Bricker v. State

• Decision Date: 20 September 2011
• Docket Number: No. 40064–2–II.,40064–2–II.
• Court: Washington Court of Appeals
• Parties: Ken BRICKER, Appellant and Cross–Respondent,v.STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, and Judy Schurke, Director, Dept. of Labor & Industries, Respondents and Cross–Appellants.

164 Wash.App. 16

262 P.3d 121

Ken BRICKER, Appellant and Cross–Respondent,

v.STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, and Judy Schurke, Director, Dept. of Labor & Industries, Respondents and Cross–Appellants.

No. 40064–2–II.

Court of Appeals of Washington, Division 2.

Sept. 20, 2011.

Christopher William Bawn, Attorney at Law, Olympia, WA, for Appellant/Cross–Respondent.John S. Barnes, Office of the Attorney General, Olympia, WA, Anastasia R. Sandstrom, Attorney General's Office, Seattle, WA, for Respondents/Cross–Appellants.QUINN–BRINTNALL, J.

[164 Wash.App. 18] ¶ 1 After the Department of Labor and Industries (L & I) conceded that it had failed to respond in a timely manner to Ken Bricker's public records request, the trial court imposed a per diem penalty of $90 for the untimely disclosure of 16 documents and a per diem penalty of $15 for the untimely disclosure of 3 additional documents, for a total penalty of $29,445. Bricker appeals the trial court's refusal to impose a per document penalty in addition to the per diem penalty, and L & I cross appeals the amount of the per diem penalty. Because the trial court's award did not constitute an abuse of discretion, we affirm.

FACTS

¶ 2 Donald Ulmer, an electrical inspector for L & I, inspected a house Bricker owned in July 2007. Bricker was a former contractor. After the inspection, Ulmer cited Trinity Construction for electrical violations related to bathroom fixtures. When Trinity informed Ulmer that Bricker had done the work, Ulmer reissued the citations to Bricker. The citations alleged that Bricker failed to obtain or post work permits, failed to request inspections, and covered or concealed installations prior to inspection.

¶ 3 Bricker first called Ulmer to discuss the citations. In a certified letter dated October 1, 2007, he subsequently contested the citations and asked for information about them. Specifically, Bricker requested “a copy of all permits issued and copies of inspections and correction requests by all inspectors on that residence.” Clerk's Papers (CP) at 81. Bricker's letter did not refer to the Public Records Act (PRA), ch. 42.56 RCW.

¶ 4 Ulmer read the letter and put it in Bricker's file. He assumed that Bricker would receive the requested records through his appeal of the citations. Ulmer did not provide Bricker with any records nor did he forward Bricker's request to L & I's public records unit or his supervisor. Although L & I usually trains new employees on public records requirements, Ulmer had received no such training. Bricker allegedly made additional phone calls to Ulmer, Ulmer's supervisor, Dene Koons, and Koons's supervisor, Reuel Paradis, in unsuccessful attempts to get the information he had requested in his October letter. (These employees did not remember Bricker's phone calls.) Bricker appealed the citations, noting in his appeal letters that L & I had never responded to his requests for information.

¶ 5 In a further attempt to gain the requested information, Bricker hired an attorney and filed a lawsuit under the PRA on July 22, 2008. L & I's public records unit responded by providing to Bricker 16 responsive documents on August 8, 2008. On November 7, 2008, L & I provided 3 signed versions of documents produced on August 8. Bricker's pro se appeal of his citations was successful; the administrative law judge voided the citations after holding that no permit or inspection was required for his work.

¶ 6 After L & I conceded liability in Bricker's PRA action, the trial court held a penalty hearing. One employee testified that L & I issued the citations to Bricker in the mistaken belief that he was “covering” for Trinity, which already had received several citations. 2 Report of Proceedings (RP) at 252. L & I employees insisted, however, that regardless of who did the work, they believed it warranted citations.

¶ 7 In an oral ruling, the trial court explained that although it found no intentional noncompliance with public records requirements and no bad faith in L & I's actions, the key factor was the lack of governmental accountability. The court found no mitigating factors to excuse L & I's lack of compliance from October 1, 2007 ¹ to August 8, 2008, and stated that a penalty of $90 per day and per document was appropriate for the 16 documents withheld during that time. The court imposed a penalty of $15 per day and per document for the 3 documents disclosed on November 7, 2008.

¶ 8 After L & I submitted proposed findings of fact and conclusions of law and a judgment summary of $537,615, the trial court reconsidered its decision and, in a letter ruling, informed the parties that it would not impose a per document penalty. The court noted that it had been greatly troubled by the amount of the earlier penalty, which had been based on its incorrect application of the “ Yousoufian factors.” CP at 258. The court explained that it would impose a per diem penalty only:

The purpose of imposing a penalty under the [PRA] is to promote public access to public records; to encourage, and demand, governmental transparency. It is not, in this court's opinion, meant as compensation for damages. Further, that purpose is best served by imposing a penalty at the high end of the possible range, as the court did in this case in part. Under the facts presented here, there is no appropriate purpose that would be served in imposing a per day and per document penalty.

CP at 259. The court attached a revised judgment summary of $29,445 as well as revised findings of fact and conclusions of law, and it awarded Bricker attorney fees in an amount to be determined.

¶ 9 Bricker now appeals the trial court's refusal to impose a per document penalty, and L & I cross appeals the trial court's decision to set the per diem penalty at $90.²

ANALYSIS

Per Document Penalty

¶ 10 We review a trial court's award of penalties under the PRA for an abuse of discretion. Yousoufian v. Office of Ron Sims, 168 Wash.2d 444, 458, 229 P.3d 735 (2010) ( Yousoufian V); West v. Port of Olympia, 146 Wash.App. 108, 122, 192 P.3d 926 (2008), review denied, 165 Wash.2d 1050, 206 P.3d 657 (2009). Determining a PRA penalty involves two steps: (1) determining the number of days the party was denied access and (2) determining the appropriate per day penalty, depending on the agency's actions. Yousoufian V, 168 Wash.2d at 459, 229 P.3d 735. The applicable statutory provision provides:

Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record. RCW 42.56.550(4).³ The PRA does not otherwise specify how to calculate a penalty. Yousoufian V, 168 Wash.2d at 459, 229 P.3d 735.

¶ 11 The trial court eliminated its initial per record penalty after reviewing the relevant case law, which included Yousoufian v. Office of Ron Sims, 152 Wash.2d 421, 98 P.3d 463 (2004) ( Yousoufian II). Yousoufian II dealt with the disclosure and penalty requirements set forth in the former Public Disclosure Act (PDA), ch. 42.17 RCW. 152 Wash.2d at 429–30, 98 P.3d 463. Former RCW 42.17.340(4) (1992) was the penalty statute then in effect and contained the same language now found in the PRA penalty statute, RCW 42.56.550(4). In discussing whether the Act requires a per record penalty, the Yousoufian II court referred first to former RCW 42.17.340(4) and then to a definitional statute in the PDA, stating that “ ‘[a]s used in this chapter, the singular shall take the plural and any gender, the other, as the context requires.’ ” 152 Wash.2d at 433, 98 P.3d 463 (alteration in original) (quoting RCW 42.17.020).

¶ 12 The Supreme Court determined that the reference in former RCW 42.17.340(4) to requiring a penalty for each day the plaintiff was denied the right to inspect or copy “said public record” was ambiguous because, in conjunction with RCW 42.17.020, the reference to “record” could be interpreted as singular or plural. Yousoufian II, 152 Wash.2d at 434, 98 P.3d 463. Accordingly, it was unclear whether courts should assess penalties for every “record” requested or whether they should assess penalties only for each request, regardless of the number of records sought. Yousoufian II, 152 Wash.2d at 434, 98 P.3d 463. The court held that the PDA's purpose of promoting access to public records was better served by increasing the penalty based on the public agency's culpability rather than on the size of the plaintiff's request. Yousoufian II, 152 Wash.2d at 435, 98 P.3d 463. In Yousoufian II, the per document penalty could have added up to millions of dollars, and the court considered it unlikely that the legislature intended to authorize such a penalty where the agency did not act in bad faith. 152 Wash.2d at 435–36, 98 P.3d 463. Consequently, the court held that the PDA did not require the assessment of per day penalties for each requested record. Yousoufian II, 152 Wash.2d at 436, 98 P.3d 463.

¶ 13 Bricker argues that this analysis does not control here because, as recodified, the PRA does not contain a definitional provision with the “singular shall take the plural” language. See RCW 42.56.010. L & I responds that similar language is found in RCW 1.12.050, which provides in part that “words importing the plural may be applied to the singular,” and that the legislature intended this principle to apply to the PRA without expressly including it therein. See Daly v. Chapman, 85 Wash.2d 780, 782, 539 P.2d 831 (1975) (legislature is presumed to be aware of its own prior enactments). Furthermore, recent PRA...