In Wade’s Eastside Gun Shop, Inc. v. Department of Labor & Industries, the Washington Supreme Court holds that trial courts have discretion to impose Public Records Act penalties on a “per page” basis. The Court considered a number of factors in affirming the trial court’s considerable discretion. Penalties are assessed for withholding “such public record,” and the broad definition of a “public record” includes any “writing” (which, in turn, includes “all papers”). “A single page fits within the plain language of this broad definition.” The PRA also expressly provides that the penalty determination “shall be within the discretion of the court.” Finally, modern public records may be difficult to segregate under any bright-line rule (e.g., metadata, compiled transcripts of individual text messages, etc.). Ultimately, the Court reasoned, trial courts need flexibility “to respond appropriately to PRA violations in this age of rapidly advancing technology.” Under Wade’s, a trial court will continue to enjoy broad discretion to apply penalty formulas that result in a penalty amount that the court believes is appropriate to a particular PRA violation.
The Court in Wade’s also held that Department of Labor & Industries investigation records fall outside of the court-made “categorical” exemption to disclosure of records in an open and active police investigation file. Unlike criminal investigations where the early release of information might “impede the apprehension of an as-yet-unknown suspect,” employers subject to L&I civil investigations already know they are being investigated. There is little risk to losing the suspect. Instead of relying on the “categorical” exemption, L&I must prove that withholding the record is essential to effective law enforcement on the facts of the case under RCW 42.56.240(1). L&I must similarly explain why the exemption applies in its initial denial statement to the PRA requestor.
The Court concluded by detailing several ways L&I improperly delay releasing records after providing third party notice. Providing 15 days for a third party to obtain a court order to enjoin a record’s release was too long, in part, because L&I delayed many months in initially notifying the third party. Extending that injunction window without a court order as a “courtesy” to third parties when L&I believed the records were not exempt was also improper. Finally, L&I should have been ready to release the records on the day the trial court compelled disclosure. Absent temporary relief for time to appeal, a trial court may assume that the agency should have been diligently preparing the records for immediate release. Here, L&I incurred nearly $150,000 in penalties for the 9-day period starting with the trial court’s order compelling release and ending with the agency’s final production.