The Washington Court of Appeals, in an unpublished opinion dated June 7, 2011, has once again remanded the Zink v. City of Mesa case back to the trial court. This time the remand is for the purpose of entering new findings on the amount and rationale for penalties imposed on the City of Mesa for violating Washington’s Public Records Act (PRA).
In a previous published case, Division III of the Court of Appeals had overturned the initial trial court decision that found that Mesa had substantially complied with many of the Zink’s public disclosure requests. Zink v. City of Mesa, 140 Wn. App. 328, 166 P.3d 738 (2007). In that case the Court of Appeals had emphatically stated: “We hold that ‘substantial compliance’ is an incorrect standard by which to judge an agency’s compliance with its statutory duties. We further hold that the record does not support the trial court’s determination that the Zinks unlawfully harassed the City officials or that the City met its obligations under the PDA.”
The facts of this case provide some insight into the continuing controversy. As the Court of Appeals took pains to note in both cases, Ms. Zink was both a former council member and mayor of Mesa, who after leaving office became a self-styled “watch dog” over city actions, particularly after the city improperly denied her request for a building permit. By way of additional background, it should also be noted that the 2010 census reports that the City of Mesa (located in Franklin County) has a population of 489.
Upon remand from the 2007 decision, the trial court assessed penalties and attorney fees for violating the Public Records Act totaling $246,000. Both sides then appealed the amount of the penalties and the basis on which they were adopted. In this appeal, the Court of Appeals makes detailed rulings on many of the issues on appeal, but then remands the case back to the trial court again for a new determination of penalties based on the 16-factor test (7 mitigating factors and 9 aggravating factors) set out in the State Supreme Court’s intervening decision in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).
One of the individual rulings in the unpublished decision highlights an important aspect of Washington’s Public Records Act. That is, a government is under no obligation – under the PRA – to produce documents that do not exist. The Zinks sought penalties under the PRA for the failure of the city to produce minutes of meetings that the city was required under a statutory obligation to prepare. But the Court rejected that claim. “Mesa admittedly violated separate statutes requiring it to prepare draft minutes of the Board meetings for public review. RCW 35A.39.010 RCW 42.32.030. But the PRA does not state that an agency’s violation of independent statutory duties to prepare records is a violation of the PRA.”
