WA Supreme Court: Yousoufian Round 2 - $45 Per Day Penalty Appropriate for Public Records Violation (Guest Blogger: David Norman)
Yousoufian v. Sims As an added feature to the Amateur Law Professor, we have decided to take the guest-blogger route. Yes, its true. We here at The Amateur Law Professor don't ACTUALLY know everything. We just try our best. When it comes to the Public Records Act, yours truly, while well versed in the act and having written extensively on it, knows someone who is even more familiar. David M. Norman is an associate at Allied Law Group, and has authored several supreme court, Court of Appeals, and trial briefs on the subject. David and Allied represented numerous newspapers, broadcasters, related trade associations, and non-partisan open government organizations as Amici in Yousoufian v. Office of Ron Sims. Allied Law Group is also active in Lawyers for Government Accountability, a round table of pro-open government attorneys (of which I am also a member).
The latest Yousoufian opinion establishes the standard by which a trial court determines penalties under the Public Records Act, ch. 42.56 RCW. The case began in 1997, when Armen Yousoufian made a PRA request to King County for public records related to a then-upcoming referendum that would ask voters whether the public should finance the construction of what is now Qwest Field. The unchallenged findings of fact established that, in handling Mr. Yousoufian’s request, King County had failed to meet its obligations under the PRA in almost every conceivable way. For example,
"[T]he county told Yousoufian that it had produced all the requested documents, when in fact it had not. The county also told Yousoufian that archives were being searched and records compiled, when that was not correct… [T]he county told Yousoufian that information was located elsewhere, when in fact that was not the case.”
2010 WL 1225083 *4. Despite the trial court finding that King County was “negligent” in responding to Mr. Yousoufian’s request “at every step of the way”, it awarded the minimum amount of $5 per day within the PRA’s $5 to $100 per day mandatory penalty entitled to a prevailing requestor. Id.
Eventually, after remand was ordered by the supreme court in 2004, the trial court increased the penalty amount to $15 per day, which totaled $123,780. Mr. Yousoufian again appealed the amount, and the supreme court again agreed, and remanded back to the trial court to recalculate the penalty amount in 2007. King County moved for discretionary review after the 2007 decision, and its motion was granted in 2008. In 2009, the supreme court issued an opinion in January that was later recalled. Oral argument was held yet again after the recall, and the Court issued likely its final opinion in the case in March of 2010.
The court’s opinion focuses on the second aspect of the two-part procedure for determining the appropriate penalty against an agency in a PRA case. Step one is to determine the number of days the requestor was denied access to their requested records. The number of denial days is largely a factual determination that is rarely ever at issue, and at this point was not at issue in Yousoufian. Step two is to determine the appropriate amount of penalty to be awarded to a prevailing requestor on the PRA’s mandatory $5 to $100 per day continuum.
In making its determination, the supreme court first recognized that a trial court must consider the entirety of the PRA’s penalty range, but at the same time concluded that it would be inappropriate for it mandate that a trial court start in the middle of the range—thus rejecting arguments raised by amici that a trial court should begin its penalty amount determination at $52.50 and then adjust upwards or downwards according to the unique facts of a given case. Id. at *10. Ultimately, the court adopted, as it had before, a multi-factor, highly-discretionary approach, comprised of a series of mitigating and aggravating non-exclusive factors that a trial court may consider in determining a penalty award. The court was particularly careful in emphasizing a trial court’s discretion on the issue, and pointed out that the following list of factors “are offered only as guidance” and also that “no one factor should control.” Id. at *11.
The mitigating factors—i.e., those that would tend to lower the penalty amount—are:
• A lack of clarify in the PRA request; • The agency's prompt response or legitimate follow-up inquiry for clarification; • The agency's good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions; • Proper training and supervision of the agency's personnel; • The reasonableness of any explanation for noncompliance by the agency; • The helpfulness of the agency to the requestor; and • The existence of agency systems to track and retrieve public records.
Id. at *10.
The aggravating factors—i.e., those would tend to increase the penalty amount—are:
• A delayed response by the agency, especially in circumstances making time of the essence; • Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions; • Lack of proper training and supervision of the agency's personnel; • Unreasonableness of any explanation for noncompliance by the agency; • Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency; • Agency dishonesty; • The public importance of the Issue to which the request is related, where the importance was foreseeable to the agency; • Any actual personal economic loss to the requestor resulting from the agency's misconduct, where the loss was foreseeable to the agency; • A penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.
Id. at *11.
Instead of risking yet another trip through the trial court and the court of appeals, the supreme court applied the above factors to conclude that a $45 per day penalty against King County was appropriate in Yousoufian. However, in doing so, the Court emphasized that an appellate court determining the penalty should definitely be the exception to the rule, and that if not for the lengthy and tortured procedural history of the case, it would have normally remanded back to the trial court. Id.
From the perspective of a requestor under the PRA, the latest Yousoufian opinion is helpful but still problematic for several reasons. The opinion is helpful in that it distills several of the factors used by prior courts in determining an appropriate penalty amount, and now gives express approval by the state’s highest court to certain factors that a trial court may consider. There is some ambiguity in the court’s adoption of a “factor” test. However, aspects of the opinion suggest that some factors are in reality closer to elements. This appears to be particularly true as to the court’s discussion of the “deterrence” factor, where the court seems to say that a trial court must consider how the penalty it sets will deter future violations of the PRA - at least in cases with factors similar to Yousoufian.
The main problem with the opinion is that the court’s conclusion that $45 a day is an appropriate penalty for the actions of King County, which fell just short of willful and malicious non-compliance with the records request, is troubling. Arguably, the opinion precludes a requestor from receiving a penalty more than $45 in all but the most egregious - if not unprecedented — scenarios of agency intransigence [ed. - Dave's vocabulary is off the charts. Intransigence simply means failing to back off of an extreme position.]
Moreover, the penalty amount set by the court in Yousoufian seems to be at odds with the court’s own instruction to trial courts that they must consider the entire penalty range. Despite it's own precedent, the court did not address the vast majority of the factors it delineated and did not illustrate or apply mitigating factors that could justify a penalty falling closer to the minimum than the maximum amount against the most populous county in the state. In this regard, the court’s conclusion as to the appropriate amount seems to contravene the explicit purpose and policy of the PRA to liberally construe all provisions in favor of disclosure, compensate members of the public who are compelled to hire counsel to access non-exempt public records, and to punish agencies that violate the PRA.