Are Penalties Applied Separately to Each Public Records Response? It Depends.
In Double H. L.P. v. Washington Department of Ecology (No. 29918-0-III), Division III of the Washington Court of Appeals clarifies that a court is not required to impose separate penalties on each improper public records response. Instead, a single penalty may be applied to a series of responses when they relate to the same subject matter.
The Department of Ecology received an initial records request from Double H. L.P. regarding Ecology’s investigation of illegal hazardous waster disposal on Double H’s farm. Double H. later followed up with a “refresher” request for records created after the date of the initial request. Ecology responded by producing records on nine different occasions and posting an exemption log that identified certain records withheld from production under various exemption claims.
Ecology conceded that withholding some of the documents violated Washington’s Public Records Act. However, the trial court concluded that only one group of records existed for penalty calculation purposes and that a separate penalty would not be applied to each separate production date. The Court of Appeals upheld the trial court’s reasoning and rejected Double H.’s argument that multiple production installments require multiple penalty groups (which, not surprisingly, would have substantially increased the overall penalty awarded).
The Court of Appeals applied an abuse of discretion standard and reviewed whether the trial court’s decision was manifestly unreasonable or based on untenable grounds. It expressly recognized that nothing in the PRA, and nothing in the Washington State court cases interpreting the PRA, requires trial courts to create penalty groups in a specific fashion.
In summarizing its holding, the Court of Appeals stated that selecting a same-subject group for penalty purposes (rather than a group based upon production dates) encourages agencies not to withhold records until fully assembled and promotes early record production. While this decision does not necessarily prevent a trial court from applying a separate penalty to each record production, it does provide trial courts the flexibility to consider a public agency’s attempt to provide responses in a timely manner when records and information first become available.
