Attorney General’s Office undercuts Public Records Act with Yousoufian amicus brief
Posted by Mike Reitz - September 22, 2009Rob McKenna, please call your office.
While the Attorney General is a self-proclaimed advocate of open government, his office is quietly undermining the cause in court.
The latest example came to our attention today. In January, the Washington State Supreme Court ruled in favor of Armen Yousoufian, who sought to obtain records about taxpayer funding used to build the Seahawks’ Qwest Field. Justice Richard Sanders, writing for the majority, said, “The unchallenged findings of fact demonstrate King County repeatedly deceived and misinformed Yousoufian for years.”
The Public Records Act allows courts to impose penalties on agencies that violate the Act, with the penalties ranging from $5 to $100 a day for documents wrongfully withheld. Justice Sanders laid out 16-factors for courts to consider when determining what penalty should be imposed. The court also suggested that trial courts should start at the midpoint of the penalty range, adjusting up or down based on the 16 factors.
The decision was hailed as a major breakthrough for the cause of open government, a push for courts to impose more serious penalties for PRA violations. Justice Sanders, however, was subsequently determined to have a conflict of interest in the case and the Supreme Court granted King County’s motion for a rehearing.
The State of Washington, though the Office of the Attorney General, filed an amicus curiae brief for the rehearing, which was argued this morning.
Astonishingly, the Attorney General’s brief attacks the Supreme Court’s January decision, particularly the guidance for imposing penalties. The Attorney General argued that penalties should be left entirely to the discretion of trial judges, and asked the Supreme Court to throw out its new multifactor test. The State also protested the presumption that penalties should start at the mid-point of the penalty range. (The brief claims that the State’s interest is simply in open government, ignoring fact that the State and its subdivisions will be subject to the penalties according to whatever framework is determined.)
Presented with the opportunity to ensure meaningful penalties, it’s disappointing the Attorney General’s Office instead played the role of chief apologist for agencies that are willing to ignore the Public Records Act.
Thoughts? Add Comment -
km said on Sep 23 2009 at 10:49am
Mike: Interesting situation.
Is it possible that, left to the trial judges discretion, the penalties might be even higher?
Mike Reitz said on Sep 23 2009 at 11:16am
Hard to generalize that broadly. Anecdotally, many cases I've seen -- and other open government folks agree -- trial courts tend to start at the lower range and work up. For example, in this Yousoufian case, it was seen as one of the most egregious violations of the PRA, and the judge only imposed a $15 a day penalty.
With or without the analytical framework the penalties will still be subject to a trial judge's discretion -- but having guidelines can assist courts and practitioners in the determination.