public records requested by an inmate. However, it does authorize the Department to decide whether those records will be permitted inside the institution. Acting in its custodial capacity to ensure the safety of inmates, staff, and the public, the Department may prohibit the entry into an institution of materials otherwise subject to disclosure under the Public Records Act.

¶13 As the United States Supreme Court and this court have recognized, “many rights and privileges are subject to limitation in penal institutions because of paramount institutional goals and policies.” State v. Hartzog, 96 Wn.2d 383, 391, 635 P.2d 694 (1981); see also Hudson v. Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). In particular, considerable deference must be given to prison administrators to regulate communications between prisoners and the outside world. Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989); see also Sappenfield v. Dep’t of Corr., 127 Wn. App. 83, 110 P.3d *54808 (2005) (recognizing the unique circumstances of incarceration in the context of public disclosure requests), review denied, 156 Wn.2d 1013 (2006).

¶14 Livingston argues the Department’s use of its mail policy to restrict access to public records violates the Public Records Act’s requirement that it not “distinguish among persons requesting records.” RCW 42.56.080. On the contrary, the Department treats public disclosure requests equally, whether received by ordinary citizens or inmates. The Department’s application of the mail policy to public records upon their arrival at a correctional institution does not amount to impermissible disparate treatment under the Public Records Act. The inmate’s status and motivation is not a factor in the Department’s decision to release a document. But whether a document is allowed inside an institution under the Department’s control is a discrete issue, subject to a different statute that requires the Department to take into account “legitimate penological interests, including prison security and order.” RCW 72.09.530. Whereas the Department is limited in its discretion to decide whether to make its records publicly available, it has broad discretion to decide whether such records may be allowed inside a correctional institution. The Public Records Act does not limit the Department’s discretion in prohibiting entry of public records that it reasonably deems inappropriate in a prison setting.5

*55¶15 In his dissent, Judge Armstrong questioned the legitimacy of the Department’s action, finding it improbable an officer’s training records could undermine prison security. Livingston, 135 Wn. App. at 982 (Armstrong, J., dissenting). Livingston has not challenged the reasonableness of the Department’s mail policy or the characterization of the record as “contraband”; he only challenges the Department’s authority to apply the policy to public records. Nevertheless, we note the Department could have reasonably determined the records could prove detrimental to prison security by, for example, revealing training vulnerabilities of correctional officers.

¶16 We reject Livingston’s contention the Department cannot withhold any materials from an inmate absent a specific exemption that applies to that material. Such a rule would create an exception to RCW 72.09.530 for Public Records Act materials that is not contained in the statute. Additionally, construing the statute to include such an exception would create the anomalous situation that an inmate could possess materials the Department would otherwise ban from the institution so long as the material is obtained through a public disclosure request. For example, an inmate convicted of child molestation who is ordered not to possess photos of children could gain access to such materials if requested through a public disclosure request, even though the Department could otherwise restrict the inmate’s access to such photos. Nothing in the legislative intent language of RCW 72.09.010 or the language of RCW 72.09.530 supports such a construction.

¶17 RCW 72.09.530 directs the Department to regulate incoming and outgoing mail to the maximum extent permissible under the constitution in order to provide the “maximum protection” of prison security and order. Carving out a broad exception for all public records is contrary to this express statutory directive and would provide an *56inmate with far greater rights than required by the First Amendment to the United States Constitution. As a condition of confinement, an inmate’s First Amendment right to send and receive mail lawfully may be restricted by prison regulations reasonably related to legitimate penological interests. Thornburgh, 490 U.S. at 407; Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). In the absence of clear legislative intent or a constitutional requirement, we are disinclined to impose additional restrictions on the Department’s right to regulate an inmate’s receipt of mail.

¶18 Livingston also contends the Court of Appeals’ decision in this case conflicts with Sappenfield, 127 Wn. App. 83. The issue in Sappenfield was whether the Department could, consistent with the Public Records Act, require an inmate to pay for and obtain by mail copies of department records, or send a personal representative to inspect the records, rather than inspect the original documents in person. Id. at 88-89. The Court of Appeals, Division Three, held such a policy was reasonable and did not violate the act given the necessary restraints placed on prisoners. Id. at 89.

¶19 The decision by Division Two of the Court of Appeals in this case does not conflict with Sappenfield, which is factually distinguishable.

¶20 It is worth noting, however, that in affirming the Department’s procedure, the Sappenfield court discussed, with approval, Mithrandir v. Department of Corrections, 164 Mich. App. 143, 147-48, 416 N.W.2d 352 (1987). In that case, the Michigan Court of Appeals approved a prison procedure denying an inmate a right to personally inspect records but allowing either appointment of a representative to inspect the files or the opportunity to receive copies upon payment of the appropriate fee. Similar to Sappenfield and Mithrandir, the Department’s mail policy here provided an alternative procedure for receiving the requested records in light of internal safety concerns in the prison setting. As mentioned earlier, the notice of mail rejection gave *57Livingston the opportunity to forward the rejected mail to a location outside the institution. The Department’s policy of offering to have rejected mail sent to another location indicates it is not using the mail policy for the illegitimate purpose of thwarting public disclosure, but for the legitimate purpose of ensuring the security of its institutions.

¶21 We agree the Department may not deny a public records request based on the requester’s status as an inmate. However, the director’s decision to bar Livingston’s possession of the materials here was not based on Livingston’s status and does not constitute a denial of his public records request. Rather, the decision was an exercise of the Department’s discretionary authority to apply a mail policy designed to protect the institution, the inmates, department personnel, and visitors to the institution.

CONCLUSION

¶22 We find no conflict between RCW 72.09.530 and the Public Records Act, chapter 42.56 RCW. Each statute serves a different legislative purpose. While the Public Records Act is intended to provide broad access to public records to ensure government accountability, RCW 72.09.530 is intended to protect legitimate security concerns within the state penal institutions. Here, the Department complied with the Public Records Act when it mailed the requested documents to the address provided by Livingston. The Department’s subsequent decision to bar Livingston from receiving the documents pursuant to its mail policy did not violate Livingston’s rights under the Public Records Act. We affirm the Court of Appeals.