author: FAIRHURST, C.J. GORDON McCLOUD, J. (concurring)

text:
    STATE of Washington, Respondent, v. Theresa Gail SCANLAN, Petitioner.
    No. 95971-4
    Supreme Court of Washington.
    Argued January 24, 2019 Filed August 01, 2019
    Nancy P. Collins, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.
    Ann Marie Summers, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondent.
   FAIRHURST, C.J.

¶1 In this case, we consider whether a crime victim's statements to his medical providers were testimonial and, if so, whether their admission at trial violated the defendant's right of confrontation under the Sixth Amendment to the United States Constitution. We hold that the victim's statements in this case were nontestimonial because they were not made with the primary purpose of creating an out-of-court substitute for trial testimony. We separately hold that there was sufficient evidence to support the petitioner's unlawful imprisonment conviction. We affirm the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

A. Factual background

¶2 Roughly a decade after his wife of over 50 years died, 82 year old Leroy Bagnell met a woman in a bar. He initially introduced 57 year old Theresa Gail Scanlan to his children as a friend, and within a month or two she moved into his house. At some point, he began referring to her as his girlfriend.

¶3 About a year later on October 16, 2014, the police responded to a 911 hang-up call made from Bagnell's house. Scanlan answered the door and told the police she had been having an argument with her roommate. Bagnell then appeared at the top of the stairs wearing a T-shirt and underwear. His head and forearm were bleeding, and he had a big, bloody, and bruised lump on his leg. When the police asked Bagnell how he had been injured, Scanlan replied that Bagnell had fallen out of his car. As a result of this incident, the Federal Way Municipal Court issued a domestic violence no contact order prohibiting Scanlan from coming within 1,000 feet of Bagnell's house. Bagnell did not seek medical care for his injuries. ¶4 On November 6, 2014, Bagnell's children became concerned when they were unable to reach him all day on either his cell phone or landline. All four children went to the house, arriving around 5:30 p.m. They found the lights out and the shades drawn, and they got no answer when they knocked and rang the bell. They let themselves in with a key. There was blood on the entryway carpet, on the stairs, and throughout the upstairs bedrooms. The stairway wall had been dented and gouged, and the kitchen floor was littered with shattered glass and broken ceramic figurines.

¶5 There was more blood in the family room, along with a large trash can containing a broken, bloodstained broom handle and a broken golf club. There was a hammer on the coffee table and a crowbar on the dining table. Bagnell was also in the family room, sitting in a chair in the dark with his eyes closed. Bagnell was severely bruised from head to toe. His children called 911. All four children and the responding police officer testified that Bagnell was initially nonresponsive, then dazed and in a state of shock and confusion. Three of his children thought that he was dead or possibly unconscious.

¶6 Scanlan was found in the garage underneath a blanket in her car with the doors locked. When the police arrived and removed Scanlan from the car, Bagnell's daughter shouted at her that she could have killed him. Scanlan replied that it was "not that bad." 6 Transcript of Proceedings (TP) (Nov. 18, 2015) at 769; 8 TP (Nov. 23, 2015) at 1071.

¶7 Bagnell was taken to the emergency room, where he was treated by Nurse Catherine Gay, Dr. Robert Britt, and social worker Jemima Skjonsby. In addition to extensive bruising, he also had two broken fingers and several skin tears on his legs and arms. The police subsequently arrived around midnight, spoke to Bagnell, and had him sign a medical release form authorizing St. Francis Hospital and its staff to release his medical records to police and prosecutors.

¶8 On November 12, 2014, the police met with Bagnell at his house and obtained a second medical release form for Virginia Mason Medical Center. The next day, Bagnell met with Dr. Curtis Endow, his primary care physician, at Virginia Mason. Dr. Endow referred Bagnell to a wound care clinic at Virginia Mason, where he subsequently received care from physician assistant Stacy Friel and Dr. Jessica Pierce.

B. Procedural history

¶9 Scanlan was charged with second degree assault, felony violation of a no contact order, unlawful imprisonment, and fourth degree assault. Neither Bagnell nor Scanlan testified at trial, but the court admitted several statements that Bagnell made to his medical providers.

¶10 Nurse Gay testified that when she asked what had happened to him, Bagnell told her "that his girlfriend had beaten him up, and that he'd had a no contact order on this individual." 8 TP at 1108-09. When she asked him about a ring mark that she noticed on the back of his neck, "[h]e told me that his girlfriend ... had tried to strangle him with his sweatshirt and had pulled the sweatshirt so hard, it had left this permanent ring around the back of his neck." Id. at 1110. She clarified on cross-examination that she could not recall whether he had used the word "strangled," but that "she, you know, did whatever with the sweatshirt and had it really tight." Id. at 1118. Gay testified that knowing how a patient's injury occurred and the identity of his assailant is important for monitoring hospital security and patient safety, determining whether to refer him to a social worker, and ensuring that he has the follow-up care he needs, including having a safe place to go after discharge.

¶11 Dr. Britt testified that Bagnell stated "that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will," that "he hadn't really eaten in a [ ] couple of days," and that "[h]e wasn't allowed to talk to his family." 7 TP (Nov. 19, 2015) at 925. Dr. Britt also testified that Bagnell "said that he was hit with fists, that he had been bitten in a couple of places [,] and that he had been hit with a broom." Id. at 925-26. Dr. Britt stated that it was important to determine how patients' injuries occur because the mechanism of the injury determines how serious it is and affects which tests he runs, and it impacts discharge planning.

¶12 Social worker Skjonsby testified that when she asked Bagnell whether he felt safe to go home, he responded "[t]hat he was relieved that this person had been removed from the home by police and that he wouldn't have to worry about it again." Id. at 883-84. Skjonsby stated that knowing about a patient's relationship with his assailant and knowing whether the assailant is in police custody helps her assess for safe discharge and connect the patient with appropriate social work services.

¶13 Dr. Endow testified that when he asked how Bagnell had been injured, Bagnell "stated that he received the injuries during an assault" by "[h]is girlfriend." Id. at 818. Dr. Endow stated that to effectively treat patients he needs to know how an injury occurred-whether the injury is related to underlying medical conditions, is due to accidents, occurred from fainting or in the course of medical care, and so on. Dr. Endow further stated that it is important to know the identity of a patient's assailant to know whether the patient is still in potential danger and to know whether to refer the patient to Virginia Mason's social services department.

¶14 Physician assistant Friel testified that when she asked Bagnell how his injuries occurred, he told her that "[h]e was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom, and a hammer over multiple areas." 8 TP at 1181. Friel explained that it was important to know for treatment purposes whether an injury had been caused by an object (versus, say, a hand) to make sure that no foreign bodies remain in the wound. Friel stated that knowing the identity of an assailant influences treatment because she wants to ensure that the patient has a safe place to go and is not returning to an environment that could result in more wounds.

¶15 Dr. Pierce testified that when she asked Bagnell how his injuries occurred, "[h]e said that it was as a result of domestic violence.... He told me he was hit with a candlestick, a broom. He was punched or hit-I want to say a hammer, something hard." 7 TP at 909. Dr. Pierce stated that it was important to know the mechanism of injury because there is a high recidivism rate for wound patients. Accordingly, her practice involves not only treatment of existing wounds but also prevention of new wounds by, for example, having patients install grab bars in their homes. In addition, Dr. Pierce testified that knowing whether patients are returning to a safe environment is important from a treatment standpoint because more wounds result in more surface area to bandage and treat, which results in longer healing time, more potential for infection, and other complications.

¶16 The jury convicted Scanlan of second degree assault, felony violation of a no contact order, and unlawful imprisonment. On appeal, Scanlan argued that admitting Bagnell's hearsay statements to his medical providers violated her confrontation clause rights and that there was insufficient evidence to support her unlawful imprisonment conviction. The Court of Appeals held that Bagnell's statements to medical personnel were nontestimonial and therefore not subject to the confrontation clause, and it sustained her unlawful imprisonment conviction. We granted Scanlan's petition for review and now affirm the Court of Appeals. State v. Scanlan, 191 Wash.2d 1026, 428 P.3d 1171 (2018).

II. ANALYSIS

A. Bagnell's statements to his medical providers were not testimonial because they were not made with the primary purpose of creating an out-of-court substitute for trial testimony

¶17 Scanlan first contends that Bagnell's statements to his medical providers were testimonial and that admitting them therefore violated the confrontation clause of the United States Constitution. We review confrontation clause challenges de novo. State v. Price, 158 Wash.2d 630, 638-39, 146 P.3d 1183 (2006).

1. The primary purpose test governs our analysis

¶18 The Sixth Amendment, made applicable to the states by the Fourteenth Amendment, states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Court of Appeals below correctly observed that "confrontation clause jurisprudence has been in rapid flux since the United States Supreme Court's 2004 decision in Crawford [v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ]." State v. Scanlan, 2 Wash. App. 2d 715, 725, 413 P.3d 82 (2018). In Crawford , the Supreme Court held that whether admission of an out-of-court statement by a declarant who does not testify at trial violates the confrontation clause depends on whether the statement was testimonial -not, as it had previously held, whether the statement was reliable. 541 U.S. at 53, 68, 124 S.Ct. 1354 (abrogating Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) ). If the statement was testimonial, then it is inadmissible unless the witness is unavailable at trial and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59, 68, 124 S.Ct. 1354. Reasoning that "the principal evil at which the Confrontation Clause was directed" was the use, in traditional civil-law systems, of "ex parte examinations as evidence against the accused" in criminal proceedings, the Court held that a hearsay declarant's statements to police during a station house interview were testimonial. Id. at 50, 68, 124 S. Ct. 1354.

¶19 The Court in Crawford declined to fashion a legal test or "to spell out a comprehensive definition of 'testimonial.' " Id. at 68, 124 S. Ct. 1354. And so in State v. Shafer, 156 Wash.2d 381, 128 P.3d 87 (2006), we articulated our own "declarant-centric" test for determining whether a statement was testimonial. At the same time, the Court of Appeals began struggling with the very question we face today: whether crime victims' statements to their medical providers are testimonial. See, e.g., State v. Fisher, 130 Wash. App. 1, 10-13, 108 P.3d 1262 (2005) ; State v. Moses, 129 Wash. App. 718, 729-30, 119 P.3d 906 (2005) (published in part); State v. Saunders, 132 Wash. App. 592, 603, 132 P.3d 743 (2006). The Court of Appeals' deliberation eventually coalesced into a three-factor test:

Witness statements to a medical doctor are not testimonial (1) where they are made for diagnosis and treatment purposes, (2) where there is no indication that the witness expected the statements to be used at trial, and (3) where the doctor is not employed by or working with the State.

State v. Sandoval, 137 Wash. App. 532, 537, 154 P.3d 271 (2007).

¶20 Meanwhile in Davis v. Washington , the United States Supreme Court announced what has since become known as the primary purpose test:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (emphasis added). Applying this test, the Court held that a wife's 911 call identifying her assailant in the midst of a domestic violence episode was nontestimonial because the call's primary purpose was to enable police assistance to meet an ongoing emergency. Id. at 823-29, 126 S. Ct. 2266. On the other hand, another domestic violence victim's interview statements to the police after they had arrived and separated her from her assailant were testimonial because the primary purpose of the interrogation was "to investigate a possible crime." Id. at 830, 126 S. Ct. 2266.

¶21 In Michigan v. Bryant , the Court further clarified that to determine the primary purpose of a police interrogation, courts should "objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties." 562 U.S. 344, 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). "[T]he statements and actions of both the declarant and interrogators" are relevant to this inquiry. Id. at 367, 131 S. Ct. 1143 ; cf. id. at 381-82, 131 S. Ct. 1143 (Scalia, J., dissenting) (stating, contra the majority, that only the declarant's state of mind is relevant to the primary purpose inquiry).

¶22 In light of Davis and Bryant , we held that the primary purpose test, rather than our earlier declarant-centric test as announced in Shafer , applies to statements made to law enforcement officers. State v. Beadle, 173 Wash.2d 97, 109, 265 P.3d 863 (2011) ("Based on the evolution of the law since Shafer , we conclude that the Shafer standard does not apply to statements made to law enforcement."); see also State v. Ohlson, 162 Wash.2d 1, 16, 168 P.3d 1273 (2007) ("Davis indicated that the objectively determined primary purpose of a police interrogation is decisive in evaluating whether a resulting statement is testimonial.").

¶23 But the Court of Appeals continued to struggle with the question of how to analyze statements made to nongovernmental witnesses-i.e., witnesses other than law enforcement officers. See Davis, 547 U.S. at 823 n.2, 126 S.Ct. 2266 (United States Supreme Court declining to "consider whether and when statements made to someone other than law enforcement personnel are 'testimonial' "); Bryant, 562 U.S. at 357 n.3, 131 S.Ct. 1143 ("We have no need to decide that question in this case either."). In State v. Hurtado , the Court of Appeals acknowledged that the primary purpose test governs analysis of statements made to law enforcement officers but reasoned that Shafer's " 'declarant-centric standard" ' still governed statements made to "nongovernmental witness[es]," including medical providers. 173 Wash. App. 592, 599-600, 294 P.3d 838 (2013) (analyzing statements made by a crime victim to an emergency room nurse) (quoting Beadle, 173 Wash.2d at 107-08, 265 P.3d 863 ). The court further reasoned that the second and third factors of the Sandoval test "incorporate Shafer's declarant-centric standard' because the declarant must make the statement to a nongovernmental witness." Id. at 600, 294 P.3d 838. Hurtado thereby synthesized Shafer's declarant-centric test and Sandoval's three-factor test into a single test to analyze whether statements made to medical providers were testimonial.

¶24 Although it was originally formulated in the context of police interrogation, the United States Supreme Court has now clarified that the primary purpose test also governs courts' analysis of hearsay statements made to nongovernmental witnesses. In Ohio v. Clark , the Court held that a three year old's statements to his preschool teachers, when asked about the identity of his abuser, were not testimonial. --- U.S. ----, 135 S.Ct. 2173, 192 L. Ed. 2d 306 (2015). The Court reasoned that "[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers," and noted that "the relationship between a student and his teacher is very different from that between a citizen and the police." Id. at 2182.

¶25 The Court held that the facts in Clark constituted an ongoing emergency involving suspected child abuse. Id. at 2181. "The teachers' questions were meant to identify the abuser in order to protect the victim from future attacks." Id. Moreover, the child's age made it unlikely that such a declarant "would intend his statements to be a substitute for trial testimony." Id. at 2182. Nor did the fact that the teachers were mandatory reporters of child abuse render the statements testimonial: "mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution." Id. at 2183. "[C]onsidering all the relevant circumstances," the Court concluded that the child's statements "were not made with the primary purpose of creating evidence for Clark's prosecution." Id. at 2181.

¶26 Notwithstanding Clark , the trial court and both parties in this case appear to have agreed at the trial court level that the Sandoval test, as reapplied and synthesized with Shafer's declarant-centric test in Hurtado , governed their analysis of whether Bagnell's statements to his medical providers were testimonial. On appeal Division One disagreed, holding that in light of Clark , "the proper test to apply in determining whether the statements made to medical providers are testimonial is the 'primary purpose'

test." Scanlan, 2 Wash. App. 2d at 725, 413 P.3d 82. Scanlan now urges us to reinstate Hurtado's synthesis of the Sandoval three-factor and Shafer declarant-centric tests.

¶27 The United States Supreme Court in Clark declared that "the primary purpose test is a necessary ... condition for the exclusion of out-of-court statements under the Confrontation Clause." 135 S. Ct. at 2180-81 (emphasis added). "[U]nder our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." Id. at 2180. Any legal test for determining whether a statement was testimonial that is inconsistent with the primary purpose test is thus no longer good law.

¶28 Shafer's declarant-centric test is inconsistent with the primary purpose test, which considers "the statements and actions of both the declarant and interrogators. " Bryant, 562 U.S. at 367, 131 S.Ct. 1143 (emphasis added). Sandoval's three-factor test is also inconsistent since it permits a statement to be nontestimonial only if, inter alia, there is "no indication that the witness expected the statements to be used at trial." Sandoval, 137 Wash. App. at 537, 154 P.3d 271 (emphasis added). In contrast, the primary purpose test asks "whether, in light of all the circumstances, viewed objectively, the 'primary purpose ' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' " Clark, 135 S. Ct. at 2180 (emphasis added) (alteration in original) (quoting Bryant, 562 U.S. at 358, 131 S.Ct. 1143 ).

¶29 It is therefore time to fully put these tests to rest. We hold that Shafer's declarant-centric test, Sandoval's three-factor test, and Hurtado's synthesis of the two have all been superseded by the primary purpose test. Accordingly, we consider whether Bagnell's statements to medical personnel were testimonial by applying the primary purpose test.

2. Application of the primary purpose test

¶30 At issue are Bagnell's statements to emergency room personnel Gay, Dr. Britt, and Skjonsby, and his statements to follow-up care providers Dr. Endow, Friel, and Dr. Pierce. We hold that none of these statements were testimonial because their primary purpose was to meet an ongoing emergency and obtain medical treatment, not to create an out-of-court substitute for trial testimony.

¶31 Under the primary purpose test, courts objectively evaluate the circumstances in which the encounter occurs, as well as the parties' statements and actions. Bryant, 562 U.S. at 359, 131 S.Ct. 1143. The Court has variously declared that a statement is testimonial if its primary purpose was "to establish or prove past events potentially relevant to later criminal prosecution," Davis, 547 U.S. at 822, 126 S.Ct. 2266, "to investigate a possible crime," id. at 830, 126 S. Ct. 2266, "to create a record for trial," Bryant, 562 U.S. at 358, 131 S.Ct. 1143, or to "creat[e]" or "gather[ ] evidence for ... prosecution,"

Clark, 135 S. Ct. at 2181, 2183. "In the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' " Clark, 135 S. Ct. at 2180 (alteration in original) (quoting Bryant, 562 U.S. at 358, 131 S.Ct. 1143 ).

¶32 As a threshold matter, Bagnell's statements are "significantly less likely to be testimonial than statements given to law enforcement officers" because medical personnel are "not principally charged with uncovering and prosecuting criminal behavior." Clark, 135 S. Ct. at 2182. We also note that the United States Supreme Court has consistently said in dicta that statements made to medical providers for the purpose of obtaining treatment have a primary purpose that does not involve future prosecution and that such statements are therefore nontestimonial. See Giles v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) ("[O]nly testimonial statements are excluded by the Confrontation Clause. ... [S]tatements [by domestic abuse victims] to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) ("[M]edical reports created for treatment purposes ... would not be testimonial under our decision today."); Bullcoming v. New Mexico, 564 U.S. 647, 672, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (Sotomayor, J., concurring in part) ("[T]his is not a case in which the State suggested an alternate purpose, much less an alternate primary purpose, for the [blood alcohol concentration] report. For example, the State has not claimed that the report was necessary to provide Bullcoming with medical treatment.").

¶33 Bagnell's statements to medical providers describing the cause of his injuries were elicited for the purpose of obtaining medical treatment. Dr. Britt, Dr. Endow, Friel, and Dr. Pierce all testified that knowing the mechanism of a patient's injury is important because it affects the course of treatment. Dr. Britt stated that the mechanism of injury determines how serious it is and affects which tests he runs. Dr. Endow stated that knowing how the injuries occurred and the timing of the injuries is important for treatment. Friel testified that when treating patients, she needs to know whether she might need to do imaging to look for foreign bodies in the wound. Dr. Pierce stated that knowing the cause of wounds is important to help prevent wound recidivism, for which the rate among her patients is "unbelievably high." 7 TP at 908.

¶34 Like the preschooler's statements identifying his abuser in Clark , Bagnell's statements identifying Scanlan as his assailant were elicited by "questions ... meant to identify the abuser in order to protect the victim from future attacks." 135 S. Ct. at 2181. While Bagnell knew that Scanlan had been taken into police custody, his medical providers did not. His statements were elicited by questions whose purpose was to determine whether there was an ongoing emergency and, if so, to respond to it. Gay, Dr. Britt, Skjonsby, Dr. Endow, Friel, and Dr. Pierce all testified that they were concerned about patient safety and that one of their purposes in speaking with patients is to help ensure that the patient has a safe place to go after discharge. Gay testified that her questioning was also important for hospital security purposes. "[I]n light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation" was not "to 'creat[e] an out-of-court substitute for trial testimony.' " Id. at 2180 (second alteration in original) (quoting Bryant, 562 U.S. at 358, 131 S.Ct. 1143 ).

¶35 Scanlan asserts that Bagnell's statements were testimonial because he signed three medical release forms authorizing his care facilities and their staff to release his medical records to police and prosecutors. But just as the preschool teachers' mandatory reporting obligations in Clark did not "convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution," neither did Bagnell's signing medical release forms transform his medical care provider-patient relationships into law enforcement missions. Id. at 2183. This is true for all of Bagnell's medical providers, and it is especially true for the St. Francis providers. At the time Bagnell received emergency room care at St. Francis on November 6, 2014, he had signed only a release form for Virginia Mason for injuries related to the October 16, 2014 incident. But even for the later follow-up care at Virginia Mason, it seems implausible that the primary purpose of his interactions was to create an out-of-court substitute for trial testimony. Cf. id. at 2183 ("It is irrelevant that the teachers' questions and their duty to report the matter had the natural tendency to result in Clark's prosecution."). To the contrary, the primary purpose of Bagnell's interactions with Dr. Endow, Friel, and Dr. Pierce was to periodically debride and redress the wounds on his arms and legs, which by that point had developed into ulcers. The fact that Bagnell had signed waivers allowing the police to obtain his medical records did not alter the primary purpose of these interactions.

¶36 Bagnell's statements to medical personnel were therefore nontestimonial, and their admission at trial did not violate Scanlan's Sixth Amendment right of confrontation.

B. There is sufficient evidence to support Scanlan's unlawful imprisonment conviction

¶37 Scanlan next contends that there is insufficient evidence to support her unlawful imprisonment conviction. To determine whether there is sufficient evidence to support a criminal conviction, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " State v. Green , 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ). When a criminal defendant challenges sufficiency of the evidence, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citation omitted). " 'Circumstantial evidence and direct evidence are equally reliable' in determining the sufficiency of the evidence."

State v. Kintz, 169 Wash.2d 537, 551, 238 P.3d 470 (2010) (quoting State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004) ). However, "inferences based on circumstantial evidence must be reasonable and cannot be based on speculation." State v. Vasquez, 178 Wash.2d 1, 16, 309 P.3d 318 (2013).

¶38 "A person is guilty of unlawful imprisonment if he or she knowingly restrains another person." RCW 9A.40.040(1). " 'Restrain' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his or her liberty. Restraint is 'without consent' if it is accomplished by ... physical force, intimidation, or deception." RCW 9A.40.010(6).

¶39 Bagnell's statements to medical personnel provide sufficient direct evidence to support Scanlan's unlawful imprisonment conviction. Dr. Britt testified that Bagnell told him "that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will," that "he hadn't really eaten in a [ ] couple of days," and that "[h]e wasn't allowed to talk to his family." 7 TP at 925. Friel testified that Bagnell told her "[h]e was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom, and a hammer over multiple areas." 8 TP at 1181.

¶40 The conviction is further supported by circumstantial evidence. Bagnell's children testified that they had been unable to reach him by cell phone or landline for roughly 24 hours before they arrived on November 6, 2014. They testified that his cell phone said it was disconnected or went to voice mail and that his landline either rang indefinitely or went to voice mail. Witnesses testified that in Bagnell's house the police found a cell phone broken in two, a cordless phone missing its battery cover and batteries (which were found in the trash), and a second damaged cordless handset, and that the upstairs bedroom cordless phone did not emit a dial tone.

¶41 All four children and multiple police officers testified that there was blood throughout the house, that the wall had been dented and gouged, and that there were broken and weapon-like items throughout the house-including a broken golf club; a broken, bloodstained broom; a hammer; and a crowbar. The nature and extent of Bagnell's injuries were supported by testimonial and photographic evidence and were not in dispute. Scanlan was found hiding on the scene and responded to Bagnell's daughter's accusation by stating that his injuries were "not that bad." 6 TP at 769; 8 TP at 1071. Taken together, the circumstantial evidence supports a reasonable inference that Scanlan knowingly restrained Bagnell, restricting his movements to his house by means of physical force or intimidation.

¶42 Citing State v. Kinchen, 92 Wash. App. 442, 452 n.16, 963 P.2d 928 (1998), Scanlan asserts that she could not have unlawfully imprisoned Bagnell because there were multiple means of escape. In Kinchen , the Court of Appeals held that evidence that the victims were locked in their apartment was insufficient to support an unlawful imprisonment conviction when uncontested evidence also showed that the victims regularly entered and exited through a window and that a sliding glass door was sometimes left unlocked. 92 Wash. App. at 451-52, 963 P.2d 928. The court reasoned that for an unlawful imprisonment theory to succeed despite a known means of escape, "the known means of escape must present a danger or more than a mere inconvenience." Id. at 452 n.16, 963 P.2d 928. Here, Scanlan argues, "Mr. Bagnell was at his home, with multiple entrances and windows, including a three-car garage." Pet'r's Suppl. Br. at 19.

¶43 But the evidence, viewed in the light most favorable to the prosecution, supports a reasonable inference that leaving would have presented more than a mere inconvenience for Bagnell. Multiple witnesses testified that Bagnell was initially in a nonresponsive stupor, unaware of his surroundings. Moreover, Bagnell's injuries, the state of the house, and his prior history with Scanlan support a reasonable inference that leaving presented a danger.

¶44 Because both the direct and circumstantial evidence support Scanlan's conviction for unlawful imprisonment, we affirm her conviction.

III. CONCLUSION

¶45 Clark makes clear that the primary purpose test governs analysis of whether statements to nongovernmental witnesses, including medical personnel, were testimonial. Under the primary purpose test, Bagnell's statements to medical personnel were nontestimonial and, therefore, their admission at trial did not violate the federal constitution's confrontation clause. In addition, there is sufficient evidence in the record to support Scanlan's unlawful imprisonment conviction.

¶46 We affirm the Court of Appeals.

WE CONCUR:

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Yu, J.

GORDON McCLOUD, J. (concurring)

¶47 I concur in the majority's analysis of federal constitutional law with two observations.

¶48 First, I note that the majority's analysis is limited to "the defendant's right of confrontation under the Sixth Amendment to the United States Constitution." Majority at 961; U.S. CONST. amend. VI. Theresa Scanlan failed to argue for a different outcome under article I, section 22 of the Washington State Constitution, which we analyze independently from the federal constitution. State v. Lui, 179 Wash.2d 457, 468-70, 315 P.3d 493 (2014) ("This court has concluded that article I, section 22 merits an independent analysis as to both the manner and the scope of the confrontation right." (citing State v. Pugh , 167 Wash.2d 825, 835, 225 P.3d 892 (2009) )); State v. Martin, 171 Wash.2d 521, 528-33, 252 P.3d 872 (2011) (conducting a Gunwall analysis and concluding that an independent analysis of article I, section 22 was necessary); Pugh, 167 Wash.2d at 834-35, 225 P.3d 892 (stating that "a Gunwall analysis is no longer necessary" and independently analyzing article I, section 22 ). Whether article I, section 22 provides greater protections to defendants than the federal constitution in this context remains unanswered.

¶49 Second, I note that the United States Supreme Court has not "adopt[ed] a categorical rule excluding [statements to individuals who are not law enforcement officers] from the Sixth Amendment's reach." Ohio v. Clark, --- U.S. ----, 135 S. Ct. 2173, 2181, 192 L. Ed. 2d 306 (2015). Although "such statements are much less likely to be testimonial than statements to law enforcement officers," id., "the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony,' " id. at 2180 (alteration in original) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) ).

¶50 In this case, however, I cannot say that the primary purpose of the statements at issue was to create an out-of-court substitute for trial testimony. This is particularly true of the statements made to Nurse Catherine Gay, Dr. Robert Britt, and social worker Jemima Skjonsby at the emergency room on the night of the incident. All three saw Leroy Bagnell in the informal, spontaneous setting of an emergency room shortly after his children discovered him nonresponsive in his home, majority at 961-62, and all three were primarily concerned with Bagnell's safety-they did not want to release him into a potentially dangerous situation, id. at 962-63, 967-68. In this way, the situation at the emergency room is not unlike the situation at the school in Clark , where "the teachers needed to know whether it was safe to release [the child] to his guardian at the end of the day." 135 S. Ct. at 2181.

¶51 I am more concerned with Bagnell's statements to Dr. Curtis Endow, physician assistant Friel, and Dr. Jessica Pierce, which he made 7, 12, and 20 days after the incident, respectively. By the time Bagnell met with these three medical providers, he had signed multiple medical release forms authorizing police and prosecutors to obtain his medical records "in furtherance of the investigation and any resulting prosecution." Majority at 962, 967-68; Pet'r's Suppl. Br., App. A. The forms also authorized his "care providers" to "discuss [his] medical condition and any treatment with the assigned detective, his/her designee, and the prosecuting attorney." Pet'r's Suppl. Br., App. A. After meeting with the police and signing all these forms, Bagnell was well aware that the police were heavily involved, would almost certainly review his medical records, and might even talk with his medical providers. And unlike the child in Clark, who was too young to "understand the details of our criminal justice system," 135 S. Ct. at 2182, Bagnell is old enough to understand those details. Bagnell likely knew that anything he said to his medical providers about the incident would end up in his medical records, records that the police or prosecutors would then obtain. He also may have known that prosecutors might use those records in a future trial, should one occur. It is therefore probable that his conversations with medical providers served a dual purpose: to ensure adequate medical treatment and to create an out-of-court substitute for trial testimony.

¶52 But it is a stretch to say that the primary purpose of those conversations was to create an out-of-court substitute for trial testimony. Bagnell most likely would have seen the same medical providers, even if he had not signed the release forms, for the sole purpose of receiving follow-up care. After signing those forms, his follow-up visits may have taken on an additional purpose. But it is unlikely that this additional purpose was ever primary, over and above his purpose of receiving medical treatment. And the record before us suggests that the medical providers were also primarily, if not solely, concerned with Bagnell's well-being. Majority 962-63.

¶53 With these observations, I respectfully concur in the majority's analysis of federal constitutional law.

      See Crawford v. Washington, 541 U.S. 36, 53, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (If an out-of-court statement by a nontestifying declarant is "testimonial," then its admission at trial violates the Sixth Amendment's confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.).

      In contrast, the Court of Appeals held that two statements made by Bagnell to police officers were testimonial but that their admission at trial constituted harmless error. State v. Scanlan, 2 Wash. App. 2d 715, 731-33, 413 P.3d 82 (2018). The State has not sought our review of this holding.

      The Court of Appeals also reduced Scanlan's felony violation of a no contact order to a misdemeanor violation of a no contact order on double jeopardy grounds. Scanlan, 2 Wash. App. 2d at 735, 413 P.3d 82. The State conceded this issue below and does not now challenge it.

      Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

      Shafer's declarant-centric test asks "whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made." 156 Wash.2d at 390 n.8, 128 P.3d 87 ; State v. Beadle, 173 Wash.2d 97, 107, 265 P.3d 863 (2011) (describing this test as a "declarant-centric standard").

      Division Two has followed suit. See State v. Burke, 6 Wash. App. 2d 950, 965, 431 P.3d 1109 (2018) ("In Scanlan , Division One adopted the primary purpose test from Clark and applied it to a victim's statements to a variety of medical providers. We agree with Division One." (citation omitted)).

      Scanlan introduced two of these forms as pretrial exhibits. Scanlan alleges, and the State does not appear to contest, that Bagnell signed an additional medical release form on October 16, 2014 after the no contact order incident.

      Since this first release form is not in the record, we must rely on Scanlan's attorney's statement to the trial court that the form granted Virginia Mason permission to release Bagnell's medical information. And since the second and third forms authorize the release of medical records "acquired and developed in the course of treating me for my injuries and/or illness suffered on or about ________," with the blank on those forms filled in as "11/5/2014-11/6/2014" and "11/5/14-11/6/14" respectively, it follows that on the first form the police would have filled in this blank as October 16, 2014-the date on which the earlier incident occurred. Def.'s Pretrial Exs. 8, 9.

      "In criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face ...." Wash. Const. art. I, § 22.

      State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).


source: Caselaw Access Project

author: Maxa, C.J.

license: Public Domain

text:
    FREEDOM FOUNDATION, a Washington nonprofit organization, Appellant, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES ("DSHS"), an agency of the State of Washington, Respondent.
    No. 51498-2-II
    Court of Appeals of Washington, Division 2.
    Filed August 6, 2019
    Eric Rolf Stahlfeld, Attorney at Law, 145 Sw. 155th St. Ste. 101, Burien, WA, 98166-2591, Sydney Paige Phillips, Attorney at Law, 800 Yauger Way Sw. Unit D105, Olympia, WA, 98502-8915, Counsel for Appellant(s).
    Margaret C. Mclean, Office of the Attorney General, P.o. Box 40145, Olympia, WA, 98504-0124, Susan Sackett Danpullo, Office of the Attorney General, 7141 Cleanwater Dr. Sw., P.o. Box 40145, Olympia, WA, 98504-0145, Counsel for Respondent(s).
    PUBLISHED OPINION
   Maxa, C.J.

¶1 The Freedom Foundation (Foundation) appeals the trial court's ruling that the Department of Social and Health Services (DSHS) did not violate the Public Records Act (PRA), chapter 42.56 RCW, in responding to the Foundation's requests for records pertaining to at-home care providers (individual providers) who provide personal care services to functionally disabled persons.

¶2 The Foundation made a PRA request with DSHS in April 2017, seeking records regarding the time and location of contracting appointments for individual providers and of opportunities for individual providers to view safety and orientation training videos. The Foundation in January 2016 had made a virtually identical request but for an earlier time period. This court affirmed the trial court's denial of an injunction regarding the January 2016 PRA request in SEIU 775 v. DSHS , 198 Wash. App. 745, 396 P.3d 369, review denied 189 Wash.2d 1011, 402 P.3d 828 (2017). The April 2017 request was made on the same day that this court issued its decision in SEIU 775 .

¶3 DSHS notified the Foundation that it would not be able to produce the records responsive to the April 2017 PRA request until about June 13. DSHS also informed SEIU, the union representing the individual providers, and the SEIU Healthcare NW Training Partnership (Training Partnership) of the Foundation's PRA request. The Training Partnership responded by requesting from DSHS the same records the Foundation had requested. DSHS produced the records to the Training Partnership in installments on May 12 and June 9 and set deadlines for the Training Partnership to enjoin production of the records to the Foundation. But DSHS did not produce the same records to the Foundation until later. The Foundation filed suit against DSHS, claiming that DSHS's conduct in responding to the April 2017 request violated the PRA. The trial court dismissed the lawsuit.

¶4 We hold that (1) the Foundation's lawsuit was not untimely even though the Foundation filed its compliant before DSHS took a final action on its PRA request, (2) DSHS's estimate of the time needed to respond was reasonable because DSHS's regional and area offices needed time to compile the responsive records, (3) DSHS did not unlawfully distinguish between the Foundation and the Training Partnership because the PRA allows an agency to delay production of requested records to allow a person affected by the production to obtain a court order preventing disclosure, and (4) DSHS did not violate the PRA by failing to produce the records to the Foundation on June 9, 2017.

¶5 Accordingly, we affirm the trial court's judgment dismissing the Foundation's lawsuit.

FACTS

Original PRA Request

¶6 The Foundation filed a PRA request with DSHS on January 12, 2016, requesting "[t]he times and locations of all contracting appointments for individual providers" and the "times and locations of any state-sponsored or facilitated opportunities for individual providers to view the initial safety and orientation training videos," both between November 1, 2015 and December 31, 2016. Clerk's Papers (CP) at 40.

¶7 SEIU sought an injunction to prevent DSHS from releasing the requested records. SEIU 775 , 198 Wash. App. at 747, 396 P.3d 369. The trial court denied SEIU's request and SEIU appealed. Id. at 749, 396 P.3d 369. This court issued a stay prohibiting DSHS from releasing the records while the case was pending on appeal. This court subsequently held that the requested records did not fall within an exception to the PRA and affirmed the trial court's denial of SEIU's request for an injunction.

SEIU 775 , 198 Wash. App. at 756-57, 396 P.3d 369. The opinion was issued on April 25, 2017. Id. at 745, 396 P.3d 369.

The Foundation's April 25, 2017 PRA Request

¶8 On the same day that this court filed its April 25 opinion in SEIU 775 , the Foundation filed a new PRA request. The Foundation requested "[t]he times, dates, and locations of all contracting appointments for individual providers" and the "times, dates, and locations of all state-sponsored or facilitated opportunities for individual providers to view the initial safety and orientation training videos," both between January 1 and December 31, 2017. CP at 410.

¶9 DSHS responded on May 2, which was within five business days of the Foundation's request. In order to locate and assemble the responsive records, the DSHS public records officer needed to contact three regional offices and 14 area offices. And on the same day that DSHS received the Foundation's request, DSHS also received approximately 79 other PRA requests and already was processing about 60 PRA requests. DSHS stated in its response letter, "Due to workload, the number of other pending requests and the scope of your request, we estimate it will take up to 30 business days or until about June 13, 2017, to find, review, copy and produce any available records." CP at 311.

The Training Partnership's May 8, 2017 PRA Request

¶10 Also on May 2, DSHS notified SEIU and the Training Partnership that it had received a PRA request and that the responsive records related to SEIU and union members. DSHS informed SEIU and the Training Partnership that they had until May 16 to seek an injunction preventing the release of the requested records.

¶11 On May 8, the Training Partnership replied that it typically received a copy of responsive records before determining if it was appropriate to seek an injunction and requested that DSHS provide a copy of the records. DSHS treated this request for records as a PRA request. DSHS responded to the Training Partnership's request by producing some of the requested records on May 12. DSHS also extended the deadline for the Training Partnership to obtain an injunction to May 26.

Subsequent Developments

¶12 On April 26, 2017, this court had entered an order stating that the previously issued stay prohibiting DSHS from releasing the records sought in the January 2016 PRA request would continue in force until a mandate was issued. The parties disagreed whether the stay extended to the April 2017 request. On May 15, this court issued a stay prohibiting the release of the records responsive to the April 2017 PRA request pending further briefing on the issue. DSHS informed the Training Partnership on June 2 that it could not produce the remainder of the requested records because of the stay.

¶13 On June 9, this court entered an order clarifying that DSHS was not enjoined from releasing the records the Foundation requested in its April 2017 PRA request. On that same day, the Foundation emailed DSHS and stated its expectation that the requested records would be produced by the end of the day. Counsel for DSHS replied, "DSHS previously sent a letter estimating its response date. We will let you know if there are changes to that estimated time frame." CP at 308. Also on June 9, DSHS produced to the Training Partnership the reminder of the records it had requested on May 8. DSHS extended the deadline for the Training Partnership to obtain an injunction to June 12.

¶14 Meanwhile, on May 24 SEIU had filed a petition for discretionary review of this court's decision in SEIU 775 with the Supreme Court. On June 12, SEIU notified DSHS and the Foundation that it planned to file an emergency motion in the Supreme Court to enjoin DSHS from releasing the records sought in the Foundation's April 2017 PRA request. DSHS told the Foundation that it would not release those records to the Foundation pending receipt of the motion. On June 13, the Supreme Court temporarily enjoined DSHS from releasing records in response to the Foundation's April 2017 PRA request. The temporary stay expired on July 10.

¶15 On July 11, DSHS produced to the Foundation the records responsive to its April 2017 PRA request. The records produced consisted of a 12-page spreadsheet providing the information the Foundation had requested.

Lawsuit Against DSHS

¶16 On June 12, the Foundation filed a complaint against DSHS based on its April 2017 PRA request. The Foundation alleged that DSHS had violated the PRA by providing an unreasonable estimate of the time necessary to respond to the request. In its answer to the Foundation's complaint, DSHS argued that the Foundation's claims were untimely because the agency had not yet taken a final action on the Foundation's PRA request.

¶17 The Foundation did not assert claims for other PRA violations relating to the delay in producing records in its complaint. Those claims were first asserted in the Foundation's summary judgment motion in October 2017.

¶18 In November, the trial court held a hearing on the merits pursuant to RCW 42.56.550(2). The Foundation argued that DSHS had violated the PRA by (1) providing an unreasonable time estimate, (2) distinguishing between requestors, (3) failing to provide the fullest and timeliest assistance, and (4) delaying the release of records. DSHS argued that the trial court should dismiss the Foundation's claims because the Foundation's lawsuit was filed before DSHS produced the records, and therefore was not timely.

¶19 The trial court issued written findings of fact and conclusions of law. The court initially concluded that all of the Foundation's claims were properly before the court. Regarding DSHS's time estimate, the court found that at the time of the estimate DSHS had over 2,000 public records requests and that DSHS had received over 50 PRA requests on the same day as the Foundation's request. The court also found that the records the Foundation requested were located in multiple different offices. The court concluded that (1) DSHS's estimate of time was reasonable under former RCW 42.56.520 (2010), (2) DSHS did not unlawfully distinguish between requestors and therefore did not violate former RCW 42.56.080 (2016), (3) any disparity in the timing of production between the Training Partnership and the Foundation was lawful, and (4) DSHS provided the fullest and most timely assistance to the Foundation and therefore did not violate RCW 42.56.100. Accordingly, the trial court dismissed the Foundation's lawsuit with prejudice.

¶20 The Foundation appeals the trial court's order dismissing its complaint against DSHS.

ANALYSIS

A. PRA DISCLOSURE

¶21 "The PRA mandates the broad disclosure of public records." SEIU 775 , 198 Wash. App. at 749, 396 P.3d 369. Accordingly, state agencies have "an affirmative obligation to disclose records requested under the PRA unless a specific exemption applies." Id. We review de novo an agency's action in responding to a PRA request. RCW 42.56.550(3). And we stand in the same position as the trial court on PRA matters when the record consists of only documentary evidence. West v. City of Puyallup , 2 Wash. App. 2d 586, 592, 410 P.3d 1197 (2018).

¶22 The PRA must be liberally construed to "assure that the public interest will be fully protected." RCW 42.56.030. "The language of the PRA must be interpreted in a manner that furthers the PRA's goal of ensuring that the public remains informed so that it may maintain control over its government." Wade's Eastside Gun Shop, Inc. v. Dep't of Labor and Indus. , 185 Wash.2d 270, 277, 372 P.3d 97 (2016).

B. PREMATURE FILING OF COMPLAINT

¶23 Initially, DSHS argues that the Foundation's claims are not timely for judicial review because the agency had not taken a final action at the time that the Foundation filed its complaint. DSHS argues that a party can only seek judicial review of final actions by an agency. We disagree.

¶24 Under RCW 42.56.550, a party may seek judicial review of an agency action under the PRA. In an action challenging an agency's denial of a records request, a requestor cannot initiate a lawsuit until the agency has denied and closed the request at issue. John Doe L. v. Pierce County , 7 Wash. App. 2d 157, 197, 433 P.3d 838 (2019), review denied 193 Wash.2d 1015, 441 P.3d 1191 (2019). If an agency has not yet produced the requested records but has not stated that it will refuse to produce them, the agency has not denied access to the records for purposes of judicial review. See Hobbs v. State Auditor's Office , 183 Wash. App. 925, 936-37, 335 P.3d 1004 (2014) (holding that requestor could not initiate a lawsuit while the agency was still providing installments of responsive records).

¶25 However, in the context of an agency's estimate of the time needed to respond to a PRA request, RCW 42.56.550(2) states that any person may bring a motion in superior court to require the agency to show why the estimate of time was reasonable. RCW 42.56.550(2) does not require an agency to take a final action before a party can challenge the agency's estimate of the time needed to respond and no case has imposed such a requirement. Therefore, because the Foundation's lawsuit did not involve the denial of its request, we hold that the final action requirement does not apply to the Foundations' reasonable time estimate claim.

¶26 The Foundation's other claims relate to DSHS allegedly distinguishing between the Foundation and the Training Partnership and the failure to produce the records on June 9, 2017. However, the Foundation did not plead these claims in its complaint. They were first raised in the Foundation's motion for summary judgment in October 2017, and more fully argued in the hearing on the merits on November 17. Therefore, these claims were not asserted until after DSHS's final action - the production of the requested records - on July 11, 2017.

C. REASONABLE ESTIMATE OF TIME TO RESPOND

¶27 The Foundation argues that DSHS provided an unreasonable estimate of the time needed to respond to its request in violation of former RCW 42.56.520. We disagree.

1. Legal Principles

¶28 Former RCW 42.56.520 requires an agency to respond to a PRA request within five business days. An agency must provide the records, deny the request, or respond in one of three other ways. Former RCW 42.56.520. One of those ways is to acknowledge receipt of the request and provide "a reasonable estimate of the time the agency ... will require to respond to the request." Former RCW 42.56.520(3). This statute does not require the agency to provide an explanation for its time estimate. See Ockerman v. King County , 102 Wash. App. 212, 217-18, 6 P.3d 1214 (2000) (addressing earlier version of statute).

¶29 Former RCW 42.56.520 provides guidance regarding an agency's reasonable estimate response:

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.

However, it does not appear that any Washington court has discussed in detail what factors determine whether an agency's estimate of the additional time needed to respond to a PRA request was reasonable, and the parties cite no authority discussing this issue.

¶30 The PRA provides a cause of action "when an agency has not made a reasonable estimate of the time required to respond to the request." Andrews v. Wash. State Patrol , 183 Wash. App. 644, 651, 334 P.3d 94 (2014) ; see RCW 42.56.550(1). In a judicial action challenging the reasonableness of a time estimate, the agency has the burden of proof to show that its time estimate was reasonable. RCW 42.56.550(2).

2. Analysis

¶31 The Foundation argues that DSHS's time estimate was unreasonable because the scope of the request was narrow, the type of record request was straightforward, and the volume of requested information was low. However, the DSHS public records officer realized that the responsive records were not located in one place and would need to be gathered from many different area and regional offices. In addition, DSHS received approximately 79 other PRA requests on the same day that the Foundation submitted its April 2017 PRA request. Finally, DSHS already was processing about 60 other PRA requests at that time.

¶32 DSHS considered how much time it would take to gather and return records from the various offices and then for the public records officer to review the records while also processing other PRA requests. Under these circumstances, we conclude that DSHS's estimate that it would be able respond to the Foundation's request within 30 business days was reasonable.

¶33 The Foundation argues that DSHS's estimate was unreasonable because DSHS did not conduct a case-specific investigation into how long it would take to gather the records, such as contacting each of the various offices. However, the Foundation cites no authority for the proposition that an agency must engage in such an investigation each time it must estimate how long producing requested records will take.

¶34 The Foundation also refers to the time that DSHS needed to actually produce the records to the Training Partnership, which was significantly less than 30 business days. But whether an estimate is reasonable necessarily must be based on a forward-looking evaluation at the time of the estimate, not on a backward-looking evaluation after the fact.

¶35 Accordingly, we hold that DSHS provided a reasonable estimate of the time needed to respond to the Foundation's request and therefore complied with former RCW 42.56.520.

D. TIMING OF DISCLOSURE

¶36 The Foundation argues that DSHS unlawfully distinguished between requestors in violation of former RCW 42.56.080 and violated its duty under the PRA to promptly produce the requested records. The Foundation relies on the facts that DSHS produced the requested records to the Training Partnership before producing them to the Foundation and that DSHS did not produce the records to the Foundation when they were ready on June 9, 2017. We disagree.

1. RCW 42.56.080(2) - Distinguishing Among Requestors

¶37 Upon a request for identifiable public records, an agency must make those records promptly available to "any person." Former RCW 42.56.080. Further, former RCW 42.56.080 states that "[a]gencies shall not distinguish among persons requesting records."

¶38 The Foundation argues that DSHS violated former RCW 42.56.080 by treating the Foundation differently than the Training Partnership regarding when the requested records were produced. The Foundation and the Training Partnership requested the exact same records. DSHS produced them to the Training Partnership in installments on May 12 and June 9, but did not produce them to the Foundation until July 11 once the Supreme court stay expired.

¶39 DSHS argues that the Foundation and the Training Partnership were not similarly situated because the Training Partnership was an affected party for which DSHS was entitled to provide notice before releasing the records to the Foundation. DSHS claims that an agency can produce requested records to an affected party before producing them to the original requestor without violating former RCW 42.56.080.

a. Providing Notice to Affected Party

¶40 RCW 42.56.540 states, "An agency has the option of notifying persons named in the [requested] record or to whom a record specifically pertains, that release of a record has been requested." This notice relates to an earlier clause in RCW 42.56.540, which gives an affected person the ability to request an injunction preventing the production of the requested records. The purpose of the notice is to allow affected parties to seek such an injunction. John Doe v. Benton County , 200 Wash. App. 781, 789, 403 P.3d 861 (2017), review denied , 190 Wash.2d 1006, 412 P.3d 1264 (2018). However, the agency should notify affected parties only if it has a reasonable belief that the record arguably is exempt from disclosure. Id.

¶41 Former RCW 42.56.520 further states that the agency may take additional time to respond to a requestor in order to notify third parties "affected by the request." These provisions make it clear that an agency can delay production of requested records to give notice of the records request to an affected person. John Doe , 200 Wash. App. at 789, 403 P.3d 861. "[T]he PRA allows public agencies to notify affected persons of a public records request and permits a reasonable delay to permit affected parties a 'realistic opportunity'

to obtain a protective order." Wade's Eastside Gun Shop , 185 Wash.2d at 291, 372 P.3d 97 (quoting Confederated Tribes of Chehalis Reservation v. Johnson , 135 Wash.2d 734, 758, 958 P.2d 260 (1998) ).

¶42 However, neither RCW 42.56.540 nor former RCW 42.56.520 state whether an agency is allowed to produce the records to the affected party before producing them to the requestor.

b. Affected Party Status

¶43 Initially, the Foundation argues that whether an agency can treat a person making a PRA request differently than a person who is affected by that request is immaterial because the Training Partnership was not an "affected party" with regard to the Foundation's request. The Foundation claims that the Training Partnership was not an affected party because the requested records did not pertain to the Training Partnership's activities.

¶44 The Foundation relies solely on a May 11, 2017 letter from the Training Partnership's attorney to DSHS questioning whether any documents involving the Training Partnership were responsive to the Foundation's requests. But this letter is not determinative of whether the Training Partnership was an affected party. In the same letter, the attorney requested all Training Partnership documents that DSHS believed were responsive to the request in order for the Training Partnership to evaluate whether it needed to seek an injunction.

¶45 An agency has wide discretion to determine who affected parties are. See John Doe , 200 Wash. App. at 789, 403 P.3d 861. Here, the Foundation requested the times and locations of opportunities for individual providers to view training videos. DSHS reasonably could have believed that the Training Partnership was a person "to whom the record specifically pertains." RCW 42.56.540. Therefore, we conclude that DSHS properly treated the Training Partnership as an affected person for purposes of the Foundation's request.

¶46 The Foundation also argues that DSHS should not have given notice to the Training Partnership because DSHS had no reason to believe that the requested records were exempt from production. The Foundation points out that this court in SEIU 775 already had determined that similar records were not exempt. However, the Foundation ignores the fact that SEIU still had the right to seek Supreme Court review of SEIU 775 and subsequently did so.

c. Distinguishing Between Two Requestors

¶47 Even though the Training Partnership was an affected party, it also was a PRA requestor. The Training Partnership requested the records responsive to the Foundation's request, and DSHS treated the Training Partnership's request as a PRA request. The issue here is whether DSHS lawfully could distinguish between the two requestors based on the Training Partnership's status as an affected person. Specifically, the question is whether an agency can produce the records to an affected party before producing them to the requestor.

¶48 Determining the scope and meaning of former RCW 42.56.080 requires us to engage in statutory interpretation. The primary goal of statutory interpretation is to determine and give effect to the legislature's intent. Randy Reynolds & Assocs., Inc. v. Harmon , 193 Wash.2d 143, 155, 437 P.3d 677 (2019). To determine legislative intent, we look first to the plain language of the statute. Id. We consider the language of the provision at issue, the context of the statute in which the provision is located, and related statutes. Id.

¶49 When interpreting the PRA, we must "consider the PRA in its entirety to effectuate the PRA's overall purpose." Hobbs 183 Wash. App. at 935, 335 P.3d 1004. We review the language of the provision at issue as well as related statutes. Randy Reynolds & Assocs. , 193 Wash.2d at 155, 437 P.3d 677 ;

Hobbs , 183 Wash. App. at 935, 335 P.3d 1004. Therefore, we must consider the statutes regarding affected parties in analyzing the application of former RCW 42.56.080.

¶50 As noted above, RCW 42.56.540 allows an agency to notify an affected person of a PRA request. And former RCW 42.56.520 states that the agency may take additional time to respond to a requestor in order to provide such notice. The purpose of this notice and the delay in production is to give a person affected by a PRA request time to request an injunction under RCW 42.56.540. John Doe , 200 Wash. App. at 789, 403 P.3d 861. "Implicit in the statutory right to seek an injunction to prevent disclosure is a realistic opportunity to apply to the trial court for such an order." Confederated Tribes of Chehalis Reservation , 135 Wash.2d at 758, 958 P.2d 260.

¶51 Consistent with these provisions, an agency may give an affected person a reasonable time within which the person must obtain a court order preventing production of the requested records. See Wade's Eastside Gun Shop , 185 Wash.2d at 291, 372 P.3d 97. During that time, it is reasonable for the agency to delay production to the requestor. Id. ; see also former RCW 42.56.520.

¶52 During the period when the affected person is deciding whether to seek an injunction, the requestor and the affected party are not similarly situated even if they are requesting the same records. An agency cannot lawfully produce the records to the original requestor during that period because the affected person must be given a reasonable opportunity to obtain an injunction. But no such prohibition exists with regard to production of the records to the affected party. And because the affected party in this situation also is a requestor, the agency has an obligation under the PRA to promptly produce the records. Former RCW 42.56.520.

¶53 Further, in some situations it may be difficult for an affected party to know whether to seek an injunction without reviewing the requested documents. In those situations, a rule prohibiting an agency from producing the records to the affected party would defeat the purpose of giving notice to the affected party under RCW 42.56.540.

¶54 Based on the statutes and cases relating to affected persons, we hold that DSHS did not violate former RCW 42.56.080 by producing the first installment of the records to the Training Partnership. DSHS's original deadline to obtain a court order was May 16, 2017. DSHS produced the first installment on May 12, within that deadline. However, before the deadline expired, on May 15, this court issued a stay prohibiting the release of the records and that stay remained in effect until June 9. Therefore, DSHS did not violate former RCW 42.56.080 by not producing the records to the Foundation before June 9.

¶55 The second installment produced to the Training Partnership on June 9 involves a slightly different situation. The stay no longer was in place on that date, and DSHS was not precluded by court order from producing the records. However, when it produced the records to the Training Partnership, DSHS extended the deadline for obtaining a court order stopping production to the end of the day on June 12. The Foundation provides no authority for the proposition that it was unreasonable for DSHS to extend this deadline by a few days. Because DSHS extended the deadline for the Training Partnership to seek a court order, DSHS could not lawfully have produced the records to the Foundation at the same time it produced the second installment of the records to the Training Partnership.

¶56 On June 12, SEIU notified DSHS that it planned to file an emergency motion in the Supreme Court to enjoin DSHS from releasing the records and on June 13 the Supreme Court temporarily enjoined DSHS from releasing records. Therefore, DSHS was not able to produce the records at that time. When the Supreme Court's order expired on July 13, DSHS promptly produced the records to the Foundation.

¶57 We hold that DSHS did not violate former RCW 42.56.080 by producing the requested records to the Training Partnership before producing them to the Foundation.

2. Failure to Promptly Produce the Records

¶58 The Foundation argues that DSHS violated the PRA by not providing responsive records to the Foundation on June 9, 2017, when they were available and not subject to a court order. The Foundation claims that DSHS failed to provide the fullest and most timely assistance to the Foundation in responding to its request.

¶59 The Foundation relies on RCW 42.56.100, which requires agencies to "adopt and enforce reasonable rules and regulations" to provide full access to public records and for other purposes. Technically, the phrases on which the Foundation relies - "fullest assistance" and "most timely possible action" - refer to those rules and regulations: "Such rules and regulations shall provide for the fullest assistance to inquirers and the most timely possible action on requests for information." RCW 42.56.100 (emphasis added); see also Resident Action Council v. Seattle Hous. Auth. , 177 Wash.2d 417, 432, 327 P.3d 600 (2013) (stating that RCW 42.56.100 refers to rules and regulations).

¶60 Nevertheless, courts have recognized that agencies are required to comply with the principles embodied in RCW 42.56.100. See Andrews , 183 Wash. App. at 651, 334 P.3d 94 (quoting RCW 42.56.100 and stating that the PRA "requires agencies to provide the 'fullest assistance' and the 'most timely possible action on requests for information' "); Mitchell v. Dep't. of Corr. , 164 Wash. App. 597, 607, 277 P.3d 670 (2011) (stating that agencies have a "statutory duty" to provide full assistance to inquirers). In determining whether an agency acted promptly in producing responsive records we examine whether the agency's response was thorough and diligent. Rufin v. City of Seattle , 199 Wash. App. 348, 357, 398 P.3d 1237 (2017), review denied 189 Wash.2d 1034, 407 P.3d 1154 (2018). Whether the agency responded with reasonable thoroughness and diligence is a fact-specific inquiry. Id. at 358, 398 P.3d 1237.

¶61 The Foundation relies on Wade's Eastside Gun Shop. , 185 Wash.2d 270, 372 P.3d 97, for the proposition that an agency cannot delay releasing records once they are available. In that case, the agency gave an estimated production date and did not produce records before that date even though they became available much sooner. Id. at 289, 372 P.3d 97. The court stated, "While agencies may provide a reasonable estimate of when they can produce the requested records, ... they cannot use that estimated date as an excuse to withhold records that are no longer exempt from disclosure." Id.

¶62 Here, unlike in Wade , the requested records were not available to produce to the Foundation on June 9. On that date, DSHS extended the deadline for the Training Partnership to obtain an injunction to prevent disclosure of the records until the end of the day on June 12. As discussed above, an agency can delay the production of records to give an affected person a realistic opportunity to obtain an injunction. See Wade's Eastside Gun Shop , 185 Wash.2d at 291, 372 P.3d 97 ; former RCW 42.56.520. Under these circumstances, it was not unreasonable for DSHS to wait until June 13 to produce the records to the Foundation. Unfortunately, the Supreme Court's order precluded DSHS from actually producing the records until July 11.

¶63 Accordingly, we hold that DSHS did not violate the PRA by not producing the requested records to the Foundation on June 9, 2017.

CONCLUSION

¶64 We affirm the trial court's order dismissing the Foundation's claims.

We concur:

LEE, J.

CRUSER, J.

      RCW 42.56.550 was amended in 2017. Laws of 2017, ch. 304, § 5. Because those amendments do not affect our analysis, we cite to the current version of the statute.

      The Foundation also argues that DSHS waived this issue by not cross-appealing the trial court's conclusion that all the Foundation's claims were properly before the court. However, a cross-appeal is required only if the respondent is seeking affirmative relief rather than urging additional grounds for affirming the trial court. Modumetal, Inc. v. Xtalic Corp. , 4 Wash. App. 2d 810, 834-35, 425 P.3d 871 (2018), review denied 192 Wash.2d 1011, 432 P.3d 793 (2019). "A prevailing party that seeks no further affirmative relief from the appellate court may argue any grounds in support of the trial court's order that are supported by the record." Id. at 834, 425 P.3d 871.

      Under CR 15(b), a court may address issues not raised in the pleadings if the issues are tried by express or implied consent of the parties. DSHS does not argue that the trial court should not have considered these claims because they were not included in the Foundation's complaint.