FILED
SUPREME COURT
STATE OF WASHINGTON
121112023 4:02 PM
BY ERIN L. LENNON
CLERK

NO. 101769-3
IN THE SUPREME COURT
OF THE STATE OF WASHINGTON

TERRY COUSINS, as personal representative of the
ESTATE OF RENEE FIELD, deceased,
Petitioner,
v.
STATE OF WASHINGTON, and DEPARTMENT OF
CORRECTIONS,
Respondent.

AMICUS CURIAE BRIEF OF AMERICAN CIVIL
LIBERTIES UNION OF WASHINGTON, ET AL. IN
SUPPORT OF PETITIONER TERRY COUSINS

Eric M. Stahl, WSBA #27619
Jennifer K. Chung, WSBA #51583
Davis Wright Tremaine LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610
EricStahl@dwt.com
JenniferChung@dwt.com
Cooperating Counsel for ACLU of Washington; Attorneys for
Amici Curiae Human Rights Defense Center and
Washington Coalition for Open Government
[additional counsel listed on next page]

ACLU OF WASHINGTON FOUNDATION
La Rond Baker, WSBA #43610
Sagiv Galai, WSBA #61383
PO Box 2728
Seattle, WA 98111
baker@aclu-wa.org
sgalai@aclu-wa.org
Attorneys for Amicus Curiae
American Civil Liberties Union of Washington

COLUMBIA LEGAL SERVICES
Nicholas B. Straley, WSBA #25963
101 Yesler Way, #300
Seattle, WA 98104
nick.straley@columbialegal.org
Attorneys for Amicus Curiae
Columbia Legal Services

FRANK FREED SUBIT & THOMAS
Munia Jabbar, WSBA #48693
705 Second Ave., Suite 1200
Seattle, WA 98104
mjabbar@frankfreed.com
Attorneys for Amicus Curiae
Washington Employment Lawyers Association

TABLE OF CONTENTS
Page
I.

IDENTITY OF AMICI AND SUMMARY OF
ARGUMENT ................................................................... 1

IL

STATEMENT OF THE CASE........................................ 4

III.

ARGUMENT ................................................................... 4
A.

B.

IV.

The Dotson Rule Conflicts with the PRA’s
Text and Goals. ...................................................... 4
1.

Courts should not apply the Dotson
rule when a statutory trigger is met. ............ 4

2.

The Dotson rule encourages conflict
and wastes agency and judicial
resources. ................................................... 10

The Public Needs an Effective PRA to
Ensure DOC Does Not Abuse Its Immense
Power Over Incarcerated People’s Lives. ........... 13
1.

The PRA provides much-needed
transparency into DOC operations. ........... 13

2.

A “bad faith” standard will eviscerate
the PRA and allow DOC to escape
public scrutiny. .......................................... 20

3.

DOC’s intransigence when
responding to PRA requests is not
limited to Cousins’ request........................ 27

CONCLUSION .............................................................. 31

i

TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Grant Cnty.,
No. 38892-1-III, 2023 WL 8227548, slip op.
(Nov. 28, 2023) ....................................................... 16, 17, 18
Belenski v. Jefferson Cnty.,
186 Wn.2d 452, 378 P.3d 176 (2016) ....................... 3, 4, 5, 6
Columbia Legal Servs. v. Wash. Dep’t of Corr.,
No. 23-2-03060-34 (Sept. 21, 2023,
Thurston Cnty. Super. Ct.). ........................................... 27, 28
Cousins v. Dep’t of Corr.,
25 Wn. App. 2d 483, 523 P.3d 884 (2023) .................. passim
Curtis v. Wash. Dep’t of Corr.,
No. 54758-9-II, 2022 WL 1315654 (May 3, 2022)
(unpublished)................................................................. 24, 25
Dotson v. Pierce Cnty.,
13 Wn. App. 2d 455, 464 P.3d 563 (2020) .................. passim
Faulkner v. Wash. Dep’t of Corr.,
183 Wn. App. 93, 332 P.3d 1136 (2014) ............................ 23
Haney v. Wash. Dep’t of Corrs.,
noted at 22 Wn. App. 2d 1008, 2022 WL 1579881 ...... 25, 26
Hobbs v. State,
183 Wn. App. 925, 335 P.3d 1004 (2014) .......................... 11
Kilduff v. San Juan Cnty.,
194 Wn.2d 859, 453 P.3d 719 (2019) ............................. 6, 12

ii

Kitsap Cnty. Prosecuting Att’y’s Guild v. Kitsap Cnty.,
156 Wn. App. 110, 231 P.3d 219 (2010) ............................ 21
Neighborhood All. of Spokane Cnty. v. Spokane Cnty.,
172 Wn.2d 702, 261 P.3d 119 (2011) ................... 7, 8, 11, 21
Padgett v. Dep’t of Corr.,
noted at 9 Wn. App. 2d 1040, 2019 WL 2599159 .............. 24
Price v. Gonzalez,
4 Wn. App. 2d 67, 419 P.3d 858 (2018) ............................. 21
Rental Hous. Ass’n of Puget Sound v. City of Des Moines,
165 Wn.2d 525, 199 P.3d 393 (2009) ............................. 9, 10
Spokane Rsch. & Def. Fund v. City of Spokane,
155 Wn.2d 89, 117 P.3d 1117 (2005) ........................... 22, 28
Thurura v. Wash. State Dep't of Corr.,
noted at 15 Wn. App. 2d 1047, 2020 WL 7231100 ............ 23
West v. City of Lakewood,
noted at 22 Wn. App. 2d 1048, 2022 WL 2679516 ............ 11
Yousoufian v. Office of Ron Sims,
168 Wn.2d 444, 229 P.3d 735 (2010) ................................... 7
Statutes
RCW 42.56.030 .................................................................... 3, 27
RCW 42.56.080 ........................................................................ 22
RCW 42.56.520 ........................................................................ 11
RCW 42.56.550 .............................................................. 2, 5, 7, 8
RCW 42.56.565 ........................................................................ 22

iii

RCW 43.06C.040 ..................................................................... 17
RCW 72.09.770 ........................................................................ 15
Administrative Codes
WAC 44-14-04003 ................................................................... 12
WAC 44-14-04006 ................................................................... 12
WAC 44-14-08003 ................................................................... 12
Other Authorities
Jeremy Burnham, State releases names of suicide victims at
Washington State Penitentiary; full reports pending, WALLA
WALLA UNION-BULLETIN (Sept. 30, 2023) ........................... 14
Off. of the Corr. Ombuds, Ann. Rep.:
Fiscal Year 2023 ........................................................... 15, 18
Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601
(1986) .................................................................................. 20
Wash. Dep’t of Corr., Incarcerated Individuals Deaths:
Cause of Death .................................................................... 15
Wash. Dep’t of Corr., Incarcerated Individuals Deaths:
Unexpected Fatalities.......................................................... 16
Wash. Dep’t of Corr, News Spotlight: Humanity in
Corrections—Suicide Prevention in Prisons,
July 14, 2023, ...................................................................... 14

iv

I.

IDENTITY OF AMICI AND SUMMARY OF
ARGUMENT
As further described in the accompanying Motion for

Leave to File Amicus Curiae Brief, the American Civil
Liberties Union of Washington (“ACLU”) is a nonprofit
organization dedicated to the preservation of civil liberties.
Columbia Legal Services (“CLS”) is a nonprofit civil legal aid
firm that advocates for laws that advance social, economic, and
racial equity. Human Rights Defense Center (“HRDC”) is a
nonprofit organization that advocates on behalf of the human
rights of people held in prisons and jails. Washington
Coalition for Open Government (“WCOG”) is a nonprofit
organization dedicated to promoting the public’s right to know.
Washington Employment Lawyers Association (“WELA”) is
a nonprofit association of lawyers that advocates in favor of
employee rights.
Amici are interested because the decision below, along
with another published Division Two decision (Dotson v.

1

Pierce Cnty., 13 Wn. App. 2d 455, 464 P.3d 563 (2020)),
impose burdens on Public Records Act (“PRA”) requestors that
are not permitted by the statute and threaten the ability of
citizens to hold the Department of Corrections (“DOC”) and
other agencies accountable and protect the safety of
incarcerated people.
Here and in Dotson, Division Two has adopted an
extratextual “bright line rule” under which the statute of
limitations on a PRA claim begins to run as soon as the agency
sends a letter asserting the request is “closed”—even where, as
here, the statute sets a later trigger for the limitations period
because DOC continued producing records after it sent its
initial “closing” letter. See RCW 42.56.550(6) (PRA statute of
limitations triggered by “the last production of a record”).
The decision below allows an agency to start the short
one-year clock on a PRA claim while it is still discussing the
request with the requestor, and before the agency has completed
its production. The Dotson rule encourages agencies to use

2

artificial “closing letters” to manipulate the PRA’s limitations
period, regardless of when the statutory trigger actually occurs.
Such a claim is now time-barred unless the requestor can prove
equitable tolling—a safety valve this Court endorsed in
Belenski v. Jefferson Cnty., 186 Wn.2d 452, 378 P.3d 176
(2016), but which imposes a bad faith standard that, in practice,
has proven all but impossible to meet.
If the Dotson rule stands, agencies will shield themselves
from liability for inadequate searches and improper
withholdings by issuing premature “closing” letters, stripping
the PRA of its ability to ensure “[t]he people … maintain
control over the instruments that they have created.” RCW
42.56.030. That control is needed most in cases like this one,
where the records relate to people who depend wholly on
DOC’s care—like Terry Cousins’ sister, who died in DOC
custody. Washington’s prisons are dangerous, and the public
needs an effective PRA in order to monitor and protect the

3

safety of the individuals held by DOC. The Court should
reverse the decision below.
II.

STATEMENT OF THE CASE

Amicus adopts Ms. Cousins’ Statement of the Case.
III.

A.

ARGUMENT

The Dotson Rule Conflicts with the PRA’s Text
and Goals.
1.

Courts should not apply the Dotson rule
when a statutory trigger is met.

In its decision below, Division Two, following Dotson,
barred a requestor’s PRA claim under its judge-made rule that
“[a]n agency’s definitive, final response that the request is
closed” triggers the statute of limitations. Cousins v. Dep’t of
Corr., 25 Wn. App. 2d 483, 493, 523 P.3d 884, 889 (2023); see
Dotson, 13 Wn. App. 2d at 471-72. Even though Division Two
acknowledged the statute provided a later trigger, it improperly
decided that its interpretation of Belenski controlled over the
statutory text. Cousins, 25 Wn. App. 2d at 493-94. Further,
Division Two improperly limited its analysis of whether DOC’s

4

initial closing letter was “final” to the face of the letter while
ignoring the circumstances surrounding the request, like the fact
that after DOC issued the first “closing” letter, it subsequently
“reopen[ed] the … request” in response to Ms. Cousins’
inquiries; produced nine new installments of records; and then
issued a second “closing” letter (followed by yet another
installment). Id. at 488.
Division Two has misapplied Belenski. In Belenski, this
Court addressed the statute of limitations for a PRA claim when
neither of the two express statutory triggers were met. 186
Wn.2d at 457-58. The statute provides, “‘Actions under [the
PRA] must be filed within one year of [1] the agency's claim of
exemption or [2] the last production of a record on a partial or
installment basis.’” Id. (quoting RCW 42.56.550(6)). In
Belinski, however, neither triggering event had occurred;
instead, the agency told the requestor it had no responsive
records. Id. at 461. This Court held the PRA’s “reference to
[those two events] indicates that the legislature intended to

5

impose a one year statute of limitations beginning on an
agency’s final, definitive response to a public records request,”
which was triggered in that case when the agency sent a letter to
Belenski stating it had no responsive records. Id. at 460-61.
In adopting the Dotson rule, Division Two has turned
Belenski on its head. Belenski makes clear that the two
statutory triggers—a claim of exemption or a last production—
each qualifies as a “final, definitive response”; indeed, this
Court synthesized those two specific examples to fashion that
holding. Id. at 460. By overriding the statute and imposing its
own extratextual limitations trigger (a letter purporting to
“close” the PRA request), Division Two has created a rule that
“is not authorized by any provision of the PRA, undermines the
PRA’s purposes, and is contrary to the PRA model rules.”
Kilduff v. San Juan Cnty., 194 Wn.2d 859, 874, 453 P.3d 719,
727 (2019). Division Two should not have looked outside the
statute to determine when Ms. Cousins’ PRA limitations period
began to run because, unlike the claim in Belenski, her claim

6

met one of the express statutory triggers: a “last production of
a record.” RCW 42.56.550(6).
This result makes sense. “The PRA is a forceful
reminder that agencies remain accountable to the people of the
State of Washington.” Yousoufian v. Office of Ron Sims, 168
Wn.2d 444, 466, 229 P.3d 735, 747 (2010). It serves the PRA’s
goals to allow requestors to litigate PRA claims based on
productions they received after a “closing” letter.
PRA claims provide transparency into the agency’s PRA
procedures and test the adequacy of an agency’s search. See
Neighborhood All. of Spokane Cnty. v. Spokane Cnty., 172
Wn.2d 702, 717-19, 261 P.3d 119, 126-28 (2011). When an
agency produces additional documents after it purportedly
believed the request was “closed,” such production is a sign the
agency’s initial search was deficient—a point DOC concedes.
See Supplemental Brief of the Department of Corrections
(“DOC Suppl. Br.”) at 25-26 (arguing against rule where “the
limitations period effectively varies based on whether the

7

agency response was deficient”). Defending a PRA claim
forces agencies to review their deficient searches and
investigate “why documents were withheld, destroyed, or even
lost.” Neighborhood All., 172 Wn.2d at 718; see, e.g., Cousins,
25 Wn. App. 2d at 501 (noting a multifactor approach “would
help ensure agencies prioritize prompt investigation of
allegations that they have wrongfully withheld records”)
(Glasgow, C.J. dissenting).
Given PRA penalties are based on “agency culpability,”
and the current statute imposes no daily minimum penalty, an
agency need not accrue penalties where the investigation it
conducts as part of its PRA defense simply exposes an innocent
mistake. Neighborhood All., 172 Wn.2d. at 717; RCW
42.56.550(4) (penalties “not to exceed one hundred dollars” per
day). Conversely, the threat of penalties forces the agency to
incorporate any lessons learned into its PRA search procedures
to ensure the same mistakes don’t happen twice, thereby
increasing government transparency and strengthening the

8

PRA’s effectiveness by improving the agency’s processes so it
can locate and produce records as part of its initial search.
Even ignoring the express statutory trigger, Division Two
erred by refusing to look beyond DOC’s first “closing” letter to
determine whether the letter was a “definitive, final response.”
Cousins, 25 Wn. App. 2d at 493. This Court has made clear
that when interpreting the PRA’s statute of limitations, it is
function that matters, not form. For instance, in RHA, this
Court held a “claim of exemption” did not trigger the
limitations period unless it was “effectively made.” Rental
Hous. Ass’n of Puget Sound v. City of Des Moines, 165 Wn.2d
525, 537, 199 P.3d 393, 398 (2009). There, a letter purporting
to claim exemptions did not trigger the PRA limitations period
unless it was accompanied by a privilege log. Id. at 541.
In her dissent below, Chief Judge Glasgow proposed a
five-factor test that illustrates the nuances of determining
whether an agency response is “final.” Cousins, 25 Wn. App.
2d at 500 (Glasgow, C.J. dissenting). As the dissent argues, the

9

majority should at least have considered these factors and the
circumstances surrounding Ms. Cousins’ request, rather than
simply treating DOC’s conclusory—and ultimately false—
“closing” label as dispositive. Id. Otherwise, one cannot
determine whether a definitive, final response was “effectively
made.” RHA, 165 Wn.2d at 537. Indeed, given DOC sent at
least two “closing” letters to Ms. Cousins, it is odd the majority
concluded the first letter was somehow more “definitive” or
“final” than the second letter. Cousins, 25 Wn. App. 2d at 488.
The Court should reverse the decision below.

2.

The Dotson rule encourages conflict and
wastes agency and judicial resources.

By allowing agencies to trigger the statute of limitations
through conclusory and unsupportable “closing” letters, the
decision below punishes requestors like Ms. Cousins who seek
to resolve their PRA disputes through communication rather
than litigation. In order to preserve their PRA claims,
requestors will be forced to file suit rather than explore other

10

options, even when an agency’s initial inadequate response
could have been resolved with a simple email or phone call.
See, e.g., West v. City of Lakewood, noted at 22 Wn. App. 2d
1048, 2022 WL 2679516, at *2-3 (example of litigation that
could have been avoided if city had engaged with requestor
rather than immediately closing request when it located no
records due to spelling error).
“[T]he purpose of the PRA is best served by
communication between agencies and requesters, not by
playing ‘gotcha’ with litigation.” Hobbs v. State, 183 Wn. App.
925, 941 n.12, 335 P.3d 1004, 1011 (2014). Both the statute
and the courts require a cooperative process. Agencies must
“ask[] the requestor to provide clarification for a request that is
unclear.” RCW 42.56.520(1)(d). Agencies are also “required
to make more than a perfunctory search and to follow obvious
leads as they are uncovered.” Neighborhood All., 172 Wn.2d at
720.

11

This is consistent with the Attorney General’s Model
Rules, ch. 44-14 WAC, which this Court has “repeatedly
cited… when interpreting provisions of the PRA.” Kilduff, 194
Wn.2d at 873. The Model Rules emphasize communication
and encourage “parties… to resolve their disputes without
litigation.” WAC 44-14-08003; see also, e.g., WAC 44-1404003(4) (“Communication is usually the key to a smooth
public records process for both requestors and agencies.”). The
Model Rules expressly suggest agencies send closing letters
that “ask the requestor to promptly contact the agency if [they]
believe[] additional responsive records have not been
provided.” WAC 44-14-04006(1). It subverts the PRA’s
purpose to allow agencies to trigger the statute of limitations by
saying the request is “closed” at the same time that they invite
the requestor to provide information that would assist the
agency in completing the request—especially so when the
requestor’s follow-up leads to months of additional delay as the
agency conducts additional searches, running out the clock.

12

Dotson and Cousins turn a cooperative PRA process into
an adversarial one and will lead to the waste of agency,
requestor, and judicial resources by encouraging unnecessary
and avoidable lawsuits. Division Two’s dismissive remark that
the requestor can just “mak[e] a new records request for records
that were not produced” also ignores the waste of agency and
requestor resources that arise from encouraging requestors to
submit duplicative requests that cause the agency to re-run the
same deficient searches. Cousins, 25 Wn. App. 2d at 495. The
Court should not allow these consequences to prevail.

B.

The Public Needs an Effective PRA to Ensure
DOC Does Not Abuse Its Immense Power Over
Incarcerated People’s Lives.
1.

The PRA provides much-needed
transparency into DOC operations.

A strong PRA helps to protect the lives of incarcerated
people.1 Washington’s prisons are dangerous, even deadly

1

Amici bring the stories and statistics in this section to the
Court’s attention in order to emphasize the stakes at issue in
this appeal. Should the Court deem it necessary, Amici request
the Court take judicial notice under ER 201.

13

places, for the friends, family, and neighbors we incarcerate.
Just this past summer, at least three people died at Walla Walla
state prison. All were tragically young. Timothy Hemphill was
35 years old when he died (just months before he was due to be
released); Everette Alonge was 23, and Michael Giordano was
29.2 By July 2023, DOC owned up to the tragedy unfolding
behind its walls, but failed to articulate a policy change or
announce a robust response to what it described as a “rare”
increase in suicides and suicide attempts that “warrants a close
review.”3

2

Jeremy Burnham, State releases names of suicide victims at
Washington State Penitentiary; full reports pending, WALLA
WALLA UNION-BULLETIN (Sept. 30, 2023), available at
https://www.unionbulletin.com/news/local/courts_and_crime/state-releasesnames-of-suicide-victims-at-washington-state-penitentiary-fullreports-pending/article_9763f23e-572d-11ee-b602f78ab13e9560.html (last visited Nov. 30, 2023).
3

Wash. Dep’t of Corr, News Spotlight: Humanity in
Corrections—Suicide Prevention in Prisons, July 14, 2023,
available at https://www.doc.wa.gov/news/2023/spotlight/
suicide-prevention-in-prisons.htm (last visited Nov. 30, 2023).

14

Unfortunately, there is nothing rare about death in
Washington prisons. In fact, death is such a regular part of our
incarceration system that DOC has determined there is a need to
annually tabulate prison death by cause.4 While this morbid
chart outlines that most deaths in DOC custody are deemed
“[n]atural,” it also shows that accidents, homicides, and
suicides regularly lead to death in our prisons. In addition,
when someone unexpectedly dies in DOC custody, the agency
must conduct a formal review. RCW 72.09.770(1)(a). In 2022,

The Ombuds identified five prison suicides during the fiscal
year 2023. See Off. of the Corr. Ombuds, Ann. Rep.: Fiscal
Year 2023 (“FY2023 Report”), at 16 available at
https://app.leg.wa.gov/ReportsToTheLegislature/Home/GetPDF
?fileName=Office_of_%20the_%20Corrections_%20Ombuds_
FY2023_%20AnnualReport_bc4cd2ff-f9e5-4422-b8da0dec042e7274.pdf (last visited Nov. 30, 2023).
4

Wash. Dep’t of Corr., Incarcerated Individuals Deaths: Cause
of Death, available at
https://doc.wa.gov/corrections/services/health.htm#deaths (last
visited Nov. 30, 2023).

15

DOC reviewed 37 unexpected fatalities.5 To date, DOC has
published its reviews of nine unexpected fatalities in 2023.6
Nor are these deaths limited to DOC facilities. In one
recent case, “Derek Batton, while incarcerated at the Grant
County Jail, died after ingesting heroin that was smuggled in by
his cellmate.” Anderson v. Grant Cnty., No. 38892-1-III, 2023
WL 8227548, slip. op. at ¶ 1 (Nov. 28, 2023). The Grant
County Sheriff’s Office was aware it had become “routine for
dealers to deliver drugs to inmates by preplanning their arrests
and then secreting the drugs orally, anally, or vaginally into the
facility,” and that “[d]rug toxicity caused several inmates to be
hospitalized.” Id. ¶ 3. But even though Mr. Batton’s cellmate
“had been booked into the Grant County Jail over 40 times” and
“had attempted to smuggle contraband into the jail,” the

5

Wash. Dep’t of Corr., Incarcerated Individuals Deaths:
Unexpected Fatalities, available at
https://doc.wa.gov/corrections/services/health.htm (list of links
to unexpected fatality reports) (last visited Nov. 30, 2023).
6

Id.

16

booking officers did not follow the County’s bodily search
policy. Id. ¶¶ 5-6. “Mr. Batton, who struggled with drug
addiction,” died because of their negligence. Id. ¶ 8; see id. ¶
32 (concluding “County owed a nondelegable affirmative duty
to protect Mr. Batton from harm”).
The people who are harmed or who perish behind prison
walls are more than convicted defendants. They are more than
inmate numbers or pending petitions. They are loved, and
when they are harmed, or when they die in DOC custody, DOC
must be made to provide families with direct, responsive, and
timely answers. Transparency and accountability must be the
top priority of an agency that manages facilities as dangerous
and prone to abuse as prisons.
Death is not the only danger facing individuals
incarcerated in Washington prisons. Concerns over abuse and
mistreatment animate the fears of incarcerated persons and their
families. RCW 43.06C.040(2) tasks the Office of Corrections
Ombuds with investigating such complaints made against DOC.

17

Per 43.06C.040(1)(j)(ii) and (iii), the Ombuds annually
publishes “[t]he number of complaints received and resolved,”
alongside “[a] description of significant systemic or individual
investigations or outcomes ….” For fiscal year 2023, the
Ombuds reported “[t]he most frequently received complaints
concerned healthcare, disciplinary cases, and DOC staff
conduct.”7 Buttressing the Ombuds’ concerns, this year’s
report includes images showing the cruel conditions people
must endure when housed in mental health residential treatment
units.8

7

FY2023 Report, at 1.

8

See id. at 15-17. The Ombuds inspected the Special Offender
Unit (“SOU”) at the Monroe state prison after receiving an
anonymous complaint regarding cell conditions and alleged
mistreatment. Id. at 15. Presumably, the report’s photographs
were taken when the Ombuds office made an “unannounced
visit” to Monroe. Id. As the Ombuds explains, these photos
depict “hazardous living conditions in two different cells and
suggest[] a failure of custody, healthcare, and physical plant
coordination and leadership.” Id. The conditions shown in
these photos include corroded cell walls and uncollected
garbage and debris. See id. 15-17.

18

In short, it is undeniable that prison living conditions are
cruel in certain facilities and that unexpected death is a regular
part of DOC operations.
The PRA, when properly applied, is the most immediate
and effective way for incarcerated people and their
communities to hold DOC accountable for what goes on inside
their facilities. Allowing the Dotson rule to stand will enable
DOC to maintain dangerous and deadly prisons. The decision
below allows DOC to perform shoddy searches in response to
PRA requests seeking information about potential DOC
misconduct, then avoid accountability for both the inadequate
search and the misconduct when it issues a letter that claims the
PRA request is “closed” without having produced all
responsive documents. Such lack of transparency and potential
gamesmanship prevent the public from holding DOC
accountable for keeping prisons safe. Without accountability,
abuse and misconduct can occur with impunity.

19

A sobering observation illuminates the stakes of this
case. “Legal interpretation takes place in a field of pain and
death.” Robert M. Cover, Violence and the Word, 95 YALE L.J.
1601 (1986). This assessment is not hyperbolic. “A judge
articulates her understanding of a text, and as a result,
somebody loses his freedom, his property, his children, even his
life.” Id. Here too, legal interpretation stems from pain and
death. Ms. Cousins lost her sister, Renee Fields, when she died
in DOC custody. As such, while the issue on appeal ostensibly
concerns statutory interpretation implicating the public’s access
to inspect records regarding DOC operations, this Court’s
decision will ultimately shape how transparent, accountable,
and thus—safe—our state’s prisons will be in coming years.

2.

A “bad faith” standard will eviscerate the
PRA and allow DOC to escape public
scrutiny.

DOC argues equitable tolling “provides meaningful
protection” when the Dotson rule artificially triggers an early
limitations period. DOC Suppl. Br. at 19. But making

20

equitable tolling the default would elevate the standard for a
PRA violation to “bad faith.” Id. at 18-19; see Price v.
Gonzalez, 4 Wn. App. 2d 67, 75, 419 P.3d 858, 863 (2018)
(equitable tolling requires “bad faith, deception, or false
assurances”) (internal quotation marks and citation omitted).
Not only is this contrary to the law, but DOC’s own litigation
history shows that a bad faith standard will render the PRA
toothless and encourage agencies to shirk their PRA
obligations, rather than deter them from doing so.
Under normal circumstances, a requestor need only show
an inadequate search, regardless of culpability, to trigger
penalties under the PRA. See, e.g., Neighborhood All., 172
Wn.2d at 717-18 (explaining agency that “timely complied but
mistakenly overlooked a responsive document should be
sanctioned,” albeit “less severely” than agency that “withheld
records in bad faith”). “State agencies may not resist disclosure
of public records until a suit is filed and then avoid paying fees
and penalties by disclosing them voluntarily thereafter.” Kitsap

21

Cnty. Prosecuting Att’y’s Guild v. Kitsap Cnty., 156 Wn. App.
110, 118, 231 P.3d 219, 222-23 (2010) (citing Spokane Rsch. &
Def. Fund v. City of Spokane, 155 Wn.2d 89, 103, 117 P.3d
1117 (2005)).
But that is exactly what DOC does. DOC often has little
incentive to conduct an adequate initial search because under
the PRA, a requestor who is incarcerated is only entitled to
penalties if the agency acted in “bad faith,” and DOC receives a
high volume of requests from prisoners. RCW 42.56.565(1).
Numerous cases show DOC regularly shirks its obligations and
“closes” PRA requests until the requestor challenges its
response—whether through a follow-up email, an internal
agency appeal, or litigation—because its negligence is rarely
penalized. Both Ms. Cousins’ experience, as well as Amici’s
own experiences, see infra § II.B.3, show that not only
incarcerated requestors, but also those who are not incarcerated,
are subject to this poor treatment. See also RCW 42.56.080(2)

22

(“Agencies shall not distinguish among persons requesting
records ….”).
For example, in Faulkner v. Wash. Dep’t of Corr., 183
Wn. App. 93, 332 P.3d 1136 (2014), a prisoner requested DOC
produce a completed mail log, but DOC produced a blank log.
Id. at 97-98. DOC did not produce the requested document
until after the requestor filed a formal agency appeal. Id.
Division Three held there was no bad faith because “[t]he error
… was the result of an inadvertent mistake in summarizing the
request.” Id. at 108.
In Thurura v. Wash. Dep’t of Corr., noted at 15 Wn.
App. 2d 1047, 2020 WL 7231100, a prisoner requested
metadata about an incident report, and DOC responded that it
had no records without making any attempt to contact the
author of the report. Id. at *2. After the requestor filed a
lawsuit, “DOC staff performed a further search” by contacting
the report’s author, then “threatened to seek costs for a
frivolous action if [the prisoner] went forward with his suit.”

23

Id. Division Three concluded “the agency conducted an
inadequate search” but did not award penalties. Id. at *5-6.
In Padgett v. Dep’t of Corr., noted at 9 Wn. App. 2d
1040, 2019 WL 2599159, DOC again conducted an additional
search and produced certain records only after an incarcerated
requestor filed suit. Id. at *3-4. The trial court concluded DOC
“violated the PRA by not providing the fullest assistance … by
failing to seek clarification … and simply clos[ing] the
request,” but found no bad faith, and Division Two affirmed.
Id. at *5-6, *12.
In Curtis v. Wash. Dep’t of Corr., No. 54758-9-II, 2022
WL 1315654 (May 3, 2022) (unpublished), DOC again failed to
produce documents until the incarcerated requestor sued. Id. at
*3. The trial court concluded DOC “violated the PRA by
failing to disclose the records” but found no bad faith because
DOC “merely made a mistake,” and Division Two again
affirmed. Id. at *3, *6.

24

In Haney v. Wash. Dep’t of Corr., noted at 22 Wn. App.
2d 1008, 2022 WL 1579881, DOC responded to a prisoner’s
PRA request by producing 42 pages along with a letter stating
the request was closed. Id. at *1-2. Ten months after the
requestor filed suit, DOC produced an additional 187 pages
along with a letter stating the request “remains closed.” Id. As
Division Three aptly observed, that second letter “prompts
many unanswered questions.” Id. at *2. DOC sought to
dismiss the PRA claim based on statute of limitations grounds,
but the court rejected its arguments. Id. at *5.
Here, DOC withheld over 1,000 pages until it finally
recognized, through Ms. Cousins’ persistence, that it had closed
her request in error. Cousins, 25 Wn. App. 2d at 488. After it
re-opened her PRA request and produced theb withheld
documents, DOC sent a second closing letter, then produced yet
another installment, prompting “unanswered questions” about
what DOC thinks it means to “close” a request. Id. (describing

25

production of “17th installment” after second closing letter);
Haney, 2022 WL 1579881, at *2.
Because Division Two held the statute of limitations ran
from DOC’s first “closing” letter, Ms. Cousins was required to
prove equitable tolling—raising her burden to simply bring a
PRA claim to the same high bar that incarcerated requestors
must prove in order to receive penalties. But Ms. Cousins
should not be required to show bad faith in order to bring a
claim that tests the adequacy of DOC’s search—especially
because DOC records require particular scrutiny due to the
immense control DOC holds over the lives of incarcerated
people and the dangerous conditions in DOC’s prisons. See
supra § III.B.1.
And no agency should be allowed to start the clock on a
PRA claim by conducting an inadequate search and then
purporting to “close” the request, thereby enabling the agency
to let the statute of limitations run while it works through
concerns about its response with the requestor—a process that

26

can easily consume much of the one-year limitations period
under the Dotson rule. Agencies do not have “the right to
decide what is good for the people to know and what is not
good for them to know,” RCW 42.56.030, and requestors
should be entitled to enforce this principle if their concerns are
ultimately not addressed—not barred from doing so due to
extratextual deadlines.

3.

DOC’s intransigence when responding to
PRA requests is not limited to Cousins’
request.

Amici use the PRA to protect incarcerated people and
hold the DOC accountable. As PRA requestors themselves,
Amici have insight into DOC’s disregard for its PRA
obligations, and the consequences of DOC’s non-compliance.
For example, Amicus CLS recently filed suit against
DOC based on DOC’s extraordinary delay in producing records
that may show it has been violating prisoners’ constitutional
rights with respect to its use of certain drug tests. See Columbia
Legal Servs. v. Wash. Dep’t of Corr., No. 23-2-03060-34, Pet.

27

for Judicial Review (Sept. 21, 2023, Thurston Cnty. Super. Ct.).
CLS submitted its PRA request on December 29, 2022. Id. ¶ 9.
As CLS alleged in its petition,9 DOC’s initial response was a
blank disc and a “closing” letter saying it could not locate
records for most of the requests. Id. ¶¶ 16, 19. After CLS
objected, DOC then provided a small production followed by a
second “closing” letter. Id. ¶¶ 22, 27-29. After CLS submitted
an administrative appeal, DOC reopened the request and
produced another handful of responsive records. Id. ¶¶ 33-35.
DOC then stated it would make another installment by
November 21—almost one year after CLS’s original request.
Id. ¶ 35. DOC’s recalcitrance has impeded CLS’s investigation
into DOC’s potential constitutional violations, delaying CLS’s
ability to challenge those violations and obtain relief for the

9

Although this Court does not “take judicial notice of records
of other independent and separate judicial proceedings,”
Spokane Rsch. & Def. Fund, 155 Wn.2d at 98, Amici provide
these personal anecdotes to illustrate the consequences of
weakening the PRA.

28

individuals in DOC custody whose rights continue to be
violated.
Similarly, Amicus HRDC is the entity that publishes
Prison Legal News, a publication created for and by
incarcerated people that investigates and publishes stories about
the experiences of people in prison. HRDC’s investigations
predominantly concern conditions of confinement, corruption,
and staff malfeasance. HRDC routinely utilizes the PRA to
attain records and documentation that can help PLN evaluate,
explore, and—most importantly—substantiate or disprove
allegations of abuse or misconduct by DOC. PLN’s publication
of substantiated claims of abuse sheds light on DOC operations
and leads to changes in policy by instigating public scrutiny and
revealing the need for accountability. These effects inevitably
help make prisons safer for those who are incarcerated.
But when DOC evades its responsibilities under the PRA,
HRDC is hampered, and progress toward transparency and
accountability is stunted. HRDC’s experience is that DOC

29

systematically delays production of records, and often these
delays are so extreme that HRDC’s investigations are
frequently hamstrung.
In addition to extreme delays in the production of
documents, DOC has subjected HRDC to a pervasive “trickle
and close” pattern when it responds to PRA requests. Often,
DOC will slowly produce negligible installments of records
over the period of months or years only to finally “close” a
request, even after it never actually produced all responsive
records. Because the PRA is HRDC’s most direct and effective
means to information about the prison environment, DOC’s
ability to close requests without meaningfully responding to
them prevents HRDC from successfully investigating abuse and
misconduct. In the absence of diligent compliance with the
PRA, allegations raised by incarcerated people are left
inadequately investigated, and thus unaddressed.

30

CONCLUSION

IV.

The Court should abrogate the Dotson rule and reverse
Division Two’s decision.

This document contains 4,815 words, excluding the parts
of the document exempted from the word count by RAP 18.17.

RESPECTFULLY SUBMITTED this 1st day of
December, 2023.
Davis Wright Tremaine LLP
By /s/Eric M. Stahl
Eric M. Stahl, WSBA #27619
Jennifer K. Chung, WSBA #51583
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610
EricStahl@dwt.com
JenniferChung@dwt.com
Cooperating Counsel for Amicus
Curiae American Civil Liberties Union
of Washington; Attorneys for Amici
Curiae Human Rights Defense
Coalition and Washington Coalition for
Open Government

31

ACLU of Washington Foundation
By /s/La Rond Baker
La Rond Baker, WSBA #43610
Sagiv Galai, WSBA #61383
PO Box 2728
Seattle, WA 98111
Telephone: (206) 624-2184
baker@aclu-wa.org
sgalai@aclu-wa.org
Attorneys for Amici Curiae American
Civil Liberties Union of Washington

Columbia Legal Services
By /s/Nicholas B. Straley
Nicholas B. Straley, WSBA #25963
101 Yesler Way, #300
Seattle, WA 98104
nick.straley@columbialegal.org
Attorneys for Amicus Curiae Columbia
Legal Services

32

Frank Freed Subit & Thomas
By /s/Munia Jabbar
Munia Jabbar, WSBA #48693
705 Second Ave., Suite 1200
Seattle, WA 98104
mjabbar@frankfreed.com
Attorneys for Amicus Curiae
Washington Employment Lawyers
Association

33

CERTIFICATE OF SERVICE
The undersigned hereby declares that on this 1st day of
December, 2023, he electronically filed the foregoing document
with the Washington State Supreme Court, which will send
notification of such filing to the attorneys of record listed
below.
Cassie B. Vanroojen

cassie.vanroojen@atg.wa.gov

Dept. of Corrections,
A.G. Office

correader@atg.wa.gov

Jeffrey Lowell Needle

jneedle@njeedlelaw.com

Emma Sarah Grunberg

emma.grunberg@atg.wa.gov
SGOOlyEF@atg.wa.gov

Eric Stahl

erickstahl@dwt.com
christinekruger@dwt.com

Nicholas Broten Straley

nick.straley@columbialegal.org

La Rond Baker

baker@aclu-wa.org
laurwilson@kingcounty.gov

Joseph Robert Shaeffer

joe@mhb.com;
oliviad@mhb.com

Jennifer Chung

jenniferchung@dwt.com

34

Munia Farhana Jabbar

mjabbar@frankfreed.com;
mgrosse@frankfreed.com

Dated this 1st day of December, 2023.

/s/Eric M. Stahl
Eric M. Stahl, WSBA #27619

35

DAVIS WRIGHT TREMAINE LLP
December 01, 2023 - 4:02 PM
Transmittal Information
Filed with Court:
Appellate Court Case Number:
Appellate Court Case Title:
Superior Court Case Number:

Supreme Court
101,769-3
Terry Cousins v. State of WA and Department of Corrections
21-2-00050-2

The following documents have been uploaded:

• 1017693_Briefs_20231201155946SC612939_4072.pdf
This File Contains:
Briefs - Amicus Curiae
The Original File Name was Amicus Brief.pdf
1017693_Motion_20231201155946SC612939_8862.pdf
•
This File Contains:
Motion 1 - Amicus Curiae Brief
The Original File Name was Motion for Leave to File Amicus Brief.pdf
A copy of the uploaded files will be sent to:

• SGOOlyEF@atg.wa.gov
• baker@aclu-wa.org
• cassie.vanroojen@atg.wa.gov
• correader@atg.wa.gov
• emma.grunberg@atg.wa.gov
• jenniferchung@dwt.com
• jneedle@jneedlelaw.com
• joe@mhb.com
• laurwilson@kingcounty.gov
• mgrosse@frankfreed.com
• mjabbar@frankfreed.com
• nick.straley@columbialegal.org
• oliviad@mhb.com
• sgalai@aclu-wa.org
Comments:
Sender Name: Eric Stahl - Email: ericstahl@dwt.com
Address:
920 5TH AVE STE 3300
SEATTLE, WA, 98104-1610
Phone: 206-757-8148
Note: The Filing Id is 20231201155946SC612939