By Gene Barton

You may have heard that neither Armen Yousoufian nor The Seattle Times was very happy with the $294,780 Yousoufian was awarded on August 26 by King County Superior Court Judge Michael Hayden in Yousoufian’s Public Disclosure Act (PDA) suit against King County.

This news preceded the publication of -- but not the deadline for -- the September issue of the Bar Bulletin in which Michele Earl-Hubbard wrote about the growing trend of increasing public access to court records. The Yousoufian decision also signals that the trend is evident with respect to access to all public records, although the press believes that wheel is grinding too slowly.

Although the fine and legal fees assessed against King County amount to the largest PDA award in state history, Yousoufian lamented that it was barely enough to cover his legal and other expenses. The Times, in an August 31 editorial, said Yousoufian and his attorneys had “good reason” to fear that the award lacks “the teeth to make King County and other agencies take careful notice” of their responsibilities under the Act and the failure to take those responsibilities seriously.

The fine levied by Judge Hayden amounted to $15 per offense, per day (or $123,780) that the county withheld records from Yousoufian on his 1997 request for records related to the county’s anticipated economic benefit from the construction of Qwest Field, nee Seahawks Stadium. Judge Hayden tacked on another $171,000 in attorney fees on top of almost $89,000 in fees and costs that had been awarded in 2001.

Judge Hayden’s award tripled the $5-a-day fine imposed by Judge Kathleen Learned in 2001. The case was before Judge Hayden on remand following the Supreme Court’s 2004 decision on Yousoufian’s appeal of Judge Learned’s ruling.1 The Court of Appeals had issued an earlier decision.2 The gist of the courts’ rulings was that Judge Learned had abused her discretion in imposing the minimum statutory fine of $5 a day. The statute, after all, provides that the amount of the award “shall be within the discretion of the court.”3

Judgment Days
The section of the PDA at issue in the case is RCW ¤ 42.17.340(4), which authorizes an award to “[a]ny person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record” and otherwise governs a trial court’s assessment of penalties for violations of the PDA. Allowable penalties range from $5 a day to $100 a day for each violation of the Act. In addition to the amount of the fine, also at issue on appeal was the number of violations committed by the county.

First, Judge Learned determined that the county, even though it eventually produced the records requested by Yousoufian, had violated the Act by delaying production. Second, she bundled the requested documents into groups, rather than assessing a fine on a per-document basis. This was a key element of her decision, which was affirmed by both the Court of Appeals and the Supreme Court, because it served to substantially reduce the fines that both she and Judge Hayden imposed.

Yousoufian asserted that the county had wrongfully withheld 228 separate records and should be fined on that basis. At $5 per day, the fine would have amounted to $1,534,855 under Yousou-fian’s theory, and $30,697,100 at $100 per day.4 Both appellate courts disagreed. Judge Learned found that such an award would result “in a penalty totally out of proportion to the County’s negligence, the harm done thereby, and any amount needed for deterrence.”5 To ameliorate the impact, Judge Learned arranged the withheld records into 10 groups based on time of production and subject matter. In addition, she subtracted 527 days from the calculation for six groups of records based on Yousoufian’s delay in filing suit.6 Otherwise, Judge Learned held, “inclusion of this time would encourage future plaintiffs to delay in filing suit in order to incur additional penalties.”7 The Court of Appeals affirmed Judge Learned on this point, but the Supreme Court reversed.

Finally, Judge Learned did the math and, according to both courts, abused her discretion in doing so. She calculated a penalty period totaling 5,090 days and assessed the minimum $5-per-day fine, totaling $25,440.8

In affirming the bundling of records, the Supreme Court looked to the language of the Act and its legislative history. The Court of Appeals had agreed with the county “that an interpretation of the statute requiring penalties for every record would lead to absurd results contrary to the spirit of the PDA,” stating that “[t]he literal meaning of RCW 42.17.340(4) contemplates a penalty for each day a record request is unlawfully denied; the statute does not require the penalty to be multiplied by the number of records responsive to a single request.”9

Size Doesn’t Matter
The Supreme Court first found that the trial court is obligated to assess a penalty if a violation is found, holding that the opposite conclusion would be contrary to the Act’s language setting a minimum fine for each violation.10 The court then found the following language in RCW ¤ 42.17.340(4), relating to the assessment of penalties, to be ambiguous: “for each day that [the plaintiff] was denied the right to inspect or copy said public record.”11 Citing the Act’s liberal construction rule, the public policies underlying the Act and its earlier determination that “[w]hen determining the amount of the penalty to be imposed ‘the existence or absence of [an] agency’s bad faith is the principal factor which the trial court must consider,’” the court held:

[T]he PDA’s purpose . . . is better served by increasing the penalty based on an agency’s culpability than it is by basing the penalty on the size of the plaintiff’s request.12

The court looked at the statutory language again to reverse Judge Learned and the Court of Appeals regarding the number of days that the county’s violations persisted and, in so doing, effectively overruled Doe I v. Washington State Patrol, 80 Wn. App. 296, 908 P.2d 914 (1996). The Supreme Court held that the language of RCW ¤ 42.17.340(4), quoted above, while ambiguous in one context, “unambiguously requires a penalty ‘for each day.’”13

The PDA does not contain a provision granting the trial court discretion to reduce the penalty period if it finds the plaintiff could have achieved the disclosure of the records in a more timely fashion. While the trial court could utilize its discretion by decreasing the per day penalty during this period, the only limitation on the number of days comprising the penalty period is the five-year statute of limitations.14

Finally, the Supreme Court agreed with the Court of Appeals “that assessing the minimum penalty of $5 a day was unreasonable considering that the county acted with gross negligence.”15 The court’s decision, however, neither explores Judge Learned’s motives for assessing only the minimum fine nor provides any insight into the reasoning behind the court’s conclusion that it was too little and, in fact, an abuse of discretion. This likely was because the county “concede[d] that a penalty greater than the minimum was justified here.”16

Justice Sanders’ dissent was vociferous on this point, however. He favored both a “per record penalty” and a maximum fine. “[A] penalty at or near $100 per day is not only necessary but also required to punish King County’s misconduct.”17 Disregarding the potential effect on county programs or the taxpayers, Justice Sanders noted that

“[e]ven assuming King County was penalized the entire amount of what Mr. Yousoufian claimed to be the maximum allowable fine,” i.e., more than $30 million, “it would still amount to only one percent of King County’s 2003 operating budget.”18

Yousoufian’s attorneys have indicated that they may appeal again (and by the time you read this, they may have done so). Stay tuned. n

1 Yousoufian v. The Office of King County Executive, 152 Wn.2d 421 (2004). Only four other justices signed off in full on the opinion authored by Chief Justice Alexander. Justice Fairhurst concurred separately. Justices Madsen, Sanders and Chambers dissented in part in separate opinions.

2 114 Wn. App. 836 (2003).

3 RCW ¤ 42.17.340(4).

4 152 Wn.2d at 427.

5 Id.

6 Id. at 427--28.

7 Id. at 428.

8 Id. at 428 & nn.6--7. As the Supreme Court noted, Judge Learned made a $10 mathematical error.

9 Id. at 431--42 (quoting 114 Wn. App. at 848).

10 Id. at 432--33 (citing Amren v. City of Kalama, 131 Wn.2d 25, 929 P.2d 389 (1997); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002)).

11 Id. at 434.

12 Id. at 435--36 (quoting Amren, 131 Wn.2d at 35--36). Based on the nature of the issues presented to it, however, the court noted that “the issue of whether the trial court has the discretion to assess penalties per record if it should so choose is not before us.” Id. at 436, n.9. The court further noted that, to dissuade individual record requests, the trial court still could “determine that multiple requests are actually one single request based on the subject matter and timing of the requests.” Id., n.10. Judge Learned’s method of calculation merged the two considerations. Although Yousoufian made two requests, the records were bundled into 10 groups and the fine was based on the number of groups, not the number of requests. The Supreme Court did not reach the question of whether this was an abuse of discretion, because the county did not appeal this aspect of Judge Learned’s decision. Id. at 438--39.

13 Id. at 437.

14 Id. at 437--38.

15 Id. at 439.

16 Id. at 438. The Court of Appeals, however, held:

Although we afford great deference to the trial court in this matter, we are convinced that the trial court’s award of the minimum statutory penalty must be reversed. While the trial court stopped short of finding bad faith in the sense of intentional nondisclosure, the court’s findings reflected strong disapproval with what the court saw as gross negligence by the County in responding to Yousoufian’s public records request. Those findings do not support the court’s imposition of a minimum penalty of $5 per day.

114 Wn. App. at 853--54.

17 152 Wn.2d at 448 (Sanders, J., dissenting).