American Civil Liberties Union of Washington v. Blaine School Dist. No. 503

• Decision Date: 12 April 1999
• Docket Number: No. 41948-0-I,41948-0-I
• Citation: 95 Wn.App. 106,975 P.2d 536
• Court: Washington Court of Appeals
• Parties: , 133 Ed. Law Rep. 1062 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, a Washington nonprofit corporation, Appellant, v. BLAINE SCHOOL DISTRICT NO. 503, a Washington municipal corporation, Respondent.

Page 536

95 Wn.App. 106

975 P.2d 536, 133 Ed. Law Rep. 1062

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, a Washington nonprofit corporation, Appellant, v. BLAINE SCHOOL DISTRICT NO. 503, a Washington municipal corporation, Respondent.

No. 41948-0-I.

Court of Appeals of Washington Division 1.

April 12, 1999.

Daniel Alan Raas, Raas Johnsen & Stuen, Bellingham, Laura Jean Buckland, Scott A.W. Johnson, Stokes Eitelbaach & Lawrence, Seattle, for Appellant.

John Timothy Slater, Bellingham, William Robert Hickman, Reed McClure, Seattle, for Respondent.

COLEMAN, J.

After a previously successful appeal in which this court held that the Blaine School District's refusal to mail several documents to the ACLU's Seattle office was not based on a reasonable interpretation of the public records act, ¹ the ACLU now appeals the trial court's penalty and fee determinations made on remand. Despite this court's earlier finding that the District's interpretation of the act was not reasonable, the trial court found that the District acted in good faith and The court also substantially reduced the ACLU's attorney fees and limited cost recovery to statutory costs. The trial court made an independent determination of the reasonableness of the claimed hours and hourly fee in awarding attorney fees at trial, and we affirm this award. The trial court, however, failed to follow the same procedure in its award of attorney fees on appeal and remand, and we therefore reverse that award. The court also erred as a matter of law in limiting the award of costs to those items permitted by RCW 4.84.010, because Washington's public records act provides for recovery of "all costs."

imposed a minimum penalty. For reasons set forth in this opinion, a minimum penalty is not appropriate under the circumstances of this case.

FACTS

In December 1995, the Seattle office of the American Civil Liberties Union sent a written request for public records to the Blaine School District office. The ACLU requested copies of the District's disciplinary policy and the suspension notices for several Blaine High School students who were suspended shortly after participating in a protest walk-out. Even though the ACLU was willing to pay for the costs of copying and mailing the records, the District refused to mail the records. Instead, the District offered to make the records available for review and copying at its office in Blaine during regular business hours. In a second request, the ACLU explained that it was unable to travel to Blaine to inspect and copy the records itself and again asked the District to copy and mail the requested documents. The District continued to refuse to mail what eventually amounted to 13 pages of documents. As its sole justification for refusing to mail the documents, the District relied on its belief that Washington's public records act did not require an agency to mail responses to document requests.

The ACLU sued the District under the public records act, seeking an order finding that the act requires a government agency to mail information when requested. Because there were no factual disputes, the District and the ACLU filed cross motions for judgment on the pleadings. The trial court ruled that the public records act did not require the District to mail the requested records.

This court reversed, finding that the act's legislative intent required agencies to give inquirers full assistance in accessing public records. ACLU v. Blaine Sch. Dist. 503, 86 Wash.App. 688, 696, 937 P.2d 1176 (1997). This court held that the act's purpose of facilitating access to public records, in combination with the mandate to liberally interpret the act, required the District under the particular facts of this case to mail the requested records to the ACLU. RCW 42.17.290; ACLU, 86 Wash.App. at 698, 937 P.2d 1176.

The case was remanded to the sound discretion of the trial court for a determination of the appropriate statutory penalty, attorney fees, and costs under RCW 42.17.340(4). ACLU, 86 Wash.App. at 698-99, 937 P.2d 1176. On remand, after briefing and oral argument by the parties, the trial court awarded the minimum statutory penalty of $5 per day for 577 days; total attorney fees for trial, appeal, and remand of $11,000; statutory attorney fee of $125; and costs limited to the statutory costs of $171. Except for the award of statutory attorney fees, the ACLU appeals each of the court's awards.

DISCUSSION

Standard of Review

Judicial review of agency actions challenged under the public records act is de novo. RCW 42.17.340(3); Progressive Animal Welfare Society v. University of Washington, 125 Wash.2d 243, 252, 884 P.2d 592 (1994) (hereinafter PAWS ). The import and effect of the act upon state agencies is summarized nicely by the PAWS court.

The Public Records Act "is a strongly worded mandate for broad disclosure of public records". Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). The Act's disclosure provisions must be liberally construed, and its exemptions narrowly construed. RCW 42.17.010(11); RCW 42.17.251; RCW 42.17.920. Courts are to take into account the Act's policy "that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others". RCW 42.17.340(3). The agency bears the burden of proving that refusing to disclose "is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records". RCW 42.17.340(1). Agencies have a duty to provide "the fullest assistance to inquirers and the most timely possible action on requests for information". RCW 42.17.290.

PAWS, 125 Wash.2d at 251-52, 884 P.2d 592.

Penalty

The ACLU argues that under the particular facts in this case, the court's award of the statutory minimum penalty of $5 per day was an abuse of discretion. An abuse of discretion occurs when a court's decision is manifestly unreasonable or is based on untenable grounds or untenable reasons. Doe I v. Washington State Patrol, 80 Wash.App. 296, 302, 908 P.2d 914 (1996). The public records act mandates that the court award a penalty no less than $5 and no more than $100 per day for each day the requester was denied the right to inspect or copy the public record. RCW 42.17.340(4). While the act states that the court has discretion in fixing the level of the penalty, prior appellate decisions have established guidelines to assist courts in fixing an appropriate penalty and have stated that " ' "strict enforcement" of fees and fines will discourage improper denial of access to public records.' " PAWS, 125 Wash.2d at 272, 884 P.2d 592 (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123, 140, 580 P.2d 246 (1978)).

The public policy behind the act is clearly based on the public's right to the full disclosure of public documents. RCW 42.17.251. Agencies are sometimes placed in a difficult position concerning the disclosure of documents that may violate a third party's right to privacy, rights under another law, or rights under the attorney-client privilege or work product doctrine. Yet, even when agencies are faced with the conflicting interests of complying with the act and protecting third party rights, the act requires that courts impose penalties for the wrongful withholding of documents. See, e.g., Lindberg v. Kitsap County, 133 Wash.2d 729, 747, 948 P.2d 805 (1997) (affirming the trial court's minimal penalty award because the agency had a good faith belief that the requested records were protected by copyright law). Although penalties will be assessed independently of whether the agency acted in bad faith, a principal factor in setting a penalty is the presence or absence of the agency's good faith. Amren v. City of Kalama, 131 Wash.2d 25, 37-38, 929 P.2d 389 (1997).

The ACLU claims that the court's imposition of a minimum penalty on the basis that the District exhibited good faith in refusing to mail the requested documents conflicts with this court's ruling that "[t]he District's refusal to mail the documents in response to the specific request to do so and its insistence that the requester travel to Blaine to inspect the records are not based on a reasonable interpretation of the act." See ACLU, 86 Wash.App. at 695, 937 P.2d 1176. Despite this holding, the trial court found that the District acted in good faith when it refused to mail the documents to the ACLU. The trial court then, at least partially, based its penalty award on its finding of good faith.

On appeal, the District argues that this court's previous statement that the District's interpretation of the act was not reasonable is dicta and does not make sense when read in combination with this court's finding that the language of the act requiring agencies to honor requests received by mail was ambiguous. See ACLU, 86 Wash.App. at 694, 937 P.2d 1176. A statute is ambiguous when it is susceptible to more than one reasonable interpretation. Limstrom v. Ladenburg, 136 Wash.2d 595, 606, 963 P.2d 869 (1998). Thus, the District argues that since this court found that the statute was ambiguous regarding whether agencies were required to mail requested documents, its interpretation that it was not required to mail the documents was not unreasonable. The District is mistaken. This court's prior opinion is not internally inconsistent. Rather, it stands for the proposition that while the statute requiring agencies to honor requests received by mail may be ambiguous on its face, the District's interpretation of the act was not reasonable when viewed in light of the particular facts in this case and when the statute is read in the context of the act as a whole.

On remand, the ACLU presented the trial court with a copy of the District Superintendent's letter to a parent explaining why the ACLU's document request was denied. This letter provides further support that the District refused to mail the...