On September 16, 2010, the Washington Supreme Court issued a comprehensive PRA decision in a case brought by one of its own. Sanders v. State, _____Wn.2d____, 2010 WL 3584463.

Since Justice Sanders of the Washington Supreme Court was the appellant, he recused himself, as did Justice Alexander. The Supreme Court decision was unanimous, authored by Justice Stephens.

The case involved Justice Sanders’ request for all documents held by the State in relation to his visit to McNeil Island. That visit resulted in a subsequent disciplinary proceeding against the Justice. Justice Sanders demanded that the Attorney General’s Office (AGO) release numerous additional documents the AGO had withheld as exempt. The Justice also sought the release of all the documents on grounds that the AGO had waived any exemption by not strictly complying with the PRA requirement that the government agency “explain” the basis for any claimed exemption. Justice Sanders also asked for penalties and attorney fees under the Act.

The trial court in Thurston County ruled in favor of Justice Sanders on some, but not all his claims and assessed a monetary penalty of $55,442.12 against the AGO for withholding some documents. Justice Sanders was also awarded 37.5% of his attorney fees. The Supreme Court essentially affirmed the trial court decision – but in a wide ranging opinion of its own.

The aspect of the ruling that will probably have the most far-reaching effect on Washington agency responses to public records requests is the Supreme Court’s ruling that an agency must not only specify the exemption on which the agency relies, but also provide for each document a “brief explanation of how the exemption applies to the record withheld.” Just specifying the exemption, the Court reasoned, would make the explanation requirement of RCW 42.56.210(3) superfluous.

The Court, however, did not agree with Justice Sanders that the failure of the AGO to adhere to this explanation requirement acted to waive the exemption. But it did affirm the trial court’s addition of a $3 per day penalty – in addition to the $5 per day underlying penalty – for not providing the explanation. The Court also ruled that the additional time when documents are withheld because of pending litigation, counts as additional days of penalty. The Court noted that those additional days in court are days, just like any other, where the requestor does not have access to documents that should have been released.