the official blog of the evergreen freedom foundation

The Supreme Court of Washington has issued an important ruling in support of open, accountable government. Public agencies are liable for violations of the Public Records Act, and the court was looking at whether a $15 per day penalty was adequate in a case that has taken years to litigate.

 

Too often, citizens who find a legitimate violation of the PRA are forced to litigate, and the penalties imposed on the agency are too weak to deter future violations. The court's ruling today provides useful guidelines for determining how egregious an agency's violation was.

 

In 1997, Armen Yousoufian submitted a PRA request to the Office of the Executive of King County after Yousoufian heard King County Executive Ron Sims speak about a referendum election where voters would decide on whether to finance $300 million for a new football stadium. After years of litigation, a court found that King County had improperly withheld certain documents from Yousoufian. Courts have discretion to award penalties from $5 to $100 a day, depending on the agency's actions. A trial court awarded Yousoufian a $15 per day penalty -- a paltry sum in light of King County's actions and the years of litigation Yousoufian was forced to endure.

 

The decision today reviewed whether the $15 penalty was adequate, and what guidelines should be used to determine the severity of the penalty.

 

In a victory for open government, Justice Richard B. Sanders wrote that the trial court abused its discretion by imposing a penalty at the low end of the spectrum. The court remanded the case back to trial court with instructions to review the penalty in light of new criteria provided by the court. As Justice Sanders said, "A flea bite does little to deter an elephant."  

 

The Supreme Court said today that trial courts are to consider aggravating and mitigating factors to review an agency's action. Factors that can serve to mitigate the penalty are (1) the lack of clarity of the PRA request; (2) an agency's prompt response or legitimate follow-up inquiry for clarification; (3) good faith, honest, timely, and strict compliance with all the PRA procedural requirements and exceptions; (4) proper training and supervision of personnel; (5) reasonableness of any explanation for noncompliance; (6) helpfulness of the agency to the requestor; and (6) the existence of systems to track and retrieve public records.

 

Aggravating factors that increase a penalty are (1) a delayed response, especially in circumstances making time of the essence; (2) lack of strict compliance with all the PRA procedural requirements and exceptions; (3) lack of proper training and supervision of personnel and response; (4) reasonableness of any explanation for noncompliance; (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA; (6) dishonesty; (7) potential for public harm, including economic loss or loss of governmental accountability; (8) personal economic loss; and (9) a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.

 

Justices Susan Owens and Barbara A. Madsen dissented, along with Justice Pro Tem Karen G. Seinfeld. Chief Justice Alexander concurred with the result, but dissented from the majority's direction to impose a penalty at the high end of the spectrum.