In Double H, L.P. v. Washington Department of Ecology, No. 29918-0-III, 2012 WL 593213 (Feb. 23, 2012), the Washington Court of Appeals, Division III, was called upon to decide whether the trial court abused its discretion in grouping two public records requests as one request for purposes of deciding the number of days for which a penalty under RCW 42.56.550(4) would be awarded. The trial court decided that the requestor’s two requests, which sought only records related to an Ecology investigation of Double H, should be grouped as a single request for purposes of penalties. The trial court also declined to penalize Ecology for producing the requested documents (totaling about 3,000 pages) in installments, and declined to award penalties for the groups requested separately. This court affirmed, holding that these determinations were discretionary with the trial court and that the trial court had not abused its discretion.
Double H requested records related to a DOE investigation of it, in August 2009. Ecology sent the mandatory five-day letter, estimating that the responsive records would be produced the week of September 10, 2009. In fact, although production began with an installment provided on September 24, 2009, two other sets of responsive records were produced later. In January 2010, Double H renewed its request, to catch records not in existence in August 2009, and Ecology estimated that these would be produced the week of March 19. However, the first installment of responsive records was produced a month later, and the final installment was not produced until January 2011. Ecology stipulated that the penalty period was 683 days.
The court noted that the “PRA embodies two mandates in determining a penalty amount. First, a penalty is mandatory when a requesting party is improperly denied access to a public record under the PRA.” The court added, “Second, a penalty shall be awarded for each day records are wrongfully withheld.” But, as Ecology argued (and the Court agreed), “beyond these mandates, establishing the penalty amount is within the sound discretion of the trial court.”
This court relied on Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 98 P.3d 463 (2004) (sometimes referred to as “Yousoufian II”), and Sanders v. State, 169 Wn.2d 827, 864, 240 P.3d 120 (2010), for the proposition that a grouping of records for purposes of calculating the number of records for which a penalty must be assessed must be reasonable, and further the purposes of the PRA. The problem with artificially grouping records according to the dates of installment production, according to the court, is that such grouping ultimately penalizes an agency for producing records in installments. An agency liable for, e.g., $27 per day in penalties for a total failure to produce records for, e.g., 683 days in delayed production of one group of 3,000 records would pay less than an agency that produced those same 3,000 pages in 25 installments over that 683 day period. This result, the court held, would be contrary to the purposes of the PRA.