Arthur West continues his efforts to provide Washington’s appellate courts with the opportunity to define the scope and breadth of the Public Records Act. Rather than keep all the fun for itself, the Supreme Court graciously shared the opportunity to decide Mr. West’s latest appeal with Division II, transferring Mr. West’s request for direct review to the lower court. Division II affirmed the trial court in an unpublished opinion, West v. Gregoire, No. 42779-6-II (Sep. 11, 2012).

Apparently interested in reviewing documents relating to the Washington State Association of Counties, Mr. West submitted a memo to the Governor with the title “RE: ATTENDANCE AT SECRET SHADOW GOVERNMENT EVEN, AKA (WSAC 2009 ANNUAL CONFERENCE).” (Emphasis in Original). The Governor’s office did not immediately recognize that the memo contained a request for public records, an error Mr. West pointed out two weeks after submitting the memo. The Governor’s office offered to provide an estimate of response time within two days, but Mr. West stated that he had a litigation deadline six days away. The Governor’s office emailed him 57 pages of responsive documents the next day, then provided an additional 299 pages of documents two weeks later.

Continue Reading PRA Inquiries into Washington State’s “Shadow Governments”

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.

Continue Reading Washington Court Ruling Encourages Installment Responses to Records Requests

Division II of the Washington Court of Appeals has upheld a trial court’s decision to group documents into two categories, thereby lowering the penalties against the Washington Dept. of Labor and Industries (L&I) from over to $500,000 to approximately $30,000. Bricker v. Washington State Department of Labor & Industries, __ Wn.App. __, 2011 WL 4357760 (September 20, 2011).

Ken Bricker is a former contractor who owned a home at which he did his own electrical work. An L&I inspector issued a citation related to the work. Bricker appealed, and sent a letter to the inspector, in which the Public Records Act (PRA) was not mentioned, asking for “a copy of all permits issued and copies of inspections and correction requests by all inspectors at that residence.” The L&I inspector filed the letter, assuming that the records would be made available during the contested hearing over the citation.

Continue Reading Grouping Documents and Lowering Penalties upon Reconsideration is Upheld by the Washington Court of Appeals

A recent Court of Appeals decision may mark the end of a decade-long saga involving a Washington county’s violation of the Washington Public Records Act (PRA). Armen Yousoufian had found earlier success with the courts and had been awarded $371,340 for King County’s failure to comply with the PRA. See Yousoufian v. Office of Ron Sims, et al., 168 Wn.2d 444, 229 P.3d 735 (2010). The most recent decision in the long line of Yousoufian decisions found that the County was responsible for post-judgment interest, retroactive to the date of the initial judgment against the County in August 2005.

The decision by the Court of Appeals is not published, and therefore is not binding precedent. However, it does provide legal framework for similar claims arising out of a PRA judgment. In addition, the Court awarded further attorney fees to Yousoufian arising from his successful appeal.

Yousoufian v. Office of Ron Sims, __ Wn.2d __, __ P.3d __ (March 25, 2010), is the fifth appellate court decision in a public records dispute that began with a request for records related to a proposed new sports stadium in 1997. The Washington Supreme Court recalled the mandate it had already issued following its 2009 opinion, 165 Wn.2d 439, 200 P.3d 232 (Jan. 15, 2009), and now modifies and affirms the Court of Appeals decision found at 137 Wn.App. 69, 151 P.3d 243 (2007). The final issue was the amount of daily penalties a trial court should award for King County’s violations of the Public Records Act, ch. 42.56 RCW. In this 5-4 opinion, the majority laid out a set of seven nonexclusive “mitigating factors” and nine nonexclusive “aggravating factors” for trial court consideration in determining the appropriate daily penalty from the mandatory statutory range of $5-$100. RCW 42.56.550. The chief considerations are the compliance effort by the agency and the impact of the agency’s action—with the higher penalties reserved for those cases in which some form of “sting” appears necessary to force the agency to pay attention to its disclosure obligations.

This round of appeals began when the trial court decided the daily penalty should be $15. The appellate court reversed, and remanded for a higher daily penalty determination by the trial court, whose discretion is virtually unlimited by statute. The Supreme Court affirmed the Court of Appeals, but with a twist. In a highly unusual decision criticized by the dissent, the majority declined to issue yet another mandate to the trial court, but instead determined the daily penalty itself — $45 per day. The resulting penalty — $371,000.00 -‑ is the highest PRA judgment on record in this State. As the dissent notes, it is not readily apparent how the Supreme Court applied its factors to come up with the $45 daily penalty. While the majority’s goal was to guide trial courts and thus limit the number of PRA appeals, it remains to be seen whether the nonexclusive 16-factor approach will achieve that end.

Update 7/5

What does this mean for other PRA cases?  If you have a case at the penalty stage, I’d probably seek a stay because unless the Court adopts the identical test,  if you do it now you’ll just have to do it again later.

Original Post

The Washington State Supreme Court has withdrawn its January Opinion in the long-running Yousoufian v. Office of Ron Sims case.  In that Opinion, the Supreme Court had ruled that the $124,000 Public Records Act penalty award against King County was too small.  The Opinion adopted 16 factors trial courts should use to set penalty amounts.  For more details on the Opinion, see this MRSC article.

Continue Reading Washington State Supreme Court Withdraws Yousoufian Opinion