An appellate court panel has been asked to decide who has to prove whether a public record was destroyed before someone requested a copy of it.
An attorney representing Joseph Jones, an inmate at Coyote Ridge Corrections Center, is fighting to overturn a court ruling that the state Department of Corrections did not violate the Public Records Act because Jones could not prove that a document the department said was missing was in its possession when Jones asked for it.
Rather, Jones’ attorney urged the three-member state Court of Appeals Division III panel meeting in Yakima to find that the department had the burden of proving the document was missing before the request was made.
“If the court does not provide the proper direction, it opens the door to agencies to engage in nefarious actions,” said Michael Kahrs, who represented Jones in the Thursday hearing.
Kahrs said the court should require an agency to prove the document was lost or destroyed before a records request.
But an assistant attorney general argued the department should not be held in violation of the law for not producing a document that no longer exists due to an inadvertent loss.
In November 2014, Jones put in a request for a copy of a document he signed advising him of his rights at a hearing to review his classification in the prison system. A month later, Jones received a letter telling him the document was not in the department’s possession.
A Franklin County Superior Court judge ruled against Jones on the grounds that he could not present evidence the record existed at the time he asked for it.
Kahrs, however, said the law should presume the record existed when the request was made, and that the department had to prove when it was lost or destroyed.
Assistant Attorney General Candie Dibble said the department conducted a search and could not find the record. She said the department handles many paper records, making it easy for something to get lost or accidentally thrown out.
The judges – Chief Judge George Fearing, Acting Chief Judge Robert Lawrence-Berrey and Judge Rebecca Pennell — will issue a ruling later.