In an unpublished decision, the Washington Court of Appeals held that an attorney need not appear as counsel of record in a Public Records Act (“PRA”) action for legal services to be compensable, as long as the services were reasonably incurred in litigating a matter on which the PRA plaintiff prevailed. The court also found that the trial court did not abuse its discretion in awarding the plaintiffs only a fraction of the requested penalties for withholding of records. Strand v. Spokane County.

Concerned that the Spokane County Assessor had been overvaluing their residential property, the Strands submitted a public records request to the County, asking for the basis of its valuation. Despite the County’s production of nearly 1,000 pages of responsive documents, the Strands believed records were being withheld. They sued, alleging delayed production and wrongful withholding. The lawsuit triggered a further review by the County of its earlier response, which revealed that four responsive documents had not been produced. The Strands requested attorney fees in addition to the maximum statutory penalty of $100 per day the records were withheld, on a per page basis.

The trial court denied the request for attorney fees because the plaintiffs had represented themselves pro se throughout the proceedings. Although Ms. Strand had consulted with a lawyer, the lawyer had never appeared as counsel of record in the action. The trial court therefore found no basis for an award of attorney fees.

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As we reported here on January 31, the Washington Supreme Court heard argument on the reach of the Public Records Act (PRA) in the digital age. On September 29, 2011, the Court decided this case (Neighborhood Alliance of Spokane County v. Spokane County). The Supreme Court found that Spokane County violated the PRA by not searching the hard drive of a computer that had been recently used by the person who generated a specifically requested document.

The document being sought was a seating chart of the County’s Building and Planning Department where the names of the new occupants (one of whom was the son of a County Commissioner) had allegedly been placed on the seating chart some time before the employment selection process was even completed. The date that the seating chart was first created was therefore crucial. But the County made no effort to look for the document on the hard drive of the old computer just recently used by the person who had generated the chart. The Court held that a search of the digital hard drive on the old computer was mandatory in these circumstances.

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